Appendix 5
Australian Treaty Series—Department of Foreign Affairs
Australian Treaty Series
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Australian Treaty Series 1985 No 4
DEPARTMENT OF FOREIGN AFFAIRS
CANBERRA
Treaty between Australia and the
Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries
in the area between the two Countries, including the area known as Torres
Strait, and Related Matters
(Sydney, 18 December 1978)
Entry into force: 15 February 1985
The maps annexed to this
Treaty as Annexes 2, 4, 6 and 7 are in the pocket inside the back cover of the
printed text.
AUSTRALIAN TREATY SERIES
1985
No. 4
Australian Government Publishing Service
Canberra
(c) Commonwealth of Australia 1995
TREATY BETWEEN AUSTRALIA AND THE INDEPENDENT STATE OF
PAPUA NEW GUINEA CONCERNING SOVEREIGNTY AND MARITIME BOUNDARIES IN THE AREA
BETWEEN THE TWO COUNTRIES, INCLUDING THE AREA KNOWN AS TORRES STRAIT, AND
RELATED MATTERS
AUSTRALIA AND PAPUA NEW
GUINEA,
DESIRING to set down their
agreed position as to their respective sovereignty over certain islands, to
establish maritime boundaries and to provide for certain other related matters,
in the area between the two countries including the area known as Torres
Strait;
RECOGNISING the importance
of protecting the traditional way of life and livelihood of Australians who are
Torres Strait Islanders and of Papua New Guineans who live in the coastal area
of Papua New Guinea in and adjacent to the Torres Strait;
RECOGNISING ALSO the
importance of protecting the marine environment and ensuring freedom of
navigation and overflight for each other's vessels and aircraft in the Torres
Strait area;
DESIRING ALSO to cooperate
with one another in that area in the conservation, management and sharing of
fisheries resources and in regulating the exploration and exploitation of
seabed mineral resources;
AS good neighbours and in
a spirit of cooperation, friendship and goodwill;
HAVE AGREED as follows:
PART 1
DEFINITIONS
Article 1
Definitions
1. In this Treaty-
(a) "adjacent coastal
area" means, in relation to Papua New Guinea, the coastal area of the
Papua New Guinea mainland, and the Papua New Guinea islands, near the Protected
Zone; and, in relation to Australia, the coastal area of the Australian mainland,
and the Australian islands, near the Protected Zone;
(b) "fisheries
jurisdiction" means sovereign rights for the purpose of exploring and
exploiting, conserving and managing fisheries resources other than sedentary
species;
(c) "fisheries
resources" means all living natural resources of the sea and seabed,
including all swimming and sedentary species;
(d) "free movement"
means movement by the traditional inhabitants for or in the course of
traditional activities;
(e) "indigenous fauna and
flora" includes migratory fauna;
(f) "mile" means an
international nautical mile being 1,852 metres in length;
(g) "Protected Zone"
means the zone established under Article 10;
(h) "Protected Zone
commercial fisheries" means the fisheries resources of present or
potential commercial significance within the Protected Zone and, where a stock
of such resources belongs substantially to the Protected Zone but extends into an
area outside but near it, the part of that stock found in that area within such
limits as are agreed from time to time by the responsible authorities of the
Parties;
(i) "seabed
jurisdiction" means sovereign rights over the continental shelf in
accordance with international law, and includes jurisdiction over low-tide
elevations, and the right to exercise such jurisdiction in respect of those
elevations, in accordance with international law;
(j) "sedentary species"
means living organisms which, at the harvestable stage, either are immobile on
or under the seabed or are unable to move except in constant physical contact
with the seabed or the subsoil;
(k) "traditional
activities" means activities performed by the traditional inhabitants in
accordance with local tradition, and includes, when so performed-
(i) activities on land, including
gardening, collection of food and hunting;
(ii) activities on water,
including traditional fishing;
(iii) religious and secular
ceremonies or gatherings for social purposes, for example, marriage
celebrations and settlement of disputes; and
(iv) barter and market trade.
In the application of this
definition, except in relation to activities of a commercial nature,
"traditional" shall be interpreted liberally and in the light of prevailing
custom;
(l) "traditional
fishing" means the taking, by traditional inhabitants for their own or
their dependants' consumption or for use in the course of other traditional
activities, of the living natural resources of the sea, seabed, estuaries and
coastal tidal areas, including dugong and turtle;
(m) "traditional
inhabitants" means, in relation to Australia, persons who-
(i) are Torres Strait Islanders
who live in the Protected Zone or the adjacent coastal area of Australia,
(ii) are citizens of Australia,
and
(iii) maintain traditional
customary associations with areas or features in or in the vicinity of the
Protected Zone in relation to their subsistence or livelihood or social,
cultural or religious activities; and
in relation to Papua New Guinea,
persons who-
(i) live in the Protected Zone or
the adjacent coastal area of Papua New Guinea,
(ii) are citizens of Papua New
Guinea, and
(iii) maintain traditional
customary associations with areas or features in or in the vicinity of the Protected
Zone in relation to their subsistence or livelihood or social, cultural or
religious activities.
2. Where for the purposes of this
Treaty it is necessary to determine the position on the surface of the Earth of
a point, line or area, that position shall be determined by reference to the
Australian Geodetic Datum, that is to say, by reference to a spheroid having
its centre at the centre of the Earth and a major (equatorial) radius of
6,378,160 metres and a flattening of 100/[divided by]29825 and by reference to
the position of the Johnston Geodetic Station in the Northern Territory of
Australia. That station shall be taken to be situated at Latitude 25o56'54.5515"
South and at Longitude 133o12'30.0771" East and to have a
ground level of 571.2 metres above the spheroid referred to above.
