The Hundred Fathers of the Torres Strait Treaty

by Emeritus Professor Donald Denoon

Delivered at the Department of Foreign Affairs and Trade on 5 November 2009

I endorse the acknowledgement of the traditional landowners, and I recall that it was here that I first heard a Commonwealth agency acknowledge them. There's more to DFAT than meets the eye.

I had the privilege of meeting Professor RG Neale many years ago. When he explained his vision of enabling researchers to use archival material without having to travel, I supposed that this would involve mountains of photocopying. It is only in the last month, using Canberra material online in my own home in Sydney, that I fully realise what he meant, and what a boon it is.

This innovation has the same effect as the Documents on Australian Foreign Policy series that he developed in the Department of Foreign Affairs. Government documents are created in multiple copies and never thrown away: it is bewildering to keep reading almost the same damned paragraphs. The edited, annotated and published accounts are faithful to the original but spare us the frustration.

Both of Professor Neale's pioneering efforts open up the workings of government to every citizen who has an interest. These are additions to democracy as well as aids to research, and it is fitting that we recognise the importance of the man whose vision and industry brought them to us.

Count Ciano was Mussolini's Foreign Minister, a poor career choice. His only lasting success is an entry in the Oxford Dictionary of Quotations, for his melancholy observation that:

Victory has a hundred fathers, but defeat is an orphan.

So many men claim – or at least acknowledge – paternity, that we can be sure the Torres Strait Treaty was a success. How can I hold your attention to this story when you know it has a happy ending? Fortunately, the story involves so many larger-than-life characters that a film version has been suggested. More to the point, so many cooks – especially when they were all men – could easily have spoilt the broth. The problems of defining and managing an international border were more complex than the proponents expected – and their resolution more innovative and useful. The negotiations are also more revealing.

Australia, Papua New Guinea and the 1978 Torres Strait Treaty

Since you have a chronology of the negotiations (Appendix 1, pages 30–33), I propose to start in the middle: in September 1973 17 Papua New Guineans caught the boat to Yam Island, to confer with Torres Strait Islanders. Most of the visitors were Papuan coastal villagers, including Tatie Olewale, brother of the local member of parliament, but they were accompanied by two of the handful of stars in the new national public service – John Natera and Anthony Siaguru. The Islanders were elected chairmen of Island councils and members of the umbrella group, the Torres Strait Advisory Council. Papua New Guinea had been self-governing for a year, and the Island councils were intended to articulate the views of Torres Strait Islanders, but it was the Commonwealth that organised this encounter.

The official observers were better known than the participants: Dr PJ Killoran, the masterful head of the Queensland Department of Aboriginal and Torres Strait Affairs, his senior regional officer; and (for the Commonwealth) the formidable Dr HC Coombs, chair of the Australian Council for Aboriginal Affairs and 1972 Australian of the Year.

The suspicion that this was guided democracy is reinforced by the fact that discussions had been going on among other people, in other forums, for four years, before they involved the people living with the border. Remarkably, the Yam Island event was more harmonious than most of the meetings that preceded it and followed it. The economist Fred Fisk had reported that coastal Papuans relied heavily on access to the fishing grounds that surrounded the islands,1 but at the Yam Island meeting both sides were content with shared access to these resources, and both wanted to protect their environment from oil drilling or offshore mining. Neither side was keen to change the current border arrangements – or to change anything else.2

Five years later, the Australian and Papua New Guinea governments – in the unnerving presence of the Premier of Queensland, Sir Joh Bjelke-Petersen – signed an agreement which embedded these preferences in a complex formula. Another six and a half years passed before the treaty was ratified.3

Malcolm Lyon's copy of the Treaty itself – 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, 18 December 1978 – is on display this evening: it is clearly much too long for me to read it to you. So these seem to me to be its leading features:

  • Most of the border is a median line between the Australian and New Guinea mainlands, but around the inhabited islands it is a box rather than a single line. Inside the box is a seabed jurisdiction line and a separate fisheries jurisdiction line. To complicate matters further, Australian islands north of the seabed jurisdiction line are girt by territorial seas.
  • A Protected Zone straddles the border where it cuts through the island chain, and fills the box. In this zone, Torres Strait Islanders and the inhabitants of 13 coastal villages may carry on their 'traditional way of life'. 'Traditional people' are able to move without formal passports or visas, for 'traditional activities'. The Protected Zone is not a exactly national park, but it helps to preserve native plants and animals.
  • At the apex of a cycle of consultations involving Islanders and villagers, and a variety of officials, there is a Joint Advisory Council, whose members from each country include a range of provincial and traditional representatives. Australian and Papua New Guinean Treaty Liaison Officers also hold regular meetings.

Negotiating the border

So, why did it take nine years to reach an outcome that now seems so natural? An immediate difficulty was the absence of a real border. The dotted line on all maps until that time was not a border but a cartographic convention to show that Saibai, Boigu and Dauan islands were part of Queensland, although they are very close to the Papuan coast. Fortuitously, the border issue coincided with international congresses devising the Law of the Sea, a coincidence both fruitful and complicating. (Greece and Turkey were especially interested in precedents as several Greek islands are within sight of the Turkish mainland. Australian Foreign Affairs officers need not have worried as much as they did: nothing in Torres Strait served as a precedent for either Turkey or Greece.)4

