Exploring in areas covered by Native Title, Treaties and Memoranda of Understanding
Native title rights
Native title is the recognition in Australian law that Indigenous people had a system of law and ownership of their lands before European settlement. Where that traditional connection has been maintained, and where acts have not extinguished it, native title can be recognised by the law.
Native title is a pre-existing right or interest that may be present over land and water even if there is no court determination or native title claim. Native title can also exist offshore.
Native Title Act 1993
In summary, the Native Title Act 1993 (NTA):
- recognises and protects native title;
- validates some acts done in the past which may have been invalid because of the existence of native title;
- confirms the extinguishment of native title in some circumstances;
- creates a ‘future act’ regime which sets out conditions for the doing of acts affecting native title lands or waters (for example, the grant of a license to produce petroleum);
- enables the relevant parties to enter ‘Indigenous Land Use Agreements’ to settle any native title issues; and
- provides a process by which claims for native title and compensation can be determined.
Offshore native title
In 2001, the High Court of Australia handed down its decision in Commonwealth v Yarmirr (the Croker Island Sea Case). The High Court held that native title can exist offshore within the limits of Australia’s territorial sea. It is unclear whether native title can exist in waters seaward of Australia’s territorial sea.
The High Court held that offshore native title can only be non-exclusive. This means that native titleholders will not have the right to exclude others from accessing the sea or sea bed in the waters where native title exists. The future act regime also applies to acts done offshore, for example the grant of a permit to produce petroleum.
Consistent with the High Court’s decision in the Croker Island Sea Case, in July 2008 the Attorney-General announced that in the determination of native title rights and interests, the Commonwealth was willing to recognise that non-exclusive native title rights can exist in territorial waters up to 12 nautical miles. However, such recognition does not affect or amend obligations arising under the future acts regime.
Complying with the NTA
The NTA allows future acts to be done offshore, as long as the procedural requirements of the future act regime are complied with. In most cases, native title parties must be provided with the same procedural rights as other parties who hold non-native title interests in the offshore area. In some cases this will amount to a right to be notified about the proposed grant of a mining or petroleum tenure. However, it is important to note that the ‘right to negotiate’ provisions in the NTA do not apply offshore.
Where an act that affects native title has been done, the native titleholders for the relevant area may be entitled to compensation. On the current state of the law, it is not possible to predict the likely quantum of any compensation.
Native Title and the OPGGSA
The OPGGSA requires that offshore petroleum operations be carried out in a manner that does not unduly interfere with other rights and interests, including native title rights and interests. To this end, the Australian Government consults with native title parties regarding Acreage Releases. It is recommended that companies initiate their own consultative processes to develop good working relationships with the Indigenous people in the area.
For further information about the NTA contact:
Principal Legal Officer, Future Acts Team Native Title Unit
3-5 National Circuit
BARTON ACT 2600 AUSTRALIA
Telephone: +61 2 6141 4715
Web Page: www.ag.gov.au
The outer edge of Australia’s Exclusive Economic Zone (EEZ) is 200 nautical miles from Australia's territorial sea baseline, other than in areas subject to delimitation with neighbouring countries. In those areas, the location of the outer edge of the EEZ will depend on the EEZ boundary agreed in the treaty between Australia and the relevant country.
Australia has entered into maritime boundaries treaties with Indonesia, Papua New Guinea, Solomon Islands, New Zealand and France (New Caledonia and Kerguelen). Australia and Timor-Leste have not delimited their maritime boundaries, but have entered into treaties which establish provisional arrangements to provide a framework for the joint management and development of the hydrocarbon resources in the Timor Sea.
Particularly relevant to offshore petroleum exploration are the treaties between Australia and Timor-Leste, and Australia and Indonesia.
A map of Australia’s maritime boundaries can be found at: http://www.ga.gov.au/webtemp/image_cache/GA8896.pdf
Australia-Indonesia treaty arrangements
Australia and Indonesia have entered into a number of agreements and arrangements relating to the maritime area between Australia and Indonesia (including the area between the Australian Territory of Christmas Island and the Indonesian island of Java), including:
- Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia establishing Certain Seabed Boundaries  ATS 31 (1971 seabed agreement);
- Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971  ATS 32 (1972 seabed agreement);
- Memorandum of Understanding between the Government of Australia and the Government of the Republic of Indonesia Regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Exclusive Fishing Zone and Continental Shelf, 7 November 1974;
- Memorandum of Understanding on a Provisional Fisheries Surveillance and Enforcement Line, 29 October 1981 (the PFSEL); and
- Treaty between the Government of Australia and the Government of the Republic of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries (Perth 14 March 1997) (the 1997 Perth Treaty), not yet in force.
