21 Nov 2013
Native title rights to fish mean state legislation is mere abalone
by Mark Geritz, Prue Warner
Karpany v Dietman confirms the position in Yanner v Eaton.
The High Court has handed down a decision which further confirms that native title rights to hunt, fish and gather can trump state legislation that conflicts with the continued exercise of such rights, effectively creating a dichotomy of rights and practical difficulties for policing compliance.
In Karpany v Dietman  HCA 47, a father and son who were traditional owners in the Yorke Peninsula area in South Australia took 24 undersized abalone while fishing. The Fisheries Management Act 2007 (SA) (FMA 2007) and its predecessor, the Fisheries Act 1971 (SA) (FA 1971), prohibit a person from taking fish and other marine creatures except as provided by the Act (this included size restrictions) or unless the person held a licence. The men were members of the Narrunga People and the abalone were taken in accordance with their traditional laws and customs.
The Native Title Act
The critical section is section 211 of the Native Title Act 1993 (Cth) (NTA) which provides that a law which prohibits or restricts persons from (among other things) fishing or gathering other than in accordance with a licence or permit does not prohibit or restrict native title holders from carrying out that activity for their purpose of their personal, domestic or non-commercial communal needs and in exercise of their native title rights and interests.
At first instance, the Magistrates Court applied section 211 of the NTA, concluding that the native title holders were exempt from complying with the FMA 2007. The South Australian Full Court overturned that decision, finding that the native title rights had been extinguished by the FA 1971 (the predecessor act to the current FMA 2007).
This was appealed to the High Court. On 6 November 2013, the High Court unanimously ruled that the FA 1971 did not extinguish the native title rights to hunt and fish. This was because provisions of the FA 1971 permitted a person without holding a licence to take fish by certain means and otherwise than for the purpose of sale and also gave the Minister the power to grant any person a special permit on the conditions decided by the Minister. As such, the FA 1971 regulated, but was not inconsistent with, the continued enjoyment of the native title rights.
As the native title rights had not been extinguished, the Court found that section 211 of the NTA could apply. Although there was a restriction on fishing for abalone other than in accordance with a licence or permit, the FMA 2007 did not prohibit the native title holders from gathering or fishing to satisfy their personal or domestic needs, because the native title rights and interests in relation to the relevant waters included carrying on the activity of fishing for or gathering abalone and such rights had not been extinguished.
Yanner v Eaton confirmed
The case confirms the position in Yanner v Eaton (1999) 201 CLR 351, the well-publicised case in which it was held that Murrandoo Yanner was not in breach of Queensland legislation that prevented the hunting of young reptiles when he harpooned two juvenile crocodiles in the Gulf of Carpentaria in accordance with his group's native title rights.
Although the decision is a correct application of section 211 of the NTA, the practical consequence is that a dichotomy of rights is created that complicates the policing of compliance with relevant state legislation.
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