Background:
The Applicants were charged under for having obtained undersize abalone. It was accepted by both parties that the abalone were undersized and that the Applicants caught the abalone in line with their traditional laws and customs, being those of the Narrunga People.
In determining whether the Applicants were liable for the offence, two questions needed to be answered:
1. As a principle of native title law in Australia, native title may be extinguished where the exercise of such rights would be inconsistent with the operation of prior State/Federal legislation [29]. Did the operation of the Fisheries Act 1971 (SA) (replaced by the 2007 Act) extinguish the Applicants' native title rights to fish undersize abalone?
2. Did the "Native Title defence" in s211 of the Native Title Act 1993 (Cth) (the NTA) apply [11]? If so, the "law [would] not prohibit or restrict the native title holders from" fishing the abalone for non-commercial purposes, in line with their native title rights (s211(2) NTA).
The Legislative Provisions
The Fisheries Management Act 2007 (SA) (the 2007 Act) replaced the Fisheries Act 1971 (SA) (the 1971 Act), which was the original legislation containing the offence the Applicants were charged with. Section 115 of the 2007 Actrelates to ministerial exemptions and provides the Minister for Primary Industries and Regional Development the capacity to:
- exempt a person or class of persons from specified provisions in the FMA; and
- change or take away an exemption, or any conditions of an exemption.
Section 211 of the NTA relates to the preservation of certain native title rights and interests. It means that the law will not stop a native title holder from undertaking an activity that is done for a non-commercial (ie personal or domestic) purpose in line with their native title rights and interests if they meet the pre-conditions in subsection 1 of s 211. The pre-conditions of subsection (1) are:
- the activity is done in accordance with native title rights and interests;
- there is an Australian law prohibiting or limiting such an activity, unless an authorised decision-maker provided permission. Such permission is granted in the form of a licence, permit or other instrument;
- the approval isn't required for research, environmental protection, public health or public safety purposes; and
- the law is not one directed at granting rights to or benefitting Indigenous Australians.
Litigation History
Magistrate's Court
The Magistrate's Court held that the "Native Title defence" in s 211 of the NTA did apply [11].
Full Court of the Supreme Court
The full bench of the Supreme Court overturned the Magistrate's decision and found the Applicants liable for the offence. The Judges had different reasoning for doing so. Justice Gray (with Justice Kelly agreeing) found that the native title right to fish in the area had been extinguished by the operation of the 1971 Act. Justice Blue disagreed, instead basing his reasoning on the conclusion that s 211 of the NTA did not apply. For s 211 to apply, there needed to be the legislative capacity in the 1971 Actto grant permission for the fishing of undersized abalone, in the form of a licence, permit or other instrument. Justice Blue found that the Ministerial exemption on the fishing ban (under s 115) did not have a concurrent meaning to a licence, permit or other instrument. The native title holders then appealed to the High Court of Australia.
High Court decision
On the extinguishment question
The High Court outlined that the question was not whether the 1971 Act impacted the factual existence of native title rights and interests (s 223 NTA). Rather, the question was whether these pre-existing native title rights stopped being "recognised by the common law of Australia" (s 223(1)(c) of the NTA) due to the operation of the 1971 Act [18]. If the native title stopped being recognised, the Applicants would be liable for fishing undersize abalone according to the 1971 Act.
Although s 11(1) of the NTA provides that native title cannot be extinguished contrary to the Act, this Court affirmed that the provision is prospective in nature [19]. This means it only affects Acts passed after 1993 and does not apply to the 1971 Act. As the 1971 Act can extinguish native title, the Court needed to determine whether the provisions in the 1971 Act operated contrarily to the ongoing recognition of the Narrunga People's native title fishing rights [19].
Their Honours decided that the 1971 Act "regulated rather than prohibited fishing in the waters governed by the Act" [22]. Therefore, it "was not inconsistent with the continued existence of, and did not extinguish, then existing native title rights to fish" [22]. There was no general prohibition on non-commercial fishing. Rather, the 1971 Act contained a mechanism by which Aboriginal people could continue to exercise their native title right to fish by taking abalone, including undersize abalone, for communal purposes in accordance with their traditional practices" [27]. Therefore, the Court determined that the Applicants' native title rights were not extinguished.
On the s 211 question
The Applicants argued that if s 211 of the NTA applied, the 2007 Act could not restrict the Applicants from fishing undersize abalone where this was for the "purpose of satisfying their personal, domestic or non-commercial needs" and it was "in exercise or enjoyment of their native title rights and interests" (s 211(2)(a), (b)), [6]. As the Applicants caught the abalone to feed their family in accordance with traditional Law, these elements were accepted. The question arose as to whether the Ministerial exception provided for under the 2007 Act could be considered a "licence, purpose or other instrument" as required by s 211 of the NTA [45]. The Court found that such a "term is not to be read narrowly" and that "such exemptions are at least a form of 'other instrument'", meeting the requirements of s 211(1)(a) of the NTA. The Applicants could successfully claim the s 211 defence, meaning they would not be held liable for fishing undersize abalone.
Outcome
The Applicants were not to be held liable for the fishing of undersize abalone, as it was done in accordance with their continuing native title rights. | 
