34. Hunting, Fishing and Gathering Rights: Legislation or Common Law?
894. The Relevance of Common Law Arguments. It has sometimes been argued that Aboriginal hunting and fishing rights exist at common law — that is, independently of any legislative or executive action. If so, it would follow that such rights continue to exist until abrogated by legislation (either expressly or by necessary implication). In certain cases therefore common law rights to hunt and fish may not be affected by laws of general application. This could arguably happen in two distinct ways, either through the recognition of hunting and fishing rights as incidents to customary or native title, or through their recognition as independent customary rights of a usufructuary kind.