Karpany v Dietman

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.