1.5 Standard CPD Units 

Aboriginal Fishing Under the Native Title Act: An Illusion?

This State’s Full Court has on three occasions in the last decade heard appeals arising from prosecutions of indigenous fishermen for taking abalone, either because it was undersize, or in numbers greater than the five per day allowed to unlicensed fishers by the Fisheries Management Act 2007. The Magistrate’s acquittal in Karpany was overturned by the Full Court (2012); the conviction was upheld in Dudley (2018), and in Wanganeen (2021) the conviction was overturned but the appellants sent back for retrial.  All three of these appellants were Narungga, the First Nation of Yorke Peninsula, a people geographically disposed to the taking of seafood.

Every State Supreme Court in the country, save Victoria’s, has upheld convictions of Aboriginal fishermen for the taking of marine produce, contrary to State legislative provisions, with the Native Title Act 1993 (Cth) being argued unsuccessfully as the antidote to the bane of the State legislation.  Twice the High Court has comprehensively overturned State appellate courts (Yanner 1999, and Karpany 2013) but the prosecutions by State Fisheries Departments continue unabated.

Now the Narungga are, since February 2021, the subject of a “Treaty” with the South Australian Government as to the terms on which they can fish, and in particular, take abalone.  The Full Court, sitting as five in Wanganeen, provided no rulings as to the role of the Native Title Act in covering customary fishing by Aborigines, leaving at large the efficacy and indeed the legality of the 2021 “Treaty”.  Time to explore how a Commonwealth Act, the product of so much good intention, can be so continually rendered nugatory.