Yanner v Eaton
[1999] HCA 53(1999) 201 CLR 351
(Judgment by: McHugh J)
Yanner
vEaton
Judges:
Gleeson CJ
McHugh JGummow J
Kirby J
Callinan 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)
Judgment date: 7 October 1999
Judgment by:
McHugh J
[43] The critical question in this case is a simple one. It is whether, by force of the Fauna Conservation Act 1974 (Q) ("the Act"), property in all fauna in Queensland, present or future, became or becomes vested in the Crown after the commencement of the Act. If that is the effect of the Act, the two estuarine crocodiles which the appellant killed were the property of the Crown and he had no right to kill them by reason of the Native Title Act 1993 (Cth) or otherwise.
[44] Whether the property was vested in the Crown turns on the construction of s7 of the Act which, at the time of its enactment, relevantly provided:
- "(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."
[45] The Act effectively defined [62] "fauna" to mean any bird or mammal indigenous to Australia or any animal which was declared by Order in Council to be fauna. The Act defined [63] "bird" and "mammal" 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". An Order in Council made on 29 August 1974 declared estuarine crocodiles to be fauna for the purposes of the Act.
[46] In its natural and ordinary meaning, s7 vests in the Crown, and takes away from everyone else, the right to deal with fauna as defined by the Act. Other provisions of the Act give a right to apply for a licence to take fauna. But s7 destroyed all existing rights to take fauna. At common law, the only right of property in wild animals was "the exclusive right to catch, kill and appropriate such animals which is sometimes called by the law a reduction of them into possession." [64] That right arose from the possession of land on which the animals happened to be or from a Crown grant to enter another's land for the purpose of catching, killing or appropriating wild game. No doubt in Australia, the existence of common law native title rights meant that Aboriginals had similar rights over fauna.
[47] S7 of the Act reverses the common law rules and vests all rights of catching, killing and appropriating fauna in Queensland in the Crown. It therefore gives to the Crown the sole right of catching, killing and appropriating fauna in Queensland together with the right to exclude every other person from catching, killing and appropriating that fauna. If the term "property" has any recognisable meaning in the Act, it must at least have conferred those rights on the Crown and taken them away from every other person once the Act was proclaimed.
[48] One aspect of the history of fauna legislation in Queensland provides convincing evidence that the intention of the Act was to take away from others all existing rights to take fauna and vest those rights in the Crown. Earlier fauna legislation in Queensland had expressly provided that that legislation did not apply to "[a]ny aboriginal killing any native animal for his own food." [65] The Act contains no such immunity for Aboriginal people. In Walden v Hensler [66] , Brennan J had no doubt that the effect of the Act was to destroy the rights of the Aboriginal people to take fauna. His Honour said:
"But the Act changed the law. It vested the property in all fauna in the Crown (s7) and prohibited the taking or keeping of fauna without a licence, etc. The Act eliminated any right which Aborigines or others might have acquired lawfully to take and keep 'fauna' as defined in the Act, and any entitlement which Aborigines might have enjoyed at common law to take and keep fauna (assuming that such an entitlement had survived the alienation by the Crown of land over which Aborigines had traditionally hunted)."
[49] Undoubtedly, s7 does more than give to the Crown the exclusive right to kill, take or appropriate fauna and to take away from others any pre-existing right to do those things. The section gives to the Crown every right, power, privilege and benefit that does or will exist in respect of fauna together with the right, subject to the Act, to exclude every other person from enjoying those rights, powers, privileges and benefits. That is the ordinary meaning of property [67] , although, of course, the term can have a more limited meaning depending upon the terms of the instrument which creates it. Whatever else property may mean in a particular context, it describes a relationship between owner and object by reference to the power of the owner to deal with the object to the exclusion of all others, except a joint owner.
[50] The appellant would have it that s7 has a more limited meaning than that set out in the previous paragraph. His argument suggests that the property in fauna in Queensland vests in the Crown only upon other persons taking or dealing with the fauna. Another version of the argument is that the Act has effectively created a new, negative form of property - that property in s7 is no more than a label which describes what the Crown notionally has after the Act has identified the circumstances in which others may take, possess and pay royalties to the Crown in respect of fauna.
