Case: Mason v Tritton (1994) 34 NSWLR 572
Outcome: discussed
suggest that the answer is 'not necessarily'. The point was made succinctly by Gleeson CJ in the following well-known passage from Mason v Tritton (1994) 34 NSWLR 572 at 574: is an activity which is so natural to people who occupy, or visit, coastal regions, that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.' I have no difficulty in regarding the changes from residence in wiltjas (Aboriginal bough shelters) to residence in houses, from hunting on foot with spears to the use of motorised transport and rifles, and from the use of sharp stones to razor blades in the ceremony of male initiation, as adaptations. However, whether residence within a Claim area and hunting by an individual are probative of a standard or norm will require close attention to the reasons why the individual resides in the Claim area or hunts. I discuss this question further at 3.6(c)(5) [937]ff. The fact that the expression 'native title rights and interests' is defined in s 223(2) of the NTA to include 'hunting, gathering or fishing, rights and interests' is not inconsistent with what I have said above. Whether any of such rights and interests are included in the bundle of rights and interests in a particular case will depend on the evidence in that case. (j) Authorisation a problem for some groups The non-indigenous respondents challenge the authorisation of every Claim except the MN Claim (which was lodged prior to the enactment of the authorisation requirement by the Amending NTA, and was not amended subsequently). Authorisation is addressed in the first section ( Prior to the enactment of the Amending NTA in 1998, s 82 of the NTA obliged the Court to 'pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt' (subs (1)); required the Court to 'take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders' (subs (2)); and provided that the Court was 'not bound by technicalities, legal forms or rules of evidence ' (subs (3)) (my emphasis). I discussed this issue to some extent at [329] [331], and referred at [331] to Mason v Tritton . Should an inference of attribution be drawn, that is, an inference that observed behaviour is attributable to, or explained by, a law or custom? Although the present issue arises in relation to all Claims, it is highlighted in the submissions of the Cosmo applicant and the State. The State submitted: first respondent does not submit that "observable behaviour" is irrelevant or insignificant to an enquiry into whether or not laws and customs exist. It is not, however, correct to say, as the Cosmo Newberry respondents submit, that " any patterning in what claimants do, and what their ancestors have done, must be attributable to, or alternatively, be regarded as evidence of the existence of a law acknowledged or custom observed." This, it is submitted, is to read too much into behaviour that may be attributable to instinct, impulses or desires that are not normative in nature. The utilisation of food and other resources that occur in the natural environment provides an example of behaviour which, in itself, sheds no light upon whether or not laws or customs exist. The procurement of food is essential to survival. The presence of human beings in any place, prior to the development of rapid transport, is attributable to, and at the same time evidence of the fact that food has been procured by those people. To suggest that hunting, fishing or gathering per se should be regarded as evidence of the existence of a law acknowledged or custom observed is, it is submitted, inappropriate. The first respondent acknowledges that where behaviour that might be attributable to an impulse, instinct or desire that is not normative in nature is executed in a way that is not relevantly related to the satisfaction of the instinct, impulse or desire, those embellishments in the behaviour may provide evidence of the existence of a law or custom. It is necessary, however, to exercise considerable caution and careful analysis in attempting to distinguish between aspects of behaviour that may be attributable in a practical way to the satisfaction of instinct, impulse or desire, and aspects of behaviour that indicate the existence of a law or custom. For these reasons it is not appropriate to infer, simply because everybody does something, that there must be a law requiring people to behave in that way, or a custom under which that behaviour is expected to occur. first respondent does not suggest that there must be a particular level of precision or conciseness in the way in which traditional laws and customs are articulated by a person to acknowledge and observe those laws and customs. There should however be an identifiable proposition which becomes apparent with reasonable clarity from an examination of the whole of the evidence on a particular subject. A large number of references to a particular subject and repetitious assertions that laws exist in relation to a topic does not, in the first respondent's submission, assist the Court in identifying whether or not a law or custom is acknowledged and observed. It is only when a particular form of behaviour can be identified as a requirement of a traditional law or custom that there can be said to be a law or custom relating to the particular subject.' The Cosmo applicant responded: Cosmo Newberry Respondents are at a loss to know how it could ever be proven that a person for example, hunts on their traditional country because they have that right under traditional law and customs, as opposed to hunting on their traditional country because they want to eat a kangaroo. Impulses, instincts and desires are inseverable from the impact, expectations and normative influence of one's society. It is a nonsense to expect the level of proof, consistency and categorisation of human behaviour implicit in the Respondents' submissions in relation to traditional laws and customs. The Cosmo Newberry Respondents submit that your Honour should consider all evidence of patterns of "observable behaviour" within the context of Western Desert laws and customs and in accordance with the submissions of the Cosmo Newberry respondents.'