Yanner v Eafon - The High Court's Next Opportunity to Consider the Extinguishment of Native Title Joanne Segger B Econ (Qld), LLB Student, TC Beirne School of Law, The University of Queensland. In the recent case of Yanner v Eaton1 the High Court reaffirmed the common law doctrine of Native Title and clarified circumstances where a claim may be extinguished through the impact of a State statute. This case highlights the new analysis of rights and interests in land that is required, and the importance of the interpretation given to the plain words of a statutory in~trument.~ I. The Facts of Yanner v Eaton: Between the 31st of October and the 1st of December 1994 Mr Murrandoo Yanner (the appellant) used a traditional form of harpoon known as a '~ock'~ to catch two juvenile estuarine crocodiles in Cliffdale Creek in the Gulf of Carpentaria area of Queensland. The appellant and other members of his clan ate some of the crocodile meat. The appellant froze the rest of the meat and kept that frozen meat and the skins of the crocodiles at his home.4 As a result of these acts, the appellant was charged under s 54(l)(a) of the Fauna Conservation Act 1974 which provided that: A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act. As the appellant was not the holder of any licence, permit, certificate or other authority he was charged with one count of taking fauna contrary to the Act.S The defence raised to this charge was that s 21 1 of the Native Title Act 1993 (Cth) applied to this factual scenario. This section provides as follows: (1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity defined in subsection (3); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from canying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and (c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders. (2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interest (3) Each of the following is a separate 'class of activity' (a) hunting; (b) fishing; (c) gathering; 1 [I9991 HCA 53; (1999) 166 ALR 258 2 Lane, P 'Native Title - The End of Property As We Know It?' (2000) 8 Australian Property LAW Journal 1 at 17. 3 (1999) 166 ALR 258 at 277. 4 (1999) 166 ALR 258 at 260; Neal, T 'Yanner v Eaton' (1999) 4(6) Native Title News 106 at 106. 5 (1999) 166 ALR 258 at 260.
7 76 Case Notes (d) a cultural or spiritual activity; (e) any other kind of activity prescribed for the purpose of this paragraph. II. The decision at first and second instance The Magistrate at first instance held that the appellant's clan has 'a connection with the area of land from which the crocodiles were taken' and that this connection had existed 'before the common law came into being in the colony of Queensland in 1823 and... thereafter continued'. He further held that it was a traditional custom of the clan to hunt juvenile crocodiles for food, and that the evidence suggested that the taking of juvenile rather than adult crocodiles had 'tribal totemic ~ i~cance and [was based on] spiritual belief. The magistrate therefore held that the appellant was not guilty of an offence and dismissed the ~harge.~ The effect of the Magistrate's finding was that the exercise or enjoyment of native title rights in relation to the land and waters from which the crocodiles were taken consisted of hunting and fishing. The Fauna Act prohibited those acts other than in accordance with a licence, permit, certificate or other authority. However, the Fauna Act did not prohibit or restrict native title holders from hunting or fishing or from gaining access to the land or waters for the purposes of satisfying their personal, domestic or non commercial communal needs and in the exercise or enjoyment of their native title rights and interest^.^ The informant in the Magistrates' Court proceedings applied for an order to review the Magistrates deci~ion.~ The application was made under s 209 of the Justices Act 1886 (Qld) for a review of the decision by the Supreme Court of Queensland. The Court of Appeal (McPherson JA and Moyn~han J, Fitzgerald P dissenting) heldg that s 211(2) of the Native Title Act I993 (Cth)lo had no relevant operation, as the appellant's native title right or incident to hunt the said crocodiles had been extinguished by s 7(1) of the Fauna Act and therefore the threshold requirement in s 223(1)(c) of the Native Title Act, that the right was 'recognized by the common law of Australia' was not fulfilled.11 The Court of Appeal on this basis ordered that the order nisi be made absolute and that the Magistrate's order be set aside. The Court of Appeal further ordered that the matter be remitted to the Magistrates Court so that the matter could be trialed according to the law. From these orders the High Court granted special leave to appeal.12 Ill. The High Court's Decision (52) Gleeson CJ, Gaudron, Kirby and Hayne JJ in their joint judgment and Gurnmow J in a separate judgment allowed the appeal in this matter, with McHugh and Callinan JJ dissenting. All the Justices of the High Court in this case saw the major issue for determination as what interpretation should be given to s 7 of the Fauna Act. This provision stated that: (1) All fauna, save fauna taken or kept during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority. (2) Liability at law shall not attach to the Crown by reason only of the vesting of fauna in the crown pursuant to this section. The respondents submitted that this section conferred rights on the Crown with respect to 6 (1999) 166 ALR 258 at 260. 7 Neal, T. 'Yanner v Eaton', (1999) 4(6) Native Title News 106 at 106. 8 Neal, T 'Yanner v Eaton', (1999) 4(6) Native Title News 106 at 106. 9 Eaton v Yanner; Ex parte Eaton (27 February 1998, unreported). 10 Hereinafter cited as the Native Title Act. 11 (1999) 166 ALR 258 at 276. 12 (1999) 166 ALR 258 at 261.