3. In this Treaty, the expression
"in and in the vicinity of the Protected Zone" describes an area the
outer limits of which might vary according to the context in which the
expression is used.
PART 2
SOVEREIGNTY
AND JURISDICTION
Article 2
Sovereignty
over islands
1. Papua New Guinea recognises
the sovereignty of Australia over-
(a) the islands known as Anchor
Cay, Aubusi Island, Black Rocks, Boigu Island, Bramble Cay, Dauan Island,
Deliverance Island, East Cay, Kaumag Island, Kerr Islet, Moimi Island, Pearce
Cay, Saibai Island, Turnagain Island and Turu Cay; and
(b) all islands that lie between
the mainlands of the two countries and south of the line referred to in
paragraph 1 of Article 4 of this Treaty.
2. No island over which Australia
has sovereignty, other than those specified in sub-paragraph 1(a) of this
Article, lies north of the line referred to in paragraph 1 of Article 4 of this
Treaty.
3. Australia recognises the
sovereignty of Papua Guinea over-
(a) the islands known as Kawa
Island, Mata Kawa Island and Kussa Island; and
(b) all the other islands that
lie between the mainlands of the two countries and north of the line referred
to in paragraph 1 of Article 4 of this Treaty, other than the islands specified
in sub-paragraph 1(a) of this Article.
4. In this Treaty, sovereignty
over an island shall include sovereignty over-
(a) its territorial sea;
(b) the airspace above the island
and its territorial sea;
(c) the seabed beneath its territorial
sea and the subsoil thereof; and
(d) any island, rock or low-tide
elevation that may lie within its territorial sea.
Article 3
Territorial
seas
1. The territorial sea boundaries
between the islands of Aubusi, Boigu and Moimi and Papua New Guinea and the
islands of Dauan, Kaumag and Saibai and Papua New Guinea shall be the lines
described in Annex 1 to this Treaty, which are shown on the map annexed to this
Treaty as Annex 2, together with such other portion of the outer limit of the
territorial sea of Saibai described in Annex 3 to this Treaty that may abut the
territorial sea of Papua New Guinea.
2. The territorial seas of the
islands specified in sub-paragraph 1(a) of Article 2 of this Treaty shall not
extend beyond three miles from the baselines from which the breadth of the
territorial sea around each island is measured. Those territorial seas shall
not be enlarged or reduced, even if there were to be any change in the
configuration of a coastline or a different result from any further survey.
3. The provisions of paragraph 2
of this Article shall not apply to that part of the territorial sea of Pearce
Cay which lies south of the line referred to in paragraph 1 of Article 4 of
this Treaty.
4. The outer limits of the
territorial seas of the islands specified in sub-paragraph 1(a) of Article 2 of
this Treaty, except in respect of that part of the territorial sea of Pearce
Cay which lies south of the line referred to in paragraph 1 of Article 4 of
this Treaty, shall be as described in Annex 3 to this Treaty. The limits so
described are shown on the maps annexed to this Treaty as Annexes 2 and 4.
5. Australia shall not extend its
territorial sea northwards across the line referred to in paragraph 1 of
Article 4 of this Treaty.
6. Papua New Guinea shall not-
(a) extend its territorial sea
off its southern coastline between the meridians of Longitude 142o03'30"
East and of Longitude 142o51'00" East, beyond three miles from
the baselines from which the breadth of the territorial sea is measured;
(b) extend its territorial sea or
archipelagic waters into the area bounded by that portion of the line referred
to in paragraph 2 of Article 4 of this Treaty running from the point of
Latitude 9o45'24" South, Longitude 142o03'30"
East to the point of Latitude 9o40'30" South, Longitude 142o51'00"
East and that portion of the line referred to in paragraph 1 of Article 4 of
this Treaty which runs between those two points;
(c) establish an archipelagic
baseline running in or through the area referred to in sub-paragraph (b) of
this paragraph; or
(d) extend its territorial sea
southwards across the line referred to in paragraph 1 of Article 4 of this Treaty.
Article 4
Maritime
jurisdiction
1. Subject to the provisions of
Article 2 of this Treaty, the boundary between the area of seabed and subsoil
that is adjacent to and appertains to Australia and the area of seabed and
subsoil that is adjacent to and appertains to Papua New Guinea, and over which
Australia and Papua New Guinea respectively shall have seabed jurisdiction,
shall be the line described in Annex 5 to this Treaty. The line so described is
shown on the map annexed to this Treaty as Annex 6 and, in part, on the map
annexed to this Treaty as Annex 7.
2. Subject to the provisions of
Article 2 of this Treaty, the boundary between the area of sea that is adjacent
to and appertains to Australia and the area of sea that is adjacent to and
appertains to Papua New Guinea, and in which Australia and Papua New Guinea
respectively shall have fisheries jurisdiction, shall be the line described in
Annex 8 to this Treaty. The line so described is shown on the map annexed to
this Treaty as Annex 6 and, in part, on the maps annexed to this Treaty as
Annexes 2 and 7.
3. In relation to the area
bounded by the portion of the line referred to in paragraph 2 of this Article
running from the point of Latitude 9o45'24" South, Longitude
142o03'30" East to the point of Latitude 9o40'30"
South, Longitude 142o51'00" East and that portion of the line
referred to in paragraph 1 of this Article which runs between those two points,
exclusive of the territorial seas of the islands of Aubusi, Boigu, Dauan,
Kaumag, Moimi, Saibai and Turnagain-
(a) neither Party shall exercise
residual jurisdiction without the concurrence of the other Party; and
(b) the Parties shall consult
with a view to reaching agreement on the most effective method of application
of measures involving the exercise of residual jurisdiction.