As negotiations dragged on, it was natural to wonder who to blame. Some people in Canberra and Port Moresby were irritated by the Torres Strait Islanders' stubborn refusal to yield their land, their seas or their citizenship. The pearl-shell industry, on which the island economy had relied, was wrecked by plastic: mass emigration to the mainland might leave the islands uninhabited, or serving as refuges for the old and the very young. Nevertheless Islanders protested as soon as they heard talk of shifting the border and threatening their citizenship. 'Border No Change' signs were mounted across the archipelago, and Island Council Chairmen asserted their collective solidarity with Saibai, Dauan and Boigu, under threat as the northern-most Islanders. The crisis crystallised the Islanders' sense of common identity and yearning for autonomy, and once it was stirred, their anxiety was impossible to allay. A decade later, Island leaders were still seeking delay, further explanation, and a referendum. Information sessions with Australian officials brought them no relief.5 At the very last moment Ettie Pau, on behalf of Torres Strait Light Infantry veterans, asked George Mye, an Islander representative on the National Aboriginal Council, to seek delay until the treaty was fully explained, and a referendum held.6

So a deal could perhaps have been struck much sooner, if not for the Islanders' stubborn resistance, but they were surely entitled to insist on protecting their islands, their way of life, and their citizenship.

Many people in Brisbane blamed Papua New Guinea's politicians for politicising the border. Who did raise that issue, and why? By the mid-1960s Canberra policy-makers were keen to devolve power to the Territory. Skilled Papua New Guineans were scarce (tertiary education began only as late as 1967) but the Reserve Bank and the army were training professional staff in-house. To overcome the Territory's budgetary dependence, small-scale coffee and cocoa farming and large-scale copper mining would create revenue – and surprising but explosive political strains.7

A more immediate obstacle was the Territory's House of Assembly, whose members could not, or would not exercise even the limited powers ascribed to them. Without indigenous partners, devolution would merely empower Australian public servants, and fall flat on its face. This problem was partly resolved when a public servants' lobby evolved into PANGU Pati. Another promising constituency was trainee teachers, mobilised and organised by the youthful, clean-cut, articulate Ebia Olewale. (The perceptive strategist John Gunther was so impressed that he sent Ebia to harangue student protest rallies outside Port Moresby.) Ebia was one of the dozen 'Angry Young Men' in 1966 who petitioned – very politely – for Home Rule. In the 1968 general election, Ebia won the seat of South Fly. He flirted with Josephine Abaijah's Papuan separatists (Papua Besena), but fell in with Michael Somare and PANGU.8

Like many Kiwai people, Ebia had kin in the Torres Strait islands. He did not think that ethnic differences were great, which was a fair view, given Papua New Guinea's extraordinary linguistic and ethnic diversity. Nor did he believe that the Islanders should be able to veto incorporation.

In the June 1969 session of the Assembly, therefore, he proposed:

  1. That this House considers that the present state of the boundary between Papua and New Guinea and... Queensland, which in part runs within 1½ miles of the coast of the Western District and includes a number of islands (e.g. Saibai, Dauan, Boigu, Warrior Island, etc) and reefs within a few miles of that coast and separated from Queensland proper by the whole width of Torres Strait, is in all respects most unsatisfactory and will become more unsatisfactory as time goes by, both because of the facts (which have been recognised since at least 1885) that the customary fishing grounds and reefs of many Papuans, as well as other natural resources that ought to belong to Papua and New Guinea, are now situated in Queensland waters, and also for other reasons.
  2. That this House believes that the boundary should be moved generally south at least to the line described in the Royal Order in Council issued by Her Majesty Queen Victoria on 19th May, 1898, but never implemented – apparently because of the federation of the Australian States in 1901.
  3. That this house therefore requests the Administration to take whatever steps may be practicable to have the boundary adjusted to a reasonable and equitable line...

As a conscientious teacher, Ebia added a select reading list of documents published and reviewed by Paul van der Veur.

There was a solid historical basis for border revision, and Albert Maori Kiki – Deputy Prime Minister and Minister for Foreign Affairs – endorsed it. From the history they knew and the maps they saw, their advocacy was a coherent aspect of nation-building. Their country had no constitution, no international identity: was a defined border too much to ask?

But the Queensland Premier's Department read Olewale's motion in a very different light:

Implications [of the motion] are quite meaningless to the mass of Islanders or nearby Papuans… MR. OLEWALI… realises that if he raises constitutional concepts over the heads of Highland colleagues he would get little interest or support. Consequently he must represent the issue [as] 'Queensland is stealing our heritage, etc…' Raising the issue is also his sole means of widening his meagre political base amongst the coastal KIWAI. ...Nonetheless [he] is essentially sincere, reasonable and clear thinking on the issue. He seeks to establish his own reputation as a forward, non-parochial thinker. Certainly he has no wish to create current bitterness.9

It was natural in Canberra (and in the Papua New Guinea Government offices in Waigani) to demonise Queensland's Premier Sir Johannes Bjelke-Petersen and his combative ministers (the Liberal Party's Charles Porter and the Country Party's Claude Wharton, successive Ministers for Aboriginal and Torres Strait Island Affairs and Fisheries; and Russ Hinze the 'Minister for Everything Else'). Besides protecting Springbok rugby tours, banning street marches and mining Fraser Island, Queensland's government engaged in poisonous arguments over race, states' rights and land claims. Long before the Whitlam government, Queensland rejected the liberal thrust of Aboriginal policies and especially Indigenous land ownership.

Seeing this as a states' rights issue, Sir Joh threw his government's support behind the 'Border No Change' movement. He relished his surprising role as the champion of the Islanders, and this was galling to liberal observers. When Whitlam came to power in late 1972, he proposed trilateral discussions of the border: Bjelke-Petersen declined at once. That set the pattern: for every new solution, Queensland ministers seemed to find a fresh problem. But Sir Joh was on firm ground, protecting his territory and his citizens from being given away. Any state premier would have taken that stand, though perhaps with less relish.

