Coatsworth, Warren --- "Considering Crocodiles in the Queensland Court of Appeal: Eaton v Yanner; ex parte Eaton" [1998] IndigLawB 78; (1998) 4(15) Indigenous Law Bulletin 20
Considering Crocodiles in the Queensland Court of
Appeal:
Eaton v Yanner; ex parte Eaton
Eaton v Yanner; ex parte Eaton
Queensland Court of Appeal
Fitzgerald P, Macpherson B, and Moynihan JJ
Appeal of Magistrate's Court decision
Unreported
27 February 1998
by Warren Coatsworth[1]
Eaton v Yanner; ex parte Eaton[2] (` Yanner') demonstrates that Australian courts are failing to come to terms with the legal and conceptual precedents set by the High Court in Mabo v State of Queensland (No. 2)[3] (`Mabo'). Mabo established that Australian property law is capable of accommodating native title in spite of the fact that the indigenous law and custom from which native title is derived contains notions of property fundamentally different from those derived from the English common law.[4] In Wik Peoples v State of Queensland[5] (`Wik') this difference was shown to extend to property rights granted under statute.
In Yanner, as in Wik, the task for the Court was to determine the extent to which property rights granted under statute were inconsistent with native title rights. The court resolved the perceived inconsistency between Western concepts of property and native title by making an analogy between hunting rights derived from native title and hunting rights derived from the English common law. In doing so, the Court did not take into account the unique nature of the rights attaching to native title.
The charge
It was agreed that Murrandoo Yanner is a traditional owner of the land on which, in 1994, he killed and took two estuarine crocodiles. It was further accepted that Yanner and his clan held a common law right to hunt estuarine crocodiles which was unimpaired by the Fauna Conservation Act 1954 (Qld) ('the Act').
However, as a result of amendments to the Act in 1974, Aboriginals who kill fauna for non-commercial purposes are no longer exempted from the operation of s54(1)(a), which prohibits the killing and taking of native animals without a licence. The amendments also inserted a new s7, which ostensibly vested ownership of all fauna subject to the Act in the Crown.
Citing the authority of Western Australia v The Commonwealth,[6] the Crown argued that s7 vested ownership of fauna in the Crown to the exclusion of all other interests. The Crown further argued that s7 validly extinguished any native title interests in the fauna because it was enacted prior to, and thus falls outside of, the ambit of the Native Title Act 1993 (Cth) ('the Native Title Act').
The defence
Yanner argued that the ownership of fauna vested in the Crown by s7 was not absolute because exceptions to the Crown's 'property' in and 'control' over fauna are established in the wording of both s7 and s54. He supported his argument by reference to the High Court's construction of s54 in Walden v Hensler.[7] In that case, Justice Brennan stated in a separate judgment that s54 `...is a provision calculated not to protect the Crown's or any other persons rights over property but to protect fauna from destruction or control'.[8] On this basis it was argued that Yanner's previously recognised common law hunting rights[9] survive the operation of the amended Act.
Yanner further contended that s223 of the Native Title Act should be interpreted as a statutory expression of the common law conditions for the recognition of native title.[10] Citing the authority of Western Australia v The Commonwealth, Yanner argued that his conduct was not regulated by s54(1)(a) because s211(2) of the Native Title Act
...removes the requirement of a `licence, permit or other instrument granted or issued ... under the law' ... The effect is ... to exclude laws made in exercise of [state legislative] power from affecting the freedom of native title holders to enjoy their native rights and interests.[11]
McPherson and Moynihan JJ in majority
Justice McPherson's leading judgment in Yanner, to the effect that s7 extinguished native title hunting rights, was based on the separate judgement of Justice Brennan in Walden v Hensler ('Walden').
In that case, an Aboriginal man charged with breaching s54(1) (a) argued that his honest belief that he was exercising hunting rights under Aboriginal customary law entitled him to the common law 'claim of right' defence. A 'claim of right' defence is limited by statute to offences related to 'property'.[12] The Court held that a 'claim of right' defence was not available for a breach of s54(1) (a) because wild animals are not 'property' for the purposes of the English common law.
The majority in Walden nevertheless held that for the purposes of s7,
the Act ... vested the property in all fauna in the Crown and ... eliminated any right which Aborigines or others might have acquired lawfully to take and keep 'fauna... and any entitlement which Aboriginals might have enjoyed at common law to take and keep fauna ...[13]
The Court was able to arrive at this conclusion by virtue of the fact that native title had not, at that time, been recognised by the common law. The judges in that case did not (and were not required to) consider the different sources of indigenous and English hunting rights: common law rights to hunt derive from an individual's 'occupation of land' under English property law;[14] native title hunting rights derive from local indigenous law and custom.
In Yanner, Justice McPherson found that the native right to hunt is 'scarcely distinguishable from rights which the common law recognise[s] as subsisting in any other owner or occupier of land.'[15] According to this analysis, Yanner, like any other owner or occupier of property, was once entitled under the common law to hunt crocodiles. Since common law hunting rights are abrogated by the vesting provisions of the Act, native hunting rights are similarly abrogated.
Justice Brennan's findings in Walden were good law at the time. However, they should not have been followed in Yanner because Mabo, the Native Title Act and subsequent case law has recognised native title rights as conceptually and substantively distinct from incidents of property derived from English common law. It is no longer necessary to construct indigenous property rights by way of analogy to English legal concepts and institutions. To continue to do so is to prevent the identification of the rights attaching to native title and to preserve native title as a still nascent class of Australian property law.
