Eaton v Yanner, ex parte Eaton
[1998] QCA 20
•27/02/1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 10389 of 1996
Brisbane
[Eaton v. Yanner; ex parte Eaton]
BETWEEN:
GRAHAM JOHN EATON
(Applicant) Appellant
AND:
MURRANDOO BULANYI MUNGABAYI YANNER
(Respondent) Respondent
EX PARTE GRAHAM JOHN EATON
Fitzgerald P.
McPherson J.A.Moynihan J.
Judgment delivered 27 February 1998
SEPARATE REASONS FOR JUDGMENT OF EACH MEMBER OF THE COURT,
FITZGERALD P. DISSENTING.
ORDER NISI MADE ABSOLUTE.
THE ORDER DISMISSING THE COMPLAINT IS SET ASIDE.
THE PROCEEDINGS ARE TO BE REMITTED TO THE MAGISTRATES COURT IN
MOUNT ISA AND IT IS DIRECTED THAT THE MATTER PROCEED ACCORDING
TO LAW.
CATCHWORDS: | Criminal law (Qld) - Taking fauna without licence - Defence - Native title rights and interests - Whether traditional interests continue to be recognised by common law of Australia - Effect of Crown ownership of fauna on native title rights and interests - Fauna Conservation Act 1974 (Q.), ss. 7, 54 - Native Title Act 1993 (Cth), ss. 211, 223. |
| Aboriginals - Native title - Usufructuary rights and interests - Hunting for purpose of satisfying personal, domestic or non- commercial communal needs - Whether traditional interests continue to be recognised by common law of Australia - Effect of Crown ownership of fauna on native title rights and interests - Fauna Conservation Act 1974 (Q.), ss. 7, 54 - Native Title Act 1993 (Cth), ss. 211, 223. | |
| Environmental law - Nature conservation - Native title rights and interests - Hunting for purpose of satisfying personal, domestic or non-commercial communal needs - Whether statutory purpose of nature conservation inconsistent with native title right to take fauna - Fauna Conservation Act 1974 (Q.), ss. 7, 54 - Native Title Act 1993 (Cth), ss. 211, 223. | |
| Counsel: | Mr P.A. Keane Q.C. with him Mr G.J. Koppenol for the appellant. Mr A. Vasta Q.C. for the respondent. |
| Solicitors: | Crown Solicitor for the appellant. National Aboriginal and Islander Legal Services Secretariat for the respondent. |
| Hearing Date: | 5 June 1997 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 10389 of 1996
Brisbane
| Before | Fitzgerald P. McPherson J.A. Moynihan J. |
[Eaton v. Yanner; ex parte Eaton]
BETWEEN:
GRAHAM JOHN EATON
(Applicant) Appellant
AND:
MURRANDOO BULANYI MUNGABAYI YANNER
(Respondent) Respondent
EX PARTE GRAHAM JOHN EATON
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 27 February 1998
The respondent is a member of the Gunnamulla clan of the Gungaletta tribe, the traditional
owners of land near Doomadgee in which Cliffdale Creek is located. Between 31 October and
1 December 1994, he killed and took two estuarine crocodiles from Cliffdale Creek, and he and
other members of his clan ate parts of the crocodile meat. At the time, he was not the holder of
a licence, permit, certificate or other lawful authority granted under the Fauna Conservation Act
1974,[1] nor was he protected by sub-s. 54(1)(b) of that Act.
By an Order-in-Council[2] dated 29 August 1974 and published in the Government Gazette on 31
[1] Since repealed by the Nature Conservation Act 1992, which came into force on 19 December 1994.
[2] It is convenient to pass over the respondent’s contention that the Order-in-Council was required to be, but was not, proved. Reference was made to ss. 45 and 48 of the Evidence Act 1977. See, however, s. 36 of the Acts Interpretation Act 1954, “statutory instrument”, sub-s. 43(b) of the Evidence Act, and s. 7 of the Statutory Instruments Act, 1992.
August 1974, estuarine crocodiles had been declared to be “fauna” as defined in s. 5 of the Fauna
Conservation Act. Sub-section 7(1) of that Act provided that “[a]ll fauna, save fauna taken and
kept during an open season with respect to that fauna, is the property of the Crown and under the
control of the Fauna Authority”.[3] By s. 5, “Fauna Authority” meant the Minister and subject to
[3] See also s. 84.
the Minister, the Director. Subject to exceptions provided for in the Act,[4] sub-s. 54(1)(a) made
[4] For example, sub-ss. 27(1) and 54(1)(b).
it an offence to take fauna unless the holder of a licence, permit, certificate or other authority
under the Act.[5]
[5] The argument did not involve other sections of the Fauna Conservation Act, and it does not appear necessary to summarise or analyse the Act in more detail because of the decision in Walden v. Hensler (1987) 163 C.L.R. 561. However, the Act contains a number of provisions authorising the grant of licences, etc.; for example, ss. 30, 43 and 53, Part X Division 1, and ss. 60-64 and 66.