Seen from Brisbane, the major culprit was not 'sincere, reasonable and clear-thinking' Ebia Olewale, but the Labor leader Edward Gough Whitlam, who committed a future government to moving the border south of the dotted line, perhaps as far as 10 degrees South. Whitlam's Moby Dick was Australia's unequal ties: those with Britain (the Privy Council appeals and Imperial Honours) as well as those with colonised Papua New Guinea. The arbitrary border was merely a footnote in the Whitlam anti-imperial narrative.

During debate on the Coral Seas Islands Bill 1969, he made the connection clear:

In a very few years the colony of Papua and the Trust Territory of New Guinea will gain independence. I would hope that without any further delay we would make the process easier and more harmonious by speeding the consultations with Queensland to rectify the boundary which was set in 1878...

Like Olewale, he knew his history: Queensland had accepted a border revision in 1898, an initiative mislaid in the excitement of Federation. And he was not unusual in expecting Islanders to drift south, or to be resettled. For Whitlam and his determined Minister for Territories, Bill Morrison, the border was a symbolic rather than a substantive issue. In January 1973, Somare denounced the border as a colonial relic: Whitlam saw it in the same light and declared that he was willing to redraw it. Neither expected this to be difficult.

Whitlam's main game was to make Papua New Guinea independent, and to do so as fast as possible. Even with the formation of the Somare–Chan coalition in May 1972, independence was uncertain. The coalition itself was unstable; Highlanders in the United Party were reluctant to accept devolution at all; radicals around John Momis, John Kaputin and the Constitutional Planning Committee wanted to transform government so thoroughly that it might take years to write a constitution: meanwhile Papuans might establish a claim to be Australian citizens, or Bougainville might break away, or the United Party might win the next election. To avert such calamities, Whitlam and Morrison would brook no delay: the day after Papua New Guinea became self-governing (in 1973) the Department of Territories closed its doors, referring all correspondence to Foreign Affairs and AIDAB, the ancestor of AusAID.10

Seen from that perspective, Whitlam's position made sense, but he held it even when he was better informed. As early as 1969, talks between Queensland officials and the Department of Territories revealed that Queensland did not intend to resettle Islanders. Once Coombs turned his mind to the issue, he warned Whitlam that the Islanders would accept a border change only:

in exchange for security of land tenure, joint citizenship and the continuation of Australia's social services and other benefits.

In mid-1973, when Islander Chairmen came to Canberra and explicitly rejected any past or future connection with Papua, Whitlam joined the meeting only in order to persist with his advocacy.11

Most of the time, most of the negotiators pursued rational and defensible purposes, in the light of their own experience and the knowledge available to them. Why was the available knowledge incomplete, imperfectly understood, and open to dispute? Islander opinions and emotions were seldom expressed directly to federal decision-makers. Unlike grand-standing Sir Joh, Whitlam and Morrison, their successors Fraser and Peacock, were reluctant to visit the islands until late in the story. Can we perhaps blame the scholars whose task it was to carry out and publish research?

The Islanders were surely not over-researched. In 1975 Professor Fisk and other ANU scholars published economic analyses of the Islands, and a survey of policy options, but by then the negotiations were bogged down.12 The best informed source on the Islanders' material conditions and political opinions was Jeremy Beckett. When he began his fieldwork in 1958 (with the permission of the Protector of Aborigines and the consent of the Islanders) he was there only because his politics made him unacceptable to the Administration in Papua New Guinea – and he was the first ethnographer since AC Haddon in 1913!13

The gatekeeper between academia and politics was Coombs. He was well aware of Beckett's opinion that:

they wished their islands to remain within Australia, where they could continue to live and enjoy Australian citizenship entitlements; they were 'profoundly dissatisfied' with the Queensland government; they wished to hold title to the land which by custom belonged to them; and they were interested in the idea of an autonomous Torres Strait territory within the Commonwealth.14

That is the insight that Coombs relayed to the federal Minister for Aboriginal Affairs, but Gordon Bryant chose not to build on it: trying to by-pass rather than woo the Island Council Chairmen, he merely deepened their distrust.

Shortly after the Yam Island meeting (where we began), Coombs sketched the first draft of a treaty, building on the consensus at that meeting – shared resources and environmental protection. A few months later the Queensland parliament passed a motion on similar lines, but by that time Albert Maori Kiki had formally proposed a single all-purpose boundary line: the common ground had eroded before anyone could stand on it.

Academics had little leverage. DE O'Connell, the Chichele Professor of International Law in Oxford, visited Brisbane to assist and encourage the Queensland government.15 Dr Killoran, head of the Queensland Department of Aboriginal and Torres Strait Affairs, and the brains of the state's policies, relied more on reports of the dead Swedish anthropologist Gunnar Landtman to demonstrate that Torres Strait Islanders were distinct from the Papuan Kiwais. Ebia Olewale – insisting that the northern Islanders were historically and ethnically part of Papua New Guinea – preferred that other dead ethnographer, AC Haddon.16 Some political actors evidently believe that the best academic adviser is a dead academic adviser, a lesson re-learned this very day by my colleague and friend Brij Lal.

