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Wednesday, 19 September 1973
Page: 1277

Mr JACOBI (Hawker) can settle this at the Law of the Sea conference.

Let me turn to the position in the United States. There was a whole series of important United States oases in the nineteenth century - both Supreme Court and State courts - from the turn of the century, establishing that internal waters, that is bays and gulfs, were part of the territory of the various States to the extent permitted by English common Jaw. The important Supreme Court case of Pollard's lessee v. Hagan in 1845 established that States entering the Union subsequent to the original federation were admitted on an equal footing and therefore acquired the same sovereign and proprietary rights in tidal lands and submerged lands under internal waters.

The litigation in the Supreme Court since 1947 has not controverted the fundamental underlying principle, namely, State rights to submerged lands under internal waters. However, the Supreme Court has seen fit either to ignore its previous decisions on the extent of internal waters or to regard them as inapplicable. More modern and internationally convenient definitions have been adopted. It is most doubtful that this neglect of judicial history would be possible in an Australian court, especially if it is found that the States' boundaries were somehow frozen at colonial inception or at federation. In such a case judical alteration of State boundaries, such as has been countenanced by the United States Supreme Court since 1947 could not be legally tolerated. However, it should also be pointed out that the United States Constitution does not appear to have equivalents to sections 123 and 128 of our Constitution, which impede Federal Government action.

There have been frequent United States decisions establishing national property rights in the territorial sea, but until the United

States v. California case in 1947 it was not clear how these rights were divided in the federation. It should be pointed out however, that in that case the Supreme Court was motivated by political consideration - the paramountcy of the Federal Government in international affairs - which might not be available to our more legalistic High Court. In substance the Supreme Court was able to say that property rights in the territorial sea had coalesced with political rights, that political rights must vest in the national Government, and therefore property rights must too.

The Truman Proclamation in 1945 catalysed legal interest in the exploration of off-shore resources being undertaken at that time in the United States. It probably sparked the litigation in the Supreme Court to adjudicate between State and Federal rights. One of the commonly known submerged lands cases was the United States v. California in 1947. This was the first of 3 United States Supreme Court cases - the others were the United States v. Texas and the United States v. Louisiana both in 1950 - involving rights in the submerged lands underlying the ocean and outside the internal waters of California, Texas and Louisiana. The litigation began in 1945 following a controversy between the United States and several coastal States beginning in the 1920s with respect to the issuing of oil and gas leases over submerged lands by the United States.

The California case, a test case to determine the extent of respective rights, was instituted by the United States against the State of California in the original jurisdiction of the Supreme Court. In summary, the result of the case is expressed in this form: This case was necessary and inevitable, given valuable submerged lands, and 2 governments maintaining conflicting proprietary interests in them. It is an adjudication which cannot be avoided in any federation. However, it is suggested that our rather legalistic High Court will have to search for an historical vesting of rights in the territorial sea in one of our federal polities, rather than hand down a decision overtly motivated by political consideration.

I turn to the Louisiana case. Prima facie, Louisiana's claim for sovereignty over the territorial seas was directly parallel to that of California and therefore warranted litigation only if it was likely that the Supreme Court would overrule its previous verdict. Both

States were acquired from foreign countries - California from Mexico and Louisiana from France. Both were admitted to the Union after its formation and both were admitted- on the customary 'equal footing'. However, Louisiana relied on one important differential. It had, by statute in 1938, extended its seaward boundaries to 27 marine miles from the shoreline. It was upon this action that Louisiana relied to set it apart from the considerations which pertained in the California case. In summary, this litigation arose because the State of Louisiana had unilaterally laid claim to a 27-mile territorial sea prior to the decision in the California case. The Supreme Court held unilateral extension without the imprimatur of national approval to be of no effect. There has been no such unilateral extension by an Australian State, nor does it seem possible that an Australian State would have power so to alter its boundaries.

I turn to the Texas case, the decision in which was handed down by the Supreme Court on the same day as its decision in the Louisiana case. The problems in the case of Texas were somewhat different because of its unique pre-admission status. Of the 37 States that have joined the Union subsequent to its formation, Texas was alone an independent nation immediately prior to statehood and did not first pass through territorial status. In these circumstances, Texas quite naturally argued that, as an independent nation, it had acquired paramount rights in the territorial sea equivalent to those awarded to the United States by the Supreme Court in the California case by virtue of its national external sovereignty.

However, once again the Supreme Court was not easily swayed from its path of national paramountcy. It invoked the 'equal footing* clause against Texas by holding that irrespective of its pre-admission status upon admission to the Union its rights in adjacent maritime areas were no greater than those of any other coastal State. That case may be summed up in this way: This litigation arose first because of a unilateral boundary extension by Texas and, secondly, because of the unique independent republican status of Texas prior to admission to the Union. Neither consideration is material in the Australian Federation; nor is the Supreme Court's argument in rebuttal of Texan claims that the 'equal footing' clause be invoked.

In 1952 there was the Supreme Court Master's Judgment. This was a case in which internal waters were defined. It should be noted that in the California case the United States complaint excluded tide lands as well as lands under internal navigable waters from the controversy of disputed ownership. The Supreme Court held in 1947, by a vote of 6 to 2, that the United States and not California had paramount rights in the territorial sea and, incident to this, full dominion over the resources of the appurtenant seabed. While this judgment settled the basic division of legal rights over submerged lands, it made no precise demarcation of the Federal-State boundary. The Court adverted to this omission and commented that it would be more appropriately resolved at a later date.

