By Thuy Hoai Anh Nguyen, University of Technology Sydney
This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.
Citation: Yanner v Eaton (1999) 201 CLR 351
Court – High Court of Australia
Judges – Gleeson CJ, and Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Date of Judgment – 7 October 1999
FACTS OF THE CASE
Between 31 October and 1 December 1994, Yanner, the appellant, a member of the Gunmulla clan of the Gangalidda tribe, killed two juvenile estuarine crocodiles, using a traditional harpoon, ate a portion of the kill, froze the rest of the meat and the skins of the crocodiles and kept them at his home.
Section 54(1)(a) of the Fauna Conservation Act 1974 (Qld) (‘The Fauna Act’) stipulated:
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.
Yanner did not hold a licence, permit, certificate or other authority granted and issued under the Fauna Act. He was charged in the Magistrates Court of Queensland with one count of taking fauna in breach of the Fauna Act.
Yanner argued that s 211 of the Native Title Act 1993 (Cth) (Native Title Act) applied, which permitted native title holders to engage in fishing activities (which would otherwise be prohibited), where they do so in order to satisfy their personal, domestic or noncommercial communal needs and exercise or enjoy their native title rights and interests.
The Magistrate found that Yanner’s clan had a connection with the area in which the crocodiles were taken. This connection was found to have existed prior to the introduction of the common law in Queensland and to have continued after this time. The Magistrate further found that it was a traditional custom of the clan to hunt juvenile crocodiles.
This argument was accepted by the Magistrate, but subsequently overturned by the Queensland Court of Appeal. Following a grant of special leave, the appellant appealed to the High Court.
- Whether Yanner held a native title right.
- Whether The Fauna Act conferred full beneficial ownership of the crocodiles in the Crown.
- Whether The Fauna Act extinguished any native title right.
A majority of the High Court, Gleeson CJ, Gaudron, Kirby and Hayne JJ, as well as Gummow J in a separate opinion, allowed the appeal.
The exercise of a native title right
According to Gleeson CJ, Gaudron, Kirby and Hayne JJ “The hunting and fishing rights and interests upon which the appellant relied…were rights and interests “possessed under the traditional laws acknowledged, and the traditional customs observed”, by the clan and tribe of which the appellant was a member”. As such, those “rights and interests were recognised by the common law of Australia”.
Gummow J held that the killing of estuarine crocodiles was a “class of activity” within the meaning of s 211 of the Native Title Act and that the rights were recognized by the common law.
Full beneficial ownership
Gleeson CJ, Gaudron, Kirby and Hayne JJ identified that “[b]ecause ‘property’ is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter.” However, Their Honours rejected the argument that The Fauna Act conferred the Crown with full beneficial ownership over the animals for four reasons: first, it was difficult to identify which fauna is owned by the Crown; second, The Act vested limited rights in the Crown in respect of the animals, who were “to remain outside the possession of, and beyond disposition by, humans”; third, The Act itself suggested that the property rights it conferred could not be equated with the property individuals have in domestic animals and; fourth, it was possible that The Act conferred such rights “as a necessary step in creating a royalty system”.
In His Honour’s judgment, Gummow J made some observations about the common law’s treatment of animals as the object of property rights:
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, 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… 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. In contrast, mansuetae naturae found on a fee simple are owned by the landowner.
Gummow J held that the “the legal relations, described in s 7 as the ‘vesting’ of ‘property’, arise only if a person ‘takes’ or ‘keeps’ ‘fauna’”, that is, that the Crown would only come to own the animal when a person took or kept him or her. His Honour held that such rights were “limited to those which may have arisen, … first by way of royalty and, secondly, by penalty exacted from a person who contravened the statutory proscriptions supporting the royalty regime”, these being the relevant statutory interests.
McHugh J found that nothing in the Fauna Act indicated that the Crown should take a more limited form of property than that which the concept ordinarily denotes. Accordingly, his Honour found that “The section gives to the Crown every right, power, privilege and benefit that does or will exist in respect of fauna together with the right, subject to the Act, to exclude every other person from enjoying those rights, powers, privileges and benefits. That is the ordinary meaning of property…”
Callinan J held that the scheme of the Fauna Act evinced an intention that the legislature should have “absolute property” in all fauna to whom the legislation applied.
Gleeson CJ, Gaudron, Kirby and Hayne JJ held that the Fauna Act did not extinguish Yanner’s native title interest. It was observed that “regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence.” Their Honours found this conclusion supported by s 211 of the Native Title Act, which “necessarily” assumed that this kind of prohibition did “not affect the existence of the native title rights and interests in relation to which the activity is pursued.” Accordingly, by virtue of s 211(2) of the Native Title Act and s 109 of the Constitution, Yanner could continue hunting or fishing for crocodiles for “the purpose of satisfying personal, domestic or non-commercial communal needs” notwithstanding the restriction.
Gummow J held that the regulation of hunting inhering in the Fauna Act’s requirement that Indigenous persons obtain licenses in order to hunt “did not abrogate the native title right.” On the contrary, the regulation was consistent with the continuity of that right.
McHugh J held that the legislation precluded Yanner’s reliance on a native title act to hunt the crocodiles;
By declaring that the property in fauna in Queensland is vested in the Crown and then in subsequent sections defining the circumstances in which others may take that property, the Act proclaimed upon its commencement that henceforth no one, land owner, Aboriginal or holder of a grant from the Crown, had any right to kill, take or appropriate fauna as defined.
Callinan J held that, owing 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”, the former had been extinguished by the Fauna Act.
This case illustrates the common conflict between human cultural or spiritual interests in exploiting animals and environmental or welfare based animal protection interests. Where the former are recognised by Commonwealth legislation and the latter by State legislation, by virtue of s 109 of the Constitution, the former will prevail.
The case also highlights the difference between proprietary interests in domestic and wild animals. The former can be subject to absolute ownership whilst the latter, are only capable of qualified ownership and limited property rights.