Yanner v Eaton

[1999] HCA 53
(1999) 201 CLR 351

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(Decision by: Callinan J)

Yanner
vEaton

Court:

Judges: Gleeson CJ
McHugh J
Gummow J
Kirby J

Callinan JHayne 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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Decision by:
Callinan J

[130] This case which was commenced in the Magistrates Court in Mount Isa raises a question whether an incident, tradition, right or privilege of or interest in native title has been extinguished by the Fauna Conservation Act 1974 (Q) ("the Act").

Facts

[131] The appellant was charged with having taken fauna, crocodiles, without being the holder of a licence, permit, certificate or other authority, under s54(1)(a) of the Act. S54 provides as follows:

"54(1)(a) 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. (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;

(iv)

keeps aviary birds;

(v)

keeps for his own private domestic enjoyment, not more than five in total of birds of prescribed species which birds have not been unlawfully taken, and who at the same time keeps no birds other than aviary birds;

(vi)

keeps dead non-protected fauna,

does not commit an offence under 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.

(2) A person who commits an offence against this section is liable -

(a)

if the offence is one related to the taking of fauna, to a penalty of 100 penalty units or 12 months imprisonment or both;

(b)

if the offence is one related to the keeping of fauna, to a penalty of 40 penalty units,

and in any case to an additional penalty not exceeding twice the royalty on each fauna in respect of which the offence is committed."

[132] Evidence was given in the Magistrates Court without objection, that the appellant took, during a period of five weeks, two young crocodiles from Cliffdale Creek in North Queensland. He and other members of his group or tribe froze and ate part of the catch. The area around Cliffdale Creek was traditionally occupied by the tribe or group of people, the Gungaletta people, of whom the appellant was a member. The precise length of time of this occupation was uncertain. The appellant claimed that the area had been occupied for at least 1,300 years. Dr Trigger, an anthropologist, gave unchallenged evidence that radiocarbon dating conducted in 1983 indicated that shellfish-eating people occupied the area 140 years ago (plus or minus 60 years) and 1,300 years ago (plus or minus 80 years). The appellant and Dr Trigger gave evidence that the appellant's genealogy could be traced back to 1870. The Magistrate concluded that the appellant's tribe or people were identical with those whose presence was revealed by carbon dating. The hunting and taking of crocodiles in the area was a practice which, Mr Yanner stated, his people had been following "forever". He also said that although traditional hunting methods had changed over the years, the way in which he hunted crocodiles was "[p]retty much the same" as the way in which his ancestors had. This claim was made despite the fact that the appellant used a modern boat with an outboard motor and a steel tomahawk to administer the coup de grâce to the crocodiles ^[139] . Dr Trigger also gave evidence that "Gungaletta customs and traditions have simply been maintained from the earliest processes of colonisation through to the present, though they have changed in certain ways".

[133] On the basis of this evidence and although some of it, particularly as to a possible totemic significance of crocodiles in this area, was vague ^[140] , because it was neither challenged nor the subject of any objection, the Magistrate formed the view that the appellant had been doing no more than taking advantage of his native title right in taking and eating the crocodiles, and that that right had not been extinguished by the Act. In acquitting the appellant the Magistrate expressed himself in this way:

"[T]he evidence is that the traditional custom was to hunt crocodile for food from time to time, not just crocodile, however, but juvenile creatures. Evidence is that adults are not hunted. Quite apart from the fact that that seems rather prudent, the evidence suggests tribal totemic significance and spiritual belief. The defendant says he complies with that code of behaviour.

...

Whilst there is the authority for the proposition that 'hunting' rights as such are not available on common law principles, the clear inclusion of such in subs(2) of s223 of the Native Title Act now demands of the common law in Australia the statutory interpretation now provided.

Being satisfied that the provisions of cl(c) are complied with and being satisfied that the defendant is a member of a class described in all paragraphs of s223(1), I accept that the defendant was in the exercise or enjoyment of his Native Title rights and interests, s211(2)(b). He is therefore a person who holds Native Title rights and interests as defined in s224.

