By Alysha Byrne, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Mason v Tritton (1994) 34 NSWLR 572

Court – New South Wales Court of Appeal
Judges – Gleeson CJ, Kirby P, Priestley JA 

FACTS OF THE CASE

On 9 October 1991, Mason, the defendant, who was a member of the Aboriginal community, was charged under the Fisheries and Oyster Farms (General) Regulation 1989 (NSW) (‘the Regulation’) for the possession of 92 abalone. This number exceeded the permitted quantity under s 34(1)(c) of the Regulation. The Regulation provided that it was “an offence for a person to shuck abalone adjacent to ocean water, and, without a permit or licence, to have more than ten abalone in possession.” The Regulation sought to prohibit any person from selling abalone to a commercial market without a permit.

The case was initially heard by a Magistrate in the Local Court, Mason unsuccessfully arguing that he had a native title right to take the abalone from waters on the South Coast of New South Wales. Mason’s argument failed because he did not adduce evidence that demonstrated how his activities fell within the scope of a native title right.

Mason then appealed to the Supreme Court of New South Wales where Young J rejected his arguments. Young J determined that an Aboriginal’s right to fish was not considered a land right, and thus Mabo v State of Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’) was of no relevant application. Furthermore, his Honour found that there was insufficient evidence for Mason to establish his biological descent from the Aboriginal Australians who had a customary right to fish in the specific waters.

THE ISSUES

• Whether the right to fish could constitute a native title right.
• Whether Mason established that he conducted the fishing activities in accordance with a native title right.
• Whether The Regulation operated to extinguish any native title right.

THE DECISION

Gleeson CJ, Kirby P and Priestley JA determined that Mason’s appeal should be dismissed.

The right to fish as a native title right

Gleeson CJ stated that to establish that he was not bound by the Regulation, Mason was required to prove that he was a member “of a class who [had] exercised some form of right pursuant to a system of rules recognised by the common law”. To achieve this, it was first necessary for Mason to “give content to those rules”. Gleeson CJ held that Mason failed to do this.

Priestley JA recognised that s 223 of the Native Title Act 1993 (Cth) “put beyond doubt the inclusion of hunting, gathering or fishing rights and interests within the meaning of native title”. However, Priestley JA held that there was nothing in the evidence to demonstrate that Mason “was biologically descended from any Aboriginal group dating back to just before the establishment of the common law which observed a system of rules relating to either fishing generally or to abalone in particular on any specific part of the New South Wales South Coast.”

Kirby P recognised that under the common law there may a customary right of Aboriginal Australians to fish. To establish such a right, Kirby P referred to the reasoning of Brennan J in Mabo, which affirmed that a native title right would only exist when a group of indigenous peoples have “a connexion with the land.” Kirby P determined that such a connexion with the land is a question of fact, and thus it is incumbent on the appellant to prove such a relationship.

To dispel Young J’s belief that the right to fish was not a land right, Kirby P characterised it as a usufructuary right, entitling Aboriginal Australians to use and take the benefit of land belonging to another without any proprietary interest in that land. Brennan J noted in Mabo that such a usufructuary right, which is not proprietary in nature, is no impediment to the recognition of native title. Therefore, Kirby P accepted the Mason’s argument that fishing rights fell within the meaning of “connexion with” the land.

To prove a “connexion with” the land, Kirby P drew upon the decision of Brennan J in Mabo. At common law, a person claiming the native title right must bring evidence that he/she is a biological descendant of the indigenous clan that has continuously fished in the particular lands. It was held that Mason successfully proved that he was of Aboriginal descent, and that his clan traditionally fished abalone as a source of food, which had been maintained over a substantial period of time.

Mason’s conduct as an exercise of that right

Gleeson CJ stated that in addition to giving “content to those rules” Mason claimed comprised his native title right, he was required to “bring himself and his activities within their scope”. According to Gleeson CJ, Mason had failed to satisfy this requirement. His Honour drew attention to the fact that Mason had failed to establish that any native title right extended to the fishing of a commercial quantity of abalone.

Similarly Priestley JA found that Mason had not established that he had engaged in the fishing activities in accordance with the claimed native title right. His Honour identified a “complete absence of evidence… that in diving for abalone… [Mason] was doing so either in the assertion of or pursuant to a system of rules which he recognised and adhered to”.

Kirby P found that Mason failed to provide sufficient evidence that at the time he caught the abalone, he was exercising his native title right to fish, rather than fishing for a commercial purpose. Kirby P further noted that had Mason provided such evidence he would have been entitled to relief.

Extinguishment of any right

As obiter, Kirby P addressed the third issue and stated that native title might only be extinguished by a regulation when it expressly excludes a use that comprises the native title claim. As the regulation in question did not reveal a “clear and plain intention” to extinguish the native title right to fish, according to Kirby P, Mason would have been successful if he could have shown that he was exercising a native title right.

COMMENTARY

This case acknowledged that in certain circumstances, a native title right to fish may be invoked to circumvent regulations prohibiting fishing. However, in order to establish such a right, a person must provide evidence of their Aboriginal descent and a system of customary rules involving a continuous use of the land to fish. In addition, a claimant must prove that the fishing activities were engaged in pursuant to that customary right. See also the later decision of Yanner v Eaton (1999) 201 CLR 351 set out in this book.