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High Court Upholds Bush Tucker Rights
Sean Brennan
Law and Bills Digest Group
19 October 1999
The Key Questions
In Yanner v Eaton the High Court upheld by a 5:2 majority the
dismissal of an illegal hunting charge against Murrandoo Yanner, on the
basis that the taking of a crocodile was authorised by the Native Title
Act 1993 (Cwlth). Yanner's appeal revolved around two issues:
- Did vesting the Crown with 'property' in wild animals under Queensland
legislation extinguish native title rights? ('Question 1')
- Did prohibiting the taking of wild animals without a permit extinguish
native title rights? ('Question 2')
In fact Queensland never argued for the second proposition, but the Commonwealth
intervened to put Question 2 squarely before the High Court. As Hayne
J said 'the intervener goes further than the party' prompting Gummow J
to add it was 'an odd sort of intervention'.(1)
Background
In October 1996 a charge of illegally taking fauna against Murrandoo
Yanner was dismissed by a Mount Isa magistrate. Two years earlier Yanner
had caught two estuarine crocodiles near the Gulf of Carpentaria and shared
the meat with other members of his Gangalidda tribe.
Under the Fauna Conservation Act 1974 (Qld), all fauna was stated
to be 'the property of the Crown' unless it was taken lawfully during
an open season. In August 1974, estuarine crocodiles were added to the
definition of 'fauna'. This statutory assertion of Crown property in crocodiles
was a critical aspect of the case. The Act also made it an offence for
a person to take fauna unless they held a permit or licence to do so.
Yanner was prosecuted under this latter provision.
When Queensland appealed against the magistrate's decision to the State
Court of Appeal, a major question of dispute was whether Yanner could
invoke the protection of section 211 of the Native Title Act 1993
(Cwlth). (If a law restricts hunting, fishing, gathering or cultural or
spiritual activity in exercise of native title rights and interests, 'for
the purpose of satisfying personal, domestic or non-commercial communal
needs', section 211 steps in as an overriding Commonwealth law, providing
a form of 'native title immunity' from such permit schemes.)
Queensland argued that section 211 was unavailable to Yanner because
his native title right to take crocodiles had been extinguished by the
Crown's assertion of property in estuarine crocodiles in August 1974.
The Queensland Court of Appeal agreed by a 2:1 majority, on the basis
that the vesting of property in the Crown was 'directly inconsistent'
with anyone else (including native title holders) having common law rights
to take the crocodile. It said Yanner should be re-tried on the basis
that he could not invoke the protection of section 211.
The High Court Decision
The High Court agreed to hear Yanner's appeal. Leave was also granted
to hear from a number of interveners.(2) The 5:2 decision was handed down
on 7 October 1999. Four judges, two of them (including the Chief Justice)
recent appointments by the current Federal Government, combined in a joint
judgment while Gummow J wrote a separate judgment also finding in Yanner's
favour. In general, references below to 'the majority' refer to the joint
judgment.
As to Question 1, the majority made clear that the mere statutory vesting
in the Crown of 'property' in natural resources cannot be assumed to extinguish
native title. The true meaning of such assertions will depend on a careful
exercise in statutory interpretation, analysing the words used and the
underlying purpose of the legislation. In this respect, the decision follows
the lead given by the majority in the Wik case (1996).
The term 'property' was treated as an intellectual construct, no more
than a description of a legal relationship with a thing, 'a legally endorsed
concentration of power over things and resources'.(3) Its use in a statutory
context may be for a broad public purpose, perhaps an assertion of full
beneficial ownership. But it may be employed for a far more limited purpose,
e.g. to lend legal legitimacy to a royalty scheme.(4)
In this case the majority found that the statutory vesting of property
in fauna was 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'.(5)
As to Question 2, the majority found that requiring a permit to hunt
a crocodile was no more than regulation of the way in which that native
title right could be exercised. Since Mabo (No 2) (1992) it has
been clear that regulation does not extinguish native title. The majority
said that regulation is not inconsistent with the continued existence
of native title rights and interests (indeed it assumes their continued
existence); and that here the usufructuary (or use) right was merely an
aspect of a deeper and more multi-faceted relationship to land.