The respondent was charged with a breach of sub-s. 54(1)(a). Although the elements of the offence according to the terms of that subsection were established, the Magistrates Court at
Mount Isa dismissed the charge on 11 October 1996. The complainant obtained an order to
review that decision on 28 November 1996.
In addition to contending that the Order-in-Council by which estuarine crocodiles were declared
to the “fauna” was not properly proved in evidence, the respondent sought to uphold the decision
in his favour on the basis that his conduct was permitted by s. 211 of the Native Title Act 1993
(Cth). The appellant argued that that section had no material operation because the Native Title
Act only applies in relation to native title rights and interests which continued in existence when
that Act came into force, and the respondent’s right to kill and eat the crocodiles had been
extinguished by the Fauna Conservation Act and the material Order-in-Council prior to the
enactment of the Native Title Act.
The appeal proceeded on the basis that the respondent and his clan had had a common law
“native title” right to kill and eat estuarine crocodiles and that factual issues related to the
material provisions of the Native Title Act had been resolved in favour of the respondent.[6] The
[6] See, for example, Mason v. Tritton (1994) 34 N.S.W.L.R. 572; Derschaw v. Sutton (W.A. Full Court, unreported, 16 August 1996).
appellant drew attention to a number of earlier statutory provisions[7] which were accepted as
[7] Native Animals Protection Act 1906, sub-s. 9(c); Animals & Birds Acts 1921, ss. 8A and 17(b); Fauna Protection Act 1937, ss. 15 and 25; Fauna Conservation Act 1952, ss. 6(2) and 78.
consistent with the continued existence of the respondent’s native title right at that time. It was
not argued that the native title right of the respondent and his clan to kill and eat estuarine
crocodiles did not survive those Acts,[8] or their repeal.[9] The appellant’s submission was that the respondent’s native title right was extinguished by the Fauna Conservation Act when estuarine
[8] Cf. Derschaw.
[9] (1995) 121 FLR 87 at 91, 94
crocodiles became fauna for the purposes of that Act by virtue of the Act and the material Order-
in-Council. Reliance was placed on statements in Walden v. Hensler[10] and Wik Peoples v. State
[10] at 434, 492, 495
of Queensland.[11]
[11] (1993) 104 DLR (4th) 470 at 522 Wik Peoples v. State of Queensland & Ors (1996) 141 ALR 129
9 The last of those Acts, the Fauna Conservation Act 1952, was repealed by the Fauna Conservation Act 1974.
10 (1987) 163 C.L.R. 561, at 566-567.
11 (1995-96) 63 F.C.R. 450, at 501.
The respondent did not question the validity[12] of the Fauna Conservation Act and the Order-in-
[12] Under s. 109 of the Commonwealth Constitution. Cf. Mabo v. Queensland (No. 1) (1988) 166 C.L.R. 186, in which the Queensland Coast Islands Declaratory Act was held invalid.
Council, which preceded the Racial Discrimination Act 1975 (Cth).[13] It was implicitly accepted
[13] The Racial Discrimination Act, which implemented Australia’s obligations as a party to the International Convention on the Elimination of all Forms of Racial Discrimination, became law on 31 October 1995.
that, when the Racial Discrimination Act came into effect, it did not invalidate earlier State
legislation which had already extinguished native title rights and interests to the extent that the
State legislation had had that effect. In the circumstances, it is obviously unnecessary to consider
whether material provisions of the Fauna Conservation Act could have been validated by, or
under, the Native Title Act.
That Act was a legislative response to the decision of the High Court in Mabo v. Queensland
(No. 2).[14] It is extremely complex legislation, as is evident from decisions of the High Court in Western Australia v. The Commonwealth[15] and Wik Peoples v. Queensland.[16] Broadly speaking,
[14] (1992) 175 C.L.R. 1.
[15] (1995) 183 C.L.R. 373.
[16] (1996) 141 A.L.R. 129.
so far as presently material, the Act:
(a) recognised that Aboriginal peoples and Torres Strait Islanders had rights and interests[17]
[17] “native title”, now defined in s. 223. See also the definition of “native title holder” in s. 224.
in respect of land and waters according to the common law, and gave that common law
force as a law of the Commonwealth;[18]
[18] ss. 3, 10 and 11.
