There’s nothing to be seen except the carcasses of ships wrecked on the coral and sand bars exposed at low tide.

Elizabeth and Middleton Reefs are in the southern Coral Sea around 95 km north of Lord Howe Island and 500 km east of Coffs Harbour.

courtIn March 1970 Sydneysider Alex Ure mounted a shipwreck resting on Middleton Reef above the high tide line and claimed the 60 km² coral cay, the slightly smaller Elizabeth Reef 45 km to the south and the waters in between for himself and friend Michael Chan.

Until he erected a sign on the bridge of the wrecked British cargo vessel – the SS Runic that ran aground in 1961 – proclaiming the place as theirs, there was no record of any earlier claim to either atoll.

The sign he nailed up specified the dimensions of their stake by latitude and longitude and was complete with an address for the pair in Pitt Street Sydney.

Whether or not in 1970 the reefs were in international waters and whether Ure’s claim to them was valid, last month came before the Federal Court of Australia in Sydney in a battle between Ure’s son and the Australian government.

The younger Ure – Alex Ure died in 1993 and his wife in 2015 – restated the family’s case that Australia had first purported to assert sovereignty over the islands in December 1987.

Only then – when it included them in a marine reserve established as a result of the implementation of the United Nations Montego Bay Convention in 1982 – had there been any interest from the antipodean authorities.

In contrast, Lord Howe – had been claimed by the British in 1788 and became part of the colony of NSW.

When the Commonwealth established the Coral Sea Territory in 1969, it didn’t extend as far south as the two reefs. Extending from the outer edge of the Great Barrier Reef, it includes Willis Island 450km east of Cairns and numerous uninhabited atolls. Middleton and Elizabeth Reefs were only aggregated into the Territory in 1997.

How then could the Feds assert to the court with a straight face that Australia had by some undisclosed means exercised sovereignty over them prior to the senior Ure’s landing in 1970?

The immediate ruling sought by the Ures though was an affirmation that their mere “occupation” was all that needed to establish ownership of an otherwise unclaimed maritime land mass.

The extent of their occupation was said to be the establishment of a safe harbour inside Middleton reef and plans for the location of navigational beacons to facilitate future visits and reduce marine hazards.

Ure and Chan had proposed to use the wreck of the Runic as accommodation for workers, tourists and guests and to store fuel in the still sound bunkers for sale to fishing and other vessels passing by.

The claimant demonstrated that the “occupation” rule had been applied internationally by illustrating its use in a 1933 Norwegian court ruling concerning a deserted volcanic island in the Arctic.

Jan Jacobsen asserted rights over Jan Mayen island in the Svalbard Archipelago between Norway and the North Pole to which no nation had laid claim until after the Spitsbergen Treaty divided up responsibility in 1925. Jacobsen had been mining sand there since 1921.

Against this contention the Commonwealth argued that only nation states could – according to contemporary understanding – lay claim to a territory even if no one else had ever shown any interest in it before.

The appeal judges deliberating in Sydney – Perram, Robertson and Moshinsky – agreed that the Norwegian ruling supported the Ure case.

Sadly though for the intrepid explorers, the court ruled that the single instance relied on was insufficient to prove a rule of customary international law.

Although the ruling is likely to put an end to their argument, the question of whether or not the islands were part of Australia in 1970 was unfortunately left undecided.

Had Ure claimed the reefs – say in the name of Vanuatu, New Guinea or even the royal family of the Hawaiian Islands – things would likely have turned out differently.

Especially as the claimants allege the waters within the enclave are atop an estimated US$1.1 trillion of hydrocarbon reserves.

Ure v The Commonwealth of Australia [2016] FCAFC 8 Perram J Robertson J and Moshinsky J 04/02/2016


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