High Court casts a line on right to fish

Originalstory by Mark Schliebs, The Australian

The Aboriginal men had been embroiled in a legal fight with South Australia’s Labor government since 2009, when they caught 24 undersized abalone at Cape Elizabeth on the Yorke Peninsula. In a unanimous decision yesterday, the High Court ruled that South Australian fishing laws enacted in 1971 did not extinguish native title rights as the government had argued and found the Narrunga men had done nothing wrong by keeping their catch.

At least two other states and the federal government have unsuccessfully argued that laws restricting the killing of fauna have extinguished native title.

The High Court ruled in August that federal and Queensland laws did not extinguish the native title right of Torres Strait Island communities to fish commercially without a licence.

In what was seen as a national precedent, Aboriginal man Murrandoo Yanner won a High Court battle with the Queensland government in 1999 after using a traditional form of harpoon to catch two juvenile crocodiles in the Gulf of Carpentaria five years earlier, despite state laws against the hunting of the young reptiles.

In yesterday’s ruling, South Australia’s Attorney-General John Rau was ordered to pay legal costs to the two men, estimated to be more than $400,000.

Owen Karpany and his son Daniel, 26, were charged by authorities with taking the abalone in their native title area at Cape Elizabeth, southwest of Moonta on the Yorke Peninsula, northwest of Adelaide. “I didn’t expect it to go as far as it went, but it went to the highest court in all of Australia with an outcome in my favour,” said Mr Karpany, 61.

He said other native title holders were “over the moon”.

“I did have my doubters, but I just stuck to my guns,” he said.

“I knew that I was right from the beginning.”

The Magistrates Court had originally ruled the men could not be punished over the abalone as they had been exercising their native title rights, but the government appealed the case to the full bench of the Supreme Court.

The Supreme Court last year ruled that native title fishing rights across the state were extinguished with the introduction of the 1971 Fisheries Act, which was replaced by the Fisheries Management Act in 2007. Yesterday, the High Court overruled that finding.

“The (legislation) did not prohibit or restrict the applicants, as native title holders, from gathering or fishing for abalone in the waters concerned where they did so for the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title rights and interests,” the High Court ruled.

“The conceded native title right of the applicants was therefore a right to take fish from the relevant waters. That right comprehended the taking of abalone, including undersize abalone.”

Perth barrister Greg McIntyre SC, a member of the Law Council of Australia’s native title working group, said the ruling built on the August decision that fisheries laws could not override native title.

He said although the rulings would not have a direct impact on other states’ fisheries laws, a principle on native title rights had been set by the court.

Andrew Beckworth, a lawyer from South Australian Native Title Services, who assisted the men, said the four-year battle had cost the government, which was always unlikely to win, hundreds of thousands of dollars. “More than anything, we were just bewildered that our state government persisted with this argument,” he said. “We’re not sure what they were trying to achieve.”

Mr Rau has sought advice from the crown solicitor on the impact of the ruling, but said he did not fear widespread taking of under-sized fish.