(b) subjected native title to the laws of Australia, including State and Territory laws which
are consistent with the Act;[19] and
[19] s. 8.
(c) recognised the total or partial[20] extinguishment of native title by inconsistent legislative
[20] To the extent of the inconsistency.
or executive governmental activity, including valid State legislation, which was
sufficiently plain and unambiguous in its intention to do so.[21]
[21] Western Australia v. The Commonwealth, at pp. 442-443, 452-453; Mabo [No. 2], e.g. at pp. 64, 188, 192, 196; Wik Peoples v. Queensland (1996) 141 A.L.R. 129..
A sufficient understanding of the presently material provisions of the Native Title Act can be
gleaned from two passages in the joint judgment of six members of the High Court[22] in Western
[22] Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh JJ.
Australia v. The Commonwealth. The first passage[23] is as follows:
[23] pp. 452-455.
“3. The Native Title Act: its constitutional character As native title survived the establishment of the Colony of Western Australia and as the WA Act failed in its purpose of extinguishing native title, native title survived or was capable of surviving in Western Australia as at 1 January 1994, when the substantive provisions [Except Pt 10] of the Native Title Act commenced operation. The common law concept of ‘native title’ is incorporated into the definition contained in s 223(1) of the Act:
‘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.’
It is unnecessary to consider sub-s (3) of s 223 which brings within the definition of ‘native title’ statutory rights and interests into which native title rights and interests have been compulsorily converted.
The constitutional character of the Native Title Act is determined by reference to its operation [Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1 at 7, 16]. Its operation must be ascertained not only from its terms but from the circumstances in and upon which the Act takes effect and the change it makes in the law [The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 152, 245]. Under the common law, as stated in Mabo [No.2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title. Three aspects of the operation of the Native Title Act are of central importance to its constitutional character: the recognition and protection of native title, the giving of full force and effect to past acts which might not otherwise have been effective to extinguish or impair native title and the giving of full force and effect to future acts which might not otherwise be effective to extinguish or impair native title. The key provisions are to be found in Pt 2 of the Act, the terms used therein being defined in Pt 15.
The recognition and protection of native title
The first of the enacted objects of the Native Title Act is ‘to provide for the
recognition and protection of native title’ (s 3(a)). This object is achieved by a
statutory declaration (s 11(1)) that native title ‘is not able to be extinguished
contrary to this Act.’ The protection given to native title by this provision
removes its vulnerability to defeasance at common law by providing a prima facie
sterilisation of all acts which would otherwise defeat native title. By that prima
facie sterilisation, s 11(1) ensures that the exceptions prescribed by other
provisions of the Act which permit the extinguishment or impairment of native
title constitute an exclusive code. Conformity with the code is essential to the
effective extinguishment or impairment of native title. The Native Title Act thus
governs the recognition, protection, extinguishment and impairment of native
title.Of course, as this Court held in Mabo [No. 1], native title was substantially protected against extinguishment by the Racial Discrimination Act on and after 31 October 1975. But the Native Title Act expressly makes ‘valid’ - a term which is defined to include ‘having full force and effect’ (s 253) - certain ‘past acts’ that affect native title to the exclusion of the protection extended by the Racial Discrimination Act. Although s 7(1) of the Native Title Act provides that nothing in that Act ‘affects the operation of the Racial Discrimination Act 1975', s 7(2) declares that s 7(1) ‘does not affect the validation of past acts by or in accordance with this Act.’ [Although nothing in the Native Title Act affects the operation of the Racial Discrimination Act, nothing in the Racial Discrimination Act is capable of affecting the operation of the Native Title Act truly construed. However, to construe the Native Title Act and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act if that construction would remove the ambiguity.] Past acts and ‘future acts’ are defined by Div 2 of Pt 15 of the Native Title Act. These definitions are carefully drafted to comprehend a large number of qualifying factors. Any attempt to summarise their terms and the substantive provisions of Pt 2 with which they interlock will inevitably be inexact, but a summary must suffice to expose the salient features of the Act that are relevant to its constitutional character.