Figure 1: Consolidated Maritime Boundary Treaties between Australia and Indonesia and the 1997 MoU
The 1971 and 1972 seabed agreements establish a seabed boundary between Australia and Indonesia across much of the Arafura and Timor Seas. The 1971 and 1972 seabed agreements are in force. The Perth Treaty, signed by Australia and Indonesia in 1997, establishes an EEZ boundary and certain seabed boundaries.
Under the 1997 Perth Treaty, there are areas of overlapping jurisdiction where Australia exercises seabed jurisdiction including to explore for petroleum, and Indonesia exercises water column jurisdiction including fishing rights (the Perth Treaty area).
While the Perth Treaty has yet to enter into force, the Australian Government acts consistently with its obligations under the Perth Treaty pending its entry into force. The Perth Treaty sets out a number of obligations, including:
- Article 7 - Areas of overlapping jurisdiction: requires that Australia give Indonesia three months’ notice of ‘the proposed grant of exploration or exploitation rights’ in the Perth Treaty area; and
- Article 9 - Exploitation of certain seabed deposits: directs the Parties to seek agreement on the most effective means of exploiting and equitably sharing any hydrocarbon deposit that straddles the maritime boundaries described in the treaty.
Under Article 7, notification to Indonesia is undertaken:
At least three months prior to the proposed grant of exploration and exploitation rights in the Perth Treaty area; and
Prior to the construction of any installations or structures in the Perth Treaty area.
The notification process is conducted by the Australian Government Department of Industry and Science through the
Attorney-General’s Department and the Department of Foreign Affairs and Trade, which liaise directly with the Indonesian Government in Jakarta.
Indonesian Traditional Fishing in the ‘Mou Box’
The 1974 Australia-Indonesia Memorandum of Understanding regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Exclusive Fishing Zone and Continental Shelf (The MOU) provides a basis for traditional Indonesian fishing access to the MOU Box within Australia’s north-western exclusive economic zone. Specifically, Australia agrees to refrain from applying its fisheries laws against traditional Indonesian fishermen who conduct their operations in accordance with the MOU.
Traditional fishers can be found in any part of the dedicated MOU Box and in adjacent Australian waters where they may stray from time to time. Their vessels are likely to have “longlines” of 1-2 km long deployed, and diving is also known to occur. The traditional fishermen may not carry communication equipment and they are not known to use navigation lights or radar reflectors. The vessels are not motorised which limits their capacity to take evasive action. The hulls are timber and present poor radar targets.
Indonesian fishermen target some species that are sedentary, which are, at the harvestable stage, either immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. This includes trochus, beche de mer, abalone, green snail, sponges and molluscs.
Based on these facts, caution is recommended when operating in the MOU Box.
Australia and Timor-Leste
Joint Petroleum Development Area
The Joint Petroleum Development Area (JPDA) is situated in the Timor Sea between Australia and Timor-Leste. It was established by the 2002 Timor Sea Treaty (TST), which provides the framework for all petroleum exploration and development within the JPDA. The TST is one of the provisional arrangements that is without prejudice to the position of either country on their maritime boundary claims.
The TST provides that title to petroleum production in the JPDA is split between Timor-Leste and Australia on a 90:10 basis, respectively.
The TST creates the Joint Commission to establish policies and regulations for petroleum activities in the JPDA, and to oversee the work of the Designated Authority. The Joint Commission is comprised of one Australian representative and two Timorese representatives.
Day-to-day regulation and management of the JPDA is the responsibility of the Designated Authority, which is currently the Timor-Leste offshore regulator, the Autoridade Nacional do Petróleo (ANP). The ANP regulates operations in the JPDA on behalf of both countries.
Further information on developments within the JPDA, including revenue received by both Timor-Leste and Australia, is available from the ANP website.