Case Notes 7 77 the fauna that were inconsistent with the native title rights and interests upon which the appellant relied. 1. The Judgment of Gleeson CJ, Gaudron, Kirby and Hayne JJ (Majority) The issue facing the Justices here was, what meaning should be given to 'property' in the context of the Fauna Act? Their Honours viewed property as a notional concept describing a legal interest or legal relationship, the content and intensity of which varies greatly according to context. The property interest in fauna vested in the Crown by s 7(1) is determined by construing the provision within the terms of the whole Act. It is evident that s 7(1) conferred less than full, beneficial or absolute ownership because the Crown's control and possession of wild animals is, as theorised at common law, inherently limited.13 Their Honours stated that: [tlhe 'property'14 which the Fauna Act and its predecessors vested in the Crown was no more than the aggregate of the various rights of control by the Executive that the legislation created. So far as now relevant those were rights to limit what fauna might be taken and how it might be taken,15 rights to possession of the fauna that has been reduced to possession,16 and rights to receive royalty in respect of fauna that was taken.17 The majority concluded that the cumulative result of these sections was to confer a right less than the full and beneficial ownership of the property. The use of the term 'property' merely conferred a regime forbidding the taking and keeping of property not the actual property in that fauna. l8 The issue for the court was then whether these restrictions on the rights of the appellant extinguished the native title that he may or may not possess. The Court was of the opinion that the hunting and fishing rights and interest upon which the appellant relied were rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the clan and tribe of which the appellant was a member. Therefore this was consistent with the s 223 of the Native Title Act. The result of this was that the appellants had a recognizable right in the land, at least until the passing of the Fauna Act under the common law.19 The majority found that regulating particular aspects of the usufructuary relationship with the traditional land does not sever the conne~tion.~~ Their Honours further concluded that s 211(2)~l assumes a conditional prohibition, like the one that confronted the appellant, which does not affect the existence of the native title rights and interests in relation to which the activity is pursued." In their Honours' opinion, the Fauna Act did not extinguish the rights and interest upon which the appellant relied. Accordingly by the operation of the Native Title Act and s 109 of the ~onstitution~~, the Fauna Act did not prohibit or restrict the appellant, as a native title holder, from hunting and fishing for juvenile crocodiles that he took for satisfying personal, domestic or non commercial communal needs. The appeal was allowed, negating the conviction. This judgment demonstrates the current mood of the High Court when dealing with Native Title claims. The majority by their interpretation appear to be willing to assess the Yanner v Earon (2000) 5 Australian Indigenous Law Reporter 47 at 48. (1999) 166 ALR 258 at 267-8. ss 24, 24A, 25, 27, 30, 60 Fauna Conservation Act 1974 (Qld). ss 71(2), 83(3) Fauna Conservation Act 1974 (Qld). s 67 Fauna Conservation Act 1974 (Qld) (1999) 166 ALR 258 at 268. (1999) 166 ALR 258 at 268. Neal, T 'Yanner v Eaton' (1999) 4(6) Native Title News 106 at 107. Refer to the Facts of Yanner v Eaton. (1999) 166 ALX 258 at 270. Where a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the fonner shall, to the extent of the inconsistency, be invalid.