4. In paragraph 3 of this
Article, "residual jurisdiction" means-
(a) jurisdiction over the area
other than seabed jurisdiction or fisheries jurisdiction, including
jurisdiction other than seabed jurisdiction or fisheries jurisdiction insofar
as it relates to inter alia:
(i) the preservation of the
marine environment;
(ii) marine scientific research;
and
(iii) the production of energy
from the water, currents and winds; and
(b) seabed and fisheries
jurisdiction to the extent that the exercise of such jurisdiction is not
directly related to the exploration or exploitation of resources or to the
prohibition of, or refusal to authorise, activities subject to that
jurisdiction.
PART 3
SOVEREIGNTY
AND JURISDICTION - RELATED MATTERS
Article 5
Existing
petroleum permit
1. Where prior to 16 September
1975 Australia has granted an exploration permit for petroleum under Australian
law in respect of a part of the seabed over which it ceases by virtue of this
Treaty to exercise sovereign rights, and a permittee retains rights in respect
of that permit immediately prior to the entry into force of this Treaty, Papua
New Guinea, upon application by that permittee, shall offer to that permittee a
petroleum prospecting licence or licences under Papua New Guinea law in respect
of the same part of the seabed on terms that are not less favourable than those
provided under Papua New Guinea law to any other holder of a seabed petroleum
prospecting licence.
2. An application for a licence
under paragraph 1 of this Article shall be made-
(a) in respect of a part of the
seabed lying outside the Protected Zone, within six months after the date of
entry into force of this Treaty;
(b) in respect of a part of the
seabed lying within the Protected Zone, during the period referred to in
Article 15 and any extension of that period to which the Parties may agree.
Article 6
Exploitation
of certain seabed deposits
If any single accumulation of
liquid hydrocarbons or natural gas, or if any other mineral deposit beneath the
seabed, extends across any line defining the limits of seabed jurisdiction of
the Parties, and if the part of such accumulation or deposit that is situated
on one side of such a line is recoverable in fluid form wholly or in part from
the other side, the Parties shall consult with a view to reaching agreement on
the manner in which the accumulation or deposit may be most effectively
exploited and on the equitable sharing of the benefits from such exploitation.
Article 7
Freedom
of navigation and overflight
1. On and over the waters of the
Protected Zone that lie-
(a) north of the line referred to
in paragraph 1 of Article 4 of this Treaty and seaward of the low water lines
of the land territory of either Party, and
(b) south of that line and beyond
the outer limits of the territorial sea,
each Party shall accord to the
vessels and aircraft of the other Party, subject to paragraphs 2 and 3 of this
Article, the freedoms of navigation and overflight associated with the
operation of vessels and aircraft on or over the high seas.
2. Each Party shall take all
necessary measures to ensure that, in the exercise of the freedoms of
navigation and overflight accorded to its vessels and aircraft under paragraph
1 of this Article-
(a) those vessels observe
generally accepted international regulations, procedures and practices for
safety at sea and for the prevention, reduction and control of pollution from ships;
(b) those civil aircraft observe
the Rules of the Air established by the International Civil Aviation
Organization as they apply to civil aircraft, and State aircraft normally
comply with such of those rules as relate to safety and at all times operate
with due regard for the safety of navigation;
(c) those vessels and aircraft
north of the line referred to in paragraph 1 of Article 4 of this Treaty do not
engage in the embarking or disembarking of any commodity, currency or person
contrary to the customs, fiscal, immigration or sanitary laws and regulations
of the other Party, provided that the relevant laws and regulations of that
Party do not have the practical effect of denying, hampering or impairing the
freedoms of navigation and overflight accorded under paragraph 1 of this
Article; and
(d) those vessels and aircraft,
north of the line referred to in paragraph 1 of Article 4 of this Treaty, do
not act in a manner prejudicial to the peace, good order or security of the
other Party.
3. Vessels of a Party engaged in
the exploration or exploitation of resources in an area of jurisdiction of the
other Party shall remain subject to the laws and regulations of the other Party
made in the exercise of its resources jurisdiction consistently with this Treaty
and with international law, including the provisions of those laws and
regulations concerning the boarding, inspection and apprehension of vessels.
4. In those areas of the
Protected Zone north of the line referred to in paragraph 1 of Article 4 of this
Treaty to which paragraph 1 of this Article does not apply, civil aircraft of a
Party engaged in scheduled or non-scheduled air services shall have the right
of overflight, and the right to make stops for non-traffic purposes, without
the need to obtain prior permission from the other Party, subject to compliance
with any applicable laws or regulations made for the safety of air navigation.
5. In areas of the Protected Zone
to which paragraph 1 of this Article does not apply, the vessels of a Party shall
enjoy the right of innocent passage. There shall be no suspension of that
right, and neither Party shall adopt laws or regulations applying to those
areas that might impede or hamper the normal passage of vessels between two
points both of which are in the territory of one Party.
6. In cases where the provisions
of neither paragraph 1 nor paragraph 5 of this Article apply, a regime of
passage over routes used for international navigation in the area between the
two countries, including the area known as Torres Strait, shall apply in
respect of vessels that is no more restrictive of passage than the regime of
transit passage through straits used for international navigation described in
Articles 34 to 44 inclusive of Document A/Conf. 62/WP.10 of the Third United
Nations Conference on the Law of the Sea, provided that, before a Party adopts
a law or regulation that might impede or hamper the passage over those routes
of vessels proceeding to or from the territory of the other Party, it shall
consult with the other Party. If the provisions of those Articles are revised,
are not included in any Law of the Sea Convention or fail to become generally
accepted principles of international law, the Parties shall consult with a view
to agreeing upon another regime of passage that is in accordance with
international practice to replace the regime of passage applying under this
paragraph.
