Yanner v Eaton

[1999] HCA 53
(1999) 201 CLR 351

---

(Judgment by: Gleeson CJ, Kirby J, Hayne J, Gaudron J)

Yanner
vEaton

Court:

Judges:
Gleeson CJMcHugh J
Gummow J

Kirby JCallinan J

Hayne J
Gaudron J

Legislative References:
Native Title Act 1993 (Cth) - s 211
Racial Discrimination Act 1975 (Cth) - The Act
Defence Act 1903 (Cth) - s 124(1)
Judiciary Act 1903 - s 78A(1)

Hearing date:
Judgment date: 7 October 1999

---

Judgment by:
Gleeson CJ
Kirby J
Hayne J
Gaudron J

[1] The appellant is a member of the Gunnamulla clan of the Gangalidda tribe ^[1] of Aboriginal Australians. Between 31 October and 1 December 1994 he used a traditional form of harpoon to catch two juvenile estuarine crocodiles in Cliffdale Creek in the Gulf of Carpentaria area of Queensland. He and other members of his clan ate some of the crocodile meat; he froze the rest of the meat and the skins of the crocodiles and kept them at his home.

[2] In 1994, the Fauna Conservation Act 1974 (Q) ("the Fauna Act") provided, by s54(1)(a), 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."

(The Fauna Act was repealed and replaced by the Nature Conservation Act 1992 (Q) which came into operation on 19 December 1994. It was, however, common ground, and clearly correct, that these proceedings fell to be decided in accordance with the Fauna Act.)

[3] The appellant was not the holder of any licence, permit, certificate or other authority granted and issued under the Fauna Act. He was charged in the Magistrates Court of Queensland with one count of taking fauna contrary to the Fauna Act. The appellant contended, and the Magistrate accepted, that s211 of the Native Title Act 1993 (Cth) ("the Native Title Act") applied. That section provided at the relevant time:

"(1) Subs(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 subs(3)); and

(b)

a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying 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 noncommercial communal needs; and

(b)

in exercise or enjoyment of their native title rights and interests.

(3) Each of the following is a separate class of activity:

(a)

hunting;

(b)

fishing;

(c)

gathering;

(d)

a cultural or spiritual activity;

(e)

any other kind of activity prescribed for the purpose of this paragraph."

[4] The Magistrate found that the appellant's clan "have 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 found 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 significance and [was based on] spiritual belief". The Magistrate found the appellant not guilty and dismissed the charge.

[5] In effect, then, the Magistrate found that:

(a)

the exercise or enjoyment of native title rights and interests in relation to the land or waters where the crocodiles were taken consisted of or included hunting or fishing ^[2] ;

(b)

a law of the State (the Fauna Act) prohibited or restricted persons from carrying on those classes of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the Fauna Act ^[3] ;

(c)

the Fauna Act was not one that conferred rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders ^[4] ; and accordingly

(d)

the Fauna Act did not prohibit or restrict the native title holders from carrying on those classes of activity (hunting and fishing) or from gaining access to the land or waters for the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title rights and interests ^[5] .

[6] The informant (a police officer) applied for an order to review the Magistrate's decision ^[6] and the order nisi for review was made returnable before the Court of Appeal of Queensland. The Court of Appeal, by majority, made the order nisi absolute, set aside the order of the Magistrates Court dismissing the complaint, and remitted the proceedings to the Magistrates Court for the matter to proceed according to law ^[7] . By special leave the appellant appeals to this Court.

[7] The appellant contended that the Magistrate was right to dismiss the charge because in taking the crocodiles the appellant was exercising or enjoying his native title rights and interests; these rights and interests were preserved by the Native Title Act. It followed (so the argument went) that the Fauna Act, to the extent to which it prohibited or restricted the taking of crocodiles in the exercise of those rights and interests for the purpose of satisfying personal, domestic or non-commercial communal needs, was invalidated by s109 of the Constitution.

[8] The respondent contended that any native title right or interest to hunt crocodiles in Queensland which the appellant may have enjoyed had been extinguished, prior to the commencement of the Native Title Act, by the enactment of s7(1) of the Fauna Act which provided that:

"All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority."

It followed, so the respondent submitted, that the Native Title Act provisions preserving native title rights and interests to hunt and fish had no relevant operation in this case, because the native title rights and interests upon which the appellant relied had been extinguished before the Native Title Act was enacted.