Diplomacy following Independence

At the end of 1975, Papua New Guinea was independent and the border was still unresolved. Malcolm Fraser had replaced Whitlam: perhaps a new cast of characters would break through. There were mixed omens. Fraser's relations with Bjelke-Petersen could hardly be worse than Whitlam's – or could they? The Queensland Minister for Aboriginal and Torres Strait Island Affairs and Fisheries, Charles Porter complained bitterly of Commonwealth intrusion. He urged his cabinet colleagues to:

Demand that the Commonwealth institute a policy of real co-operation instead of domination (we were spurned, harassed and brushed aside in Labor's term – the last two years have been no better, and might even be seen in some aspects as worse).17

Not much joy there. On the other hand Andrew Peacock was Foreign Minister. As Minister for Territories in 1972, he had become a close friend of every significant Papua New Guinean, and he deployed a charm that was hard to resist. In the Papua New Guinea general election of 1977 however, quixotic Albert Maori Kiki tried to crush Josephine Abaijah by contesting an unwinnable seat. Who should take over as Foreign Minister? Ebia Olewale, the keenest advocate of border revision. When the coalition broke up soon afterwards, he became Deputy Prime Minister as well.18

Then there was a fluke: in 1978 Pat Brazil of the Attorney-General's Department, on a mission in London, made the providential discovery that the three uninhabited mud-flats between Saibai and Papua – Kawa, Mata Kawa and Kussa – were never properly Queensland's.19 That revelation suited everyone. Queensland could deny that it had yielded ground; Papua New Guinea had a tiny triumph; and the dotted line edged south without breaching the Australian Constitution. This was so convenient that several inconvenient academics challenged it. The geographer Victor Prescott harassed Peacock for months. A lot of staff time was absorbed in drafting reassuring but unspecific letters to which the Minister added 'My Dear Victor' and 'Yours sincerely, Andrew'. The more the scholars looked into the question, the less they were convinced,20 but the political benefits were so great that the Department was uninterested in further research.

This issue was one of several ventilated in a seminar in Townsville in October 1976, organised by the energetic and tireless James Griffin.21 This event is notable because Torres Strait Islanders – for probably the first time – had a mainland platform, alongside the academics Jim Griffin, Victor Prescott and Peter Boyce. The Islanders were not alone in suspecting that Canberra still intended to give away citizens as well as islands. So far as the public record was concerned, that option was still on the table, so it was strange and suggestive, that none of the three governments turned up to state their own positions, or to hear Islanders' views. Possibly they didn't much care about those opinions, or they did care and preferred not to hear.

The liveliest exchange was initiated by charismatic, turbulent and articulate John Kaputin, fierce anti-colonial orator and occasional cabinet minister. He denounced Torres Strait Islanders as dole-bludgers, whose rejection of their Papua New Guinean destiny and embrace of Australia was merely an addiction to social security payments. He might have put this argument more delicately: as it was, he reinforced the Islanders' fears. That evening, however, when he met the Islanders and discussed matters more calmly, they talked him round to their position, and he recanted.

To leap ahead: in February 1978, with elections out of the way, Peacock and Olewale resumed negotiations; and in May they reached a tentative agreement. On Yorke Island, the Island Chairmen met Peacock and Ian Viner (federal Minister for Aboriginal Affairs), and Bjelke-Petersen and Porter – and agreed on the text. On 2 November in Daru, Peacock and Olewale adopted that text. And at last, in December, the Treaty was signed.22

It was – and is – unhelpful to seek scapegoats because real conflicts of interests and principles divided the three governments. What is remarkable is that these interests were reconciled, and an ex-colony did reach a peaceful and durable agreement with the former colonial power, with such limited expertise and experience.

Besides: the Treaty failed to achieve the ambitions of those who initiated the negotiations, but it accomplished something much more important. When the issue was raised in the 1960s, Olewale and Whitlam wanted merely to draw a line, defining and separating two countries. The unintended outcome was a complex of institutions that allowed two communities to interact and two neighbouring countries to coexist.

We might see Torres Strait in the 1970s as a region sequestered for most of the twentieth century, a corner of Australian geography and almost a museum of Australia's history:

  • Queensland ministers clung to policies that were disavowed elsewhere in Australia: they still anticipated the assimilation and disappearance of Islanders (and Aboriginal people) – but only after several more generations of paternal rule.
  • To execute that strategy, public servants obstructed the federal government: for example they resisted the purchase of land by the federally-funded Aboriginal Land Fund Commission and tried to intercept federal grants.
  • But events showed that the Islands were also prehistoric relics.

Garlemo Kelly Wacando, born on Darnley Island, maintained that he was entitled:

by birth and as of right to reside upon and be a citizen of the said Darnley Island... [He asserted that] all Torres Strait Islands beyond 60 miles from the coast of the mainland of Queensland… do not fall within the boundaries of the State of Queensland...23

It followed that they were not part of the Commonwealth. The proposed treaty was therefore invalid. Predictably, his legal case got nowhere, but it involves a revealing perspective. At much the same time, Eddie Koiki Mabo's similar beliefs about his rights on Mer Island set him on the long march to immortality. Dr Killoran himself testified that Native Title was extinct, and Queensland acted to abolish it even if it did survive, but – to cut a very long story short – the High Court eventually found that it lived.

The agreement has had other surprising outcomes. Federal agencies cooperate more effectively in the Torres Strait Islands than anywhere else in Australia; they work harmoniously with State and Local Government agencies; and there is a cycle of meetings in which Islanders are formally consulted, if not very deeply involved. The Protected Zone is intact; marine resources are husbanded sensibly, and no drilling or mining disturbs the Islanders. The Torres Strait Regional Authority has a budget of $50 million for social and human services. In the 1990s, there were reports that official negligence and corruption allowed drugs to flow south, in exchange for guns travelling to the Highlands and Irian Jaya. I have written a novel about that trade24, so I am dismayed to learn that these reports were exaggerated, and the illicit trade is ad hoc, opportunist and small-scale. Despite popular belief, there are no pirate submarines in the shallow estuary of the Fly River.

