Karpany v Dietman [2013] HCA 47

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

OWEN JOHN KARPANY & ANOR APPLICANTS

AND

PETER JOHN DIETMAN RESPONDENT

Karpany v Dietman [2013] HCA 47 6 November 2013 A18/2012

ORDER

1. Special leave to appeal granted.

2. Appeal allowed with costs.

3. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 11 May 2012 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation

I C Robertson SC with S G Berg for the applicants (instructed by Berg Lawyers)

M G Evans QC with A P Rodriquez and D F O'Leary for the respondent (instructed by Crown Solicitor (SA))

Interveners

M G Evans QC with A P Rodriquez and D F O'Leary for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

V B Hughston SC with J A Waters for South Australian Native Title Services Limited, intervening (instructed by South Australian Native Title Services Limited)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Karpany v Dietman

Native title – Native title right to take fish – Fisheries Act 1971 (SA) prohibited taking fish without licence or except as provided by the Act – Fisheries Act permitted taking fish by certain means without licence for non-commercial purposes – Whether statute inconsistent with continued existence of native title right to take fish – Whether native title right extinguished by pre-1975 State fisheries legislation.

Native title – Native title right to take fish – Native title holders charged with possessing undersize abalone contrary to s 72(2)(c) of Fisheries Management Act 2007 (SA) – Section 115 of Fisheries Management Act provided for ministerial exemption – Whether ministerial exemption "licence, permit or other instrument" for the purposes of s 211 of Native Title Act 1993 (Cth).