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
' ~ catch two juvenile
appellant) used a traditional form of harpoon known as a ' ~ o c k to
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.
Case Notes
7 76
(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
c e [was based on] spiritual
rather than adult crocodiles had 'tribal totemic ~ i ~ c a n and
belief. The magistrate therefore held that the appellant was not guilty of an offence and
dismissed the ~ h a r g e . ~
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
The application was made under s 209 of the Justices Act 1886
Magistrates deci~ion.~
(Qld) for a review of the decision by the Supreme Court of Queensland. The Court of
Appeal (McPherson JA and Moyn~hanJ, Fitzgerald P dissenting) heldg that s 211(2) of
the Native Title Act I993 (Cth)lohad 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.11The 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
7
8
9
10
11
12
(1999) 166 ALR 258 at 260.
Neal, T. 'Yanner v Eaton', (1999) 4(6) Native Title News 106 at 106.
Neal, T 'Yanner v Eaton', (1999) 4(6) Native Title News 106 at 106.
Eaton v Yanner; Ex parte Eaton (27 February 1998, unreported).
Hereinafter cited as the Native Title Act.
(1999) 166 ALR 258 at 276.
(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
Their
usufructuary relationship with the traditional land does not sever the conne~tion.~~
Honours further concluded that s 21 1(2)~lassumes 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 ConservationAct 1974 (Qld).
ss 71(2), 83(3) Fauna Conservation Act 1974 (Qld).
s 67 Fauna ConservationAct 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 G m o w 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 extinguishmentof a pre-existing native title claim.
25 Yanner v Eaton (2000) 5 Australian Indigenous Law Reporter 47 at 48.
at 281-287.
26 (1999) 166 -258
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
~ ~ if the Crown obtains no property in fauna
found in s 7, according to McHugh J , because
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 ~ a s k p
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?35Callinan
J36concluded 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
33
34
35
36
37
38
(1999) 166 ALR 258 at 272-273.
(1999) 166 ALR 258 at 273.
(1987) 163 CLR 561.
(1999) 166 ALR 258 at 298.
McHugh J agrees with his reasons given (1999) 166 ALR 258 at 274.
Yanner v Eaton (2000) 5 Australian Indigenous Law Reporter 47 at 49.
Lane, P. 'Native Title - The End of Property As We Know It?' (2000) 8 Australian Property Law Journal 1
at 17.