Reimagining sea space: from Grotius to Mabo

In a ‘restrained critique’ of the proceedings of the World Fisheries Congress in July 1996,1 Sir Tipene O’Regan, Chairman of the Waitangi Tribunal Fisheries Commission, took issue with the failure of fishermen and fisheries managers across the world to examine two assumptions of their marine strategies: first, the right of open access to coastal seas; and second, what he termed ‘the bone fish-hook syndrome’, the belief that customary marine tenures are antithetical to modern marine management strategies. Examination of these two assumptions from a historical perspective may help to clarify emerging marine issues in post-Mabo Australia. In the light of the High Court decision on native title in June 1992, such an inquiry may offer a way of coming to terms with an under-examined question: to what extent has the privileging of the dominant European construction of sea space precluded serious or meaningful recognition of the inherited rights to sea domains characteristically adjoining the lands of coastal indigenous people. Sir Tipene graphically challenged the dominant belief that territorial seas are simply adjuncts of centralised states, that marine resources are simply the property of all citizens of that state: ‘When someone wants to take what is someone else’s, they say it belongs to everyone’ (O’Regan 1996). This, he said, is the way open access to coastal seas came to rule historically.