Bridge and barrier

I have spoken as if the Torres Strait agreement is finished. It isn't, and never will be. Like it or not, Australia and Papua New Guinea will always be neighbours. For the foreseeable future they will be unequal neighbours. Torres Strait is destined to be a bridge, or a barrier, or the meat in that sandwich. The Treaty, and the institutions that it created, respond to changing circumstances. What changes have already reshaped the border arrangements?

  • Australia's border protection regime has been intensified: it now involves a permanent Australian Federal Police presence on Thursday Island, and much greater surveillance and intelligence gathering, through enhanced naval patrols, all of which must affect the nature of social relationships.25
  • The Australian Federal Court recently decided that Pende Gamogab, a citizen of Papua New Guinea, resident in Kupere (not one of the Treaty villages) may nevertheless join a 'Torres Strait Regional Seas Claim' alongside Torres Strait Islanders.26
  • Conversely, a few days ago a king tide inundated Saibai: events like this might make the whole agreement moot.
  • Most important, 'tradition' cannot be static, and the patterns and purposes of 'traditional' movement are always changing. There are at least 30,000 – and possibly 50,000 – visits each year, from Papua New Guinea to the Islands, many Papua New Guineans work in marine industries in the Strait, and island trade stores are heavily patronised by these visitors.27
  • So popular is the Treaty in Papua New Guinea's Western Province that several more villages wish to join the 13 specified in the Treaty.

When visitors present at clinics with the symptoms of lethal illnesses, what are medical personnel to do? It is in Australia's interest that – for instance – drug-resistant TB should be eliminated before it finds its way south; but treating these patients puts a strain on Islanders' services,28 adds to Queensland's public health bills, and it is open-ended. Understandably, Torres Strait Islanders want AusAID to increase funding of Western Province health services to reduce the number of sick visitors, and AusAID does fund these projects.29

In all these ways the evolving Treaty has a broad ripple effect that its exhausted creators could not have anticipated as they dragged themselves to meeting after meeting in search of the elusive closure.

If there are no obvious villains in this story, are there any heroes? Andrew Peacock shuttled across Torres Strait more often than I can count: he and Doug Anthony courted the Premier of Queensland tirelessly and successfully.30 On occasion, Malcolm Fraser intervened, for example persuading Somare not to exercise his right to declare an Exclusive Economic Zone that would gazump the negotiations. For his part, Somare held together a coalition of hawks and doves, nationalists and secessionists, radicals and conservatives, making sure that border issues never disrupted relations with Australia. Ebia Olewale's generosity deserves particular comment: he bargained hard, and after 20 years he agreed to an excellent deal – but it was a deal which achieved none of his 1969 goals.

The politicians' efforts are well documented. What the archives reveal is the strenuous efforts of public servants to resolve disputes, reconcile principles and mediate conflicts. How to measure their input? Formal and informal conversations and investigations went on intermittently from 1969 to 1978, between Canberra and Brisbane, Canberra and Waigani – though never between Waigani and Brisbane. In 1976 the invisible officials of the three governments had even delineated a line that was almost identical to the final outcome. Two years later, the last draft to the Commonwealth Cabinet comprised 55 pages of text, supported by 10 dense pages identifying latitudes and longitudes of every twist and turn of the boundary.31 The surveying alone was worth a Nobel Prize!

Days of work were invested in briefing notes for Doug Anthony before he encountered the Queensland Premier in May 1978: his aims were spelt out, with a suggested approach; six pages of talking points were listed, and three pages summarising them. He was briefed on offshore oil drilling, and Canberra's view of the 'so-called 1878/1879 "boundary" ', on which Queensland's case rested.32 The briefing had to be accurate, because Sir Joh was also being briefed. Essentially, the public servants were creating ammunition with which Anthony could persuade Sir Joh to accept an agreement already reached between Peacock and Olewale. That is the kind of spade work required whenever 'My Dear Prime Minister' addressed a letter to 'My Dear Premier'.

Relations with Papua New Guinea were robust, but never that tense. That was partly because 'Yours sincerely, Andrew' could write warmly to 'Dear Ebia', recalling a social event and thanking him for hospitality before raising a particular issue. More important was the network of personal relations linking Foreign Affairs officials. Here are two examples.

Approaching Independence, a mere handful of alarmingly young Papua New Guineans – including the present High Commissioner to Australia – drove the new national bureaucracy with unreasonable maturity. Anthony Siaguru had such gravitas as an undergraduate that he was a natural diplomat. After exposure to Harvard, a stint as a foreign service trainee in Australia, and an attachment to the Australian mission in Geneva, he came home to head his own country's department. In later years, to nobody's surprise, Sir Anthony was Assistant Secretary-General of the Commonwealth Secretariat.

Many Australian public servants 'went finish' at Independence. The young and adventurous stayed, such as Geoffrey Dabb, seconded from the Law Department to advise on International Law. Because he and Siaguru both had close contacts in Canberra, formal correspondence between the governments was often supplemented by back channels. When an election was due in Papua New Guinea, for example, they could advise Canberra to back off contentious issues. When John Guise, perpetually aggrieved, accused Australians of blackbirding, or proposed that overlapping Exclusive Economic Zones would trigger warfare, it was good for these remarks to be put in context.

What of Canberra? Foreign Affairs was the lead agency. Officers in the Department had taken a keen interest in Papua New Guinea for some years. They had provided cadetships for Siaguru and others, and introduced Papua New Guinean politicians to useful contacts in Africa, the Pacific Islands and the United Nations. That is where John Greenwell and Alan Kerr and the managers of the transfer of powers were transferred when the Territories Department was dissolved. Nevertheless it was a curious choice: Papua New Guinea was only recently foreign; Torres Strait was not so much foreign as strange; Queensland – jokes aside – was not foreign at all. They had no mandate and no experience in domestic politics. This may explain why so much was done in camera, leaving the public to guess what was going on.