An ‘act’, whether past or future, includes the making, amendment or repeal of any legislation, ... (s 226). The definition of ‘past act’ (s 228) distinguishes in point of terminal date [An act (other than the enactment of a law) done on or after 1 January 1994 may also be within the definition if the act is done in exercise of some anterior right to do the act or to have the act done: s 228(3)-(9). The terminal date for legislative acts prevents the WA Act from satisfying the definition of a ‘past act’.] between the enactment of a law (1 July 1993) and other ‘acts’ (1 January 1994). To be a ‘past act’, the act done before the terminal date must have been ‘invalid’ to some extent on account of the existence of native title. As the chief, and perhaps the only, way in which the existence of native title might have produced invalidity in a past act attributable to a State or Territory is by attracting the overriding operation of the Racial Discrimination Act, the definition of past acts gathers in those legislative and other acts which discriminated, albeit unintentionally, against the Aboriginal and Torres Strait Islander holders of native title. The overriding operation of the Racial Discrimination Act would have made inconsistent State and Territory laws inoperative or would have required the reading down of State and Territory laws so as to be consistent with the Racial Discrimination Act. ... The definition of ‘past act’ is the lynchpin for the provisions of the Native Title Act which permit State laws enacted in the future to give full force and effect to earlier acts which purported to extinguish or impair native title but which were ineffective at the time when the acts were done.
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 [On 31 October 1975] the Parliament has chosen to include certain legislative and executive acts of the Crown within the definition of ‘past acts’. Section 14 then confers (or confirms, if only to remove doubt) validity on the past acts of the Commonwealth. Section 19(1) permits State and Territory laws enacted in the future to confer (or confirm, if only to remove doubt) validity on the past acts of the State or Territory. ...
The provision authorising the future validation of past acts attributable to a State is not affected by the principle that a law of the Commonwealth cannot retrospectively avoid the operation of s 109 of the Constitution on a State law that was inconsistent with a law of the Commonwealth [University of Wollongong v. Metwally (1984) 158 CLR 447.] Section 19 of the Native Title Act does not purport to deny the overriding effect of the Racial Discrimination Act upon any inconsistent law of a State in the past. Section 19 removes any invalidating inconsistency between, on the one hand, a State law enacted in the future that purports to validate past acts attributable to a State and, on the other, the Racial Discrimination Act or any other law of the Commonwealth (including the Native Title Act itself). The validation of past acts attributable to a State is effected by a State law which, at the time of its enactment, is not subject to an overriding law of the Commonwealth. The force and effect of a past act consisting of a State law which was ‘invalid’ by force of s 109 of the Constitution because of inconsistency with the Racial Discrimination Act is recognised only from and by reason of the enactment of the future State law but, from that time onwards, the force and effect of the past act is determined by the terms of the State law enacted in conformity with s 19.”
Section 211 of the Native Title Act was not mentioned in that passage.[24] However, it was
[24] Nor was s. 211 of the Native Title Act mentioned in Wik.
discussed later in the joint judgment in Western Australia v. The Commonwealth, as will be seen.
It is desirable first to set out s. 211, together with 223 and 224. Those provisions are as follows:
“Preservation of certain native title rights and interests
Requirements for removal of prohibition etc. on native title holders
211.(1) Subsection (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 subsection (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 non- commercial 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.
...
Native title
Common law rights and interests
223.(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 subsection (1), ‘rights and interests’ in that subsectionincludes hunting, gathering, or fishing, rights and interests.
Statutory rights and interests
(3) Subject to subsection (4), if native title rights and interests as defined by
subsection (1) are, or have been at any time in the past, compulsorily converted
into, or replaced by, statutory rights and interests in relation to the same land or
waters that are held by or on behalf of Aboriginal peoples or Torres Strait
Islanders, those statutory rights and interests are also covered by the expression
‘native title’ or ‘native title rights and interests’....
Native title holder
224. 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.”
Section 211 was the subject of a number of separate questions in Western Australia v. The
Commonwealth.[25] Its validity was upheld, and its operation was described in the joint judgment
[25] Questions 7, 10 and 11.
as follows:[26]
[26] p. 474.
“The usufructuary rights comprehended by sub-s (3) are, by virtue of sub-s (2)(b), rights and interests which are incidents of native title. They are, by definition (s 223(1)), rights and interests that are recognised by the common law and, by operation of s 11(1), they cannot be extinguished except in conformity with the Act. Section 211(2) removes the requirement of a ‘licence, permit or other instrument granted or issued ... under the law’ referred to in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in sub-s (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 s 211, are to be enjoyed without the necessity of first obtaining ‘a licence, permit or other instrument’. Again, the effect of s 211 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 s 211.”
There is authoritative support for the appellant’s general proposition that the Native Title Act
only applies in relation to native title rights and interests which continued in existence when that
Act came into force. Thus, for example, in discussing the general scheme of the Native Title Act
and its fundamental effects for the purpose of determining its constitutional validity, it was said
in Western Australia v. The Commonwealth[27] that “[a]n act [28] which was wholly valid when it
[27] 183 C.L.R. 373.