[9] Earlier forms of Queensland fauna legislation had provided expressly that those Acts (with some presently irrelevant exceptions) did not apply to "[a]ny aboriginal killing any native animal for his own food" ^[8] . Unlike these earlier Acts, however, the Fauna Act did not deal expressly with Aboriginals taking native animals or birds for food. That being so, much of the argument in this Court concerned what effect the Fauna Act's vesting of "property" in some fauna in the Crown had on the native title rights and interests asserted by the appellant.

The Fauna Act

[10] The meaning of s7(1) can be identified only by construing it in the light of the whole Fauna Act. It is necessary, therefore, to refer to a number of other provisions, but before doing so it is as well to emphasise that s7(1) did not make all fauna "the property of the Crown and under the control of the Fauna Authority" ^[9] . What the sub-section described as "fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna" was excepted.

[11] "Fauna" was defined by the Fauna Act (in effect) as any bird or mammal indigenous to Australia or declared by Order in Council to be fauna, and any animal or member of a species of animal declared by Order in Council to be fauna ^[10] . "Fauna" included the young, the egg, the carcass, skin or nest of the animal or member of species but did not include any processed products except those declared by Order in Council ^[11] . "Bird" and "mammal" were defined respectively to mean a bird or mammal, "wild by nature whether native to a State or Territory of the Commonwealth, migratory or introduced, in captivity, bred in captivity or tamed" ^[12] . Estuarine crocodiles were declared by Order in Council made on 29 August 1974 to be fauna for the purposes of the Act.

[12] The Fauna Act divided fauna into four classes: "permanently protected fauna", "protected fauna", "non-protected fauna" and "prohibited fauna" ^[13] . Fauna other than permanently protected fauna, non-protected fauna and prohibited fauna was defined as protected fauna for the purposes of the Act ^[14] . Subject to declaration of an open season, protected fauna could lawfully be taken or kept only in certain limited circumstances: if it was orphaned, injured, sick or emaciated ^[15] ; or if it was causing or likely to cause damage or injury ^[16] . In addition, a snake or estuarine crocodile might be killed if it had caused, was causing or was likely to cause injury to a person ^[17] . Non-protected fauna might be taken at any time ^[18] . An open season might be declared in respect of protected fauna and in that case permits could be issued permitting the taking of that fauna ^[19] . Additionally, the Director of National Parks and Wildlife was empowered to issue permits to fauna dealers to buy, keep, sell or otherwise dispose of protected fauna during a close season ^[20] .

[13] The terms of s54(1)(a) prohibiting the taking or keeping of fauna without a licence are set out above. The apparent generality of that prohibition must be understood in the light of not only its reference to the holder of a licence, permit, certificate or other authority granted and issued under the Fauna Act, but also the further exemptions created by s54(1)(b). That paragraph exempted (among other things) the keeping of protected fauna that was taken otherwise than in contravention of the Act during an open season ^[21] and the taking of fauna at a time and place when and where it is non-protected fauna ^[22] . The penalty for contravening s54(1)(a) was a fine or imprisonment (or both) and the offender was liable "in any case to an additional penalty not exceeding twice the royalty on each fauna in respect of which the offence is committed" ^[23] .

[14] The reference to royalty is significant. S67 of the Fauna Act provided:

"(1)

Subject to subs(4), royalty at the rates prescribed shall be payable to the Crown on prescribed fauna.

(2)

Notwithstanding this Act or any other Act or law, payment of royalty on fauna pursuant to this Act does not transfer property in that fauna from the Crown.

(3)

Rates of royalty may vary in respect of different species of fauna.

(4)

The regulations may exempt from the payment of royalty species of fauna specified therein in cases where that fauna is taken otherwise than in contravention of this Act."

Fauna protection legislation in Queensland had contained generally similar royalty provisions for many years ^[24] . They were introduced in 1924 to take the benefit of what was seen at the time to be a valuable and developing fur trade ^[25] .

[15] The obligation to pay royalty under the Fauna Act was supported by several other provisions of that Act including s69 which made it an offence to fail to pay royalty, s70 which provided for recovery by summary proceeding under the Justices Act 1886 (Q) or by action "as for a debt due to the Crown", and s71 which permitted a fauna officer to detain fauna in respect of which royalty payable was not paid.