Having accepted the criteria set out, and as referred to in the Native Title Act, I am satisfied that the defendant has established his defence to the offence alleged under the State legislation. That being the case, the defendant is found not guilty and is discharged."

[134] In the Queensland Supreme Court the respondent obtained an order nisi for review of the Magistrate's decision. The Queensland Court of Appeal (McPherson JA and Moynihan J; Fitzgerald P dissenting) accepted the respondent's argument that the native title rights of the appellant had been extinguished by the operation of the Act, and accordingly held that the Magistrate erred in applying the Native Title Act 1993 (Cth). The Court of Appeal made the order nisi absolute and remitted the proceedings to the Magistrates Court in Mount Isa for determination according to law. Appeal to this Court

[135] The appeal to this Court may, in my opinion, be resolved by the application of s7 (in the context of the Act as a whole) to the facts as found by the Magistrate.

[136] S7 of the Act provides as follows:

"(1) 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.

(1A) 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.

(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."

[137] The word "property" is a word of the widest import. Indeed when counsel were invited to do so they were unable to suggest any more ample expression to convey the notion of absolute ownership. The Act uses the word "property" without qualification. If something less than absolute ownership were intended then an appropriate qualification in that regard could be expected to have been expressed.

[138] During argument the appellant sought to say that "property" should not be given its ordinary meaning where it appears in s7 of the Act for two reasons: first, that it was unlikely that the Queensland legislature would have intended the word to have its ordinary and natural meaning in relation to wild creatures when regard is had to their natural and generally inaccessible state until reduced to captivity, circumstances which the common law recognised and gave effect to by elaborate rules with respect to them; and, secondly, a reading of the Act as a whole dictated a conclusion that the real intention of the legislature was to do no more than protect and control fauna and regulate any access to, or exploitation of fauna to which the Act and regulations made under it referred ^[141] .

[139] Walden v Hensler ^[142] is a case in which fairly recent consideration was given by this Court to the effect and operation of s7 and s54 of the Act. The appellant there was an Aboriginal who was found in possession of a partly-plucked turkey and a live turkey chick. He had shot the turkey in the bush for food, and the chick was being kept until it had grown sufficiently to be released in the bush. The birds were fauna for the purposes of the Act, and the appellant had no licence to take them. At the relevant time the appellant believed, in accordance with Aboriginal custom and his own practice of a lifetime, that he was entitled to take the turkeys as "bush tucker" and that he was committing no offence in so doing.

[140] Brennan J in Walden ^[143] quoted what Lord Westbury LC had stated in Blades v Higgs ^[144] :

"... when it is said by writers on the Common Law of England that there is a qualified or special right of property in game, that is in animals ferae naturae which are fit for the food of man, whilst they continue in their wild state, I apprehend that the word 'property' can mean no more than the exclusive right to catch, kill and appropriate such animals which is sometimes called by the law a reduction of them into possession.

This right is said in law to exist ratione soli, or ratione privilegii ... Property ratione soli is the common law right which every owner of land has to kill and take all such animals ferae naturae as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil.

Property ratione privilegii is the right which, by a peculiar franchise anciently granted by the Crown in virtue of its prerogative, one man had of killing and taking animals ferae naturae on the land of another; and in like manner the game, when killed or taken by virtue of the privilege, became the absolute property of the owner of the franchise, just as in the other case it becomes the absolute property of the owner of the soil."

[141] Brennan J then said this ^[145] :

"It follows that, apart from the provisions of the Act of which the appellant was ignorant, he was entitled by law to keep the birds which he had taken. 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)."

[142] The law which Lord Westbury LC summarised owes its origins no doubt to many 19th century and earlier, now outdated, historical, indeed feudal conditions of questionable relevance to Australia at any time: for example, the ownership by a few of vast hunting estates, aristocratic preoccupations with the Chase, hound, horse, lure, snare, falconry, gun and dogs ^[146] , uncertain agricultural yields, the poverty suffered by many which might tempt them to poach, the partial domestication of game birds to enable them to be more vulnerable to the landowner's fowling piece, Royal privilege in respect of certain animals, and competition between wealthy people to collect and keep for ornamental purposes and as curiosities exotic animals.

