Wanganeen v Dietman; Shaw v Dietman

The appeals concerned the convictions of Wanganeen, Humes, and Shaw for taking a prohibited type of fish. The appellants, who identified as members of the Narungga community, sought to rely on a defence of native title rights to fish. The matter was heard by the Full Court of the Supreme Court of South Australia following a referral from a single judge.

The central legal issues before the Full Court were whether the Magistrate had erred in finding that the appellants had failed to discharge the evidentiary burden of establishing a native title defence, and consequently, whether the convictions were sound. Specifically, the court had to consider the nature and sufficiency of the evidence required to establish a native title right to fish, including the need for evidence defining the content and parameters of such a right, and whether the appellants' activities constituted an exercise of such a right.

The Full Court, referencing its decision in *Dudley v Department of Primary Industries and Regions South Australia*, emphasised that the recognition of native title rights is confined to those forming part of a system of traditional rules or laws with normative content. The court reiterated that to establish a native title right, as opposed to mere observable behaviour, evidence must demonstrate that the right originated from a law or custom with normative content. Furthermore, the court highlighted the logical necessity of defining the parameters of an asserted right to determine if it is being exercised and whether a particular activity falls within its scope. The Magistrate had found that while the appellants had satisfied the evidentiary onus in respect of certain elements of the defence, this was at a general level without identifying the specific content of traditional laws and customs or the communal, group, or individual rights and interests involved.

The Full Court allowed the appeals, quashed the convictions, and set aside the sentences imposed by the Magistrate. The court found that the Magistrate had erred in concluding that the appellants had not discharged the evidentiary burden of raising the native title defence. The Full Court held that there was sufficient credible evidence to establish a reasonable possibility that the appellants and their descendants had continued to observe the relevant traditional laws and customs of the Narungga people, and that these customs extended to the right to fish, including the taking of abalone, which was exercised by the Narungga community prior to British sovereignty.