S71(2) provided that:

"Fauna so seized and detained shall, without further or other authority, be forfeited to Her Majesty, unless all royalty payable thereon is paid within one month of its seizure and detention."

Similar provision was made by s83 in respect of fauna, appliances or other things seized under the Act. S83(3) provided that:

"Notwithstanding this Act, the Minister may order that any fauna, appliance or other thing seized under this Act be forfeited to Her Majesty though proceedings have not been taken for, nor any person convicted of, an offence against this Act in respect thereof."

No doubt s71(2) and s83(3) must be read in the light of s84 which provided that:

"The provisions of this Act with respect to the seizure, detention or forfeiture of fauna shall not prejudice or affect in any way the rights of the Crown with respect to fauna that by virtue of s7 is the property of the Crown, and those rights may be exercised at any time."

[16] What, then, is the meaning to be given to s7(1) and its provision that some fauna is the property of the Crown and under the control of the Fauna Authority? Did it, as the respondent submitted, give rights to the Crown in respect of fauna that were inconsistent with the rights and interests upon which the appellant relied?

"Property"

[17] The word "property" is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, "property" does not refer to a thing; it is a description of a legal relationship with a thing ^[26] . It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of "property" may be elusive. Usually it is treated as a "bundle of rights" ^[27] . But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said ^[28] , that "the ultimate fact about property is that it does not really exist: it is mere illusion". Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by "property" in a subject matter ^[29] . So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of "property" as an analytical tool ^[30] . No doubt the examples could be multiplied.

[18] Nevertheless, as Professor Gray also says ^[31] , "An extensive frame of reference is created by the notion that 'property' consists primarily in control over access. Much of our false thinking about property stems from the residual perception that 'property' is itself a thing or resource rather than a legally endorsed concentration of power over things and resources ^[32] ."

[19] "Property" 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" ^[33] . That is why, in the context of a testator's will, "property" has been said to be "the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have" ^[34] .

[20] Because "property" is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B? The statement that A has property in B will usually provoke further questions of classification. Is the interest real or personal? Is the item tangible or intangible? Is the interest legal or equitable? For present purposes, however, the important question is what interest in fauna was vested in the Crown when the Fauna Act provided that some fauna was "the property of the Crown and under the control of the Fauna Authority"?

[21] The respondent's submission (which the Commonwealth supported) was that s7(1) of the Fauna Act gave full beneficial, or absolute, ownership of the fauna to the Crown. In part this submission was founded on the dictum noted earlier, that "property" is "the most comprehensive of all the terms which can be used" ^[35] . But the very fact that the word is so comprehensive presents the problem, not the answer to it. "Property" comprehends a wide variety of different forms of interests; its use in the Act does not, without more, signify what form of interest is created.

[22] There are several reasons to conclude that the "property" conferred on the Crown is not accurately described as "full beneficial, or absolute, ownership". First, there is the difficulty in identifying what fauna is owned by the Crown. Is the Fauna Act to be read as purporting to deal with the ownership of all fauna that is located within the territorial boundaries of the State but only for so long as the fauna is within those boundaries, or does it deal with all fauna that has at any time been located within those boundaries? That is, does the Fauna Act purport to give the Crown ownership of migratory birds only as they pass through Queensland, or does it purport to give ownership to the Crown of every bird that has ever crossed the Queensland border?

[23] Secondly, assuming that the subject matter of the asserted ownership could be identified or some suitable criterion of identification could be determined, what exactly is meant by saying that the Crown has full beneficial, or absolute, ownership of a wild bird or animal? The respondent (and the Commonwealth) sought to equate the Crown's property in fauna with an individual's ownership of a domestic animal. That is, it was sought to attribute to the Crown what Pollock called "the entirety of the powers of use and disposal allowed by law" ^[36] .

[24] At common law, wild animals were the subject of only the most limited property rights. At common law there could be no "absolute property", but only "qualified property" in fire, light, air, water and wild animals ^[37] . An action for trespass or conversion would lie against a person taking wild animals that had been tamed ^[38] , or a person taking young wild animals born on the land and not yet old enough to fly or run away ^[39] , and a land owner had the exclusive right to hunt, take and kill wild animals on his own land ^[40] . Otherwise no person had property in a wild animal.

