Dietman v Karpany

[2012] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

DIETMAN v KARPANY & ANOR

[2012] SASCFC 53

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Blue)

11 May 2012

ABORIGINALS - NATIVE TITLE - EXTINGUISHMENT

PRIMARY INDUSTRY - FISH - ABORIGINAL CUSTOMARY RIGHTS

PRIMARY INDUSTRY - FISH - CONSTITUTIONAL, TERRITORIAL AND RELATED ISSUES - CONSTITUTIONAL MATTERS - INTERACTION OF POWERS OF COMMONWEALTH AND STATES

Appeal from a decision of a Magistrate dismissing a complaint - appeal referred to the Full Court of the Supreme Court of South Australia for hearing and determination - defendants and respondents jointly charged for possession or control of undersized Greenlip abalone contrary to section 72 of the Fisheries Management Act 2007 (SA) - accepted by the defendants that if section 72(2)(c) was operative, the commission of the offences was proved - defendants were members of an Aboriginal group whose customary native title rights included fishing in the waters where the abalone were taken - defendants asserted section 72(2)(c) inoperative because of the terms of section 211 of the Native Title Act 1993 (Cth) - parties accepted that if section 211 applied, it would prevail over and render inoperative to the extent of inconsistency the provisions of section 72(2)(c) of the State Act due to section 109 of the Commonwealth Constitution - whether the Magistrate erred in law in the construction of section 211 of the Native Title Act 1993 (Cth) and of section 115 of the Fisheries Management Act 2007 (SA) in finding that an exemption under section 115 was a “permit, licence or other instrument” for the purposes of section 211 of the Native Title Act and erred in law in finding that section 211 applied so as to permit the defendants to take undersized Greenlip abalone contrary to the prohibition in section 72(2) of the Fisheries Management Act 2007 - whether any right that the Aboriginal group to which the defendants belonged enjoyed in the past to take undersized Greenlip abalone had been validly extinguished under State law.

Held: Appeal allowed.

Per Gray, Kelly and Blue J: Section 211 of the Native Title Act 1993 (Cth) distinguishes between laws permitting fishing etc under licence (regulatory laws) and laws prohibiting fishing etc (prohibitory laws) - section 71 and section 72(2)(c) of the Fisheries Management Act 2007 prohibit the taking of prohibited species and undersized fish - the Minister's exceptional power to grant an exemption under section 115 of the Act does not change the characterisation of those sections as prohibitory as opposed to regulatory - section 211 of the Native Title Act therefore has no application.

Per Gray J, Kelly J (agreeing): The Fisheries Act 1971 (SA) extinguished native title in the sense of any relevant customary rights that the Narrunga people had prior to the enactment of this statute.

Per Blue J: Section 29 of the Fisheries Act 1971 (SA) merely regulated rather than prohibited fishing generally by requiring a licence for commercial fishing - it…