[51] If "property" in s7 meant no more than the residue of other people's rights or the measure of the Crown's entitlement to royalties, it would seem to serve little purpose, if indeed it serves any purpose at all. I see no indication in the Act that "property" in s7 has such a limited function or meaning. Words in legislative instruments should not be read as if they were buildings on a movie set - structures with the appearance of reality but having no substance behind them [68] . When the Queensland legislature declared that the property in fauna is vested in the Crown, it should be taken to have meant what it said. That being so, the ordinary meaning of property should not be ignored. "Property" in s7 should not be taken as meaning no more than the residue of control over fauna which the Crown has after others have carved out their entitlements to take and keep fauna pursuant to a licence granted by or under the Act. That is to turn the Act on its head. The content of s7 is the starting point for, not the result of, determining the Crown's power over fauna in Queensland.
[52] The short answer to the appellant's arguments is that s7 says that all fauna is the property of the Crown. Acts of Parliament speak from their enactment. Consequently, the ordinary and natural meaning of s7 is that, after the commencement of the Act, the 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. Moreover, the fauna is and remains "under the control of the Fauna Authority." To the absolute rule that property in fauna in Queensland is in the Crown, s7(1) contains an exception - when fauna is taken in open season in accordance with the Act, the property in the fauna passes to the person who has taken it. However, I cannot see how that exception provides any ground for thinking that the nature of the property that the Crown has in the fauna is less than every right, power, privilege and benefit that does or will exist in respect of the fauna or that from the commencement of the Act the Crown did not have the right to exclude every other person from enjoying those rights, powers, privileges and benefits. To contend that the Crown obtains no property in fauna until it is taken, killed or appropriated is to deny the plain words of s7(1).
[53] It is also to deny the assumption on which s7(2) of the Act is based. That assumption is that, but for s7(2), the Crown's ownership of the fauna might make it liable for the damage or harm that particular birds or mammals might cause while at large.
[54] Consider also some of the consequences of upholding the appellant's arguments. The Crown would obtain property in fauna only when a bird, mammal or declared animal was killed, taken, or otherwise appropriated by a third party. Presumably, the Crown would lose its property as soon as the third party gave up possession of it - at all events if that party set the bird or mammal free. The arguments of the appellant must also mean that "the control of the Fauna Authority" [69] only commences when a third party has killed, taken or appropriated fauna. Presumably, the hapless officers of the Authority, seeing an unlicensed person about to kill or otherwise take or deal with fauna, would have no statutory authority to act until the unlicensed person takes action. Until death, taking or appropriation had occurred, the officers would have no more legal authority to act to protect the bird or mammal than any other citizen.
[55] The appellant contended that it would be absurd for the legislature to have intended that the Crown should have property in wild animals before they were caught. Illustrations were given during argument - the migratory bird flying through Queensland being one example. Once it is perceived that the purpose of the Act is to put an end to arguments about who has the property in or the right to hunt fauna as defined, I see nothing absurd in the legislature of Queensland giving to the Crown the property in all fauna in Queensland - even migratory birds. In any event, it leads to no more absurd results than the opposing contention which would vest property in the Crown when a young boy trapped a migratory bird but would divest it when he let it go, making property in fauna in Queensland depend upon a kind of statutory version of what old system conveyancers called springing and shifting uses.
[56] Nor is there anything unusual in a person having property in an object of which he or she is unaware. The common law has long recognised that a person may have property in an object although he or she was unaware of its existence. Thus in R v Rowe [70] , an indictment for larceny charged the accused with stealing a piece of iron from the bed of a canal and laid the property in the iron in the canal owner who apparently did not know of its existence. The Court of Crown Cases Reserved held that the indictment was good.
[57] By declaring (s7) that the property in fauna in Queensland is vested in the Crown and then in subsequent sections defining the circumstances in which others may take that property, the Act proclaimed upon its commencement that henceforth no one, land owner, Aboriginal or holder of a grant from the Crown, had any right to kill, take or appropriate fauna as defined. That being so, the appellant had no right which the Native Title Act protected when it came into force. The reasons why that is so are fully explained in the judgment of Callinan J.
[58] The appeal must be dismissed.