YANNER v EATON
I FACTS
The appellant Mr Yanner, a member of the Gunnamulla clan of the Gangalidda tribe, used a
traditional harpoon to catch two juvenile estuary crocodiles in Queensland. He was charged
before a magistrate with the offence of taking and keeping fauna without a licence, permit or
certificate under the Fauna Conservation Act 1974 (Qld).1 The defence raised was that s211 of the
Native Title Act 1993 (Cth) applied.2
II ISSUES
This case turned on the Court’s interpretation of the word ‘property’ in s7(1) of the Fauna Act,
which states:
(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.
The question before the Court was thus whether s7(1) of the Fauna Act gave full beneficial, or
absolute, ownership of the fauna to the Crown, which was inconsistent with the rights and
interests upon which the appellant relied. 3 If so, the Court had to determine if these restrictions
on the rights of the appellant extinguished any claim to native title.
III MAJORITY CONCLUSION AND REASONING
The majority, comprising Gleeson CJ, Kirby, Gaudron, Hayne and Gummow JJ, held that s7(1)
conferred a right less than the full beneficial ownership of the property. ‘Property’ merely
entailed a regime regulating the taking and keeping of property rather than actual property in
fauna[48].
In determining this, their honours noted difficulty when identifying what fauna is owned by the
Crown, and that it was unclear how the Crown would be able to exert full beneficial or absolute
ownership of wild animals. Further, the legislation’s purpose was to create a royalty system and
Fauna Conservation Act 1974 (s 54(1)(a).
Native Title Act1992 s211 (1)–(3).
3 Yanner v Eaton [1999] HCA 53, 21.
1
2
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amounted to nothing more than ‘a fiction expressive in legal shorthand of the importance that a
state have power to preserve and regulate’ resources[22-28].
On extinguishment of native title, the hunting rights upon which Mr Yanner relied were deemed
rights and interests possessed under the traditional laws acknowledged, as well as the
traditional customs observed by his clan and tribe within s223 of the Native Title Act. They were
also recognised by the common law of Australia at least until the passing of the Fauna Act. As
such, the Act did not extinguish his rights and interests; it merely regulated the way in which
they could be exercised in a manner not inconsistent with the existence of those rights and
interests[33].
Accordingly, per s211(2) of the Native Title Act and s109 of the Commonwealth Constitution, the
Fauna Act was held to not restrict Mr Yanner, as a native title holder, from hunting the crocodiles
for the purpose of satisfying personal, domestic or non-commercial communal needs[40].
IV RELEVANCE TO REAL PROPERTY AND THIS AREA OF THE LAW
The majority acknowledged that ‘property’ is a vague concept, describing it not as referring to a
monolithic ‘thing’ but to ‘a description of a legal relationship with a thing’, the content and
intensity of which varies according to context[17-19]. They further explained that the longaccepted ‘bundle of rights’ theory ‘may have its limits as an analytical tool or accurate
description’, and it may be that ‘the ultimate fact about property is that it does not really
exist’[17]. Gummow J, in a separate majority judgment, similarly suggested that property
amounts to an ‘aggregate of legal relations’ rather than ‘of things’[30]. This wide stance has been
reaffirmed in several recent cases,4 exemplifying how, when ascertaining the nature of rights in
Australian property, it is now necessary to approach the question in totality and without
presumptions about the intention with which certain words are used.
Yanner is authority for the notion that fishing and hunting are sufficient grounds for a native title
claim, and that such an entitlement would not be extinguished per the Fauna Act. This
determination reinforced established principles from Mabo that native title rights and interests
must not simply find their origin in Aboriginal law and custom, but must also reflect a
4
Willmott Growers Group v Willmott Forests Limited [2013] HCA 51, 35; Attorney-General (NT) v Emmerson [2014]
HCA 13, 31.
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connection with the land.5 Moreover, that this may be understood as spiritual, cultural and social
connection. The application of such principles in Yanner led to the conclusion that regulating a
particular incidence of native title would not sever the connection with the land that sustains
native title.
The majority confirmed that the test for extinguishment is inconsistency, and that native title
rights will not be extinguished by legislation unless it demonstrates a clear and plain intention to
do so.6 Yanner went further, however, pioneering the notion that mere regulation of native title
rights and interests does not extinguish those rights and interests. From an international
perspective, this decision was not entirely unprecedented. Missouri v Holland, a US Supreme
Court case in which statutes declared fish to be the property of the State, held that ‘property’
referred to the power to preserve and regulate the exploitation of the resource.7 The recent
cases of Akiba and Karpany affirm Yanner, holding that legislation regulating native title rights to
hunt and fish is not inconsistent with the exercise of those rights.8
This case also delineated between exercising an established native right in a modern way, and
the complete abandonment of traditional native title rights. Mr Yanner’s motorboat was not
known prior to European contact, however the matter went uncontested, casting light on the
specificity of the Yorta Yorta decision and indicating how such activity may be regarded as an
‘evolved, or altered, form of traditional behaviour’[68]. Given the issue was not explored in
depth, there remains ambiguity regarding the precise extent to which longstanding customs may
evolve without ceasing to be ‘traditional’.
5
Mabo v Queensland (No.2) (1992) 175 CLR 1.
Wik Peoples v Queensland [1996] HCA 40.
7 Missouri v. Holland, 252 U.S. 416.
8 Akiba v Commonwealth of Australia [2013] HCA 33; Karpany v Dietman [2013] HCA 47.
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V BIBLIOGRAPHY
A Cases
Akiba v Commonwealth of Australia [2013] HCA 33
Attorney-General (NT) v Emmerson, [2014] HCA 13, 31
Karpany v Dietman [2013] HCA 47
Mabo v Queensland (No.2) (1992) 175 CLR 1
Missouri v. Holland, 252 U.S. 416
Wik Peoples v Queensland [1996] HCA 40
Willmott Growers Group Inc v Willmott Forests Limited [2013] HCA 51, 35
Yanner v Eaton [1999] HCA 53
B Legislation
Fauna Conservation Act 1974 (Qld) s 7(1)
Native Title Act 1993 (Cth) s 211
C Journal Articles
Daniela Tonon, High Court decision on extinguishment (2014) Herbert Smith Freehills
<http://www.herbertsmithfreehills.com/insights/legal-briefings/high-court-decision-onextinguishment>
Darsha Kumar, High Court provides greater clarity regarding “inconsistency” and native title
rights (15 March 2014) Human Rights Law Centre <http://hrlc.org.au/high-court-providesgreater-clarity-regarding-inconsistency-and-native-title-rights/>
Mark Gerits and Prue Harvey, Native title rights to fish mean state legislation is mere abalone (21
November 2013) Clayton Uts Insights
<http://www.claytonutz.com/publications/edition/21_november_2013/20131121/native_title
_rights_to_fish_mean_state_legislation_is_mere_abalone.page>
Poyton, Peter, ‘Is Yorta Yorta Applicable in Queensland?’ (2002) 8 James Cook University Law
Review 252
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Segger, Joanne, ‘Yanner v Eaton - The High Court's Next Opportunity to Consider the
Extinguishment of Native Title’ (2006) 6 The University of Queensland Law Journal 221
Strelein, Lisa, ‘Property and Crown Ownership : Yanner v Eaton’ In: Strelein, Lisa.Compromised
Jurisprudence: Native Title Cases since Mabo. Canberra, A.C.T.: Aboriginal Studies Press, 2009:
44-48
Wright, Lisa, ‘Themes Emerging from the High Court’s Recent Native Title Decisions’ (2003)
National Native Title Tribunal Occasional Papers Series 1
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