USA challenges four South Australian bays (Encounter, Lacapede, Rivoli and Anxious) declared historic in 1987

Encounter Bay (top right) at Victor Harbor and Rivoli Bay (bottom right) on the southeast coast were two of the four (others: Lacapede and Anxious) declared as South Australia's historic bays in 1987.
Main image courtesy State Library of South Australia

The United States of America challenged four South Australian bays being declared historic in 1987. The claim to have historic bays meant South Australia could assert complete and unfettered control over the area within them in the same way it could over land, rivers and lakes.

The four South Australia lakes declared historic were Encounter on Fleurieu Peninsula, Lacapede and Rivoli on the southeast coast, and Anxious on Eyre Peninsula. Others considered for the historic status were Fowlers, Clare, D’Estree, McDonnell, Umpherstone and Guichen.

The historic bays were chosen, on technical and historical data, by a committee of senior law officers from the Australian and South Australian governments, in response to South Australian concerns about its right to exploit waters off its coasts. The committee viewed the South Australia’s claim for historic bays as long-standing because they rested on defining of the colony in the founding act of 1934 and the letters patent 1836 that said (uniquely among Australian colonies) its territory included “bays and gulfs”. (The South Australian government had lost the A. Raptis & Sons v South Australia 1977 case in the high court of Australia when the historical factor of “bays and gulfs” was weighed in judgements.)

The committee also suggested international law should accommodate local law when there was conflict. While the Australian government accepted the committee’s recommended four historic bays and had them proclaimed in 1987, the United States embassy made a formal protest to Australia about it in 1991.

The basis of the United States's protest was that international laws of the sea relating to bays only made real progress after World War II when the issue was considered by the international court of justice and the United Nations.

The United States protest noted that none of the four South Australian historic bays was listed in a United Nations 1957 memorandum of such bays. Nor were the four bays singled out above any others before the 1987 proclamation. Only Rivoli Bay’s shape qualified it under the old definition of a bay.

South Australia’s remoteness had saved it from challenges from other states to its historical bays sovereignty claims but it was suggested that “the claims cannot withstand international scrutiny”.

• Information from Stuart Kaye, doctoral law student, University of Tasmania, on “The South Australian Historic Bays: An Assessment”.