Description

This article questions whether offshore native title claims are presenting discrete conceptual and practical obstacles for the judiciary. Its aim is to chart the proverbial waters and provide an overview of both the legislation and the jurisprudence. The article also discusses alternative or complementary mechanisms for protecting Indigenous interests in sea country, including land rights legislation, sea closures and heritage registrations. The article begins with an overview of sea country claims. It then considers the difficulties faced by land and sea country claimants; discrete difficulties facing sea country claimants (particularly the element of ownership that title implies, which is ordinarily indicative of exclusive possession); and reviews the reasoning and consistency in native title case law. (Introduction, edited.)