A recent decision of the High Court of Australia has confirmed that the extinguishment of native title rights at common law by legislation which existed prior to the enactment of the Native Title Act 1993 (Cth) (NT Act) will not occur if the legislation regulates, but does not prohibit, activities which are the subject of native title rights (in this case, the right to fish). The High Court also adopted a broad interpretation of the terms of section 211 of the NT Act, a native title defence provision.
In 2009, a father and son who were members of the Narrunga People (applicants) were charged near Cape Elizabeth (South Australia) with possessing 24 undersize Greenlip abalone in contravention of section 72(2)(c) of the Fisheries Management Act 2007 (SA) (FMA 2007) and its associated regulation.
The applicants sought to defend the charge by relying on section 211 of the NT Act. They argued that the abalone were taken in accordance with their native title rights to fish and for the (non-commercial) purpose of feeding their family. The Prosecution conceded that the applicants had a native title right to take fish from the relevant waters and that this right included the taking of abalone, including undersize abalone. However, the Prosecution argued that the provisions of the FMA 2007, in particular section 115, did not satisfy the requirements of the defence provided by section 211 of the NT Act.
At first instance, in the South Australian Magistrates Court, the applicants were successful in defending the charges relying on section 211. The Prosecution appealed this decision.
On appeal, the Full Court of the Supreme Court of South Australia (Supreme Court) disagreed with the Magistrates Court. The Supreme Court held that the Magistrate had made an error in concluding that section 211 applied to the offence as charged because of the operation of section 115 of the FMA 2007. The Supreme Court also found that the defence under section 211 was not available in any event as the applicants’ native title rights had been extinguished in 1971 at common law by the Fisheries Act 1971 (SA) (FA 1971) which predated the FMA 2007. As a result, the applicants were found to have committed the offence with which they were charged.
The applicants applied for special leave to appeal to the High Court. Their application was heard by the Full Court of the High Court.
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