The pair was charged under the Fisheries Management Act 2007 (SA) (‘FMA’) for having in their possession 24 undersized abalone at Cape Elizabeth on the Yorke Peninsula on December 2009. There was no dispute that they had the abalone. Nor was there any dispute that the abalone was taken in accordance with the traditional laws and customs of the Narrunga People, or even that native title had once existed. Rather, the state argued that the native title right to fish had been extinguished by earlier fisheries legislation or that, even if native title still existed, the conditions of s 211 were not satisfied and so the possession of abalone was an offence. The Magistrate dismissed the charge, rejecting both of the arguments of the state.
The Full Court of the South Australian Supreme Court allowed the state’s appeal against the Magistrate’s decision. The Court was unanimous as to the non-application of s 211 to the relevant prohibition in the FMA. Also, a majority concluded that any native title rights which, absent extinguishment would supported the taking of the undersize abalone, had been extinguished by the earlier Fisheries Act 1971 (SA) (‘FA’). The Karpanys appealed to the High Court.
The High Court held the appeal must be allowed for two reasons. First, the FA 1971 did not extinguish the applicants’ native title right to take fish. For the reasons given in Akiba v The Commonwealth (2013) 300 ALR 1; (2013) 87 ALJR 916;  HCA 33, the FA 1971 regulated, but was not inconsistent with, the continued enjoyment of native title rights. Secondly, s 211(2) of the NTA applied to the FMA prohibition in question. The exercise or enjoyment of native title rights in relation to the relevant waters included carrying on the activity of fishing for or gathering abalone. A law of a state, the FMA, prohibited or restricted persons from fishing for or gathering abalone ‘other than in accordance with a licence, permit or other instrument’ and the FMA prohibition was not otherwise preserved by the exceptions in s 211(1). Accordingly, the FMA did not prohibit or restrict the applicants, as native title holders, from gathering or fishing for abalone in the waters concerned where they did so for the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title rights and interests.
The decision confirms the significance of s 211 as an exemption for native title holders from state and territory natural resources regulation, at least where it concerns personal use of resources by native title holders. There is an emerging tension between extinguishment standards for onshore and offshore native title. The prevailing ‘inconsistency of incidents’ test may not do justice to the sophistication of extinguishment in Karpany and Akiba. The issue is squarely before the High Court in the appeal from a Full Court of the Federal Court in Brown v State of Western Australia (2012) 208 FCR 505.
Australian DIANE BELL is Emerita Professor of Anthropology, George Washington University, USA and Writer in Residence, Flinders University SA.