High Court decision affecting Victorian hunting and fishing laws

Native title cases can make your head hurt. But it is always interesting to see the highest court in the land grapple with the complex interplay between statutory regimes and native title rights.

Karpany v Dietman is no exception. It considered whether the native title right to fish provided a defence to a prosecution under an SA law prohibiting fishing, and also whether the native title right was extinguished by a previous SA fishing law.

The decision is an important one for any Victorian government officers that regulate hunting, gathering or fishing, as it increases the likelihood of native title operating as a defence in prosecutions of this type.

The facts

Owen and Daniel Karpany, two members of the Narrunga People (an Aboriginal group in South Australia), were charged on 12 December 2009 for possessing undersized abalone.

They argued s 211 of the Native Title Act 1993 (Cth) as a defence. Section 211 provides a defence to federal and State prohibitions on hunting, fishing, gathering and 'cultural or spiritual' activities where a person has a native title right to carry on the activity, so long as:

• it is for a domestic or communal purpose, not a commercial one;
• it does not exceed the scope of the native title rights; and
• the prohibition applies other than in accordance with a 'licence, permit or other instrument'. The Karpanys argued that the Minister's ability to grant exemptions from this prohibition met this requirement.

The two issues for the High Court were:

• whether the Fisheries Act 1971 (SA) (1971 Act) extinguished the Karpanys' native title right and thus s 211 was inapplicable; and
• whether the words 'licence, permit or other instrument' in s 211 should be read broadly to include the SA Minister's statutory power to grant exemptions to the fishing prohibition.

The decision

The High Court found for the Karpanys on both issues.

First, it held that the native title right to fish had not been extinguished by the 1971 Act because the 1971 Act regulated fishing, rather than replacing all existing fishing rights with statutory ones. The Court noted that the 1971 Act's prohibitions were subject to exceptions and exemptions, including ones facilitating the exercise of the native title right to fish. As the 1971 Act did not generally prohibit the exercise of native title fishing rights, it did not extinguish those rights.

Secondly, the Court agreed that the statutory power of the Minister to grant exemptions from the current fishing prohibition was a 'licence, permit or other instrument' for the purpose of s 211(1)(b). The Court said that those words accommodated 'a large range of possible statutory regimes', and were apt to cover 'any form of statutory permission issued to individuals or classes or groups of people to carry on one or other of the classes of activities described in s 211(3)' (that is, hunting, fishing and gathering).

How this decision affects the Victorian government

There are two ways this decision could affect Victorian government officers.

First, it is more likely that s 211 of the Native Title Act 1993 (Cth) could be raised as a defence to a hunting or fishing prosecution. When its preconditions are met, s 211 trumps State restrictions on these activities, allowing native title rights to be exercised for personal, domestic, non-commercial or communal needs. This is because s 109 of the Constitution invalidates any State laws that are inconsistent with a Commonwealth law (such as s 211).

Section 211 will apply if the State restriction applies other than in accordance with a 'licence, permit or other instrument'. For example, in Victoria, Part 8 of the Fisheries Regulations 2009 (Vic) applies various restrictions to the taking of abalone. But where a restriction is subject to an exemption based on a licence, the restriction could be removed by s 211. The broad approach to interpreting 'licence, permit or other instrument' in Karpany may mean that the point is more whether there is an exemption power of some kind, even if it is not usually thought of as a licence or permit.

It is important to note that the State law relaxed by s 211 was an offence provision which applied to persons who did not hold a licence. The effect was that native title holders could take undersized abalone which no one else could, unless the Minister actually exempted them from the operation of the legislation. The existence of that exemption power (not its past or likely use) was enough to trigger s 211.

Moreover, Karpany is another instance that shows native title does not need to have been formally recognised to argue the s 211 defence. Having said that, the prosecution did not argue that the Karpanys did not have the necessary native title fishing rights.

Secondly, the decision shows the High Court will not be easily persuaded that a State statutory licensing regime extinguishes native title rights to take resources. Native title rights to fish for non-commercial purposes have been recognised to exist over parts of Victoria.

In short, Victorian government officers need to keep in mind that native title rights to fish or hunt may form a defence to a prosecution if it was done for domestic or communal purposes. Seek legal advice on your specific legal regime if you want to know whether it meets the particular requirements of s 211 of the Native Title Act 1993 (Cth).

If you are in the Victorian Government and require legal advice on native title rights or this decision, please contact:

Mary Scalzo
Managing Principal Solicitor
t 9947 1419
mary.scalzo@vgso.vic.gov.au

James Stephens
Principal Solicitor
t 9947 1422
james.stephens@vgso.vic.gov.au