7. The rights of navigation and
overflight provided for in this Article are in addition to, and not in
derogation of, rights of navigation and overflight in the area concerned under
other treaties or general principles of international law.
Article 8
Navigational
aids
With a view to maintaining and
improving the safety of navigation through the waters in the area between the
two countries, the Parties shall cooperate and, with due regard to the
technical and other means available to each of them, shall, where appropriate
and as may be agreed between them, provide mutual assistance in the provision
and maintenance of navigational aids and in the preparation of charts and maps.
Article 9
Wrecks
1. Wrecks of vessels and aircraft
which lie on, in or under the seabed in an area of seabed jurisdiction of a
Party shall be subject to the jurisdiction of that Party.
2. If a wreck of historical or
special significance to a Party is located or found in an area between the two
countries under the jurisdiction of the other Party, the Parties shall consult
with a view to reaching agreement on the action, if any, to be taken with
respect to that wreck.
3. The provisions of this Article
shall be without prejudice to the competence of the courts of a Party, for the
purposes of the laws of that Party, in relation to maritime causes of action in
respect of wrecks coming within the provisions of this Article.
4. This Article shall not apply
to any military vessel or aircraft of either Party wrecked after the date of
entry into force of this Treaty.
PART 4
THE
PROTECTED ZONE
Article 10
Establishment
and purposes of the Protected Zone
1. A Protected Zone in the Torres
Strait is hereby established comprising all the land, sea, airspace, seabed and
subsoil within the area bounded by the line described in Annex 9 to this
Treaty. The line so described is shown on the maps annexed to this Treaty as
Annexes 6 and 7 and, in part, on the map annexed to this Treaty as Annex 2.
2. The Parties shall adopt and
apply measures in relation to the Protected Zone in accordance with the
provisions of this Treaty.
3. The principal purpose of the
Parties in establishing the Protected Zone, and in determining its northern,
southern, eastern and western boundaries, is to acknowledge and protect the
traditional way of life and livelihood of the traditional inhabitants including
their traditional fishing and free movement.
4. A further purpose of the
Parties in establishing the Protected Zone is to protect and preserve the
marine environment and indigenous fauna and flora in and in the vicinity of the
Protected Zone.
Article 11
Free
movement and traditional activities including traditional fishing
1. Subject to the other
provisions of this Treaty, each Party shall continue to permit free movement
and the performance of lawful traditional activities in and in the vicinity of
the Protected Zone by the traditional inhabitants of the other Party.
2. Paragraph 1 of this Article
shall not be interpreted as sanctioning the expansion of traditional fishing by
the traditional inhabitants of one Party into areas outside the Protected Zone
under the jurisdiction of the other Party not traditionally fished by them
prior to the date of entry into force of this Treaty.
3. The provisions of this Article
and the other provisions of this Treaty concerning traditional fishing are
subject to Article 14 and paragraph 2 of Article 20 of this Treaty.
Article 12
Traditional
customary rights
Where the traditional inhabitants
of one Party enjoy traditional customary rights of access to and usage of areas
of land, seabed, seas, estuaries and coastal tidal areas that are in or in the
vicinity of the Protected Zone and that are under the jurisdiction of the other
Party, and those rights are acknowledged by the traditional inhabitants living
in or in proximity to those areas to be in accordance with local tradition, the
other Party shall permit the continued exercise of those rights on conditions
not less favourable than those applying to like rights of its own traditional
inhabitants.
Article 13
Protection
of the marine environment
1. Each Party shall take
legislative and other measures necessary to protect and preserve the marine
environment in and in the vicinity of the Protected Zone. In formulating those
measures each Party shall take into account internationally agreed rules, standards
and recommended practices which have been adopted by diplomatic conferences or
by relevant international organisations.
2. The measures that each Party
shall take in accordance with paragraph 1 of this Article shall include
measures for the prevention and control of pollution or other damage to the
marine environment from all sources and activities under its jurisdiction or
control and shall include, in particular, measures to minimise to the fullest
practicable extent-
(a) the release of toxic, harmful
or noxious substances from land-based sources, from rivers, from or through the
atmosphere, or by dumping at sea;
(b) pollution or other damage
from vessels; and
(c) pollution or other damage
from installations and devices used in the exploration and exploitation of the
natural resources of the seabed and subsoil thereof.
3. The measures taken by each
Party in accordance with paragraph 1 of this Article shall be consistent with
its obligations under international law, including obligations not to prejudice
the rights of foreign ships and aircraft, and shall be subject to the
provisions of Article 7 of this Treaty.
4. The Parties shall consult, at
the request of either, for the purpose of
(a) harmonising their policies
with respect to the measures that each shall take pursuant to this Article; and
(b) ensuring the effective and
coordinated implementation of those measures.
5. If either Party has reasonable
grounds for believing that any planned activity under its jurisdiction or
control may cause pollution or other damage to the marine environment in or in
the vicinity of the Protected Zone, that Party shall, after due investigation,
communicate to the other Party its assessment of the potential impact of that
activity on the marine environment.
6. If either Party has reasonable
grounds for believing that any existing or planned activity under the
jurisdiction or control of the other Party is causing or may cause pollution or
other damage to the marine environment in or in the vicinity of the Protected
Zone, it may request consultations with the other Party, and the Parties shall
then consult as soon as possible with a view to adopting measures to prevent or
control any pollution or other damage to that environment from that activity.
