On the Borderline: Who Is a “Traditional Inhabitant” under the Torres Strait Treaty?

The Torres Strait Treaty between Australia and Papua New Guinea (“PNG”) came into force in 1985. This unique treaty, which defines the maritime, seabed and fisheries boundaries between Australia and PNG, is recognised as one of the most complex, but imaginative maritime delimitation solutions in existence. The Treaty creates a Protected Zone with a view to safeguarding the traditional way of life and livelihood of traditional inhabitants of the Torres Strait and adjacent coast of PNG. Traditional inhabitants are allowed relatively unrestricted cross-border movement into the Protected Zone for the purpose of performing traditional activities. “Traditional inhabitants” are defined by the treaty, but the relevant provision is ambiguous and the question of who is within the terms of the Treaty is highly contentious. The problem is exacerbated by the competing layers of law which govern the Strait and surrounding Borderlands, and by the dissonance between State law, customary laws, and the practical application of the Treaty. This paper looks at the meaning of “traditional inhabitants” and some of the other issues surrounding this question.