Having found no extinguishment, it was clear the Queensland law which
made crocodile hunting an offence without a permit was in direct conflict
with the Commonwealth immunity provision, section 211 of the Native Title
Act. By virtue of section 109 of the Constitution, Yanner could not be
convicted and his appeal was upheld.
Significance
There are several important propositions expressed or implied in the
Yanner decision:
- The vesting in the Crown of property in natural resources cannot be
assumed to extinguish native title. The true intention of such language
must be ascertained by careful statutory interpretation. This is consistent
with the now well established principle that extinguishment of native
title requires the demonstration of a clear and plain intention.
- Cases decided pre-Native Title Act involving interpretation of natural
resources legislation and their effect on private or group rights may
need to be revisited now the mistaken assumption that native title did
not exist has been corrected.
- Laws prohibiting activities except when done under a permit will not
extinguish native title. The effect of total prohibitions has been left
by the High Court for another day, as has the more general question
of the scope of 'regulation' in native title law.
Conclusion
Despite extensive argument by the parties, the joint judgment refrained
from deciding whether Australian law includes a notion of partial extinguishment.(6)
It thus remains unclear whether extinguishment of native title is an all
or nothing matter:(7)
- Is native title a fragile legal interest, susceptible to incremental
destruction as successive acts of the Crown or Parliament eat away at
the title itself, partially extinguishing it here (e.g. the right to
hunt crocodiles), partially extinguishing it there (e.g. the right to
take certain plants and seeds) until potentially the entire native title
is extinguished?
- Or is it like other legal interests in land: while an exercise of
State power (e.g. town planning legislation) may regulate a titleholder's
rights and freedom of action for the duration it has legal effect, the
underlying title remains intact and the full set of rights can revive
if the legislative restriction is lifted?
While no clear answer emerges from Yanner, the joint judgment
signals that the cultural and spiritual connection of native title holders
to their land together with a requirement of clear and plain intention
provide a substantial bulwark against extinguishment. Just as freeholders
and leaseholders remain freeholders and leaseholders, even if parliaments
from time to time restrict certain rights or freedoms which those titles
confer, so too native title can withstand considerable legislative intervention.
According to the majority, indigenous connection to land runs deep, and
merely regulating surface manifestations of that connection, such as usufructuary
rights, will be as ineffective to destroy that connection in law as it
is in reality. The common law, always a strong protector of property interests,
looks more likely after Yanner v Eaton to accord native title holders
a similar level of protection. But as always, ultimately it will be a
question of close statutory interpretation.
The other critical aspect of the case to note is that the immunity from
State regulation came not from judicial 'invention', but from section
211 of the Native Title Act, a provision introduced by the Commonwealth
Parliament in 1993 and retained in a modified form in 1998.(8)
Endnotes
- 'The law is the law' was Kirby J's rejoinder: Transcript 4
May 1999.
- Including the Commonwealth, two States, the Northern Territory, and
three other Aboriginal parties.
- [1999] HCA 53 at para 18.
- ibid., at para 27.
- ibid., at para 28.
- Gummow J, on the other hand, seems to contemplate that an overall
native title to land can subsist, while particular rights or incidents
(e.g. the right to hunt crocodiles) may be permanently extinguished.
- A more suitable vehicle for the resolution of this question may be
the Miriwiung Gajerrong case, a decision of Lee J which has been
appealed to the Full Federal Court.
- Before 1974 Queensland fauna laws had also contained a (pre-Mabo)
immunity for Aboriginal people seeking sustenance by taking animals
from the wild. The 1998 amendments to the Native Title Act narrowed
the range of laws against which the Commonwealth immunity is available.
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