Article 14
Protection
of fauna and flora
1. Each Party shall, in and in
the vicinity of the Protected Zone, use its best endeavours to-
(a) identify and protect species
of indigenous fauna and flora that are or may become threatened with
extinction;
(b) prevent the introduction of
species of fauna and flora that may be harmful to indigenous fauna and flora;
and
(c) control noxious species of
fauna and flora.
2. Notwithstanding any other
provision of this Treaty except paragraph 4 of this Article, a Party may
implement within its area of jurisdiction measures to protect species of
indigenous fauna and flora which are or may become threatened with extinction
or which either Party has an obligation to protect under international law.
3. The Parties shall as
appropriate and necessary exchange information concerning species of indigenous
fauna and flora that are or may become threatened with extinction and shall
consult, at the request of either of them, for the purpose of-
(a) harmonising their policies
with respect to the measures that each may take to give effect to paragraphs 1
and 2 of this Article; and
(b) ensuring the effective and
coordinated implementation of those measures.
4. In giving effect to the
provisions of this Article, each Party shall use its best endeavours to
minimise any restrictive effects on the traditional activities of the
traditional inhabitants.
Article 15
Prohibition
of mining and drilling of the seabed
Neither Party shall undertake or
permit within the Protected Zone mining or drilling of the seabed or the
subsoil thereof for the purpose of exploration for or exploitation of liquid
hydrocarbons, natural gas or other mineral resources during a period of ten
years from the date of entry into force of this Treaty. The Parties may agree
to extend that period.
Article 16
Immigration,
customs, quarantine and health
1. Except as otherwise provided
in this Treaty, each Party shall apply immigration, customs, quarantine and
health procedures in such a way as not to prevent or hinder free movement or
the performance of traditional activities in and in the vicinity of the
Protected Zone by the traditional inhabitants of the other Party.
2. Each Party, in administering
its laws and policies relating to the entry and departure of persons and the
importation and exportation of goods into and from areas under its jurisdiction
in and in the vicinity of the Protected Zone, shall act in a spirit of mutual
friendship and good neighbourliness, bearing in mind relevant principles of
international law and established international practices and the importance of
discouraging the occurrence, under the guise of free movement or performance of
traditional activities, of illegal entry, evasion of justice and practices
prejudicial to effective immigration, customs, health and quarantine protection
and control.
3. Notwithstanding the provisions
of paragraph 1 of this Article-
(a) traditional inhabitants of
one Party who wish to enter the other country, except for temporary stay for
the performance of traditional activities, shall be subject to the same
immigration, customs, health and quarantine requirements and procedures as
citizens of that Party who are not traditional inhabitants;
(b) each Party reserves its right
to limit free movement to the extent necessary to control abuses involving
illegal entry or evasion of justice; and
(c) each Party reserves its right
to apply such immigration, customs, health and quarantine measures, temporary
or otherwise, as it considers necessary to meet problems which may arise. In
particular each Party may apply measures to limit or prevent free movement, or
the carriage of goods, plants or animals in the course thereof, in the case of
an outbreak or spread of an epidemic, epizootic or epiphytotic in or in the
vicinity of the Protected Zone.
Article 17
Implementation
and coordination
In order to facilitate the
implementation of the provisions of this Treaty relating to the Protected Zone,
the authorities of each Party shall, at the request of the authorities of the
other Party, as may be appropriate and necessary-
(a) make available to the
authorities of the other Party information on the relevant provisions of its
laws, regulations and procedures relating to immigration, citizenship, customs,
health, quarantine, fisheries, the protection of the environment and other
matters; and
(b) consult with the authorities
of the other Party with a view to making appropriate administrative or other
arrangements to resolve any problems arising in the implementation of those
provisions.
Article 18
Liaison
arrangements
1. Each Party shall designate a
representative who shall facilitate the implementation at the local level of
the provisions of this Treaty.
2. The two designated
representatives shall-
(a) exchange information on
relevant developments in and in the vicinity of the Protected Zone;
(b) consult together and take
such action as is appropriate to their respective functions to facilitate the
practical operation at the local level of the provisions of this Treaty and to
resolve any problems arising therefrom;
(c) keep under review free
movement by the traditional inhabitants of one Party into areas under the
jurisdiction of the other Party and the local arrangements applying in respect
of such free movement; and
(d) draw to the attention of
their Governments, and make recommendations as appropriate on, any matters
affecting the implementation of the provisions of this Treaty or arising
therefrom which are not capable of resolution at the local level or which may otherwise
require consideration by both Parties.
3. In the exercise of his
functions, each representative shall-
(a) consult closely with
representatives of the traditional inhabitants of his country, particularly in
relation to any problems which may arise in respect of free movement,
traditional activities and the exercise of traditional customary rights as
provided for in this Treaty, and convey their views to his Government; and
(b) maintain close liaison with
national, State, Provincial and local authorities of his country on all matters
falling within their respective responsibilities.
4. Unless a different location is
required by the circumstances, the representative of Australia shall be based
at Thursday Island and the representative of Papua New Guinea shall be based at
Daru.
Article 19
Torres
Strait Joint Advisory Council
1. The Parties shall jointly
establish and maintain an advisory and consultative body which shall be known
as the Torres Strait Joint Advisory Council (called in this Article "the
Advisory Council").
