The High Court has upheld the native title rights of an Aboriginal father and son to take even under-sized abalone.
Seven High Court judges ruled the native title rights of Owen and Daniel Karpany were not extinguished by the South Australian Fisheries Management Act.
The case dates back to 2009 when fisheries officers busted the father and son, who are members of the Narrunga people, near Cape Elizabeth with 32 abalone - including 24 smaller than the 13-centimetre size limit.
They said they planned to divide up the catch and eat them at a banquet with about 15 family members.
They also told the officers their Aboriginal background and entitlements allowed them to take the abalone.
The magistrate in the court at Kadina agreed.
South Australian fisheries appealed and the case went to the full bench of the Supreme Court, which held that the Karpanys' native title rights had been extinguished and in any event the Native Title Act did not apply.
In the High Court, judges unanimously held that SA fisheries law did not bar native title holders gathering under-sized abalone for personal, non-commercial communal needs.