In January 1948 the United States Government filed a petition for the entry of a supplemental decree seeking an adjudication. The Supreme Court rejected this submission but was unable to specify what particular segments should be determined. The Special Master was appointed with instructions to determine what segments of the coast 'called for precise determination . . .' One of the clauses directed to the Master read:

Are particular segments in fact bays or harbours constituting internal waters and from what land marks are the lines marking the seaward limits of bays, harbours, rivers and other internal waters to be drawn.

The Special Master filed his report with the Supreme Court in October 1952. It was particularly significant in two respects. First, the Master looked to international law, and to United States policy on it, rather than to any common law or internal constitutional criterion. Secondly, the Master treated United States rather than Californian practice, evidenced usually by nothing more authoritative than policy statements, as decisive. The Master considered that: 'On the question of constitutional law propounded I agree with counsel for the United States that when the action of a State is actually contrary to action by the Federal Government the action is invalid for the reason that it is in conflict with the superior authority of the United States'.

In reaching 'this conclusion, the Master was most probably influenced by Supreme Court decisions with regard to the territorial sea to the effect that the States could not, by extending their seaward limits, commit the Federal Government internationally to a greater extent than it had committed itself. In summarising that particular case, once again this sort of adjudication is inevitable in any federation, given the need to define the baseline from which the territorial sea is to be measured, and given the concept of internal waters which are part of the land territory for legal purposes. Again, however, it is submitted that in the Australian federation it is unlikely that a court will be able to incorporate current international criteria into the Australian constitutional structure. Rather, more traditional principles will have to be looked to. Furthermore, it is doubtful whether the Commonwealth will simply be able to apply the Geneva Convention to the States because of section 123 and section 128 of our Constitution, and perhaps because of more general fundamental constitutional principles. However, the problem of defining the location of the baseline for the Australian territorial sea will probably prove the most difficult task confronting Austraiian courts dealing with off-shore legal problems. Extensive and complex coastlines present no easy solutions.

In 1953, as the honourable member foi Farrer (Mr Fairbairn) said, the U.S. Congress passed the Submerged Lands Act In effect, the Act reversed the Supreme Court decisions in United States versus California and Louisiana cases. Thus what was once settled became unsettled once more. The Submerged Lands Act had a very simple goal, to reverse the previous Supreme Court decisions on the territorial sea. However it has probably raised as many difficulties as it solved, and has proved a breeding ground for litigation. The Act has been before the Supreme Court on 4 occasions. The first was a challenge to its constitutionality. The latter have been related to interpretation of boundary provisions in the Act. X do not intend to deal with each of the cases. In conclusion I would like to refer to the classic Louisiana boundary case of 1969. Essentially this case raised the same problems as the second Californian case, that is, the problem concerning the meaning of 'coastline' in the Submerged Lands Act 1953 and the location of the seaward limits of internal waters. Louisana claimed to have found some points of distinction between its case and that of California.

In summary, Louisiana brought the instant litigation, first, because it was attempting to argue that the Supreme Court's adoption in the Californian case of definitions in the Geneva Conventions on internal waters was not generally binding on all States; and second, because it hoped that the inland waterline would have some boundary significance and thereby distinguish it from California. The first point is tenuous, the second can have no relevance in Australia. It is totally irrelevant for honourable members opposite to come to the conclusion that because there has been extensive litigation in the United States it will likewise happen in Australia. I say that for the following reasons. There are many factors which set the United States offshore resources legal controversy apart from the Australian constitutional situation. There are some indirect Federal parallels, but also many points of distinction. There is no need for similar extended and commercially unsatisfactory litigation in Australia.

I refer now to some of the factors which distinguish the 2 systems. Firstly, it is probable that the Australian States maritime boundaries, encompassing internal waters and possibly also the territorial sea, were fixed either at colonial inception or at federation. This would involve an Australian court in an historical investigation such as the United States Supreme Court saw fit to ignore because United States boundaries were not so fixed. Secondly, there are many more component States in the American federation, with far more variegated and even colourful constitutional histories, than in the Australian federation where by contrast constitutional development has been fairly uniform. Thirdly, the role of our courts will differ from that of the United States Supreme Court. Our courts would pay no heed to politically convenient notions like federal paramountcy in offshore areas if this means contraverting clearly established legal rules. It is just not on. Fourthly, the only necessary parallels for Australia in litigation are the first California case which determined rights in the territorial sea and the Special Master's Report which decided upon the extent of internal waters. Certainly the determination of the precise, extent of internal waters will be a problem. But surely it is a problem already. After all, who can unequivocably declare at the moment precisely what bays and gulfs are part of the territory of the Australian States and hence from where the territorial sea is to be measured. I have not heard anybody, either here or in a State Parliament define that.

The fifth point is that as yet we in Australia have no clear judicial decisions to overturn and no submerged lands Act to overturn them. This Act in itself has been the source of most of the United States litigation. The sixth point is that the problem of historic bays, as pleaded in the Louisiana Boundary Case probably will arise if it is found that a valid title can be acquired in municipal law by the historical process. On the other hand it might be that there is no need to refer to the historical process in municipal law. If a claim to sovereignty is made by legislation and there is power to pass such legislation, it will be binding without recourse to historical title. If historical title is relevant, it might mean lengthy investigation into the legal status of various bays and gulfs. This is unavoidable. Finally, there is no reason why there should be excessive and expensive litigation in Australia once the legal fundamentals of off-shore zones have been resolved.

It should be pointed out that these legal fundamentals must be resolved irrespective of any Commonwealth legislation. Who knows where we stand at the moment? The Senate Select Committee on Off-shore Petroleum Resources said:

The larger national interest is not served by leaving unresolved and uncertain the extent of State and Commonwealth Authority in the Territorial sea-bed and the Continental Shelf.

This question has to be resolved. If it is not done now it will have to be done in the future if the possession of off-shore resources is to be settled for the benefit of the nation as a whole. I support both Bills.

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