2. The functions of the Advisory
Council shall be-
(a) to seek solutions to problems
arising at the local level and not resolved pursuant to Article 18 of this
Treaty;
(b) to consider and to make
recommendations to the Parties on any developments or proposals which might
affect the protection of the traditional way of life and livelihood of the
traditional inhabitants, their free movement, performance of traditional
activities and exercise of traditional customary rights as provided for in this
Treaty; and
(c) to review from time to time
as necessary, and to report and to make recommendations to the Parties on, any
matters relevant to the effective implementation of this Treaty, including the
provisions relating to the protection and preservation of the marine
environment, and fauna and flora, in and in the vicinity of the Protected Zone.
3. The Advisory Council shall not
have or assume responsibilities for management or administration. These
responsibilities shall, within the respective areas of jurisdiction of each
Party, continue to lie with the relevant national, State, Provincial and local
authorities.
4. In the exercise of its
functions, the Advisory Council shall ensure that the traditional inhabitants
are consulted, that they are given full and timely opportunity to comment on
matters of concern to them and that their views are conveyed to the Parties in
any reports and recommendations made by the Advisory Council to the Parties.
5. The Advisory Council shall
transmit its reports and recommendations to the Foreign Ministers of the
Parties. After consideration by appropriate authorities of the Parties,
consultations may be arranged with a view to the resolution of matters to which
the Advisory Council has invited attention.
6. Unless otherwise agreed by the
Parties, the Advisory Council shall consist of eighteen members, that is nine
members from each Party who shall include-
(a) at least two national
representatives;
(b) at least one member
representing the Government of Queensland in the case of Australia and one
representing the Fly River Provincial Government in the case of Papua New
Guinea; and
(c) at least three members
representing the traditional inhabitants,
with each Party being free to
decide from time to time from which of the aforementioned categories any other
of its members will be drawn.
7. The Advisory Council shall
meet when necessary at the request of either Party. Consecutive meetings of the
Advisory Council shall be chaired alternately by a representative of Australia
and a representative of Papua New Guinea. Meetings shall be held alternately in
Australia and Papua New Guinea or as may from time to time be otherwise
arranged.
PART 5
PROTECTED
ZONE COMMERCIAL FISHERIES
Article 20
Priority
of traditional fishing and application of measures to traditional fishing
1. The provisions of this Part
shall be administered so as not to prejudice the achievement of the purposes of
Part 4 of this Treaty in regard to traditional fishing.
2. A Party may adopt a
conservation measure consistent with the provisions of this Part which, if
necessary for the conservation of a species, may be applied to traditional
fishing, provided that that Party shall use its best endeavours to minimise any
restrictive effects of that measure on traditional fishing.
Article 21
Conservation,
management and optimum utilisation
The Parties shall cooperate in
the conservation, management and optimum utilisation of Protected Zone
commercial fisheries. To this end, the Parties shall consult at the request of
either and shall enter into arrangements for the effective implementation of
the provisions of this Part.
Article 22
Conservation
and management of individual fisheries
1. The Parties shall, where
appropriate, negotiate subsidiary conservation and management arrangements in
respect of any individual Protected Zone commercial fishery.
2. If either party notifies the
other in writing that it regards one of the Protected Zone commercial fisheries
as one to which common conservation and management arrangements should apply,
the Parties shall within ninety days from the date of the notification enter
into consultations with a view to concluding arrangements specifying the
measures to be applied by them with respect to that fishery.
3. The Parties shall, where
appropriate, also negotiate supplementary conservation and management
arrangements in respect of resources directly related to a fishery referred to
in paragraph 1 of this Article, including resources involving stocks occurring
in the Protected Zone where such stocks are not otherwise subject to the
provisions of this Treaty.
Article 23
Sharing
of the catch of the Protected Zone commercial fisheries
1. The Parties shall share the
allowable catch of the Protected Zone commercial fisheries in accordance with
the provisions of this Article and of Articles 24 and 25 of this Treaty.
2. The allowable catch, that is
to say the optimum sustainable yield, of a Protected Zone commercial fishery
shall be determined jointly by the Parties as part of the subsidiary
conservation and management arrangements referred to in paragraph 1 of Article
22 of this Treaty.
3. If either Party has reasonable
grounds for believing that the commercial exploitation of a species of
Protected Zone commercial fisheries would, or has the potential to, cause serious
damage to the marine environment, or might endanger another species, that Party
may request consultations with the other Party and the Parties shall then
consult as soon as possible with a view to reaching agreement on whether such
commercial exploitation could be undertaken in a manner which would not result
in such damage or endanger another species.
4. In respect of any relevant
period where the full allowable catch of a particular Protected Zone commercial
fishery might be taken, each Party shall be entitled to a share of the
allowable catch apportioned, subject to paragraphs 5, 6 and 8 of this Article
and to Articles 24 and 25 of this Treaty, as follows:
(a) in areas under Australian
jurisdiction, except as provided in (b) below:
Australia - 75%
Papua New Guinea - 25%
(b) within the territorial seas
of Anchor Cay, Black Rocks, Bramble Cay, Deliverance Island, East Cay, Kerr
Islet, Pearce Cay and Turu Cay:
Australia - 50%
Papua New Guinea - 50%
(c) in areas under Papua New
Guinea jurisdiction:
Australia - 25%
Papua New Guinea - 75%
5. Papua New Guinea shall have
the sole entitlement to the allowable catch of the commercial barramundi
fishery near the Papua New Guinea coast, except within the territorial seas of
the islands of Aubusi, Boigu, Dauan, Kaumag, Moimi and Saibai where, in respect
of that fishery, the provisions of paragraph 4(a) of this Article shall not
apply.
