Torres Strait Islands – a government to government matter.

By Susan Merrell

Prime Minister Peter O’Neill has instructed cabinet to appoint an eminent persons committee to conduct a review of the Torres Strait Treaty with Australia.  He says:

…for 40 years no government has ever stood up on behalf of Trans Fly villages.

Indeed they haven’t Prime Minister, although there are some who have been pointing out the inequities for quite some time. 

In 2011, I opined that only a government to government solution would work (litigation had already failed). 

At last (and bravo!) a PNG government is seeking to effect a more equitable solution for the people of the Trans-Fly villages by seeking the co-operation of Australia and other stakeholders in a government to government solution.

Here’s what I wrote in 2011 ( as published in The National (Friday, June 24, 2011)

Torres Strait Islands – a government to government matter.

It was with some interest that I read the letter to Australian Prime Minister, reproduced and published in the National, June 1 (2011) – from Mr Peter Sawabarri representing the Masaingle People from the Western Province of PNG on the shores of the Torres Strait.

The letter was in protest about the findings of the Australian ‘Senate Committee Report on Torres Strait: Bridge and Border’ (dated November 2010) that had effectively closed the borders to him and rendered his people without a means to carry on their traditional way of life in the Strait.

The preamble to Mr Sawabarri’s letter says he’s been campaigning for his peoples’ pre-sovereignty rights over the Torres Strait and Islands for the past ten years. Within the letter, Mr Sawabarri presented compelling evidence supporting his peoples’ position as long-time custodians of the Strait and Islands.

The pre-sovereignty claim

It’s Mr Sawabarri’s claim that the treaty pertaining to the Torres Strait known as the PNG Treaty is illegal because of “want of consultation and consent”.

The Treaty was signed by Australia and PNG in 1978 when PNG was still a fledgling nation in a process that Professor Dunoon described as “guided democracy” (his emphasis) in the 2009, R.G. Neale lecture. This ‘guidance’ was provided by Australia – negotiations having started prior to independence

Under the circumstances, it’s not surprising that Australia retained border status quo along the line drawn in 1879 (that line gave Australia sovereignty over all the Islands save three small ones nearest to the PNG coast identified as always having belonged to PNG.)

This was in spite of influential PNGeans such as the late MP Ebia Olewale favouring the border being lowered as, historically, it should have been following a Royal Order in Council issued by Her Majesty Queen Victoria on 19th May, 1898. The Order was never implemented due to Federation of Australia in 1901, but arguably still stood.

The plight of Mr Sawabarri’s people became particularly dire when in 2000, those from the PNG mainland who had been reserved traditional rights under the Treaty were narrowed to only thirteen specified coastal ‘Treaty’ villages that excluded the Masaingle people.

There has been a steady erosion of rights and the number of people who can claim them, as subsequent Australian governments have sought to strengthen its borders – it’s a slippery slope. Now, Mr Sawabarri’s ambition goes way beyond just becoming another ‘Treaty’ village relying on the largesse of the Australian government to allow him access to what he contends was always his.

Litigation

Almost in tandem with the Senate Inquiry, has been a native title case running in the Federal Court of Australia, Judgment July 2010: (Akiba on behalf of Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland.)

The Federal Court allowed certain PNG parties to join the action including Mr Sawabarri. However, this was only because the applicants were initially seeking to “control access” to the Straits, which would have affected the PNG parties. When the original applicants resiled from this position the judge ruled that Mr Sawabarri had no further interest in the claim as his rights, such as they were under the Treaty, would not be changed.

They were at cross-purposes – Mr Sawabarri was claiming far more than merely what the Treaty afforded him.

Clearly, an Australian court was deciding whether native Australians should be granted native title over parts of Australian territory. Legally, the Islands belong to Australia – it says so in the Treaty – which leaves little room for consideration of any position falling outside the normative tag ‘Australian’. The PNG parties were given short shrift. I believe Mr Sawabarri has launched an appeal.

In his plight, Mr Sawabarri seems to have little recourse but to appeal to the very people who originally appropriated his territory – to beg the thieves to return the spoils. To ply his claim in the two aforementioned fora, Mr Sawabarri has to play by rules not of his making, beyond his control and to which he never consented nor lives under. David is fighting Goliath.

Mr Sawabarri blames the Senate committee for not considering the “contributing factors” to the issue of the Torres Straits. He includes oppression, colonization, premature independence, paternalism, lack of paternalism and exploitation of resources by Australia to name a few. His assertions have varying degrees of merit.

In consideration of this he states:

Without making any excuses for ourselves, Australia has to take some responsibility for the general state of PNG today.

I agree, Australia does. What I don’t agree with is the notion that Mr Sawabarri is not making excuses for PNG – he is.

The silence of the PNG government in this current matter is deafening.

PNG Government’s own  culpability and/or neglect

Besides, it can’t be overlooked that when the PNG Treaty was being negotiated one of the primary reasons that the border was not moved further south (the then Australian Whitlam government was certainly in favour) was due to the strong opposition of the inhabitants of the Islands campaigning against it.

Borders No Change

became their catchcry enabling the right-wing Premier of Queensland, Joh Bjelke-Petersen to jump on their bandwagon.

At the time, one Islander gave his reasons:

We find that there is always sickness, right around the areas there’s poverty and we just can’t — you know, we don’t feel that we could in any ways be happy living under Papua New Guinea.”

One could argue that this was understandable at the time with the nascent PNG independent government being an untested entity. But now, after more than 30 years it has been tested and has come up wanting. And so the attraction of Australian citizenship hasn’t waned as the PNG government consistently fails to provide basic services to its people

It was a quest for Australian citizenship (renewed) that saw 120 people from PNG recently cross the Straits to stake their claim. Content to live in PNG, still they wanted the benefits (i.e. Health and education services) that would flow through Australian citizenship.

Well, at least they still want to live in PNG. I’m reliably told that Jackson Airport in Port Moresby is particularly busy on Friday afternoons as the cream of PNG society including government ministers, senior public servants, professional men and women and the business elite leave PNG in a mass exodus into the bosom of their waiting families in their Australian homes.

Seen in a PNG newspaper last week: “Health Secretary Dr Clement Malau yesterday…Speaking from his Melbourne home in Australia.” In the same newspaper: “…Arthur Somare, the Minister for Public Enterprises…left for Cairns yesterday on his way home…” Need I say more?

The Torres Strait issue is an excellent opportunity for the PNG government to show it really is a champion of its people by entering into negotiations with the Australian government – this time as an equal.

Both Australia and PNG could do worse than heed the words of J.B. Priestley.

The past is a foreign country – they do things differently there.