Karpany v Dietman confirms the position in Yanner v Eaton.
The High Court has handed down a decision which further confirms
that native title rights to hunt, fish and gather can trump state
legislation that conflicts with the continued exercise of such
rights, effectively creating a dichotomy of rights and practical
difficulties for policing compliance.
In Karpany v Dietman  HCA 47, a father and son who were
traditional owners in the Yorke Peninsula area in South Australia
took 24 undersized abalone while fishing. The Fisheries Management
Act 2007 (SA) (FMA 2007) and its predecessor, the
Fisheries Act 1971 (SA) (FA 1971), prohibit a
person from taking fish and other marine creatures except as
provided by the Act (this included size restrictions) or unless the
person held a licence. The men were members of the Narrunga People
and the abalone were taken in accordance with their traditional
laws and customs.
The Native Title Act
The critical section is section 211 of the Native Title Act 1993
(Cth) (NTA) which provides that a law which
prohibits or restricts persons from (among other things) fishing or
gathering other than in accordance with a licence or permit does
not prohibit or restrict native title holders from carrying out
that activity for their purpose of their personal, domestic or
non-commercial communal needs and in exercise of their native title
rights and interests.
At first instance, the Magistrates Court applied section 211 of
the NTA, concluding that the native title holders were exempt from
complying with the FMA 2007. The South Australian Full Court
overturned that decision, finding that the native title rights had
been extinguished by the FA 1971 (the predecessor act to the
current FMA 2007).
This was appealed to the High Court. On 6 November 2013, the
High Court unanimously ruled that the FA 1971 did not extinguish
the native title rights to hunt and fish. This was because
provisions of the FA 1971 permitted a person without holding a
licence to take fish by certain means and otherwise than for the
purpose of sale and also gave the Minister the power to grant any
person a special permit on the conditions decided by the Minister.
As such, the FA 1971 regulated, but was not inconsistent with, the
continued enjoyment of the native title rights.
As the native title rights had not been extinguished, the Court
found that section 211 of the NTA could apply. Although there was a
restriction on fishing for abalone other than in accordance with a
licence or permit, the FMA 2007 did not prohibit the native title
holders from gathering or fishing to satisfy their personal or
domestic needs, because the native title rights and interests in
relation to the relevant waters included carrying on the activity
of fishing for or gathering abalone and such rights had not been
Yanner v Eaton confirmed
The case confirms the position in Yanner v Eaton (1999) 201 CLR
351, the well-publicised case in which it was held that Murrandoo
Yanner was not in breach of Queensland legislation that prevented
the hunting of young reptiles when he harpooned two juvenile
crocodiles in the Gulf of Carpentaria in accordance with his
group's native title rights.
Although the decision is a correct application of section 211 of
the NTA, the practical consequence is that a dichotomy of rights is
created that complicates the policing of compliance with relevant
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On September 30, 2016, the Federal Acquisition Regulation Councils issued 10 FAR amendments on a broad range of topics. One rule imposes new risks for contractors with delinquent taxes or felony convictions.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).