[25] "Ownership" connotes a legal right to have and to dispose of possession and enjoyment of the subject matter. But the subject matter dealt with by the Fauna Act is, with very limited exceptions, intended by that Act always to remain outside the possession of, and beyond disposition by, humans. As Holmes J said in Missouri v Holland ^[41] : "Wild birds are not in the possession of anyone; and possession is the beginning of ownership." ^[42]

[26] Thirdly, there are several aspects of the Fauna Act which tend to suggest that the property in fauna conferred on the Crown may not easily be equated with the property an individual may have in a domestic animal. The property rights of the Crown would come and go according to the operation of the exception contained in s7(1) of fauna taken or kept "otherwise than in contravention of this Act during an open season with respect to that fauna". As open seasons were declared and fauna taken, what otherwise was the property of the Crown, ceased to be. Next there are the references in s71(2) and s83(3) to forfeiture of fauna to the Crown. Even accepting that s84 says that these sections shall not prejudice or affect the rights of the Crown conferred by s7, why were s71(2) and s83(3) necessary if the Crown owned the fauna? Then there are the provisions of s7(2) that "[l]iability at law shall not attach to the Crown by reason only of the vesting of fauna in the Crown pursuant to this section". The Crown's property is property with no responsibility. None of these aspects of the Fauna Act concludes the question what is meant by "property of the Crown", but each tends to suggest that it is an unusual kind of property and is less than full beneficial, or absolute, ownership.

[27] Fourthly, it is necessary to consider why property in some fauna is vested in the Crown. Provisions vesting property in fauna in the Crown were introduced into Queensland legislation at the same time as provisions imposing a royalty on the skins of animals or birds taken or killed in Queensland ^[43] . A "royalty" is a fee exacted by someone having property in a resource from someone who exploits that resource. As was pointed out in Stanton v Federal Commissioner of Taxation ^[44] :

"... the modern applications of the term [royalty] seem to fall under two heads, namely the payments which the grantees of monopolies such as patents and copyrights receive under licences and payments which the owner of the soil obtains in respect of the taking of some special thing forming part of it or attached to it which he suffers to be taken."

That being so, the drafter of the early Queensland fauna legislation may well have seen it as desirable (if not positively essential) to provide for the vesting of some property in fauna in the Crown as a necessary step in creating a royalty system. Further, the statutory vesting of property in fauna in the Crown may also owe much to a perceived need to differentiate the levy imposed by the successive Queensland fauna statutes from an excise. For that reason it may well have been thought important to make the levy as similar as possible not only to traditional royalties recognised in Australia and imposed by a proprietor for taking minerals or timber from land, but also to some other rights (such as warren and piscary) which never made the journey from England to Australia.

[28] In light of all these considerations, 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" ^[45] . So much was acknowledged in the second reading speech on the Bill which first vested property in fauna in the Crown. The Minister said ^[46] :

"It [the fur industry] is an industry that really belongs to the people, and although the Bill, amongst other things, makes it quite clear that the native animals of the State belong to the people of the State, I do not think there is any doubt in the minds of any one regarding that question already. The native animals belong to the people in just the same way as the timber and the minerals belong to the people, and they cannot be sold without permission."

[29] Roscoe Pound explained why wild animals and other things not the subject of private ownership are spoken of as being publicly owned. He said ^[47] :

"We are also tending to limit the idea of discovery and occupation by making res nullius (eg, wild game) into res publicae and to justify a more stringent regulation of individual use of res communes (eg, of the use of running water for irrigation or for power) by declaring that they are the property of the state or are 'owned by the state in trust for the people.' It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium, not dominium. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of res communes to eliminate friction and prevent waste, and requires limitation of the times when, places where, and persons by whom res nullius may be acquired in order to prevent their extermination. Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned." (Emphasis added)

[30] The "property" which the Fauna Act and its predecessors vested in the Crown was therefore 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 ^[48] , rights to possession of fauna that had been reduced to possession ^[49] , and rights to receive royalty in respect of fauna that was taken ^[50] (all coupled with, or supported by, a prohibition against taking or keeping fauna except in accordance with the Act ^[51] ). Those rights are less than the rights of full beneficial, or absolute, ownership. Taken as a whole the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act.