6. In apportioning the allowable
catch in relation to an individual fishery, the Parties shall normally consider
the allowable catch expressed in terms of weight or volume. In calculating the
apportionment of the total allowable catch of the Protected Zone commercial
fisheries, the Parties shall have regard to the relative value of individual
fisheries and shall, for this purpose, agree on a common value for production
from each individual fishery for the period in question, such value being based
on the value of the raw product at the processing facility or such other point
as may be agreed, but prior to any enhancement of value through processing,
including processing at a pearl culture farm, or further transportation or
marketing.
7. The Parties may agree to vary
the apportionment of the allowable catch determined for individual fisheries as
part of the subsidiary conservation and management arrangements referred to in
paragraph 1 of Article 22 of this Treaty but so as to maintain in respect of
the total allowable catch of the Protected Zone commercial fisheries the
apportionment specified in paragraph 4 of this Article for each Party.
8. In calculating the total
allowable catch of the Protected Zone commercial fisheries, the allowable catch
of the commercial barramundi fishery referred to in paragraph 5 of this Article
shall be disregarded.
Article 24
Transitional
entitlement
1. As part of the subsidiary
conservation and management arrangements referred to in paragraph 1 of Article
22 of this Treaty, the level of the catch of each Protected Zone commercial
fishery to which each Party is entitled, provided it remains within the
allowable catch-
(a) shall not, during the period
of five years immediately after the entry into force of this Treaty, be reduced
below the level of catch of that Party before the entry into force of this
Treaty; but
(b) may, during the second period
of five years after the entry into force of this Treaty, be adjusted
progressively so that at the end of that second five-year period it reaches the
level of catch apportioned in each case in Article 23 of this Treaty.
2. The entitlement of a Party
under this Article shall, where the limitation of the allowable catch makes it
necessary, take priority over the entitlement of the other Party under Article
23 of this Treaty, but shall be taken into account in calculating the
entitlement of the first Party.
Article 25
Preferential
entitlement
If, in any relevant period, a
Party does not itself propose to take all the allowable catch of a Protected
Zone commercial fishery to which it is entitled, either in its own area of
jurisdiction or that of the other Party, the other Party shall have a
preferential entitlement to any of the allowable catch of that fishery not taken
by the first Party.
Article 26
Licensing
arrangements
1. In the negotiation and
implementation of the conservation and management arrangements referred to in
paragraph 1 of Article 22 of this Treaty-
(a) the Parties shall consult and
cooperate in the issue and endorsement of licences to permit commercial fishing
in Protected Zone commercial fisheries;
(b) the responsible authorities
of the Parties may issue licences to fish in any Protected Zone commercial
fishery; and
(c) persons or vessels which are
licensed by the responsible authorities of one Party to fish in any relevant
period in a Protected Zone commercial fishery shall, if nominated by the
responsible authorities of that Party, be authorised by the responsible
authorities of the other Party, wherever necessary, by the endorsement of
licences or otherwise, to fish in those areas under the jurisdiction of the
other Party in which the fishery concerned is located.
2. The persons or vessels
licensed by one Party which have been authorised, or are to be authorised,
under the provisions of paragraph 1 of this Article to fish in waters under the
jurisdiction of the other Party shall comply with the relevant fisheries laws
and regulations of the other Party except that they shall be exempt from licensing
fees, levies and other charges imposed by the other Party in respect of such
fishing activities.
3. In issuing licences in
accordance with paragraph 1 of this Article, the responsible authorities of
both Parties shall have regard to the desirability of promoting economic
development in the Torres Strait area and employment opportunities for the
traditional inhabitants.
4. The responsible authorities of
both Parties shall ensure that the traditional inhabitants are consulted from
time to time on the licensing arrangements in respect of Protected Zone
commercial fisheries.
Article 27
Third
State fishing in Protected Zone commercial fisheries
1. The responsible authorities of
the Parties shall inform one another and shall consult, at the request of
either of them, concerning the proposed exploitation of the Protected Zone
commercial fisheries-
(a) by a joint venture in which
there is third-State equity participation; or
(b) by a vessel of third-State
registration or with a crew substantially of the nationality of a third State.
2. Vessels the operations of
which are under the control of nationals of a third State shall not be licensed
to exploit the Protected Zone commercial fisheries without the concurrence of
the responsible authorities of both Parties in a particular case or class of
cases.
Article 28
Inspection
and enforcement
1. The Parties shall cooperate,
including by exchange of personnel, in inspection and enforcement to prevent
violations of the Protected Zone commercial fisheries arrangements and in
taking appropriate enforcement measures in the event of such violations.
2. The Parties shall consult from
time to time, as necessary, so as to ensure that legislation and regulations
adopted by each Party pursuant to paragraph 1 of this Article are, as far as
practicable, consistent with the legislation and regulations of the other
Party.
3. Each Party shall make it an
offence under its fisheries laws or regulations for a person to use a vessel of
its nationality to fish in Protected Zone commercial fisheries for species of
fisheries resources in areas over which the other Party has jurisdiction in
respect of those species-
(a) without being duly licensed
or authorised by that other Party; or
(b) in the case of a licensed or
authorised vessel, in breach of the fisheries laws or regulations of the other
Party applying within those areas.
4. Each Party will, in relation
to species of fisheries resources in areas where it has jurisdiction in respect
of those species-
(a) investigate suspected
offences against its fisheries laws and regulations; and
(b) except as provided in or
under this Article, take corrective action when necessary against offenders
against those laws or regulations.
5. In this Article,
"corrective action" means the action normally taken in respect of a
suspected offence, after due investigation, and includes, where appropriate,
the apprehension of a suspected offender, the prosecution of an alleged
offender, or the execution of a penalty imposed by a court or the cancellation
or suspension of the licence of an offender.