7 78 Case Notes statutes that are brought before them in totality, such that they will not construe imperative words without regards to the scheme of the act.= 2. The Judgment of Gmow J (Separate Majority Judgment) Justice Gummow offers an interpretation of the law in issue that is clear in both explanation and logic. The distinguishing feature of Gumrnow J's judgment is that his Honour offers a concise overview of the law with respect the content of common law native title and extinguishment of title. His Honour, like the majority, saw the key issue as one of an interpretation of s 7(1). Gurnrnow J saw the use of the term 'property' as an aggregate relation between the 'Crown' and 'fauna'. Utilizing the common law notions of property in animals in order to assess the liabiity of the Crown under the Act, liability at common law for damage caused by wild animals arises upon the taking or taming of the animals. His Honour found that section 7(2) immunized the Crown from that liability, indicating that, under the Fauna Act, the Crown acquired property in fauna only when those common law obligations would have otherwise operated. This limited property in fauna conditioned on 'taking' or 'keeping' is confiied by the exception within s 7(1) whereby the Crown does not have property in fauna 'taken or kept during an open season'.25 The result was that the section did not confer an absolute property right on the Crown but merely a right to regulate the activities of peoples of the state.26 The issue was whether this conferral of rights meant that the right claimed by the appellants was extinguished. Gummow J considered the decision of the High Court in Wig7 where it was held that native title rights would be extinguished where they are inconsistent with the statutory rightsf8 The question was therefore, according to Gumrnow J, whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title rights without in any degree abrogating it. Therefore the issue was whether the creation of certain statutory rights, conditioned upon the exercise of power conferred by the Fauna Act abrogated the exercise of the native title right or incident to hunt. Gummow J found that the legislative regulation that required an indigenous person to obtain a pennit under the Fauna Act in order to exercise the privilege to hunt did not abrogate the native title right. Rather, the regulation was consistent with the continued existence of that right.29 Gumrnow concluded that the appellant's conduct was recognized by the common law within the meaning of s 223(1)(c). As a result, s 211 applied and saved the exercise of that right from being an offence against s 54(l)(a) of the Fauna Act.31 3. The dissenting opinions - McHugh and Callinan JJ McHugh and Callinan JJ found, in separate judgments, that the term 'property' in s 7 of the Fauna Act had the effect of extinguishing native title. McHugh J saw the use of the ordinary natural meaning of the term as a convenient method of statutory interpretation. The result was that 'property' should mean more than the residue of control over fauna, which the Crown has after others have carved out their entitlements to take and keep fauna 24 As will be demonstrated with the dissenting opinions in this case, such a literal construction would result in the severe consequence of an extinguishment of a pre-existing native title claim. 25 Yanner v Eaton (2000) 5 Australian Indigenous Law Reporter 47 at 48. 26 (1999) 166-258 at 281-287. 27 Wik v Queensland (1996) 187 CLR 1. 28 (1999) 166 ALR 258 at 288. 29 (1999) 166 ALR 258 at 290. 30 (1999) 166 ALR 258 at 292. 31 Yanner v Eaton (2000) 5 Australian Indigenous Law Reporter 47 at 48.
Case Notes pursuant to a licence granted by or under the Act. Property in fauna is and always remains in the Crown until it disposes of it or a person acting in accordance with the Act puts an end to the Crown's property in particular fauna. This is not degraded by the exception found in s 7, according to McHugh J, because ~ ~ if the Crown obtains no property in fauna until it is taken, killed or appropriated, such an interpretation would deny the plain words of s 7(1)." Both Justices relied on the High Court's previous decision in Walden v ~askp as authority for the proposition that, since its enactment, s 7 has operated to vest property in fauna in the Crown and any right of Aborigines to take and keep fauna had been eliminated. The issue was therefore whether the property in the crocodiles that is vested in the Crown is so inconsistent with any native title right as to extinguish that right?35 Callinan J36 concluded that the evidence pointed inexorably to a direct collision between the custom or right of taking and eating crocodiles and the ownership of them by the State of Queensland. This collision is to such an extent that the custom or right which may be an aspect or incident of native title enjoyed by the people, of whom the appellant was one, has been extinguished by the Act under which the appellant was charged. The basic premise underlying this judgment was that the term 'property' should be interpreted as simply that.37 IV. Conclusion The majority judgments offer authority for the notion that the activities of fishing and hunting are grounds for a viable native title claim, and that such a claim is not extinguished through the operation of the Fauna Act. This decision highlights the new analysis of rights and interests in land that is required as a result of recognizing rights derived from traditional indigenous connections with the land and water. In order to determine the nature and content of rights in real property in Australia, it is now necessary to approach the question without preconceptions about the intention with which certain words (particularly those with broad and general meanings) are used. The minority utilized a literal approach to the term property, whereas the majority required a more detailed analysis of the purpose and function of the statutory language.38 It can be said that statutory interpretation was of critical importance for the outcome of this case. It was the essential difference between a viable claim of Native title and the extinguishment of such a right. 32 (1999) 166 ALR 258 at 272-273. 33 (1999) 166 ALR 258 at 273. 34 (1987) 163 CLR 561. 35 (1999) 166 ALR 258 at 298. 36 McHugh J agrees with his reasons given (1 999) 166 ALR 258 at 274. 37 Yanner v Eaton (2000) 5 Australian Indigenous Law Reporter 47 at 49. 38 Lane, P. 'Native Title - The End of Property As We Know It?' (2000) 8 Australian Property Law Journal 1 at 17.