The promise of native title and the predicament of customary marine tenure

There seems to be no doubt in the minds of many lawyers that native title in Australia ‘extends to the sea’ (Bartlett 1993a:17).1 More specifically, a number of lawyers have argued that native title applies to the seabed and sea fisheries, and includes both coastal waters and territorial seas (Bartlett 1993a; Bergin 1993; Behrendt 1995; Kilduff and Lofgren 1996; Storey 1996). As such, native title extends from the territorial sea baseline for a distance of two hundred nautical miles, covering the area now referred to as the Exclusive Economic Zone (EEZ) (Kilduff and Lofgren 1996; Storey 1996).2 This still seems to be the predominant view amongst the legal fraternity even in the face of the argument that the common law does not exist outside the colonial boundary of the low water mark. This is a strange argument indeed for it appears to acknowledge that in all other situations it is possible for the Crown to extend the limits of its sovereign rights over time, but insists, in this instance, on freezing native title at that moment in history when the doctrine of terra nullius first came into effect in Australia. While the legal status of native title over offshore places and seas seems clear in the minds of many, this is certainly not the case