[28] State legislation is an “act” as defined in s. 226 of the Native Title Act.
was done and which was effective then to extinguish or impair native title is unaffected by the
Native Title Act.”[29] There is also authoritative support for the appellant’s general propositions
[29] Western Australia v. The Commonwealth at p. 454 per Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh JJ; cited in Wik at p. 219 by Gummow J. See also Djaigween v. Douglas (1994) 48 F.C.R. 535, 541; Yuin Council of Elders Aboriginal Corporation v. New South Wales (1995) 60 F.C.R. 501, 508.
that an unequivocal vesting or appropriation of the full beneficial ownership of property by the
Crown in or for itself will effect an extinguishment of native title,[30] and lawful legislative or
[30] Mabo [No. 2], pp. 50, 69-70, 110; Western Australia v. The Commonwealth, pp. 434, 492, 495; Re. Selpam Pty Ltd (1995) 121 F.L.R. 87, at pp. 91, 94, 95.
executive grants of property to other persons which are inconsistent with the continued existence
of native title rights and interests extinguish those rights and interests to the extent of the
inconsistency.[31] However, in my opinion, the solution to the present dispute cannot be found in
[31] Wik, at pp. 184, 209, 220, 233, 284; Mabo [No. 2], at pp. 68, 111; Western Australia v. The Commonwealth, at p. 442; Delgamuukw v. British Columbia (1993) 104 D.L.R. (4th) 470, 522.
those general propositions, which give no convincing indication that s. 211 of the Native Title
Act is not intended to operate according to its terms. While the Native Title Act has only prospective, not retrospective operation,[32] it came into effect prior to the conduct of the
[32] However, there is nothing to suggest that the Native Title Act is confined to future laws which meet the tests prescribed in sub-ss. 211(1)(b) and (c).
respondent which is the subject of the present charge under sub-s. 54(1)(a) of the Fauna
Conservation Act. Section 211 of the Native Title Act therefore has potential application to the
operation of sub-s. 54(1)(a) of the Fauna Conservation Act with respect to the respondent’s
conduct. The critical issues for decision are the meaning of s. 211 in the context of ss. 223 and
224, and the operation of s. 211 upon the Fauna Conservation Act and the material Order-in-
Council. In resolving those issues, it is necessary to bear in mind that, as the appellant pointed
out, the present tense is used in sub-ss. 211(1)(a),[33] 223(1),[34] and 224(b)[35] of the Native Title Act The history of the insertion of s. 211 into the Native Title Act indicates that particular provision
[33] “consists of or includes”.
[34] “are possessed” (sub-s. 223(1)(a)), “have” (sub-s. 223(1)(b)) and “are recognised” (sub-s. 223(1)(c)).
[35] “hold”.
with respect to a special subject was made incrementally to the general legislative scheme. The
clause which became s. 211 was not in the Bill when it was introduced into Parliament, and was
not dealt with in the Explanatory Memorandum or in the Second Reading Speech.[36] The clause
[36] By the Prime Minister in the House of Representatives on 16 November 1993: see Parliamentary Debates, Vol. H of R 190, pp. 2877-2883.
was introduced by amendment in the Senate.[37] The considerable discussion in that Chamber
[37] Parliamentary Debates, 16 December 1993, Vol. S161, pp. 5440-5454.
reveals that it was intended that conduct which otherwise would only be lawful if licensed under
a State law be lawful for indigenous people without such a licence subject to the limitations
prescribed by the section; for example, hunting in accordance with traditional laws and customs
in areas to which the indigenous person or group is traditionally connected, and for personal,
domestic or non-commercial communal needs.[38] When the Bill was returned to the House of
[38] The stated purpose of s. 211 was “... to ensure that Aboriginal people are not prevented from exercising their inherent native title rights and interests in circumstances where state and Commonwealth laws allow others to engage in those activities. The amendment does not prevent a state or the Commonwealth from prohibiting a native title activity where it is necessary, for example, for genuine conservation reasons, but it does prevent them from doing so while allowing others to engage in that same activity. In other words, the amendment prevents laws from having a discriminatory operation on Aboriginal people whose rights to conduct certain activities can sometimes be traced back many thousands of years.
Representatives on 22 December 1993, the amendments were agreed to on the motion of the Prime Minister.[39] If it is permissible to refer to the parliamentary material,[40] it tends to support
[39] Parliamentary Debates, Vol. H of R 191, pp. 4541 ff.
[40] Acts Interpretation Act, sub-s. 15AB(1)(a).
a construction of s. 211 which is favourable to the respondent.