Officers in Territories coordinated decolonisation, whereby powers were transferred piece-meal from every Australian agency and department to brand new Waigani successors. The border with Indonesia had to be defined as well as the Australian border; the United Nations had to be persuaded to approve the merging of New Guinea with Papua and to hear – but disallow – Bougainville's bid for independence. These interlocking manoeuvres had a strict timetable, and they were achieved while the unit itself was moved to Foreign Affairs, and wound down. John Greenwell and Alan Kerr kept all these balls in the air.33

Keeping track of the tripartite negotiations over the border was equally demanding. In charge of these issues was Malcolm Lyon, acting First Assistant Secretary, at the height of his powers in his 40s, after a year's posting in Port Moresby. His signature appears on hundreds – perhaps thousands – of the documents, and it is immediately clear that he had either written or read and edited them, his encyclopaedic memory kept track of them, and he understood how each related to all the others. No Minister wrote a word or made a speech, without Lyon's drafting or editing.

These men were at least a decade older than the Waigani whippersnappers, and in some cases they had directly outranked them: it must have been tricky to separate the personal from the professional when dealing with such friendly and familiar opponents, yet the courtesies were always observed. That is also true of their dealings with Keith Spann and others in the Premier's Department in Brisbane.34 These negotiations were diplomatic in every sense of the word. Political leaders might rant: public servants never. It was their professionalism, and their dedication, which underpinned the successful negotiations.

In the 1980s, Chou En Lai was asked his opinion of the French Revolution. He said it was too soon to judge. That is even truer of the Torres Strait Treaty, but we can say that it has made a very promising start.

Appendix 1: Chronology

1898
Queensland's proposal to move the border south is mislaid.
1963
The border question raised by John Guise in Papua New Guinea's Legislative Council.
1967
Referendum on Aboriginal (and Torres Strait Islander) people.
June 1969
Ebia Olewale MHA asks for a revision of the border.
31 July 1969
Prime Minister's Department approaches Queensland Premier's Department.
13 August 1969
Whitlam proposes border change.
21 August 1969
Queensland Minister endorses 'Border No Change' position.
September 1969
Talks with Queenslanders: they do not propose to resettle Islanders.
May 1970
TSI Councillors pledge support for Saibai, Boigu and Dauan.
July 1970
Bjelke-Petersen pledges support for Saibai, Boigu and Dauan.
Early 1972
Queensland rejects land rights policies.
15 December 1972
Whitlam suggests tripartite border discussions.
11 January 1973
Bjelke-Petersen declines.
17 January 1973
Somare and Whitlam joint statement about negotiations.
28 February 1973
Urgency motion carried in Senate that no islands be transferred without a referendum of all Islanders.
1973
National Aboriginal Consultative Committee and Federal Aboriginal Affairs offices at Thursday Island. Beckett calls this an 'uneasy condominium'.
12–13 June 1973
Island Chairmen travel to Canberra. Whitlam urges border change.
19–20 September 1973
Yam Island meeting.
8 October 1973
Coombs circulated 'drafting notes'.
29 October 1973
First draft of proposed treaty.
March 1974
Maori Kiki proposes a single all-purpose boundary line.
3 April 1974
Queensland proposes a Marine Park, and reaffirms historic fishing privileges and natural resource interests: permanent ban on all oil exploration.
April 1974
Brief thaw in relations between Whitlam and Bjelke-Petersen.
29–30 May 1974
Daru Island conference.
June 1975
Racial Discrimination Act.
3–4 July 1975
Federal and Queensland officials meet in Brisbane.
15 September 1975
Independence of Papua New Guinea.
16 September 1975
Olewale says Torres Strait Islanders historically and ethnically part of Papua New Guinea.
8 October 1975
Bjelke-Petersen accuses Coombs of proposing to move sea border to 10 degrees S, leaving islands as they were.
May–August 1976
Negotiations resume: Peacock and Maori Kiki.
2–4 August 1976
Australia and Papua New Guinea officials recommend a line (virtually the eventual seabed boundary).
7 August 1976
Peacock and Kiki endorse the line, for seabed purposes, subject to agreement on the rest of the settlement.
29–31 October 1976
Townsville conference.
11 February 1977
Fraser–Somare communiqué.
February 1977
Papua New Guinea's 'national seas' legislation omits Torres Strait after talks with Fraser.
1978
Pat Brazil finds that Kawa, Mata Kawa and Kussa were always Papuan.
February 1978
Peacock and Olewale resume negotiations.
20 February 1978
Guise attacks everyone.
March 1978
Porter attacks everyone.
7 April 1978
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act passes.
26 April 1978
Peacock and Olewale resume talks.
11 and 25 May 1978
Peacock announces agreement with Olewale.
22 May 1978
Local Government (Aboriginal Lands) Act.
May–June 1978
Detailed cartographic survey.
October 1978
Islanders and Bjelke-Petersen agree to a modified text.
31 October 1978
Island Chairmen adopt the text at Yorke Island, meeting Peacock (and Viner) and Bjelke- Petersen (and Porter).
2 November 1978
Peacock and Olewale at Daru adopt a text and details.
November 1978
Garlemo Kelly Wacando sues Commonwealth and Queensland.
11 or 12 Dec 1978
Ettie Pau (on behalf of Torres Strait Light Infantry veterans) asks George Mye to seek delay, explanations and a referendum.
18 December 1978
Treaty signed.
15 February 1985
Treaty in force.
1985
Queensland legislates to abolish native title.
8 December 1988
Mabo first case decided.
3 June 1992
Mabo second case decided.
October 1997
Surveillance Review reports: AFP presence on Thursday Island, more resources. $6.7 million to upgrade surveillance etc.
2007–08
Papua New Guinea villagers join an (Australian) Native Title Seas claim.

