The High Court unanimously allowed an appeal against the decision of the Full Court of the South Australian Supreme Court in Karpany v Dietman. Applicants Owen and Daniel Karpany were charged with possession of undersized abalone fished from waters over which the applicants claimed their Aboriginal group, the Narrunga People, held native title rights. The Magistrate agreed with the applicants’ claim and dismissed the complaint against them. The SASCFC allowed the appeal against the Magistrate’s decision on two grounds. First, the Magistrate erred in finding that s 211 of the Native Title Act 1993 (Cth) permitted the defendants to take undersized abalone. Secondly, that s 29 of the Fisheries Act 1971 (SA) validly extinguished the native title claim to the waterway in question.

Special leave was limited to two grounds: whether the Fisheries Act 1971 (SA) did extinguish the native title claim; and if it did not, whether s 211 of the Native Title Act 1993 (Cth) rendered the prohibition in s 115 of the Fisheries Management Act 2007 (SA) inapplicable to the defendants. The applicants succeeded on both grounds. First, the Court held that the 1971 Act did not extinguish the right to take fish for non-commercial purposes (including undersized abalone): it only provided for a mechanism to regulate commercial, which could be administered consistently with continued native title rights. Secondly, s 211 afforded the applicants a defence against the charge: that availability turned on whether s 115 was a ‘licence, permit or other instrument granted or issued’ within the meaning of s 211, which the Court held it was.