Kim Kil Nam, James Cho and G and J Fisheries Company Limited are charges with offences under the Fisheries Act 1989. They were charged with fishing without a local fishing vessel licence, undertaking marine scientific research without authorisation and operating a fish processing establishment without a licence.
Mr Nam is the master of the vessel and Mr Cho is the managing director of the company. The company operates the vessel in question that was boarded at 23 degrees 39.48 minutes South and 178 degrees 54.51 minutes West, a position within the North Minerva Reef of Tonga.
The Crown had to prove beyond reasonable doubt the true position of the island Teleki Tokelau in order to establish the definitive scope and limitation of the 12 mile fishing limit.
Evidence provided included that the records were available for inspection by anyone, testimony from a member of the monitoring and surveillance section of the Ministry of Fisheries, confirmation by an employee of the Ministry that apprehended the vessel of the GPS position. Secretary for the Ministry confirmed that the waters within and around the Reef are part of Tonga by virtue of Royal Proclamation of 1972. This proclamation also stated that it included the waters within 12 miles of the artificial island.
While some, including employees of the Ministry did not know the coordinates of the island, only of the Reef. In previous cases the island has not been included as during high tide the island is no longer a prominent feature. When asked about public notification of the coordinates of the island the member of the patrol that apprehended the vessel his answer ‘made it quite clear that in his view after the Royal Proclamation in 1972 it was public knowledge that this reef area was Tongan.’
The Justice held that on the basis of the evidence it was satisfied beyond reasonable doubt that the vessel was fishing within 12 miles of the coordinates of the artificial island.
Mr Niu submitted that that interpretation was wrong. He submits that the wording of the proclamation itself is specific to the islands and if there is no island existing then there is no point from which the 12 mile radius can be measured. The proclamation cannot be interpreted to mean a set of coordinates may be substituted for the islands. If that were the case then there should have been a further Gazette notice. He also noted the ratification of the United Nations convention which provides that an artificial island is not entitled to territorial waters.
The justice held that so far as the United Nations Convention issue is concerned the Crown submits that it does not apply in this case because the provision was adopted after the Fisheries Act was enacted. He also stated that there was no doubt that the intent and purpose of the 1972 Proclamation was to ensure that at international law the reefs known as North Minerva Reef and South Minerva reed were part of the fisheries waters of the Kingdom of Tonga.
(Summary provided by Eva Sheppard from the Queensland University of Technology)