At its broadest, the appellant’s argument was that any law which satisfied sub-ss. 211(1)(b) and
(c) would have extinguished native title rights and interests and that the Fauna Conservation Act
with the material Order-in-Council satisfied those provisions. Obviously, if that is correct and
sub-s. 211 (1)(a) applies only to native title rights and interests which continued to exist when
the Native Title Act became law, s. 211 missed most of its target. On the appellant’s hypothesis,
s. 211 can only operate with respect to statutory rights and interests which are native title rights
and interests by virtue of sub-s. 223(3). That is to say, s. 211 is only applicable if previously
existing native title rights and interests had earlier been “compulsorily converted into, or replaced
by, statutory rights and interests in relation to the same land and waters that are held by or on
behalf of Aboriginal peoples or Torres Strait Islanders”.[41] In my opinion, the use of the present
[41] See sub-s. 223(3). It was not argued that an entitlement to apply for a licence, etc., was a statutory right or interest within the meaning of sub-s. 223(3).
tense in ss. 223 and 224 of the Native Title Act is insufficient to justify such a restrictive
operation for s. 211, in disregard of the apparent purpose of that section according to both its
language and the parliamentary material. The premise underpinning s. 211 is that a law does not
extinguish native title rights and interests, and thereby exclude the operation of the section, or
accord it only a minimal operation, merely because the law satisfies sub-ss. 211(1)(b) and (c). The appellant next argued that, even if all prior laws which satisfied sub-ss. 211(1)(b) and (c) of
the Native Title Act had not for that reason extinguished pre-existing native title rights and
interests, the Fauna Conservation Act and the material Order-in-Council did so because of s. 7
of that Act.[42] It was submitted that the assertion of Crown ownership of the property in fauna
[42] And implicitly some other legislation might do so because of some provision additional to provisions which satisfy sub-ss. 211(1)(b) and (c) of the Native Title Act.
by s. 7 of the Act, taken in conjunction with its other provisions, notably sub-s. 54(1)(a),
manifested a legislative intention by the Queensland Parliament to extinguish the respondent’s
pre-existing native title right to kill and eat estuarine crocodiles[43].
[43] Mabo [No. 2]; Western Australia v. The Commonwealth; Wik.
As earlier stated, the appellant relied on the decision of the High Court in Walden v. Hensler.[44]
[44] 163 C.L.R. 561.
The passage which provides most assistance to the appellant is the following statement by
Brennan J.:[45]
[45] Ibid. at p. 567
“... 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).”
However, the point there discussed by his Honour was not in issue in the case. And the Native
Title Act had not been enacted.
In Walden, a majority of the High Court[46] upheld the conviction of an Aborigine for an offence against sub-s. 54(1)(a) of the Fauna Conservation Act. The Aborigine was not the holder of a
[46] Brennan, Deane and Dawson JJ.; Toohey and Gaudron JJ. dissenting.
licence, permit, certificate or other authority under that Act, and the issue was whether s. 22 of
the Criminal Code provided a defence on the basis that, although he had not been legally entitled
to take the fauna, the Aborigine believed that he was entitled to do so in accordance with
Aboriginal custom. Brennan J. himself demonstrated the lack of significance held by the
passage quoted above, for present purposes, by later going on to say:[47]
[47] p. 575. See also per Toohey J. at p. 600 and Gaudron J. at p. 606.
“... The gist of the offences created by s. 54 is the physical destruction or control of fauna, irrespective of any rights over or in respect of fauna which might be vested in any person. The acts prohibited by s. 54 are not defined as having the consequence of infringing another's rights. It may be that, by reason of s. 7, any act which is done in contravention of s. 54 will infringe the rights of the Crown, but infringement is not an element of any offence created by s. 54. It is immaterial for the purposes of s 54 whether or not fauna is the property of the Crown (or, after an amendment of the Act in 1984, of an ‘authorized person’: see s. 7(1A)). Standing alone, s. 54 does not create an offence relating to property.
“Does the existence of s. 7 turn an offence created by s. 54 into an offence relating to property? I think not. If an infringement of the Crown's rights in protected fauna is not an element of the offences created by s. 54, the vesting of such rights in the Crown does not add the qualifying element to the offence. Section 54 has the same meaning and effect whether or not regard is had to s. 7: it is a provision calculated not to protect the Crown's or any other person's rights over or in respect of fauna but to protect fauna from destruction or control. ...”
Deane J. said:[48]
[48] pp. 582-583.
