In Mason v Tritton the New South Wales Court of Appeal considered a case where a member of an Aboriginal community was charged under the Fisheries and Oyster Farms (general) regulation 1989 (the Regulation) for possessing more than the permitted amount of abalone. He claimed that he had a traditional right to fish based on the Mabo decision. While the court found that a case for native title was not adequately made, it did make some comments on the impact of regulation on native title rights and interests.
Kirby J (as he then was) observed that there was no clear and plain intention to extinguish native title under the Regulation. According to Kirby P, the ‘practical effect of the Regulation [was] merely to regulate the activities of all those who fish the waters of New South Wales’; and that the Regulation ‘merely regulates the enjoyment of native title’.