These consequences are apparent in justice McPherson's conclusion in Yanner. His Honour found that in order to obtain statutory protection for native title rights under s211 of the Native Title Act, it is necessary that those rights are either legally 'possessed'[16] by Aboriginal people or are `recognised'[17] by the common law of Australia. Because Yanner's native title rights were found to have been extinguished by the Act, neither of those requirements were fulfilled. Consequently, s211 did not exempt Yanner's conduct from the operation of section 54(1)(a) of the Act.
Justice Moynihan placed great weight on the difference between the pre-1974 and post-1974 versions of the Act. In particular, he interpreted the occlusion of the common law exemption of Aboriginal hunters from the requirements of s54 and the vesting of fauna as property in the Crown as manifesting a legislative intent to extinguish native title. He found that the combined effect of these provisions curtail 'any common law rights with respect to estuarine crocodiles.'[18]
Curiously, the possibility that native title hunting rights could coexist with the provisions of the Act is only briefly contemplated by the majority in Yanner. Their analysis represents hunting rights derived from native title as both technically inconsistent with the vesting provision of the Act (s7) and practically inconsistent with its objects. In regard to the latter, it may be observed that, unlike hunting rights derived from the English common law, hunting rights deriving from native title carry with them responsibilities and duties which evince a deep commitment to fauna conservation that is entirely consistent with the purpose of the Act.
Fitzgerald J, dissenting
In contrast with the majority of the Bench, who compared hunting rights derived from English common law with the Crown's proprietary interests in fauna under s7 of the Act, Justice Fitzgerald considered the extent to which the native title right to hunt survived common law tests for legislative extinguishment of native title as enunciated in Mabo and Wik?
His Honour found that the Crown's ownership of fauna was not absolute. The vesting of property in s7 was prevented from being absolute by virtue of the limitations whereby fauna taken during open season either did not become or ceased to be 'the property of the Crown'.[19] What remained for him to decide was the question of whether there could be coexistence between native title rights to hunt and rights to hunt derived from statute or from the common law of property, or whether native title rights were extinguished by those other rights.
Throughout Justice Fitzgerald's judgment there are several assertions that hunting rights deriving from native title are 'usufructuary'[20] in nature and in this sense differ from the 'proprietary'[21] hunting rights deriving in English common law from ownership or occupation of land. His line of reasoning dictates that the post-1974 Act did not extinguish and thus preclude the exercise of native title hunting rights. Rather,
the pre-existing native title, non-proprietary usufructuary rights to kill and eat fauna encountered a statutory assertion of Crown property in the fauna not as an absolute obstacle to any continued right to exercise of the right to kill and eat fauna but as an incident of the regulation of that right.[22]
An understanding that the Act regulates rather than totally extinguishes the native title right to hunt is reinforced by the view that extinguishment of common law native title is predicated upon an inconsistency between native title and other property rights.[23]
In Mason v Tritton,[24] Justice Kirby emphasised that the difference between outright prohibition of an activity and its conditional regulation is crucial to the question of extinguishment. Outright prohibition, by objective standards, would reveal a clear and plain intention to extinguish native title.
Under the regulatory framework set up by the Act, the hunting of crocodiles is at no time absolutely prohibited. It is simply contingent upon gaining a licence. Although Murrandoo Yanner's native title right to hunt crocodiles was subject to the regulatory restrictions contained in the Act, it nonetheless continued in a practical and legal sense until the Native Title Act was enacted. Thereafter, the native title right to hunt crocodiles without the requirement of a permit A or licence continued by virtue of the operations of s211 of the Native Title Act.
Conclusion
Yanner is now on appeal to the High Court. A definite statement on the legal meaning of the reference to property in s7 of the Act, and its relationship to property rights in the nature of native title, will emerge. In Wik, Justice Gummow underlined the broad effect of the common law recognition of native title with the following caveat:
Traditional concepts of English land law... may still exert in this country a fascination beyond their utility in instruction for the task at hand... The task at hand involves an appreciation of the significance of the unique developments, not only in the common law, but also in statute, which mark the law of real property in Australia.... There also is the need to adjust ingrained habits of thought and understanding to what, since 1992, must be accepted as the common law of Australia.[25]
Mabo and Wik recognised that critical differences exist between native title and traditional Western notions of property. In Yanner, that difference is effaced.
Warren Coatsworth is a final year law student at the University of Sydney.
[1] I am grateful to Patricia Lane at the National Native Title Tribunal for her comments and suggestions in preparing the paper which provided the basis for this article.
[2] Eaton v Yanner; ex parte Eaton (Unreported) Queensland Court of Appeal, 27/02/1998.
[3] [1992] HCA 23; (1992) 175 CLR 1.
[4] Brennan J's oft-cited formulation was used in argument for the defence: Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs have a connection with the land. Id at 70.
[6] [1995] HCA 47; (1995) 183 CLR 373. The High Court stated, at 454, that 'an act which was wholly valid when it was done and which was effective then to extinguish native title is unaffected by the Native Title Act
[7] [1987] HCA 54; (1987) 163 CLR 561.
[8]. Id at 183.
[9] Id, above n5 at 474.
[10] As articulated by Justice Brennan in Mabo. See above n2.
[11] Id, above n5 at 474.
[12] The Criminal Code (Qld) s22.
[13] Id above n7 at 177.
[14] Id above n 1, per McPherson JA at 7, citing Mabo at 49.
[15] Id at 12.
[16] Native Title Act s223(1)(a).
[17] Native Title Act, s223(1)(e).
[18] Above n1, per Moynihan J at 3.
[19] Yanner raises the question of whether the analysis of property rights particular to land in Wik and Mabo can be transposed so unproblematically to all other circumstances involving conflicting property rights.
[20] Above n1, Fitzgerald P at 16.
[21] Ibid.
[22] Id at 17.
[23] '(A) law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency...', above n4 at 152.
[25] Id above at 226-227.