Karpany v Dietman [2013] HCA 47

Karpany v Dietman [2013] HCA 47

The Fisheries Act 1971 (SA) did not extinguish the native title right to take fish since it regulated, rather than abrogated, non-commercial fishing and permitted the granting of special permits which could encompass traditional fishing activities. Section 211 of the Native Title Act 1993 (Cth) applied because ministerial exemption under s 115 of the Fisheries Management Act 2007 (SA) constitutes a 'licence, permit or other instrument' within the meaning of s 211, enabling native title holders to carry out traditional fishing even where generally prohibited by the State Act.

Parties
Applicant: Owen John Karpany; Respondent: Peter John Dietman
Jurisdiction
Australia
Judgment Date
06 November 2013
Procedural Posture
Appeal / Judgment of High Court of Australia on Appeal From Supreme Court of South Australia
Outcome
Appeal allowed
Legal Topics
Extinguishment of Native Title, Statutory Interpretation, Fisheries Regulation, Defence Under S 211 Native Title Act
Native Title Law Criminal Law Extinguishment of Native Title Statutory Interpretation Fisheries Regulation Defence Under S 211 Native Title Act

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Parties

Owen John Karpany

Applicant

Peter John Dietman

Respondent

Procedural Posture

Appeal / Judgment of High Court of Australia on Appeal From Supreme Court of South Australia

Legal Issues

  1. 1 Whether the Fisheries Act 1971 (SA) extinguished the native title rights of the Narrunga People to take fish from the relevant waters
  2. 2 Whether section 211 of the Native Title Act 1993 (Cth) provides a defence to the offence under section 72(2)(c) of the Fisheries Management Act 2007 (SA)

Ratio Decidendi

The Fisheries Act 1971 (SA) did not extinguish the native title right to take fish since it regulated, rather than abrogated, non-commercial fishing and permitted the granting of special permits which could encompass traditional fishing activities. Section 211 of the Native Title Act 1993 (Cth) applied because ministerial exemption under s 115 of the Fisheries Management Act 2007 (SA) constitutes a 'licence, permit or other instrument' within the meaning of s 211, enabling native title holders to carry out traditional fishing even where generally prohibited by the State Act.

Court Disposition

Appeal allowed

Orders

  • Special leave to appeal granted.
  • Appeal allowed with costs.