“... That provision [s.7] provides a basis of the royalty system which Part XI of the Act establishes. If the offence of taking or keeping fauna without authority under the Act, which s. 54 creates, could properly be seen as an incident of that royalty system or as designed to protect the property rights of the Crown in fauna, there would be force in the view that an honest belief of ownership of the fauna or of the existence of traditional hunting rights in relation to it might constitute the foundation of a defence of ‘claim of right’ under s. 22 of the Code. Close examination of the Act as a whole discloses, however, that so to see the offence created by s. 54 would be to misunderstand both the nature and purpose of that section.
“The provisions designed to ensure the observance of the Act's royalty system are to be found in Part XI itself: ... Section 54 is in Part IX which is concerned with the general regulation, for conservation purposes, of the keeping and protecting of fauna, including fauna taken before the commencement of the Act. The provisions of s. 54 and the other sections in Part IX are neither based upon nor restricted by reference to the royalty system which the Act establishes or the proprietary rights of the Crown which the Act proclaims. In its context in Part IX, s. 54 is properly to be seen as a general conservation provision for the protection of ‘fauna in its habitats’: see the Act, long title. Neither failure to pay royalty, which is an offence under Part XI (s. 69), nor interference with the proprietary or possessory interest of the Crown in fauna constitutes an element of the offence created by s 54. Both the fact that the prescribed amount of royalty has been paid and the identity of the holder of any proprietary or possessory rights in the fauna are irrelevant to an offence against the sub-section. ... [T]he general words of s. 54(1) are such as to make the taking or keeping of prescribed fauna by a person an offence regardless of whether the person is exercising what would, if the criminal law creating the offence had not been enacted, have been rights of ownership or traditional rights of hunting with respect to that fauna. ... In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights. Accordingly, the defence of honest claim of right was not available to the appellant in the circumstances of the present case.”
Dawson J. said:[49]
[49] pp. 593-594.
“... s. 54(1)(a) imposes a prohibition against the keeping of fauna which is of general application irrespective of any proprietary or lesser right in the fauna and so affords no scope for the exercise of any claim of right.” (emphasis added)
The judgment of Deane J. in Walden explained the nexus between the Crown’s ownership of
fauna under s. 7 and the royalty scheme in Part XI of the Fauna Conservation Act. The statutory
scheme of Crown ownership and control of “fauna” was broadly consistent with the common law
principle that wild animals are incapable of ownership until killed or caught,[50] which was not
[50] See, for example, Walden at p. 566 per Brennan J. and p. 605 per Gaudron J.; Wik Peoples (1995- 96) 63 F.C.R. 450 at p. 501 per Drummond J..
affected by the recognition of common law “native title”. In Mabo (No. 2), it was observed that
the only common law rights of individual Aborigines might be “usufructuary rights” - including
the right to hunt, take and kill - “that are not proprietary in nature”.[51] However, the Fauna
[51] Pp. 51-52, per Brennan J.
Conservation Act did not seek to establish a comprehensive, cohesive, statutory scheme relating
the requirement of a “licence, permit, certificate or other authority” or an offence against sub-s.
54(1)(a) to Crown ownership of fauna. On the contrary. For example, sub-s. 7(1) provided that
“fauna taken and kept during an open season with respect to that fauna” either did not become,
or ceased to be, “the property of the Crown”. Nonetheless, a permit was required to take
protected fauna during an open season in respect of that protected fauna.[52] Conversely, no
[52] Sub-s. 30(1).
“licence, permit, certificate or other authority” was required to take “non-protected fauna”,[53]
[53] Sub-s. 27(1).. See also sub-s. 54(1)(b).
notwithstanding that “non-protected fauna” appears to have been the property of the Crown. 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
exercise of the right to kill and eat fauna but as an incident of the regulation of that right.
It is instructive to notice some further remarks of Brennan J in Mabo [No. 2]. His Honour said:[54]
[54] At p. 64.
“A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title, or which creates a regime of control that is consistent with the continued enjoyment of native title.”
Later, he added:[55]
[55] At p. 68.
“Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished.”
Finally, in the course of a summary, he said:[56]
[56] At pp. 69-70.
“5. Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use... and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (e.g., land set aside as a national park).”
There is no reason to doubt that Brennan J.’s statements in relation to native title rights and
interests with respect to land are equally applicable in relation to other property, including
“fauna”. In particular, nature conservation and native title rights and interests are not necessarily
mutually exclusive.
In the course of argument, reference was made to the decision of the High Court in Thorpes
Limited v. Grant Pastoral Company Proprietary Limited[57]. Thorpes held that the Water Act
[57] (1954) 92 C.L.R. 317.
