Supreme Court of South Australia (Full Court)
Gray, Kelly and Blue JJ
In this matter, the full Court allowed the appeal from a decision of a Magistrate dismissing a complaint against Owen John Karpany and Daniel Thomas Karpany, members of the Narrunga people (‘the respondents’), brought by Peter Dietman, a public officer of the Department of Primary Industries and Resources of South Australia (‘the appellant’), and remitted the matter to the Magistrate for resentencing.
The respondents were charged for possession and control of undersized abalone contrary to s72(2)(c) of the Fisheries Management Act 2007 (SA) (‘State Act’). The respondents asserted that this provision was rendered inoperative by s 211 of the Native Title Act 1993 (Cth) (‘NTA’), which removes certain prohibitions on native title holders. The appellant argued that any relevant customary rights that the Narrunga people enjoyed in the past had been validly extinguished under State Act.
For the purposes of the trial, the respondents accepted that if s72(2)(c) of the State Act was operative, the commission of the offences were proved. The prosecution accepted at trial that both respondents were members of an Aboriginal group whose customary native title rights included fishing in the waters where the abalones were taken. It was also accepted by the prosecution that the abalones were taken for non-commercial purposes. Both parties accepted that if s 211 of the NTA applied, it would prevail over the State Act to the extent of any inconsistency, per s 109 of the Constitution.
The Magistrate found that the Minister’s exceptional power to grant an exemption from specified provisions of the State Act extended to not taking undersized abalone. The Magistrate held that this exemption under s 115 of the State Act is in fact an ‘instrument’ in the context of s 211 of the NTA. The prerequisites of s 211(1) of the NTA were therefore satisfied and s 211(2) applied so as to give both respondents a ‘native title’ defence to the charge.
The appellant advanced two grounds on appeal:
The Magistrate erred in finding that an exemption under s115 of the State Act was a ‘license, permit or other instrument’.
Section 211(2)(b) of the NTA requires that the taking occur in the exercise or enjoyment of native title rights and interests, and the native title right to take undersized abalone had been validly extinguished by the State Act.
License, permit or other instrument
Justice Blue noted that the concept of a license, permit or other instrument is something that is granted to a specific person upon satisfying criteria determined by the relevant legislation: State of Western Australia v The Commonwealth; State of Western Australia v Ward.
Justice Blue said that the mere existence of an exemption will not convert a prohibited activity, specifically taking protected species or undersized fish, into a regulated activity, and distinguished the facts at hand from those of Wilkes v Johnsen, on the basis that a license, a permit and an exemption served similar purposes under the Fish Resources Management Act 1994 (WA). Under the Fish Resources Management Act 1994 (WA) an application for an exemption is made in an approved form accompanied by a prescribed fee and is granted subject to certain conditions which attract a penalty if contravened.
Justice Blue concluded that the Magistrate was in error in concluding that an exemption under s115 of the State Act can be described as an instrument within the meaning of s211 of the NTA. Justice Gray and Justice Kelly agreed with the reasoning of Justice Blue on the first ground regarding the interpretation of ‘license, permit or other instrument’.
Extinguishment of native title rights
Justice Gray referred to the common law rule that inconsistency of native title with a State law leads to its extinguishment to the extent of the inconsistency. Reference was also made to common law rules which state that native title cannot revive once extinguished absent a statutory provision making it revive.
Until 1971, the legislative regime regulating fishing in South Australia expressly did not apply to the Aboriginal customary right to fish for personal purposes. Section 29(2) of the Fisheries Act 1971 (SA) (‘1971 Act’) repealed and replaced earlier legislation with a new right to take fish other than for the purposes of sale and subject to other sections of the Act. Section 47(2) of the 1971 Act expressly prohibited the taking of undersized fish, including abalone. There was no exclusion of the applicability of the 1971 Act to Aboriginal persons. This scheme was continued by the Fisheries Act 1982 (SA).
The respondents argued that the 1971 Act only operated to regulate the manner in which native title rights and interests may be exercised. His Honour said that, unlike Yanner v Eaton, the effect of the 1971 Act was to place all persons, including Aboriginal persons, under the regime of the statute. Justice Gray reached the conclusion that the 1971 Act therefore extinguished the relevant native title rights. Justice Kelly agreed with the decision of Justice Gray on the second ground.
Justice Blue dissented on the second ground regarding the extinguishment of native title rights. Firstly, his Honour said that Yanner v Eaton applied directly to this factual scenario. His Honour considered the fact that the 1971 Act regulated the right to fish by creating a licensing regime was not inconsistent with the continued existence of a native title right to fish and did not extinguish that right. Secondly, his Honour concluded that merely removing the previous exclusion of Aboriginal persons from the 1971 Act did not demonstrate a clear and plain intention to extinguish any native title right to fish.
The Full Court allowed the appeal, in favour of the appellant, and remitted the matter to the Magistrate for resentencing.