[31] The respondent expressly disclaimed a contention that the enactment of legislation forbidding the taking or keeping of fauna except pursuant to licence would be sufficient to extinguish the rights and interests relied on by the appellant. This concession was rightly made and it follows, therefore, from what we have said about the meaning and effect of the Fauna Act (and, in particular, the vesting of property in some fauna in the Crown) that the Act did not extinguish those rights and interests. It is as well, however, to examine why the respondent's concession was right. That examination must begin from a consideration of what is meant by native title rights and interests.

Native title rights and interests

[32] S223 of the Native Title Act provides (in part):

"(1)

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)

the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)

the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)

the rights and interests are recognised by the common law of Australia.

(2)

Without limiting subs(1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests."

[33] The hunting and fishing rights and interests upon which the appellant relied (and which the Magistrate found to exist) 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 ^[52] . The Magistrate found that by those laws and customs, the appellant's clan and tribe had a connection with the land and waters where the crocodiles were taken ^[53] . At least until the passing of the Fauna Act those rights and interests were recognised by the common law of Australia ^[54] .

[34] The respondent's contention was that the Fauna Act "extinguished" these rights and interests. This led to debate about what was referred to as the "partial extinguishment of native title" and what was meant by that term. It is unnecessary, however, to examine that debate in this case.

[35] It is clear that native title in land is extinguished by a grant in fee simple of that land ^[55] . As was said in the joint judgment in Fejo v Northern Territory ^[56] "it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title". That is, native title is extinguished by the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests. The extinguishment of such rights must, by conventional theory, be clearly established ^[57] .

[36] The critical contention of the respondent was that the Fauna Act created a legal regime that was inconsistent with native title holders in Queensland (and, in particular, the group of which the appellant is a member) continuing to hold one of the rights and interests (the right and interest in hunting and fishing) that made up the native title the Magistrate found to exist. That inconsistency was said to lie in the creation of property rights in the Crown that were inconsistent with the continued existence of the native title rights and interests.

[37] It is unnecessary to decide whether the creation of property rights of the kind that the respondent contended had been created by the Fauna Act would be inconsistent with the continued existence of native title rights. It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern ^[58] . Similarly, it may not always be easy to say whether the creation of statutory rights or interests before the enactment of the Racial Discrimination Act 1975 (Cth) and the Native Title Act was consistent with the continued existence of native title rights and interests. (The Racial Discrimination Act and the Native Title Act will, of course, have to be considered where the question concerns the effect of steps taken after the enactment of those Acts.) But in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep well in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. As Brennan J said in R v Toohey; Ex parte Meneling Station Pty Ltd ^[59] , "Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights" but "[t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it."

[38] Native title rights and interests must be understood as what has been called "a perception of socially constituted fact" as well as "comprising various assortments of artificially defined jural right" ^[60] . And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, "You may not hunt or fish without a permit", does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.

[39] Not only did the respondent not contend that such a law severed that connection, s211 of the Native Title Act assumes that it does not. S211 provides that a law which "prohibits or restricts persons" from hunting or fishing "other than in accordance with a licence, permit or other instrument granted or issued to them under the law", does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists. By doing so, the section necessarily assumes that a conditional prohibition of the kind described does not affect the existence of the native title rights and interests in relation to which the activity is pursued.

[40] The Fauna Act did not extinguish the rights and interests upon which the appellant relied. Accordingly, by operation of s211(2) of the Native Title Act and s109 of the Constitution, the Fauna Act did not prohibit or restrict the appellant, as a native title holder, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs. The Magistrate was right to dismiss the information.

[41] For completeness it is as well to note two further matters. First, although the respondent did not rely on the earlier decision of this Court in Walden v Hensler ^[61] it must be recalled that the issues discussed in that case were radically different from those that arise in the present, not least because they arose before the passing of the Native Title Act. Secondly, a number of submissions were made in the course of argument that touched upon questions much broader than those that must be decided in this proceeding. It is neither necessary nor desirable to express any view about them when this case can be decided on the narrow question whether the Fauna Act should be given the construction for which the respondent and the Commonwealth contended. It should not be given that construction.

[42] The appeal should be allowed, the orders of the Court of Appeal of Queensland set aside and in lieu it should be ordered that the order nisi be discharged. For the reasons given by Gummow J, costs should be disposed of as his Honour has proposed.