Karpany v Dietman

Case [2013] HCA 47

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

OWEN JOHN KARPANY & ANOR  APPLICANTS

AND

PETER JOHN DIETMAN  RESPONDENT

Karpany v Dietman

[2013] HCA 47

6 November 2013

A18/2012

ORDER

1.Special leave to appeal granted.

2.Appeal allowed with costs.

3.Set aside the orders of the Full Court of the Supreme Court of South Australia made on 11 May 2012 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation

I C Robertson SC with S G Berg for the applicants (instructed by Berg Lawyers)

M G Evans QC with A P Rodriquez and D F O'Leary for the respondent (instructed by Crown Solicitor (SA))

Interveners

M G Evans QC with A P Rodriquez and D F O'Leary for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

V B Hughston SC with J A Waters for South Australian Native Title Services Limited, intervening (instructed by South Australian Native Title Services Limited)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Karpany v Dietman

Native title – Native title right to take fish – Fisheries Act 1971 (SA) prohibited taking fish without licence or except as provided by the Act – Fisheries Act permitted taking fish by certain means without licence for non-commercial purposes – Whether statute inconsistent with continued existence of native title right to take fish – Whether native title right extinguished by pre-1975 State fisheries legislation.

Native title – Native title right to take fish – Native title holders charged with possessing undersize abalone contrary to s 72(2)(c) of Fisheries Management Act 2007 (SA) – Section 115 of Fisheries Management Act provided for ministerial exemption – Whether ministerial exemption "licence, permit or other instrument" for the purposes of s 211 of Native Title Act 1993 (Cth).

Words and phrases – "extinguishment", "inconsistent with the continued existence of a native title right", "licence, permit or other instrument", "native title rights and interests".

Fisheries Act 1917 (SA), ss 39, 48.
Fisheries Act 1971 (SA), ss 28, 29, 42, 47.
Fisheries Management Act 2007 (SA), ss 3, 5, 72, 115.
Native Title Act 1993 (Cth), ss 11, 211, 223.

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ.

Introduction

  1. The applicants, who are Aboriginal and are members of the Narrunga People, successfully defended a summary prosecution under the Fisheries Management Act 2007 (SA) ("the FMA 2007") for having in their possession a quantity of undersize abalone. The charge was heard in the Magistrates Court at Kadina. There was no dispute that they had in their possession undersize abalone. Nor was there any dispute that the abalone were taken in accordance with the traditional laws and customs of the Narrunga People. On that basis the applicants successfully invoked s 211 of the Native Title Act 1993 (Cth)…

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Karpany v Dietman [2013] HCA 47
Case
[2013] HCA 47
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CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Karpany and his son, who were charged with possessing undersize abalone contrary to the *Fisheries Management Act 2007* (SA). The applicants, who are native title holders, claimed that their actions were protected by section 211 of the *Native Title Act 1993* (Cth), which provides certain protections for the exercise of native title rights and interests. The core of the dispute involved whether the South Australian fisheries legislation, particularly the *Fisheries Management Act 2007* and earlier legislation, was inconsistent with the continued existence of their native title right to take fish, and whether a ministerial exemption under the *Fisheries Management Act 2007* qualified as a "licence, permit or other instrument" for the purposes of section 211 of the *Native Title Act 1993*.

The legal issues before the High Court were whether the *Fisheries Management Act 2007* prohibited or restricted the applicants from gathering abalone in exercise of their native title rights, and if so, whether section 211 of the *Native Title Act 1993* provided a defence. Specifically, the Court had to determine if the prohibition in the *Fisheries Management Act 2007* on taking fish "other than in accordance with a licence, permit or other instrument" was overcome by section 211(2) of the *Native Title Act 1993*, which preserves native title rights to fish for personal, domestic, or non-commercial communal needs, provided that the relevant State law is not of a kind described in section 211(1)(ba) or (c) of the *Native Title Act 1993*. The Court also considered whether a ministerial exemption granted under section 115 of the *Fisheries Management Act 2007* constituted a "licence, permit or other instrument" for the purposes of section 211(1) of the *Native Title Act 1993*.

