French C J, Hayne, Crennan, Kiefel, Bell, Gaegler and Keane JJ
Background:
In December 2009, Owen John Karpany and Daniel Thomas Karpany, members of the Narrunga People, were charged under the Fisheries Management Act 2007 (SA) (the FMA 2007) for having in their possession a quantity of undersize abalone.
The prosecution conceded in the Magistrate’s Court that the men had taken the abalone in accordance with the traditional laws and customs of the Narrunga People. The defendants argued that s 211 of the Native Title Act 1993 (Cth) (NTA) provided a defence to the charges and the prosecution argued that the provisions of the Fisheries Act 1971 (SA) (the FA 1971), an earlier act which prohibited fishing without a licence, had extinguished the defendants’ native title rights to take fish in the circumstances of the alleged offences. The issue became a question of whether, if the FA 1971 did not extinguish native title rights, then did s 211 NTA provide a defence to the FMA 2007?
The Magistrate rejected the prosecution’s submissions and dismissed the charges.
The prosecution appealed to the Supreme Court of SA which upheld the appeal and found that the FA 1971 had in fact extinguished native title, in particular that:
native title rights were extinguished by enactment of the FA 1971; and
the s 211 NTA defence did not apply to the FMA 2007.
The applicants appealed to the High Court and the appeal was limited to the two issues listed above, namely (paraphrasing):
First, whether the FA 1971 extinguished the native title rights of the Narrunga People to take fish which, but for the extinguishment, would have allowed fishing in the circumstances of the case (‘the extinguishment question’); and
Second, if the answer to 1 is no, does s 211 (NTA) override the prohibition in s 72(2)(c) of the FMA 2007 (‘the s 211 question’)
Findings:
The Full Court of the High Court found in favour of the applicants on both questions.
The extinguishment question:
The issue was whether the FA 1971 prohibited fishing or simply regulated it. That is, whether the Act allowed for exemptions or permits to fish.
The FA 1971 prohibited a person taking fish except as provided by the Act or unless the person holds a special licence. The Act further provided that, in certain circumstances, a person who does not hold a licence may take fish by certain means and “otherwise than for the purpose of sale”.
In its joint judgment, the Full Bench of the High Court followed its reasons in Akiba v The Commonwealth and found that the FA 1971 did not generally prohibit non-commercial fishing in the relevant waters. Furthermore, the High Court found that the FA 1971 contained a mechanism by which Aboriginal people could continue to exercise their native title right to fish by taking abalone, including undersize abalone, for communal purposes in accordance with their traditional practices.
The High Court held, therefore, that the FA 1971 was not inconsistent with the applicants’ native title rights to take fish and, therefore, did not extinguish their native title rights.
The s211 question:
Having found that the FA 1971 did not extinguish native title rights, the High Court considered whether s 211 NTA provide a defence to the FMA 2007?
Section 211 NTA preserves the native title rights and interests in carrying on certain activities (fishing is included in the list of categories under s 211(3) NTA).
Section 211(1)(b) NTA operates to preserve native title rights and interests in the circumstances where a law of a State or Territory requires certain activities to be undertaken only in accordance with an issued licence, permit or other instrument.
Section 211(2) NTA applies to the carrying on of relevant activities (including fishing):
for the purpose of satisfying personal, domestic or non-commercial communal needs; and
in exercise or enjoyment of their native title rights and interests.
The applicants relied on s 115 FMA 2007 to enliven the application of s 211 NTA.
Section 115(1) FMA 2007 provides that:
Subject to this section, the Minister may, by notice in the Gazette—
exempt a person or class of persons, subject to such conditions as the Minister thinks fit and specifies in the notice, from specified provisions of this Act; or
vary or revoke an exemption, or a condition of an exemption, under this section or impose a further condition.
Using a narrow interpretation of the wording in s 115 of the FMA 2007, the prosecution argued that no licence, permit or other instrument were available and s 115 FMA 2007 was merely a miscellaneous power that sat outside the regulatory scheme of s 211 NTA.
The High Court held that this was the wrong enquiry. It is not a question of whether a licence is different from an exemption nor whether it only applied in exceptional circumstances. The question is whether it is a ‘licence, permit or other instrument’ for the purposes of s 211 NTA.
That requires an examination of s 211 NTA not an examination of s 115 FMA 2007. The High Court held that:
The exemption for which s 115 FMA 2007 provides may be granted to individuals or classes of persons for specified activities, on specified conditions and for a specified time. Such exemptions are at least a form of ‘other instrument’ granted or issued under the relevant law of the State and fall within s 211(1) of the NTA. The defence under s 211 was available to the applicants.
The High Court found that s 211 NTA did provide a defence to the FMA 2007.