Yanner v Eaton

[1999] HCA 53
(1999) 201 CLR 351

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(Judgment by: Gummow J)

Yanner
vEaton

Court:

Judges: Gleeson CJ
McHugh J

Gummow JKirby 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)

Hearing date:
Judgment date: 7 October 1999

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Judgment by:
Gummow J

I INTRODUCTION

[59] This appeal concerns the appellant's exercise, or enjoyment, of a right, or incident, of common law native title. The case comes to this Court after findings of fact ^[71] were made at the appellant's trial in the Magistrates Court of Queensland on a complaint by the respondent. The appellant exercised the incident of native title between 31 October 1994 and 1 December 1994, when he hunted estuarine crocodiles, killed two and shared the meat from the kill with members of his tribe. The Fauna Conservation Act 1974 (Q) ("the Fauna Act") prohibited the engagement in some of this conduct without a licence under that statute. The appellant had no such licence but he and the interveners ^[72] supporting him submit that the Native Title Act 1993 (Cth) ("the Native Title Act") operated, in conjunction with s109 of the Constitution, to permit what was otherwise prohibited by the State legislation. The respondent and the interveners ^[73] who supported him deny that proposition. They assert that, with effect from 1 September 1974 (the operative date of an Order in Council made under the Fauna Act), the State statute had extinguished any previously existing native title rights, otherwise exercisable by the appellant, to take fauna, in particular estuarine crocodiles.

[60] I approach the issue raised on this appeal on the footing, which is supplied both by principle and statements in the authorities in this Court ^[74] , that for such extinguishment to be effective it was unnecessary that the statutory regime and all that constituted the native title be wholly inconsistent. Rather, the issue is one of identifying what Brennan J called "the extent of the inconsistency" ^[75] .

II THE OFFENCE

[61] The appellant was charged under s54(1) of the Fauna Act ^[76] . The Bench charge sheet, as amended, stated:

"That between the 31st day of October 1994 and the 1st day of December 1994 at Cliffdale Creek via Doomadgee in the Magistrates Courts District of Mount Isa in the state of Queensland [the appellant] did take fauna namely 2 [estuarine] crocodile when he was not the holder of a licence permit certificate or other lawful authority granted and issued under the [Fauna Act] and when the [appellant] was not exempted by s54(1)(b) of the [Fauna Act]."

At the time of the alleged offence, s54(1) materially provided:

"(a)

A person shall not take[ ^[77] ], keep[ ^[78] ] 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.

(b)

Save as is otherwise expressly provided by this Act, a person who -

(i)

keeps protected fauna which fauna was taken otherwise than in contravention of this Act during an open season with respect to that protected fauna in a place to which that open season refers;

(ii)

takes fauna at a time and place when and where that fauna is non-protected fauna;

(iii)

continues to keep fauna taken and kept lawfully prior to the date of commencement of this Act;

...

(vi)

keeps dead non-protected fauna,

does not commit an offence against this Act.

(c)

The exemption granted by provision (i) of para(b) shall not apply to the keeping of live protected fauna by any person."

[62] The facts constituting the elements of the alleged offence were not contested by the appellant at trial. The killing of the two estuarine crocodiles was a "taking" of fauna and the appellant did not hold a licence, permit, certificate or other authority granted and issued under the Fauna Act, nor did any of the exemptions in subs(b) of s54(1) apply.

[63] However, the appellant sought to rely on an immunity conferred by provisions of the Native Title Act as a "defence". Under cross-examination the appellant argued:

"I believe there's a greater law than a State law, there's a Commonwealth law called the Native Title Act and that was in at that stage I took the crocodiles, so I was quite confident that I was being lawful."

The appellant submits before this Court that s54(1) of the Fauna Act is inconsistent with s211(2) of the Native Title Act and therefore s109 of the Constitution renders s54(1) invalid to the extent of the inconsistency. Consequently, the appellant's alleged liability under s54(1) of the Fauna Act never arose and the complaint laid against him had to be dismissed.

[64] On 11 October 1996, the Magistrate found the appellant not guilty on the basis of this "defence" and he was discharged. The complainant, the respondent to this appeal, applied under s209 of the Justices Act 1886 (Q) for review of the decision in the Supreme Court of Queensland. On 28 November 1996, Williams J granted an order nisi requiring the appellant to show cause before the Queensland Court of Appeal ("the Court of Appeal") why the decision and order of the Magistrate should not be reviewed on the following grounds:

"(a)

that the Magistrates Court erred in law in failing to find that any entitlement which Aborigines might have enjoyed at common law to take or hunt estuarine crocodiles has previously been validly extinguished by the enactment of the [Fauna Act] and the operation of an order in council dated 29 August 1974 made under that Act and published in the Government Gazette on 31 August 1974; and that accordingly

(b)

the Magistrates Court erred in law in finding that the [appellant] is a person who holds native title rights and/or interests within the meaning of the [Native Title Act] which rights and/or interests entitled him to take the said estuarine crocodiles."

[65] The Court of Appeal (McPherson JA and Moynihan J, Fitzgerald P dissenting) held ^[79] that s211(2) of the Native Title Act had no relevant operation as the appellant's native title right, or incident, to hunt estuarine crocodiles had been extinguished by s7(1) of the Fauna Act and therefore the threshold requirement in s223(1)(c) of the Native Title Act that the right was "recognised by the common law of Australia" was not fulfilled. The Court of Appeal ordered that the order nisi be made absolute and that the Magistrate's order, dismissing the complaint against the appellant, be set aside. Further, the Court of Appeal ordered that the proceedings be remitted to the Magistrates Court, directing that the matter proceed according to law. From these orders this Court granted special leave to appeal.

[66] It is convenient now to turn to consider the appellant's conduct which allegedly gave rise to the offence under s54(1) of the Fauna Act.

III THE APPELLANT'S CONDUCT

[67] The appellant is a member of the Gunnamulla clan of the Gungaletta, or Gangalidda, tribe of indigenous Australians. The clan's traditional land area is located around Cliffdale Creek. This area is within the land occupied by the Gungaletta tribe between Burketown and the Queensland border with the Northern Territory. Between 31 October 1994 and 1 December 1994, the appellant killed two estuarine crocodiles from Cliffdale Creek.

[68] The appellant hunted the estuarine crocodiles using a traditional harpoontype weapon, known as a "wock", using a dinghy powered by an outboard motor. This was an evolved, or altered, form of traditional behaviour ^[80] . That is, the use of this mechanical device to provide transport during the hunt was not a method of hunting known to the appellant's tribe before contact with nonindigenous people. At trial, the Magistrate held that this method of hunting was consistent with the traditional custom of the appellant's indigenous community. This finding is not challenged.

[69] The definition of "take" in s5 includes, in relation to fauna ^[81] , to "hunt", to "attempt" to hunt and to "permit" hunting. There is no further definition in the Fauna Act of what is meant by "hunt". But its inclusion in the definition of "take" in s5, with terms such as "shoot", "kill", "spear" and "trap", suggests it is used in the statute to identify no more than physical acts for the obtaining of possession of the fauna. However, the conduct of the appellant complied with a traditional code of conduct respecting the hunting of juvenile rather than mature crocodiles and involved tribal totemic significance and spiritual belief. The conduct of the appellant is inadequately identified in terms of the statutory definition of "take" and its components such as "hunt". What was involved was the manifestation by the appellant of the beliefs, customs and laws of his community.

[70] After the crocodiles were killed, the appellant transported and utilised the kill. The appellant ate part of the flesh of the crocodiles, part he shared with members of his clan and the remainder he froze, with the skins, and kept at his home. It was not challenged that the appellant's conduct was at all times within the customs of his community.

[71] The legal character at common law of the appellant's conduct was disputed on the appeal to this Court and it is to this that I now turn.

IV COMMON LAW NATIVE TITLE

[72] In Mabo v Queensland [No 2], Brennan J stated the essential characteristics of native title ^[82] :

"Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs."

Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia's indigenous peoples, the Aboriginals and Torres Strait Islanders, provide its content. It is the relationship ^[83] between a community of indigenous people and the land, defined by reference to that community's traditional laws and customs, which is the bridgehead to the common law. As a corollary, native title does not exhibit the uniformity of rights and interests of an estate in land at common law and "ingrained habits of thought and understanding" ^[84] must be adjusted to reflect the diverse rights and interests which arise under the rubric of "native title". To repeat what was said in Wik Peoples v Queensland ^[85] :

"The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time ^[86] . At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein ^[87] . In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence ^[88] ."

[73] The term "native title" conveniently describes "the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants" ^[89] . The native title of a community ^[90] of indigenous Australians is comprised of the collective rights, powers and other interests of that community, which may be exercised by particular sub-groups or individuals in accordance with that community's traditional laws and customs. Each collective right, power or other interest is an "incident" of that indigenous community's native title. This case concerns the native title right, or incident, to hunt estuarine crocodiles exercised by an individual, the appellant, who is a member of a community, the Gunnamulla clan, who have native title in the land on which the individual exercised the right, within a tribe of indigenous Australians, the Gungaletta.

[74] The exercise of rights, or incidents, of an indigenous community's native title, by sub-groups and individuals within that community, is best described as the exercise of privileges of native title. The right, or incident, to hunt may be a component of the native title of a numerous community but the exercise by individuals of the privilege to hunt may be defined by the idiosyncratic laws and customs of that community. For example, a finding on the evidence that, in accordance with its laws and customs, a community hunts estuarine crocodiles on its traditional lands will establish that an incident of that community's native title is hunting estuarine crocodiles on its traditional lands. However, such a finding will not necessarily dispose of the question of whether a particular individual or sub-group within that community has the privilege to hunt estuarine crocodiles. The nature and scope of the privileges in question will vary with the traditional laws and customs of the particular community so as to accord with the distinct social structure and patterns of occupancy and use of the land of that indigenous community ^[91] .

[75] The common law recognition of native title limits the class of persons who may exercise such rights to those who have the requisite privilege, or entitlement, under the traditional laws and customs of the community under scrutiny. It is unnecessary in this case to consider whether this is the only limiting factor imposed by the common law; it was not challenged, other than in respect to s54(1) of the Fauna Act, that the appellant was entitled to exercise the native title right, or incident, to hunt estuarine crocodiles in accordance with his community's traditional laws and customs.

[76] Whilst recognised by the common law, native title and the rights, or incidents, thereof arise independently of the common law tenurial system ^[92] . It is to be noted that it was not argued that the pastoral holding, leased by the Carpentaria Land Council Corporation, which included the land on which the appellant killed the crocodiles was inconsistent with the native title right, or incident, to hunt estuarine crocodiles at issue in this case. It is unnecessary to determine whether the doctrine of inconsistency, as considered in Wik ^[93] and Fejo v Northern Territory ^[94] , or principles of merger apply if a community of indigenous Australians holds both native title and an estate or a statutory interest with respect to the same land. However, it is convenient to emphasise that ingrained, but misleading, habits of thought and understanding lurk in this area of law. Whilst there is "an intersection" between them, common law (and statutory) estates and native title are derived from two distinct sources ^[95] . The former is drawn from principles developed in the English common law, as modified by statute, whilst the latter finds its origin in "the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory" ^[96] .

[77] Analogies to the doctrine of merger of estates appear inapposite in dealing with the intersection between the common law tenurial system and traditional laws and customs. Blackstone describes the operation of the doctrine of merger of estates as follows ^[97] :

"[I]t may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated; or, in the law phrase, is said to be merged, that is, sunk or drowned, in the greater."

The coalescence of rights and interests under the doctrine of merger is apt to be misleading when considering the intersection of native title rights and interests with an estate or statutory interest in land held by one and the same indigenous community. Moreover, it should be noted that whilst at law the doctrine of merger applied irrespective of the will of the parties concerned, equity's inclination to follow the law here gave way to its preference for substance over form. As Sir William Grant MR put it in Forbes v Moffatt ^[98] , in equity:

"[t]he question is upon the intention, actual or presumed, of the person, in whom the interests are united."

In Queensland, as in other States, the equity rule as to merger of estates prevails ^[99] .

V PRELIMINARY MATTERS

[78] Before construing the Fauna Act and dealing with its operation upon the native title right, or incident, exercised by the appellant, it is necessary to attend to two matters. The first is the operation of the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act") and the second is to describe the treatment by the common law of animals as the object of property rights.

Racial Discrimination Act

[79] The Racial Discrimination Act commenced on 31 October 1975 ("the Commencement Date"). This is a significant date for consideration of any alleged extinguishment of native title rights by State legislation. If acts done before the Commencement Date were effective to extinguish or impair common law native title, the Native Title Act does not undo that result ^[100] . The question arises whether the Fauna Act operated to extinguish the native title right, or incident, to hunt exercised by the appellant such that, as the respondent submits, s211(2) of the Native Title Act can have no relevant operation. It is necessary to construe the Fauna Act, in each of its forms prior to the Commencement Date, to answer this question. Any amendments thereafter, which otherwise would have effected an extinguishment, would be open to challenge under s109 of the Constitution for inconsistency with the Racial Discrimination Act ^[101] . No such challenge was made by the appellant in this case. Further, the respondent and his supporters have not submitted that any other State legislation, such as the precursors to the Fauna Act ^[102] , operated to extinguish the native title right at issue. The amendments to the Fauna Act following the Commencement Date will be considered in SVII of these reasons.

Animals at common law

[80] I come now to the second matter. The common law divides animals into two categories, harmless or domestic (mansuetae naturae) and those which are dangerous or wild by nature (ferae naturae). The distinction is significant. Ferae naturae, such as estuarine crocodiles which are dangerous and wild by nature ^[103] , are reduced to property at common law when killed or for so long as they have been taken or tamed by the person claiming title. What Field J identified as this qualified property right per industriam ^[104] ceases if the creatures regain their natural liberty. Further, the owner of a fee simple, who has not licensed the right to hunt, take or kill ferae naturae, has a qualified property ratione soli in them for the time being while they are on that owner's land ^[105] . In contrast, mansuetae naturae found on a fee simple are owned by the landowner. Equally, a person who keeps a dangerous animal may be liable in negligence for damage done, or injury inflicted, by the animal without proof of scienter ^[106] . Wright also noted a corollary that "trespass or theft cannot at common law be committed of living animals ferae naturae unless they are tame or confined" ^[107] .

[81] It is appropriate now to consider the operation of the Fauna Act on the native title right, or incident, to hunt estuarine crocodiles which was exercised by the appellant.

VI THE FAUNA ACT

[82] The Fauna Act was assented to on 2 May 1974 and commenced on 1 September 1974, and was not amended in the period prior to the Commencement Date. The long title described it is an "Act to consolidate and amend the law relating to the conservation of fauna in its habitats and throughout its distribution in the State, the introduction into and removal from the State of fauna, and for other purposes". S3 divided the Fauna Act into twelve Parts. PtI (s1-s9) and PtII (s10-s17) were respectively entitled "PRELIMINARY" and "ADMINISTRATION". The principal point of contention between the parties concerns the operation of s7(1), the construction of which will be considered below. S6(1) of the Act divided "fauna" into four categories, (a) permanently protected fauna, (b) protected fauna, (c) non-protected fauna, and (d) prohibited fauna. PtIII (s18-s21) of the Act regulated permanently protected fauna, whilst PtIV (s22-s25) regulated protected fauna and PtV (s26-s27) regulated both non-protected and prohibited fauna. PtVI (s28-s33), entitled "OPEN SEASONS", PtVII (s34-s46), entitled "SANCTUARIES, REFUGES AND RESERVES", and PtXI (s67-s71), entitled "ROYALTY", were broadly self-descriptive of the objects which each regulated. It will be necessary later to refer more fully to the royalty regime created by PtXI. PtVIII (s47-s51), PtIX (s52-s54) and PtX (s55-s56) created an enforcement regime for the protection of fauna, whilst PtXII (s72-s94) contained miscellaneous provisions and the Schedule listed permanently protected fauna.

[83] "Fauna" was defined in s5 to mean "a mammal or bird: the term includes also any other animal or group of animals wild by nature declared by Order in Council to be fauna". Estuarine crocodiles neither fell within the definition of "mammal" nor "bird" in s5. By Order in Council dated 29 August 1974 and published in the Queensland Government Gazette on 31 August 1974 ("the Order in Council"), the Governor in Council declared estuarine crocodiles to be "fauna for the purposes of [the Fauna Act] throughout the State" in accordance with s11 of the Fauna Act. This occurred after the passing of the Fauna Act but before its commencement on 1 September 1974. S17 of the Acts Interpretation Act 1954 (Q) provided that the power under s11 could be exercised at any time after the passing of the Fauna Act provided that the Order in Council made under that power did not have any effect until the Fauna Act came into operation. The initial date for considering the Fauna Act's operation on the native title right, or incident, to hunt crocodiles at issue was therefore 1 September 1974, more than a year before the Commencement Date. Upon that date, estuarine crocodiles, two of which were later killed by the appellant, were "fauna" within the meaning of the Fauna Act.

[84] The respondent's submission is that, with effect from 1 September 1974, s7(1) of the Fauna Act operated to extinguish the appellant's right as an incident of the native title of his community to hunt estuarine crocodiles. S7 provided:

"(1) All fauna, save fauna taken or kept[ ^[108] ] 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 operation of s7(1) turns, first, on the construction of the word "property" therein and, secondly, on the manner in which s7 vests "property" in the Crown.

The meaning of "property"

[85] Property is used in the law in various senses to describe a range of legal and equitable estates and interests, corporeal and incorporeal. Distinct corporeal and incorporeal property rights in relation to the one object may exist concurrently and be held by different parties ^[109] . Ownership may be divorced from possession. At common law, wrongful possession of land might give rise to an estate in fee simple with the rightful owner having but a right of re-entry ^[110] . Property need not necessarily be susceptible of transfer. A common law debt, albeit not assignable, was nonetheless property ^[111] . Equity brings particular sophistications to the subject. The degree of protection afforded by equity to confidential information makes it appropriate to describe it as having a proprietary character, but that is not because property is the basis upon which protection is given; rather this is because of the effect of that protection ^[112] . Hohfeld identified the term "property" as a striking example of the inherent ambiguity and looseness in legal terminology ^[113] . The risk of confusion is increased when, without further definition, statutory or constitutional rights and liabilities are so expressed as to turn upon the existence of "property". The content of the term then becomes a question of statutory or constitutional interpretation ^[114] .

[86] Finkelstein J recently pointed out ^[115] that, to Hohfeld, property comprised legal relations not things, and those sets of legal relations need not be absolute or fixed. Hohfeld said of "property" ^[116] :

"Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc, relate; then again - with far greater discrimination and accuracy - the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning to the other. At times, also, the term is used in such a 'blended' sense as to convey no definite meaning whatever."

"Property" is used in the latter sense in s7(1), that is, as an aggregate of legal relations between the "Crown" and "fauna". In order to determine the content of these legal relations, it is necessary to consider: first, the manner in which "property" is vested in the Crown; secondly, the Crown's immunity under s7(2) from such liability as would otherwise have arisen from the vesting of property; thirdly, the qualification contained in s7(1); and, fourthly, the meaning of the term "Crown".

The vesting of property and Crown immunity

[87] There is a threshold matter for the purposes of determining inconsistency concerning the point in time when "property" in the estuarine crocodiles hunted by the appellant vested in the Crown. Did s7(1) vest "property" in estuarine crocodiles in the Crown when these animals became "fauna" on 1 September 1974 or upon another event? In order to dispose of this question it is necessary to consider the operation of the immunity conferred on the Crown by s7(2) and the significant exception within s7(1) that "property" in fauna in the Crown does not arise where it is "taken or kept during an open season with respect to that fauna".

[88] S7(2) operates to immunise the Crown against any claims which could have otherwise arisen as a result of the enactment of s7(1). This leads to consideration of the doctrine of Crown immunity as it has applied to Queensland. In The Commonwealth v Mewett, Gummow and Kirby JJ said ^[117] :

"[B]efore federation, in all the Australian colonies save Victoria, legislation had established procedures whereby claims in tort as well as in contract might be brought against the colonial governments ^[118] ."

[89] Queensland was the source of this tradition ^[119] , enacting legislation in 1866 which was to become the dominant model for Australian Crown proceedings legislation, namely the Claims against Government Act 1866 (Q) ("the Claims Act"). The Claims Act was not repealed ^[120] until 1 July 1980. By that time, given the supervening operation of s108 of the Constitution ^[121] , "the Crown" or colonial government affected by the Claims Act was the State of Queensland ^[122] . Upon the enactment of s7(2) of the Fauna Act in 1974, the State's immunity was understood to have been subject to the operation of the Claims Act. S7(2) thus partially replaced the shield of the Crown which had been removed by s5 of the Claims Act ^[123] .

[90] To identify the liability at law arising from the enactment of s7(1) of the Fauna Act, it is necessary to return to the definition of "fauna" in s5. The definition was limited to birds and mammals which were "wild by nature" and such "other animal or group of animals wild by nature declared by Order in Council to be fauna". The condition, "wild by nature", limited the definition of "fauna" to ferae naturae. At common law, in respect to liability for damage caused by ferae naturae, liability for damage arose upon a person taking or taming the animal. Therefore s7(2) applied only if s7(1) vested "property" in the Crown in "fauna" such that the Crown acquired at least the equivalent legal obligations at common law of a person who had taken or tamed ferae naturae. It is convenient now to consider the qualification contained within s7(1).

The qualification in s7(1)

[91] Not all fauna is the "property of the Crown" within the meaning of s7(1). Fauna which is taken or kept during an open season ^[124] with respect to that fauna is not the "property of the Crown". The acts of taking or keeping thus perform a threshold distributive function in determining whether "property" is vested in the Crown.

[92] This assists in determining the statutory meaning of "property" in s7(1). For example, if an open season be declared for estuarine crocodiles and a tourist boat "injures", "damages" or even "disturbs" an estuarine crocodile, the result is that the "property" in the crocodile does not vest in the Crown. This is because the creature has been "taken" in an "open season". Thus, where an "open season" has been declared in respect to particular fauna, the vesting and subsistence of "property" in such fauna is conditioned upon the actions of third parties. The interests in fauna created by s7(1) differ in nature from the ordinary understanding of property in a chattel conferred by the common law.

[93] These matters support a construction of s7(1) that the legal relations, described in s7 as the "vesting" of "property", arise only if a person "takes" or "keeps" "fauna". If the fauna is taken or kept, during an open season with respect to that fauna, "property" does not vest in the Crown. However, if fauna is otherwise "taken" or "kept", within the meaning of s5, "property" is vested in the Crown and the immunity provided for in s7(2) for the Crown has a relevant operation.

[94] The scope of the legal relations, known as "property", between estuarine crocodiles and the Crown remains to be identified. It is necessary now to consider the meaning of "vesting" in s7(2). In Attorney-General for Quebec v Attorney-General for Canada ^[125] , a Canadian provincial statute provided that "tracts of land shall be and are hereby respectively set apart and appropriated to and for the use of the several Indian tribes in Lower Canada ... and the said tracts of land shall accordingly, by virtue of this Act ... be vested in and managed by the Commissioner of Indian Lands for Lower Canada". The Privy Council observed that ^[126] :

"It is not unimportant, however, to notice that the term 'vest' is of elastic import; and a declaration that lands are 'vested' in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively". (emphasis added)

[95] In this case, s7(1) does not in terms provide that it is for particular public or statutory purposes that fauna "is the property of the Crown and under the control of the Fauna Authority". As a matter of construction, should s7(1) be read as so limited?

The meaning of "Crown"

[96] To construe s7(1) in its statutory context, it is necessary to determine the meaning of the word "Crown" in s7(1) in a manner which is consistent with the remaining provisions of the Fauna Act. S7(1) identifies the Crown in two senses. First, fauna is the property of the "Crown" and secondly, fauna was under the control of the "Fauna Authority" which was defined in s5 to mean the "Minister and subject to the Minister the Under Secretary and the Conservator". "Minister" in turn was defined in s5 to mean "the Minister for Primary Industries or other Minister of the Crown who at the material time is charged with the administration of this Act: the term includes a Minister of the Crown who is temporarily performing the duties of the Minister". S7(1) therefore placed control of fauna in a persona designata of the Crown, that is a Minister of the Crown in right of Queensland. In contrast, the reference in s7(1) to fauna being the "property of the Crown" must be taken to be a reference to that body politic which is the State of Queensland.

[97] This construction of s7(1) accords with the structure of the Fauna Act as a whole. S10 provides that the "Act shall be administered" by the designated person, whilst numerous provisions throughout the remainder of the Act provide that the Governor in Council may undertake certain activities in order, broadly, to effectuate the purposes of the Act. In contrast, the "Crown", as the State of Queensland, is referred to in the Fauna Act for the limited purpose of recouping money sums which may become payable from time to time under the Act.

[98] The principal reference to the "Crown", as the State of Queensland, is found in PtXI of the Fauna Act. To adopt the language of Deane J in Walden v Hensler ^[127] , s7(1) provides a "basis of the royalty system which PtXI of the [Fauna Act] establishes". The collection of royalty sums, as opposed to the physical possession of fauna, is the relevant legal interest of the Crown manifested in PtXI (s67-s71). S71(1) confirms this construction. It provides for the seizure and forfeiture of fauna in default of payment of royalty sums.

[99] PtXI vastly expands the royalties, or sums payable, which at common law otherwise would have attached as a privilege of the Crown in respect of certain animals ^[128] . As first enacted in 1974, PtXI created a royalty regime for "prescribed fauna". Subs(1) of s67 provided that "royalty at the rates prescribed shall be payable to the Crown on prescribed fauna", whilst subs(2) stated:

"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."

The persons liable for payment of royalty were identified in s68(1):

"The following persons shall be jointly and severally liable for the payment of royalty:-

(a)

the person who takes the fauna;

(b)

a fauna dealer or other person who at any time after the taking of the fauna receives or keeps the fauna or fauna obtained therefrom.

Liability for the payment of royalty arises -

(c)

in a case to which subpara(a) applies, immediately upon the taking of the fauna in question;

(d)

in a case to which subpara(b) applies, immediately upon the receipt of the fauna in question."

The first event which triggers liability for the payment of royalty is a "taking" of prescribed fauna. At a time thereafter actual payment of the royalty may or may not be made. If that payment occurs, s67(2) confirms that it does "not transfer property in that fauna from the Crown". S67(2) assumes that "property" in fauna in the Crown vests before payment of the royalty. These provisions are therefore consistent with the construction of s7(1) considered above whereby "property" in fauna vests in the Crown upon a taking or keeping of the fauna, events anterior to any time when a royalty payment is to be made.

[100] The second implicit reference in the Fauna Act to the Crown, as the State of Queensland, is found in the enforcement provisions. These impose penalties upon persons who contravene the statutory proscriptions supporting the royalty regime. S54(1)(a), the text of which is set out in sII of these reasons, is one such enforcement provision. As first enacted, s54(2) provided:

"A person who commits an offence against this section is liable to a penalty of not less than $50 and not more than $1,000, and in addition to a penalty of twice the royalty payable on each fauna in respect of which the offence is committed."

The Crown, as the State of Queensland, is the entity to which the penalty was payable ^[129] .

[101] Accordingly, the State of Queensland had two interests conferred by the Fauna Act, first, the recovery of royalties under PtXI and, secondly, the recovery of penalty sums under the various enforcement provisions in the Act, such as s54(2). The legal relations between the Crown, as the State of Queensland, and "fauna", created by s7(1) by the vesting of "property" in the Crown, supported these limited statutory interests. The rights of "the Crown" in fauna created by the vesting of "property" by s7(1), as enacted in 1974, were limited to those which may have arisen, from time to time, first by way of royalty and, secondly, by penalty exacted from a person who contravened the statutory proscriptions supporting the royalty regime.

VII SUBSEQUENT AMENDMENTS TO THE FAUNA ACT

[102] Before considering the question of extinguishment, it is necessary to inquire whether the amendments to the Fauna Act, subsequent to the Commencement Date and before the time of the appellant's alleged offence ^[130] , effected a change in the Crown's rights under the Fauna Act in respect to "fauna".

[103] The amendments did not materially alter the construction of the Fauna Act set out in sVI of these reasons nor did they expand the rights conferred on the Crown arising from the vesting of "property" in the Crown in s7(1). However, reference should be made to the insertion of s7(1A) by s5 of the 1984 Amendment Act. S66 forbad, without a permit, the breeding of prescribed fauna for gain or reward, and the sale of fauna so bred. S7(1A), with effect from 15 May 1984, made provision with respect to the transfer, royaltyfree, of property to an authorised breeder. It stated:

"Notwithstanding the provisions of this Act, and subject to the provisions of any Act dealing with the farming of deer, the Conservator may, with the consent in writing of the Minister, transfer the property in fauna that is obtained by an authorized person from the breeding of fauna for gain or reward in accordance with the provisions of s66 from the Crown to that authorized person and no royalty shall be payable on that fauna or any farm-bred progeny therefrom."

[104] Property in the Crown would arise, in respect of fauna bred for gain or reward by a permit holder under s66, because it was "kept" by that breeder. A royalty would be payable under s68 because the fauna had been "taken" or had been "obtained" from such fauna. S7(1A) provided for a relaxation of that royalty regime.

[105] It is convenient now to consider whether the vesting of these rights in the Crown in respect to estuarine crocodiles extinguished the appellant's native title right, or incident, to hunt estuarine crocodiles.

VIII EXTINGUISHMENT

[106] In Wik ^[131] , this Court considered the effect of rights conferred by statute on native title rights. It was held that native title rights will be extinguished where they are inconsistent with the statutory rights. This requires ^[132] :

"a comparison between the legal nature and incidents of the existing right and of the statutory right. The question is whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right."

[107] Whether in a given case native title rights have been extinguished is a question of law. The inquiry turns on the legal criterion of inconsistency. Where there has been a grant of a fee simple, the application of this criterion is not determined by the existence, as a matter of fact, of an indigenous community's attachment or connection to the land, whether spiritual, cultural, social or economic. This inquiry relates to the anterior question of whether, but for the relevant inconsistency, native title would still subsist. For example, a nonindigenous owner of land in fee simple may continue to permit indigenous people to retain connections to the land but this will not derogate from the conclusion that the grant of fee simple extinguished native title on that land. Further, the existence, as a matter of fact, of indigenous peoples' continued connection to land which has been the subject of a grant in fee simple does not permit a "springing" back of native title at some future time ^[133] .

[108] The continued subsistence of native title will turn upon the extent of the inconsistency in question. In the case of a grant of a fee simple or of a leasehold interest, as known to the common law, this second step will be unnecessary; subject to the observations above concerning the intersection of native title rights and estates, the comprehensiveness of the grant precludes any question of partial extinguishment.

[109] Before turning to whether inconsistency arose in the present appeal, it is important to clarify the utility of factual findings. Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the indigenous community. The ambit of the native title right is a finding of law. This must then be placed against the statutory rights which are said to abrogate it. The question to be asked in each case is 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 right without in any degree abrogating it.

[110] In Wik, the Court considered the grant of particular statutory interests. The statutory grants did not "clearly, plainly and distinctly [authorise] activities and other enjoyment of the land which necessarily were inconsistent with the continued existence of any of the incidents of native title which could have been subsisting at the time of these grants" ^[134] . Further, the subsistence of native title rights was not abrogated by the mere existence of unperformed conditions in the grant of a pastoral lease ^[135] . These conditions had no immediate legal effect, in terms of inconsistency, whilst unperformed. If performance had occurred, questions would have arisen respecting operational inconsistency between the performed condition and the continued exercise of native title rights.

[111] Some analogy is provided by The Commonwealth v Western Australia ^[136] . There, it was necessary to determine whether operational inconsistency under s109 of the Constitution had arisen between PtXI of the Defence Force Regulations, made under s124(1) of the Defence Act 1903 (Cth), and the Mining Act 1978 (WA) in respect of a residual portion of land declared to be a defence practice area in Western Australia. The State law provided for the granting of mining exploration licences with respect to this land, subject to conditions. However, if licences were granted, inconsistency was not inevitable. The Minister for Mines could have granted the licences under the State law on terms which prevented the licensees from being on the relevant land at any time during the conduct of defence operations ^[137] .

[112] In the present appeal, the narrow issue is whether the creation of certain statutory rights, conditioned upon the exercise of power conferred by the statute, abrogated the exercise of the native title right, or incident, to hunt. The characteristics of the statutory rights created by or pursuant to the exercise of powers conferred by the Fauna Act are described in sVI of these reasons. The power in question was exercised by the declaration of estuarine crocodiles as fauna by the Order in Council. Only then could any question of inconsistency arise.

[113] The matters which require determination in the present appeal are: (i) when does the question of inconsistency properly arise?; and (ii) what is the effect of the statutory rights on the exercise of the native title right to hunt?

[114] The Crown's "property" in fauna under s7(1) of the Fauna Act arises only upon a "taking" or "keeping". Further, the provisions in the Fauna Act for the granting of permission to take fauna and for the declaration of animals to be (or not be) fauna reinforce the conclusion that any question of inconsistency arises upon, but not before, a "taking" or "keeping" of fauna.

[115] The exercise of the native title right to hunt was a matter within the control of the appellant's indigenous community. The legislative regulation of that control, by requiring an indigenous person to obtain a permit 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.

[116] Further, as described in sIII of these reasons, the native title right to hunt exercised by the appellant was not merely the right to "take" estuarine crocodiles within the meaning of s5 of the Fauna Act. The native title right has both an anterior and posterior operation. Any anterior exercise of the native title right, prior to a "taking" or "keeping" of an estuarine crocodile, is not inconsistent with the Crown's so-called "property" rights pursuant to s7(1).

[117] Accordingly, the native title right, or incident, to hunt estuarine crocodiles exercised by the appellant was not extinguished at any time before the "taking" of the estuarine crocodiles which allegedly contravened s54(1) of the Fauna Act.

[118] Finally, I turn to consider the effect of the Native Title Act on the appellant's common law native title right, or incident, to hunt estuarine crocodiles.

IX OPERATION OF THE NATIVE TITLE ACT

[119] Pt13 (s208-s215) of the Native Title Act is entitled "Miscellaneous". S211 provides:" Preservation of certain native title rights and interests

Requirements for removal of prohibition etc on native title holders

(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.

Removal of prohibition etc on native title holders

(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.

Definition of class of activity

(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."

Pt15 (s222-s253) is entitled "Definitions", Div 2 (s223-s240) therein is entitled "Key concepts: Native title and acts of various kinds etc". S223 and s224 inform the meaning of s211. They materially state:

"223 Native title

Common law rights and interests

(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

Hunting, gathering and fishing covered

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

"224 Native title holder

The expression native title holder, in relation to native title, means:

(a)

if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust - the prescribed body corporate; or

(b)

in any other case - the person or persons who hold the native title."

[120] In Western Australia v The Commonwealth (Native Title Act Case) ^[138] , the Court, after setting out the relevant text of s211, continued:

"The usufructuary rights comprehended by subs(3) are, by virtue of subs(2)(b), rights and interests which are incidents of native title. They are, by definition (s223(1)), rights and interests that are recognised by the common law and, by operation of s11(1), they cannot be extinguished except in conformity with the Act. S211(2) removes the requirement of a 'licence, permit or other instrument granted or issued ... under the law' referred to in s211(1)(b) as a legal condition upon the exercise of the native title rights specified in subs(3). If the affected law be a law of a State, its validity is unimpaired, but its operation is suspended in order to allow the enjoyment of the native title rights and interests which, by s211, are to be enjoyed without the necessity of first obtaining 'a licence, permit or other instrument'. Again, the effect of s211 is not to control the exercise of State legislative power, but to exclude laws made in exercise of that power (inter alia) from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s211."

[121] The appellant's conduct in hunting and killing the estuarine crocodiles was a "class of activity" for the purposes of s211(2) of the Native Title Act. Further, s54(1)(a) of the Fauna Act was a State law which fell within the terms of s211(1)(b). It prohibited or restricted persons from carrying on the relevant class of activity at stake in this case, namely hunting, other than in accordance with a licence, permit or other instrument granted or issued to them under the Fauna Act. Equally, s54(1)(a) of the Fauna Act answered the criteria in s211(1)(c).

[122] The respondent's principal contention was that the appellant's conduct did not fall within the definition of "native title" or "native title rights and interests" in s223, because the condition in para(c) of s223(1) that "the rights and interests are recognised by the common law of Australia" could not have been satisfied. The existence of a native title right, which was not extinguished prior to the enactment of s211, is assumed. S211, in conjunction with s109 of the Constitution, operates to remove prohibitions or restrictions in Commonwealth, State or Territory laws which might otherwise extinguish the relevant native title right.

[123] However, the common law native title right, or incident, to hunt estuarine crocodiles exercised by the appellant was not extinguished by the Fauna Act prior to the "taking" of the two estuarine crocodiles at Cliffdale Creek. Therefore the "native title right" was "recognised by the common law of Australia" within the meaning of para(c) of s223(1), at the time when the appellant was alleged to have committed the offence against s54(1) of the Fauna Act.

[124] The Magistrate held that the conditions of s211(2)(a) were fulfilled in this case. It was not otherwise disputed that the appellant's conduct was in "exercise or enjoyment" of his "native title rights and interests" within the meaning of s211(2)(b). As a consequence, s211(2) applied to the appellant's conduct. Direct inconsistency arose between the prohibition purportedly imposed on the appellant by s54(1) of the Fauna Act and the removal of the prohibition by s211(2) of the Native Title Act. S109 of the Constitution operated to deny what otherwise could have been the appellant's liability to punishment for contravention of s54(1) of the Fauna Act. Therefore the complaint against the appellant was not well based in law.

X CONCLUSION

[125] I would allow the appeal, order that the orders of the Court of Appeal be set aside and in lieu thereof order that the order nisi of Williams J dated 28 November 1996 be discharged.

[126] The appellant seeks an order for costs in this Court and in the Court of Appeal. The appeal arises out of a prosecution but presents special features. The outcome is dictated by the operation, through the medium of s109 of the Constitution upon the Fauna Act, of the Native Title Act. This attracted interventions, as to some said to be as of right under s78A(1) of the Judiciary Act 1903 (Cth) and as to others admitted to require leave.

[127] It is implicit in what has been said earlier in these reasons that, to the extent necessary to grant leave to any intervener, I would do so.

[128] S78A(2) of the Judiciary Act provides for costs orders against intervening Attorneys-General. The appellant seeks such orders in respect of the increase in costs brought about by their interventions. In the end, as might have been expected, this case has turned upon a close analysis of the Fauna Act. The interveners supporting the respondent, the Attorneys-General, between them filed extensive materials which did not assist in that task. There is merit in the appellant's submission that this is a case for the special order he seeks against the intervening Attorneys. I would make an order against each of the intervening Attorneys, that they pay the additional costs of the appellant resulting from their intervention.

[129] There was no argument with respect to the general order for costs sought against the respondent. I would give the appellant leave to present written submissions as to why, notwithstanding the criminal nature of the process involved, there should be such an order in his favour in respect of the proceedings in this Court and in the Court of Appeal. The submissions should be filed not later than 14 days after delivery of judgment. The respondent should have 14 days to reply to those submissions.