Appendix 2: Records about the Torres Strait Treaty

The National Archives holds records of a number of the Australian Government agencies with key roles in developing and negotiating the Torres Strait Treaty – including the Department of Foreign Affairs, the Attorney-General’s Department, and the Department of the Prime Minister and Cabinet – as well as the Joint Parliamentary Committee on Foreign Affairs and Defence, which conducted two inquiries into aspects of the Treaty during the late 1970s. Relevant material from the personal records collections of Prime Minister Malcolm Fraser, and Attorney-General’s Department official, John Greenwell, has also been identified. A selection of the National Archives holdings is set out in the following table.

Selected records relating to the Torres Strait Treaty

Title or description of recordDateSeries & item no.
Department of Foreign Affairs
Working papers of the negotiations for the Torres Strait Treaty1973–78A10580
Records of Treaty and negotiations1976–78A1838, 3080/18/1/3/23 Parts 1 to 3
Torres Strait Treaty1977–79A1838, 3080/18/1/3/15
Parts 1 to 7 and annexure
Torres Strait Treaty – implementing legislation1978–79A1838, 3080/18/1/3/16
Parts 1 and 2
Torres Strait Treaty – arrangements for signing ceremony1978–85A1838, 3080/18/1/3/19
Part 1
Torres Strait Treaty – legal challenge to the Treaty1978–80A1838, 3080/18/1/3/21
Part 1
Brief for Australian delegation to official discussions with Papua New Guinea on the Torres Strait Treaty1978A2539, B1978/26
Brief for Minister for Foreign Affairs for discussions with Queensland Ministers and Torres Strait leaders on Torres Strait Treaty1978A2539, B1978/27
Attorney-General's Department
Torres Strait Treaty – passenger concessions section interests1976–86A425, 1979/4060
Department of the Prime Minister and Cabinet
Torres Strait Agreement– Treaty signing ceremony and Secretary's luncheon – invitation lists1978A463, 1978/2694
Cabinet Office
Torres Strait – Australian position for resumed treaty negotiations with Papua New Guinea1978A12909, 2078
Treaty between the independent state of Papua New Guinea and Australia concerning sovereignty and maritime boundaries in the area between the two countries including the area known as Torres Strait and related matters1978A12909, 2737
Department of Immigration and Ethnic Affairs
Torres Strait Treaty negotiations, Part 101978–85A446, 1979/95006
Joint Parliamentary Committee on Foreign Affairs and Defence
Inquiry into Torres Strait boundary1976–77A12882
Inquiry into Torres Strait Treaty1977–83A12745
Rt Hon John Malcolm Fraser (CP 51)
Torres Strait Treaty1975–79M1268, 231
Torres Strait Treaty – 18 December
1978 – speech notes
1978 
John Henry Greenwell (CP 1000)
Torres Strait Treaty1973–81M4835, 36
Torres Strait – Australia-Papua New
Guinea border
1974–78M4835, 231

Departmental work is generated in part by the need to brief ministers before important meetings, and partly to prepare well-argued and accurately documented submissions for the Minister to take to Cabinet. Cabinet submissions may simply bring Cabinet up to date on (for example) Torres Strait negotiations, or to recommend a particular course of action. In either case, they are the clearest and most reliable access points to departmental thinking.

Appendix 3: Other useful sources

Philip Alpers, Gun-Running in Papua New Guinea: From Arrows to Assault Weapons in the Southern Highlands, Special Report no. 5, Small Arms Survey, Geneva, 2005.

WS Arthur, Tradition and Legislation: Analysis of Torres Strait Treaty and Fisheries Act Terms, Centre for Aboriginal Economic Policy Research, ANU, Canberra, 2004.

WS Arthur, 'Autonomy and Identity in Torres Strait, a Borderline Case?', Journal of Pacific History, vol. 36, no. 2, 2001.

Jeremy Beckett, Torres Strait Islanders: Custom and Colonialism, Cambridge University Press, Sydney, 1987, http://www.loc.gov/catdir/toc/cam027/87006552.html.

Jeremy Beckett interviewed by Edgar Waters, 2 tape reels, National Library of Australia, 8 April 1992.

PJ Boyce and MWD White (ed.), The Torres Strait Treaty: A Symposium, ANU Press, Canberra, 1981, (includes the text of the Treaty).

HC Coombs, Trial Balance, Macmillan, Melbourne, 1981.

Donald Denoon, A Trial Separation: Australia and the Decolonisation of Papua New Guinea, Pandanus Books, Canberra, 2005.

Sean Dorney, Papua New Guinea: People, Politics and History since 1975, Random House, Sydney, 1990.

EK Fisk et al., The Border and Associated Problems, Research School of Pacific Studies, ANU, Canberra, 1974.

Christopher M Gilpin et al., 'Evidence of primary transmission of multidrug-resistant tuberculosis in the Western Province of Papua New Guinea', Medical Journal of Australia, vol. 188 no. 3, pp. 148–52, 2008.

James Griffin, 'Impasse in Torres Strait', Australian Outlook, vol. 31, no. 2, 1977.

James Griffin, The Torres Strait Border Issue: Consolidation, Conflict or Compromise?, Townsville, 1976.

Alfred C Haddon, Migrations of Cultures in British New Guinea, Royal Anthropological Institute, London, 1920.

Alfred C Haddon, The Wanderings of Peoples, Cambridge University Press, Cambridge, 1911.