[143] But times and views about ecology and the environment of which wild creatures are now indubitably taken to be part ^[147] , change. Darwin's On the Origin of Species which raised the consciousness and sensitivity of Western Society to the importance and significance of the natural world, was published in 1859 ^[148] . By 1907 this consciousness was manifesting itself by statements and endeavours by concerned and informed people such as Dudley Le Souef of the Australasian Ornithologists Union who said in that year "[t]he wild birds do not belong to us to treat as we like" ^[149] . The most effective way to ensure the survival and protection of wild creatures, particularly as the means of taking and destroying them became more efficient, was for the State to legislate in the most comprehensive way possible to obtain absolute dominion over them and this I am satisfied the legislature of Queensland did in enacting the Act. The Queensland Parliament meant exactly what it said when it used the word "property" in s8A of the Animals and Birds Act 1921 (Q) ^[150] and when it repeated that word in each subsequent enactment ^[151] .

[144] The second argument of the appellant is that the text of the Act as a whole requires "property" in s7 to be read as meaning no more than an extensive power to regulate the protection and some limited exploitation of fauna. In support of this submission reference was made to s71(2) which provides that fauna seized for non-payment of a royalty shall be "forfeited to Her Majesty", a phrase said to be incompatible with pre-existing ownership by the Crown. Reference was also made to the division of "fauna" in s6 into four classes ("permanently protected fauna", "protected fauna", "non-protected fauna" and "prohibited fauna") and to the provisions relating to the circumstances under which permits for taking fauna in different classes are needed and may be obtained (s26, s27 and s53). These provisions were said to indicate that the "property" vested in the Crown under s7 was less than absolute.

[145] None of these indications in the Act is of sufficient significance and force to detract from the ordinary and natural meaning of "property" in s7. But in any event there are other parts of the Act which reinforce this natural meaning. S67, particularly subs(2) is one:

"67(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."

[146] The whole scheme of the Act is consistent with no intention other than an intention by the legislature to have absolute property in all fauna occurring or present in the State. And in my opinion there were and are no impediments which prevented it from effecting that intention by the legislation it enacted.

[147] In support of his second argument the appellant referred to the difficulty in reducing wild animals to possession and of preventing them from migrating out of the State as a reason for the reading down of the word "property" in the Act. In this connexion an analogy may be drawn with the way in which, in the United States, natural gas and oil, which are fugitive minerals, are treated. There, these are regarded as having some features in common with wild animals. In that country ownership of the land generally carries with it ownership of minerals beneath it. The fact that natural gas or oil may migrate from under one property to another, does not mean that a property owner does not own absolutely and may not exploit fully these minerals whilst they are underneath his or her land ^[152] .

[148] No question of native title was argued in Walden v Hensler ^[153] . However the references by Brennan J to the appellant's former rights to take the birds and to traditional entitlements before land was alienated by the Crown suggest that his Honour was well alive to the possible existence of native title rights which in fact were declared to exist only five years later in Mabo v Queensland [No 2] ^[154] when the issue did arise. Mabo [No 2] being a decision declaratory of the law did not alter the law by creating some previously non-existing right. Native title must have existed in 1987 when Walden was decided. Yet Brennan J was in no doubt that the fauna which had been taken by Mr Walden there were fauna which had vested in the Crown. The case stands as clear authority for at least the proposition that since its enactment s7 has operated to vest property in fauna in the Crown.

[149] There is some overseas authority for the proposition, if authority be needed, that when a statutory declaration of Crown ownership or property in fauna is coupled with a statutory exception permitting or recognising an aboriginal right or entitlement to take fauna (for example, for sustenance or other purposes), native title rights to take that fauna are not extinguished ^[155] . That distinction is significant in the present case. The history of the legislation here shows that since 1924, fauna has been legislatively declared to be the property of the Crown; and from 1906 until 1974, Queensland legislation with respect to fauna was expressed not to apply to "any aboriginal killing any native [animal or fauna] for his own food" ^[156] . However that exception was excluded from the Act, and there has been no general statutory exception of that kind in force in Queensland since then.

[150] The question then becomes, is property in, that is ownership by the Crown of the crocodiles which were taken by Mr Yanner so inconsistent with any native title right to it as to extinguish that right?

