The High Court has ruled in favour of Narrunga Elder Owen Karpany and his son Daniel that they were entitled to a catch of abalone under native title rights. The father and son had been charged with having caught undersized greenlip abalone.
Mr Owen Karpany said they were not engaging in commercial fishing and that they were fishing in traditional waters in a traditional manner. Their right to fish and to the catch became a rights battle for all Aboriginal peoples they said. They stood solid against an earlier court ruling which found that native title rights had been extinguished in 1971 when the Fisheries Act took effect.
In winning their court case, they have opened up the argument of extinguishment of native title rights, and the Karpany win can now be tapped in as precedent for clarifying traditional rights where they encompass personal rights. Commercial rights are another issue altogether.
Lawyer Shaun Berg said “the High Court went with a 7-0 ruling in our favour.” Mr Berg explained that the Narungga men were entitled as native title holders to catch fish for personal and domestic use and for non-commercial communal purposes. The Karpanys had been charged for a catch of 24 undersized abalone at Cape Elizabeth on the Yorke Peninsula, December 2009.
They argued to the High Court that the South Australian Fisheries Act could not override their Commonwealth underwritten native title rights, which included the right to fishing. They had won the judgment in Adelaide’s Magistrates Court but on appeal by the Fisheries Department the decision was overturned by the Full Court of the Supreme Court last year. The Karpanys appealed to the High Court. The High Court ruled that the South Australian Attorney-General cover the Karpanys’ legal costs which have amounted to more than $400,000.
Mr Berg said, (The Karpanys) will be very keen to get (their) fishing gear back… and to go (fishing) without interference from the State.”
South Australian Native Title Services CEO, Keith Thomas said the ruling removed any uncertainty about various rights for a number of Indigenous Land Use Agreements (ILUA).
“It is a huge decision because it gives clarity about the law and people now will be able to negotiate their fishing (rights in reference to) ILUAs with certainty so that there is a clear future in terms of the fishing rights Aboriginal people have in South Australia.”
Mr Owen Karpany said he now wanted to rest for several days after an exhausting four year struggle for justice “but was thrilled with the rightful decision.” He had wanted to overturn the “unacceptable notion” of extinguishment of Aboriginal peoples rights over the seas.
In June, the High Court granted leave to applicants Mr Owen and Mr Daniel Karpany who had been charged with possession of undersized abalone in waters to which the Narrunga peoples held natural and native title rights, to hear an appeal against the Full Court of the South Australian Supreme Court in their matter. The Magistrate agreed with the applicants claim and dismissed the complaint against them. The SA Supreme Court allowed the appeal against the Magistrate’s decision on two grounds. First, the Magistrate erred in his finding that the Native Title Act permitted the Karpanys to take undersized abalone and second, that the Fisheries Act 1971 (SA) validly extinguished any native claims to the waterways. The Karpanys appealed to the High Court to overturn the final decision against them in reference to their traditional right to fish for abalone.
The Karpanys believed it is their duty to correct an unfair law that wholesale discriminates against their people.
On October 9, the High Court heard that South Australia in upholding its Fisheries Act in reference to the extinguishing of Aboriginal peoples’ rights to both fish and benefit from the harvests of the seas conflicts with the Racial Discrimination Act. The Karpanys insisted that in Queensland their Fisheries Act has not extinguished Torres Strait Islander rights over the seas.
Lawyers for the Karpanys, Mr Robertson and Mr Berg contested the concepts of extinguishment and section 211 of the Native Title Act.
Court transcripts document that Mr Robertson said to the High Court, “As your Honours know, the Full Court found that the relevant native title right and interest was extinguished by the Fisheries Act 1971 (SA) and section 211 of the Native Title Act did not render inoperative section 72 of the Fisheries Management Act 2007. Your Honours, we accept for this appeal to succeed that the applicants must overturn both of those findings.”
Mr Robertson also said, “We have been contacted, I can tell your Honours, by the Australian Government Solicitor on behalf of the Commonwealth to indicate that if the matter was to be ventilated that they would wish to be heard upon that issue and it may be the case that other States may wish to be heard upon that issue.”
Mr Robertson said that an argument may be given rise “in respect of not only the operation of section 10 of the Racial Discrimination Act but also in relation to the operation of future Acts – provisions of the Native Title Act.”
Mr Robertson told the High Court that the Karpanys “are members of the Narrunga people, that they had a traditional and unbroken connection with the area your Honours identified by reference to the magistrate’s reasons, that the catch was taken using traditional practices, that it was not for a commercial purpose and that it was to feed the extended family of the applicants.”
He argued that the magistrate had taken the position that there was a native title right interest and that rights had not been extinguished but that the argument changed and was accepted by the Full Court. But Mr Robertson argued “that the Narrunga people’s native title right and interest to fish was unaffected by any of the legislation prior to 1971.”
Prior to 1971 South Australia maintained provisions which expressly respected the continued fishing rights of Aboriginal peoples. Mr Robertson pointed out that the Fisheries Act prescribes a Fisheries Council and includes that “at least one of the Council have knowledge and experience of Aboriginal traditional fishing.” Mr Robertson suggested “that traditional and customary rights of Aboriginal persons exercising those rights are to be preserved where that preservation can consistently be undertaken with the interpretation of this Act.”
Read the Karpany High Court judgement in full here: