Fisherman in Mabo court battle

Two Aboriginal men, who were aquitted of taking 24 undersize abolone from Yorke Peninsula waters in South Australia, are now fighting a landmark legal case after the Sate Department of Fisheries appealed the aquittal.

The Department of Fisheries and Aquaculture has appealed the aquittal by Magistrate Derek Spord in an action now being viewed as a possible test for the use of native title as a defence.

Native title is recognised when an aboriginal person has continuing connection with the land and has maintained traditional cultural practices on that land, historically first recognised in 1992 in the breakthrough case Mabo vs Queensland (No.2) and now also in the Commonwealth Native Title Act.

The current case is considered so significant that the Solicitor-General, Martin Hinton, QC, led the appeal team in the supreme court last week.

The full bench of the Supreme Court heard the appeal. Justices Thomas Gray, Trish Kelly and Malcolm Blue have reserved their decision.

If it upholds Mr Sprod's decision, Aboriginal people in South Australia with native title rights would effectively be able to be excluded from the state's fishing laws.

Owen John Karpany, 59, of Kapunda, and son Daniel Thomas Karpany, 24, of Parafield Gardens, who belong to the Narrunga people, were charged under the Fisheries Management Act after they were found with greenlip abalone meat at Cape Elizabeth, south of Port Hughes on Yorke Peninsula in 2009.

The federally funded Aboriginal Legal Rights Movement picked up the case and has provided legal representation for the men.

On August 11, Mr Sprod found them not guilty because "the so called native title defence is available to both defendants".

One of the legal arguments put forward by South Australia's Solicitor-General to the supreme court last week was that the Fisheries Act had effectively extinguished native title rights.

South Australian Fisheries Minister, Michael O'Brien said the Sate Government had appealed against the Magistrate's decision so the status of the Fisheries Management Act could be clarified in relation to native title.