6. In accordance with the
provisions of this Article, and in other appropriate cases as may be agreed
between the Parties, corrective action in respect of offences or suspected
offences against the fisheries laws or regulations of the Parties shall be
taken by the authorities of the Party whose nationality is borne by the vessel
or person concerned (called in this Article "the first Party") and
not by the Party in whose area of jurisdiction the offence or suspected offence
occurs (called in this Article "the second Party").
7. The Parties acknowledge that
the principle stated in paragraph 6 of this Article should not be applied so as
to frustrate the enforcement of fisheries laws or regulations or to enable
offenders against those laws or regulations to go unpunished.
8. Where, in the case of a
suspected offence alleged to have been committed in or in the vicinity of the
Protected Zone, it appears that the offence was, or might reasonably be
considered to have been, committed in the course of traditional fishing, corrective
action or other measures shall be taken by the authorities of the first Party
and not by the authorities of the second Party and, if being detained by the
authorities of the second Party, the alleged offenders and their vessel shall
be either released or handed over to the authorities of the first Party, in
accordance with arrangements that will avoid undue expense or inconvenience to
the authorities of the second Party.
9. Where paragraph 8 of this
Article applies, the authorities of the second Party may require assurance in a
particular case that corrective action or other measures will be taken by the
authorities of the first Party that will adequately ensure that the activity
complained of will not be repeated.
10. Where the provisions of
paragraph 8 of this Article do not apply, and the person or vessel alleged to
have been involved or used in the commission of a suspected offence in the
Protected Zone is licensed to fish in the Protected Zone by the authorities of
the first Party, corrective action shall be taken by the authorities of the
first Party and not by the authorities of the second Party and, if being
detained by the authorities of the second Party, the alleged offenders and
their vessel shall be either released or handed over to the authorities of the
first Party, in accordance with arrangements that will avoid undue expense or
inconvenience to the authorities of the second Party, and the provisions of
paragraphs 13 and 14 of this Article shall apply.
11. The provisions of paragraph
10 of this Article shall also apply in respect of a suspected offence by a
person or vessel of the first Party in an area of jurisdiction of the second
Party outside the Protected Zone where-
(a) that person or vessel was
authorised by the authorities of the second Party to fish in the area where the
suspected offence was committed under the arrangements referred to in paragraph
1 of Article 22 of this Treaty; and
(b) the suspected offence was
committed in relation to the fishery the subject of that authorisation and did
not involve the taking of other species or potential injury to another fishery.
12. Persons or vessels of the
first Party detained by the authorities of the second Party in the
circumstances described in paragraphs 8 and 10 of this Article may be detained
for as long as necessary to enable those authorities to conduct an expeditious
investigation into the offence and to obtain evidence. Thereafter, they shall
not be detained other than for the purpose of the handing over of the persons
or vessels in accordance with the provisions of those paragraphs unless they
are lawfully detained on some other ground.
13. If an alleged offender
referred to in paragraph 10 of this Article is, in respect of conduct in waters
under the jurisdiction of the second Party-
(a) convicted of an offence
against the fisheries laws or regulations of the first Party; or
(b) found by the authorities of
the first Party, on the basis of sufficient available evidence, to have
contravened or failed to comply with a condition of his licence or
authorisation or that of his vessel;
the authorities of the first
Party shall, where appropriate and having regard to paragraph 7 of this
Article, cancel or suspend the licence or authorisation of the person or his
vessel so far as it relates to the Protected Zone commercial fisheries.
14. Where a person or vessel
involved or used in the commission of the alleged offence referred to in
paragraph 10 of this Article is also currently licensed or authorised to fish
in the area of the Protected Zone by the second Party, the authorities of the
second Party may, after receiving a report and representations, if any, from
the authorities of the first Party, cancel or suspend that licence or
authorisation in accordance with its laws for such period as is warranted by
the circumstances of the case.
15. Each Party shall provide the
other Party with any evidence obtained during investigations carried out in
accordance with this Article into a suspected offence involving a person or
vessel of the other Party. Each Party shall take appropriate measures to
facilitate the admission of such evidence in proceedings taken in respect of
the suspected offence.
16. In this Article references to
persons and vessels of, or of the nationality of, a Party include references to
persons or vessels licensed by that Party under sub-paragraph 1(b) of Article
26 of this Treaty, and the crews of vessels so licensed, except where such
persons or vessels have a prior current licence from the other Party under that
sub-paragraph.
PART 6
FINAL
ARTICLES
Article 29
Settlement
of disputes
Any dispute between the Parties
arising out of the interpretation or implementation of this Treaty shall be
settled by consultation or negotiation.
Article 30
Consultations
The Parties shall consult, at the
request of either, on any matters relating to this Treaty.
Article 31
Annexes
The Annexes to this Treaty shall
have force and effect as integral parts of this Treaty.
Article 32
Ratification
This Treaty shall be subject to
ratification and shall enter into force on the exchange of the instruments of
ratification.[1]
IN WITNESS WHEREOF the
undersigned being duly authorised have signed the present Treaty and have
affixed thereto their seals.
DONE in duplicate at
Sydney on this eighteenth day of December, One thousand nine hundred and
seventy-eight.
FOR AUSTRALIA: FOR PAPUA NEW
GUINEA:
[Signed:] [Signed:]
MALCOLM FRASER MICHAEL SOMARE
Prime Minister Prime Minister
[Signed:] [Signed:]
ANDREW PEACOCK N. EBIA OLEWALE
Minister for Foreign Affairs
Deputy Prime Minister and
Minister for Foreign Affairs and
Trade
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