Hindsight: a workshop for participants in the decolonisation of Papua New Guinea, ANU, 3–4 November 2002, rspas.anu.edu.au/papers/pah/hindsight.pdf.

Gunnar Landtman, Nya Guinea farden, Helsingfors, Soderstrom, 1913, reproduced as The Kiwai Papuans of British New Guinea; A Nature-born Instance of Rousseau's Ideal Community, Johnson Reprint Corp., New York, 1970.

Hugh Lunn, Joh: The Life and Political Adventures of Johannes Bjelke-Petersen, University of Queensland Press, Brisbane, 1978.

John McFarlane. Torres Strait: Policing the Open Border, Australian Institute of Criminology, Paper 92, Canberra, July 1998.

Clive Moore with Mary Kooyman (ed.) A Papua New Guinea Political Chronicle 1967–1991, Crawford House Publishing, Bathurst, 1998.

Hank Nelson, Taim Bilong Masta: The Australian Involvement with Papua New Guinea, ABC Books, Sydney, 1982 and 1990.

Garth Nettheim, Queensland's Aborigines and Islanders and the Rule of Law, Australia & New Zealand Book Co., Sydney, 1973.

Garth Nettheim, 'A Matter of Management? The Prospect for Queensland's Aboriginals and Islanders', UNSW Law Journal, vol. 2, 1978.

Garth Nettheim, Victims of the Law: Black Queenslanders Today, Allen & Unwin, Sydney, 1981.

Lola R O'Donnell, The Torres Strait: A Case Study Analysis in Multi-level Governance, Doctoral thesis, Griffith University, November 2006.

Tim Rowse, Nugget Coombs: A Reforming Life, Cambridge University Press, Melbourne, 2002, and online at Google Books, http://www.loc.gov/catdir/toc/fy036/2002489580.html.

Endnotes

  1. Fisk et al., The Border and Associated Problems.
  2. Records of negotiations are archived at NAA: A1838, 3080/18/1/3/23 Parts 1 to 3: these are supplemented by Rowse, Nugget Coombs.
  3. NAA: A1838, 3080/18/1/3/19 Part 1, provides the formal details.
  4. NAA: A1838, 3080/18/1/3/5, August 1977 and April to July 1978.
  5. For example, in September 1976 nine senior public servants, including Alan Griffith and Malcolm Lyon, accompanied by a representative from the Queensland Premier's Department, held long discussions on Yam Island, with very limited success, NAA: A1838, 3080/18/1/3/23.
  6. NAA: A1838, 3080/18/1/3/21 Part 1.
  7. Denoon, Trial Separation, reviews these circumstances.
  8. Papua New Guinea's parliamentary politics were recorded two or three times a year in the Australian Journal of Politics and History. These records are brought together in Moore, A Papua New Guinea Political Chronicle 1967–1991.
  9. I am indebted to Dr Lola O'Donnell's thesis, The Torres Strait: A Case Study Analysis in Multi-level Governance, for quotes from the Queensland Premier's Department papers.
  10. Denoon, Trial Separation.
  11. Coombs, Trial Balance, and Rowse, Nugget Coombs.
  12. Fisk et al., The Border and Associated Problems.
  13. Beckett, Custom and Colonialism; Beckett, interviewed by Edgar Waters.
  14. Rowse, Nugget Coombs.
  15. O'Donnell's thesis, 'The Torres Strait'.
  16. Landtman, The Kiwai Papuans of British New Guinea; Haddon, Migrations of Cultures in British New Guinea, and The Wanderings of Peoples.
  17. Queensland's Cabinet records are published online, with helpful commentary.
  18. The liveliest discussion of Papua New Guinea's parliamentary politics in that era is Sean Dorney, Papua New Guinea: People, Politics and History since 1975.
  19. The clearest overview of the affair of the mudflats is by Geoffrey Dabb, in Hindsight workshop, ANU.
  20. Boyce and White, The Torres Strait Treaty: A Symposium.
  21. James Griffin (ed.), The Torres Strait Border Issue: Consolidation, Conflict or Compromise? See also, his 'Impasse in Torres Strait'.
  22. NAA: A1838, 3080/18/1/3/1 Part 2, Cabinet Submission 2737 from Peacock: 10 November 1978.
  23. NAA: A1838, 3080/18/1/3/21 Part 1, ff 26 and 116 onwards.
  24. Denoon, Trust Territory, UPNG Press, (forthcoming).
  25. McFarlane, Torres Strait: Policing the Open Border.
  26. Gamogab v Akiba [2007] FCAFC 74: Kiefel, Sundberg and Gyles JJ, reported in Native Title Notes; see also Padraic Murphy in The Australian, 15 October, 2008.
  27. Bill Arthur, Tradition and Legislation.
  28. eg Torres News, 4 January 2008.
  29. Gilpin et al., 'Evidence of primary transmission of multidrug-resistant tuberculosis', Medical Journal of Australia, 2008.
  30. NAA: A1838, 3080/1/3/2 Parts 1–4, ff 52–60. Summary record of discussions between Andrew Peacock and five Queensland ministers (including the Premier), 4 August 1978. Peacock was supported by AT Griffith (PM&C representative in Brisbane), another PM&C officer, Malcolm Lyon and three other Foreign Affairs officers; four State officials supported their ministers.
  31. The Cabinet submissions are archived in NAA: A1838, 3080/18/3/1 Parts 1, 2 and 3.
  32. NAA: A1838, 3080/18/1/3/2 Parts 1–4, ff 24 onwards. Briefing Notes for the Deputy Prime Minister…17 May 1978.
  33. Denoon, Trial Separation.
  34. Fully described in O'Donnell's thesis, 'The Torres Strait'.

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