The High Court reasoned that section 211(2) of the *Native Title Act 1993* applied to the applicants' situation. It held that the *Fisheries Management Act 2007*, by requiring a licence, permit, or other instrument to take fish, did not prohibit or restrict the applicants from gathering abalone for their personal, domestic, or non-commercial communal needs, as this was an exercise of their native title rights. The Court further determined that a ministerial exemption granted under section 115 of the *Fisheries Management Act 2007* was a form of "other instrument" for the purposes of section 211(1) of the *Native Title Act 1993*. Therefore, the defence under section 211 was available to the applicants.

The High Court allowed the appeal, set aside the orders of the Full Court of the Supreme Court of South Australia, and ordered that the appeal to that Court be dismissed with costs. The applicants were granted special leave to appeal.

Orders

Orders of the court

1. Special leave to appeal granted.

2. Appeal allowed with costs.

3. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 11 May 2012 and, in their place, order that the appeal to that Court be dismissed with costs.

Background

Background to the litigation

Second, s 211(2) of the NTA applied. The exercise or enjoyment of native title rights and interests in relation to the relevant waters included carrying on the activity of fishing for or gathering abalone[10]. A law of a State, the FMA 2007, prohibited or restricted persons from fishing for or gathering abalone "other than in accordance with a licence, permit or other instrument"[11] and the FMA 2007 was not said to be a law of a kind described in s 211(1)(ba) or (c). Accordingly, the FMA 2007 did not prohibit or restrict the applicants, as native title holders, from gathering or fishing for abalone in the waters concerned[12] where they did so for the purpose of satisfying their personal, domestic or non-commercial communal needs[13] and in exercise or enjoyment of their native title rights and interests[14].[10]NTA, s 211(1)(a), (3)(a) and (3)(c).[11]NTA, s 211(1)(b).[12]NTA, s 211(2).[13]NTA, s 211(2)(a).[14]NTA, s 211(2)(b).Factual and procedural background The applicants, father and son, were jointly charged that, on 12 December 2009, near Cape Elizabeth in the waters of South Australia, they had joint possession or control of an aquatic resource of a prescribed class, namely undersize Greenlip abalone (Haliotis laevigata), fish of a priority species. The offence with which they were charged was a summary offence created by s 72(2)(c) of the FMA 2007, read with reg 8(1)(a) of the Fisheries Management (General) Regulations 2007 (SA). It was alleged in particulars of the charge that the applicants were in joint possession or control of 24 Greenlip abalone that were less than 13 cm and thus undersize. By agreement between prosecution and defence, the evidence relied upon by the prosecution was tendered in the form of a booklet of documents and a DVD recording. The documents included statements by a number of fisheries officers and several photographs. It was not in dispute that the applicants, when interviewed by fisheries officers, admitted to having taken 32 abalone, 24 of which were undersize. It was their intention to divide the catch equally and to eat them at a banquet with about 15 family members. They told the officers that their Aboriginal background and entitlements allowed them to take the abalone. They said the abalone looked as though they were big enough, but they did not measure them. They did not have a measurement device and saw no reason to have one. Counsel for the applicants informed the Magistrates Court that the prosecution materials established the elements of the offence charged. He told the Court, however, that each of the applicants would be relying upon s 211 of the NTA. He said that the applicants would give evidence and call witnesses to establish that their fishing activity was done in a traditional manner and was consistent with the requirements of the NTA. The purpose of the catch was to feed their family. Further, the defence would establish a connection with the Point Pearce area in which the applicants had taken the abalone and would establish familial lineage on the first applicant's mother's side demonstrating a continuous unbroken traditional fishing practice. Counsel for the prosecution indicated that the prosecution would not put the applicants to proof of those matters of fact.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
The exemption for which s 115 of the 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.Conclusion The applicants should be granted special leave to appeal from the decision of the Full Court of the Supreme Court of South Australia. The appeal should be allowed. The decision of the Full Court should be set aside and in lieu thereof the appeal to the Supreme Court from the Magistrates Court should be dismissed. The respondent should pay the applicants' costs in the Full Court of the Supreme Court of South Australia and in this Court.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

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