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Murrandoo Yanner v Graeme Eaton
High Court of Australia
Appeal from decision of Supreme Court of Queensland
Gleeson CJ, Gaudron, Gummow, Kirby, Hayne, McHugh and Callinan JJ
7 October 1999.
by Ron Levy
In 1994 the appellant, Murrandoo Yanner, killed two juvenile estuarine crocodiles in a creek near the Gulf of Carpentaria in Queensland for the purpose of personal consumption by the appellant and other members of his clan. The appellant hunted the crocodiles with a ‘wock’ or traditional harpoon, using a motorised dinghy. The appellant is a member of the Gunnamulla clan of the Gangalidda tribe (ie language group). The crocodiles were killed on the traditional country of the appellant’s clan.
The appellant was subsequently charged with ‘taking’ fauna without a licence or other authority in contravention of s 54(1) of the Fauna Conservation Act 1974 (Qld) (‘the Fauna Conservation Act’). This Act, in contrast to earlier Queensland fauna legislation, did not include an exception in favour of Aborigines who killed native animals for domestic consumption.
A magistrate sitting at Mt Isa dismissed the charge on the basis that the appellant had been exercising a native title right, and that a licence was not required by operation of s 211(2) of the Native Title Act 1993(Cth) (‘the NTA’). On appeal, the Supreme Court of Queensland reversed the dismissal on the basis that any native title right to hunt crocodiles in Queensland had been extinguished by operation of the Fauna Conservation Act which stated that ‘all fauna ... is the property of the Crown and under the control of the Fauna Authority’. By Order in Council dated 31 October 1974, estuarine crocodiles had been declared to be ‘fauna’.[2]
In October 1999 the High Court upheld Yanner’s appeal from the Supreme Court’s decision. The primary questions considered by the High Court concerned the concept of ‘property’ and the extinguishment of native title in the context of the statutory scheme.
In a joint judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ observed that ‘property’ is a term that does not necessarily equate to exclusive or beneficial ownership. They explain that:
‘property’ does not refer to a thing: it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. [3]
Their Honours further note that,
‘[p]roperty’ is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not a ‘monolithic notion of standard content and invariable intensity’.[4]
In relation to the Fauna Conservation Act the judges identified ‘several reasons to conclude that the “property” conferred on the Crown is not accurately described as “full beneficial, or absolute, ownership” ’.[5] First, there is the difficulty of identifying what fauna is owned by the Crown. Are migratory birds, for example, vested in the Crown only while located within Queensland, or does the legislation purport to vest ownership of every bird that has entered Queensland?
Secondly, the exclusive concept of ‘ownership’ that the Crown argued was conferred on it by the Act connotes a ‘legal right to have and to dispose of possession and enjoyment of the subject matter’.[6] The statutory scheme does not contemplate that the Crown has possession of fauna. This interpretation of the Act is supported by the exceptions contained in the scheme.
Thirdly, the purpose of the legislation is to create a royalty system, and thus
the statutory vesting of ‘property’ in the Crown by the successive Queensland fauna Acts can be seen to be nothing more than ‘a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource’.[7]
It follows that the native title right to hunt crocodiles or other fauna had not been extinguished at the time of the alleged offence. Justice Gummow observed that such a right was properly understood as an ‘incident’ of an Indigenous community’s native title.[8] Further, the requirement in the Fauna Conservation Act that a person taking fauna possess a licence or other authority did not apply to Mr Yanner due to the operation of superior Commonwealth legislation: specifically, s 211(2) of the NTA). That section provides that licensing requirements do not apply to an Indigenous person who exercises or enjoys a native title hunting right for personal, domestic, or non-commercial needs.[9]
The dissenting Judges considered that the ‘natural and ordinary meaning’ of the phrase ‘is the property of the Crown’ vests in the Crown and takes away from everyone else, the right to kill, take, or appropriate fauna as defined in the legislation.[10]
In construing the concept of property as ‘a legally endorsed concentration of power over things and resources’ which may be of variable content,[11] the majority have continued and developed the Court’s approach to pastoral leases in the Wik[12] case. In essence, the Court’s approach in both Wik and Yanner has been to carefully analyse the precise nature and ambit of statutory interests for the purpose of ascertaining whether there is a ‘clear and unambiguos intention’ that native title cease to exist (or co-exist).
Notwithstanding requests from the respondents, the Court declined to decide broader issues such as whether the common law recognises a concept of ‘partial extinguishment’, and the related question of whether a native title should properly be regarded as a ‘bundle of rights’ (each of which is separately capable of extinguishment). These issues may ultimately be decided in the Miriuwung and Gajerrong case[13] or other cases.
Ron Levy is a lawyer with the Northern Land Council.
[1] (Unreported, High Court of Australia, Gleeson CJ, Gaudron, Gummow, Kirby, Hayne, McHugh and Callinan J, 7 October 1999) <http://www.austlii.edu.au/au/cases/cth/high_ct/1999/69.html> at 12 December 1999.
[2] For further information see casenote by Warren Walter Coatsworth ‘Considering crocodiles in the Queensland Court of Appeal: Eaton v Yanner; ex parte Eaton’ 4(15) (1998) ILB 20.[3] Murrandoo Yanner v Graeme Eaton (1999), para 17.
[4] Ibid 19.
[5] Ibid 22.
[6] Ibid 25.
[7] Ibid 28 (citing Toomer v Witsell, [1948] USSC 105; 334 US 385, 402 (1948) (Vinson CJ)).
[8] Ibid 73.
[9] Section 212 also applies to the activities of fishing, gathering, or a cultural or spiritual activity pursuant to a native title right.
[10] Murrandoo Yanner v Graeme Eaton (1999), paras 46 & 57.
[11] Ibid 18.
[12] Wik Peoples v State of Queensland (1996) 187 CLR 96.
[13] Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 (Lee J); an appeal to the Full Bench of the Federal Court has been reserved.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2000/5.html