[151] In Wik Peoples v Queensland ^[157] , Gummow J emphasised that a person who seeks to contend that native title has been extinguished by necessary implication from the provisions of a statute carries a heavy burden. In the same case, Kirby J said ^[158] :

"There is a strong presumption that a statute is not intended to extinguish native title. The intention to extinguish native title must be clear and plain, either by the express provision of the statute or by necessary implication." (footnotes omitted)

[152] In both Mabo [No 2] and Wik the Justices of this Court discuss, at length, native title but attempt no definition of it. Perhaps this is because not only is it, as it has been described, fragile ^[159] , but also because to non-indigenous people it may be a somewhat elusive concept. But neither its fragility nor its elusiveness absolves the Court from identifying native title rights in any case calling for their consideration. In the former case Brennan J discussed some of its nature and incidents ^[160] :

"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. The ascertainment may present a problem of considerable difficulty ..."

[153] The language of the Justices of this Court when reference is made to native title has tended to be couched, as perhaps it only can be, in terms of "incidents" ^[161] , "nature" ^[162] , "rights" ^[163] , "traditions" ^[164] , "customs" ^[165] and "entitlements" ^[166] .

[154] In Wik, in construing Queensland statutes enacted long before Mabo [No 2] the Court was unable to answer the question whether there had been an extinguishment definitively because, as Toohey J pointed out ^[167] , there had not been evidence which focussed specifically on the traditions, customs and practices of the particular aboriginal group claiming the right which could be compared with the rights conferred by the leases granted by the Queensland government, to ascertain whether those rights were necessarily inconsistent with the exercise of the customs, traditions and practices of the aboriginal group claiming the right.

[155] In this case there was evidence which was uncontradicted and uncontested, relevantly directed to the rights, traditions, customs and practices of the aboriginal group of which the appellant was a member, and findings of them by the Magistrate of sufficient particularity to enable, indeed to compel, the carrying out of the exercise which the majority in Wik was unable to carry out in order to decide whether the leases extinguished wholly or partially any of the native title rights claimed.

[156] That evidence and the findings I have summarised. They point inexorably to a direct collision between the custom or right claimed here, of taking and eating crocodiles, and the ownership of them by the State of Queensland. To the extent therefore that that custom or right may be an aspect or incident of native title enjoyed by the people of whom the appellant was one, that incident or right (or custom, entitlement, tradition or practice), however it might be designated, has been extinguished by the Act under which the appellant was charged. Its exercise was inconsistent with the ownership of the fauna by the Crown ^[168] . Property means, in the Act, exactly that.

[157] This case may be compared with Fejo v Northern Territory ^[169] . There this Court held that a grant of land in fee simple was an act of sovereignty and that the bundle of rights going to make up a fee simple title necessarily conflicted with and excluded native title. The word "property" as used in s7 of the Act has at least as exhaustive an operation and meaning as fee simple. Fejo also held that once such a grant was made it extinguished native title for all time so that it would not be revived if and when title lapsed and the Crown resumed ownership of the land the subject of the earlier grant. And, as Gummow J said in Wik ^[170] , "[i]f acts done before the commencement ... of the Racial Discrimination Act 1975 (Cth) were effective to extinguish or impair native title, the Native Title Act does not undo that result".

[158] The Native Title Act is not retrospective. It does not operate to create new rights or to revive native title rights that have been extinguished. In Western Australia v The Commonwealth (Native Title Act Case), Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said ^[171] :

"An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is given force and effect by the Act. But, as acts purporting to extinguish or impair native title might be impugned as inconsistent with the Racial Discrimination Act if they were done after that Act came into operation, the Parliament has chosen to include certain legislative and executive acts of the Crown within the definition of 'past acts'." (footnote omitted)

The Fauna Conservation Act 1974 (Q) relevantly answers the description of an Act which was wholly valid and effective when passed in relation to any native title right in respect of the taking of fauna.

[159] On the view that I take of the case it is unnecessary to go any further. The decision of the majority of the Court of Appeal of Queensland was correct. I would dismiss the appeal with costs.