ABSTRACT
The seminal decision of the High Court of Australia in Mabo (No. 2) determined that the common law of Australia was capable of recognizing that indigenous rights and interests in land and sea could form part of the common law. This chapter examines the development or extension of native title below the high water mark through decisions of courts in interpreting the legislative schemata created by the Native Title Act 1993 (Cth). The chapter goes on to examine the structural mechanisms for mediation between parties under the Native Title Act. It postulates that the legislative schemata offers significant opportunities for parties to the process (including indigenous parties) to reach significant agreements on native title and nonnative title matters. The chapter concludes that, at least in Australia, the embryonic developed state of the case law, the structural provisions of the legislation, and the model of mediation available point to the need for matters in relation to the integration of indigenous customary marine tenure and Western maritime management systems be resolved through agreements rather than litigation.
