Editors --- "Mason v. Tritton And Another - Case Summary" [1996] AUIndigLawRpr 19; (1996) 1(1) Australian Indigenous Law Reporter 27

MASON v . TRITTON AND ANOTHER

Court of Appeal (Gleeson CJ, Kirby P, Priestley JA)

25, 28 March, 30 August 1994

Aborigines -- native title -- traditional and customary right to fish for abalone -- whether regulation of abalone fishing extinguished native title -- whether native title sufficiently proved -- Mabo decision and proof of native title discussed.

M. dived for abalone in coastal NSW waters and brought ninety-two of the fish to shore where he shucked them. He was charged with offences under Fisheries and Oyster Farms (General) Regulation 1989 in that he shucked abalone adjacent to ocean waters and had more than ten abalone in his possession without a permit or licence. He defended the charges by claiming that he was exercising a native title right as recognised in Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1. The Magistrate rejected the defence and M. was convicted and fined.

M. then applied to the Supreme Court under the Justices Act 1909 (NSW) s. 112 for an order quashing the convictions and fines. The summons was dismissed by Young J. M. was granted leave to appeal to the Court of Appeal.

Held, dismissing the appeal:

(1) (per Gleeson CJ and Priestley JA) M. did not establish as evidence that there was a surviving native title right to fish, that he was entitled to exercise any such right, nor that he was in fact exercising any such right.

(2) (per Kirby P) The common law recognises a native title right to fish but M. failed to provide sufficient evidence that he had exercised such a right. The proceedings under s. 112 of the Justices Act 1909, by way of statutory prohibition, do not provide a means for the review of findings of fact.

The decision is reported in (1994) 34 NSWLR 572.

See also [1995] AboriginalLawB 4; (1995) 3(72) Aboriginal Law Bulletin 11.