1912 (N.S.W.) had not deprived a landowner of his right to complain that water, silt and debris
had been thrown on his land by an obstruction made to the channel or natural flood channel of
a stream without lawful justification or excuse. The leading judgment was delivered by Fullagar
J.,[58] who said:[59]
[58] So far as presently material, Dixon C.J., Webb and Kitto and, perhaps, McTiernan JJ. agreed.
[59] At p. 328.
“The argument for the defendant appellant is that the plaintiff's action is an action for damages for the infringement of a right in respect of water, a right vested in it by virtue of its ownership of riparian land, and that in New South Wales no private person has had any such right since the enactment of the Water Rights Act 1896. Section 1 of that Act provided, so far as material, that ‘The right to the use and flow and to the control of the water in all rivers and lakes which flow through or past or are situate within the land of two or more occupiers shall, subject only to the restrictions hereinafter mentioned, vest in the Crown. And in the exercise of that right the Crown by its officers and servants may enter any land, and take such measures as may be thought fit or may be prescribed for the conservation and supply of such water as aforesaid and its more equal distribution and beneficial use, and its protection from pollution and for preventing the unauthorised obstruction of rivers’. The ‘restrictions’ referred to are then set out: the only one that need be mentioned is that which makes the rights of the Crown subject to the right of a riparian owner to use the water of a river or lake for domestic purposes or for stock or for the irrigation of a garden not exceeding five acres in area. The Act of 1896 has been repealed, and the relevant statutory provision now in force is s. 4A of the Water Act 1912-1946 which does not differ materially in terms from s. 1 of the Act of 1896. ...”
After deciding that the defendant appellant’s argument failed,[60] his Honour went on to consider
[60] p. 329.
decisions which had been relied upon for the defendant appellant, and said:[61]
[61] p. 331.
“I should have thought, ... , that the real object of the Water Rights Act 1896, as revealed by the latter part of s. 1, was to enable the Crown, in a country in which water is a comparatively scarce and important commodity, to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destroy anybody's rights, but it was necessary to give to the Crown, or to some statutory authority, overriding rights to which private rights must, if need arise, give way.
... The view which I am disposed to take is that the Act does not directly affect any private rights, but gives to the Crown new rights - not riparian rights - which are superior to, and may be exercised in derogation of, private riparian rights, but that, until those new and superior rights are exercised, private rights can and do co-exist with them. ...”
While what was said there cannot be directly transferred to the present dispute, Thorpes is
consonant with a conclusion that Crown ownership of fauna which may be killed and eaten
provided that a licence is first obtained does not necessarily extinguish a pre-existing native title
right to kill and eat the fauna, but rather is one element of a statutory scheme which conditions
the pre-existing native title right to the acquisition of a licence. If that is so, the position is
precisely that at which s. 211 of the Native Title Act is directed.
Ultimately, the issue is whether the Fauna Conservation Act, taken as a whole and with the
material Order-in-Council, was practically incompatible with the continued, albeit conditional,
native title right of the respondent to kill and eat estuarine crocodiles. For this purpose, it is, in
my opinion, legitimate to have regard to both the terms and the purpose of the Fauna
Conservation Act. That Act did not prohibit, but merely regulated, the material activity. It did
not exclude the killing of fauna; while it limited that activity, it expressly authorised it in
specified circumstances and subject to specified conditions. Relevantly, the only condition, and
the extent of any inconsistency between the respondent’s native title right and the Fauna
Conservation Act, was the Act’s insistence upon acquisition of a licence, which is the direct
subject of sub-s. 211(1)(b) of the Native Title Act.
Finally, I have derived some assistance from the obiter statements of Kirby P. in Mason v.
Tritton.[62] In that case, an Aborigine was charged with breaches of regulations 34(1)(c) and 44(2)
[62] (1994) 34 N.S.W.L.R. 572, at pp. 590-593.
of the Fisheries and Oyster Farms (General) Regulation 1989, which had been made under the Fisheries and Oyster Farms Act 1935 (N.S.W.). The first of the two regulations prohibited
possession of more than a specified number of abalone without a licence or permit, and the
second prohibited shucking abalone in or on or adjacent to any waters by a person other than a
licensed fisherman. The Aborigine argued unsuccessfully that he had a native title right to fish
in the relevant waters, his appeal being dismissed because of the inadequacy of the evidence upon
which he relied. However, Kirby P. went on to “consider whether, assuming the appellant’s
claim to native title to have been properly made out, the Regulation would, in any case, have
extinguished such native title. Or whether it merely regulates the exercise of the entitlements
under such title.”[63]
At p. 591, His Honour said:
“Generally, ‘the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the legislature or by the Executive’: see Mabo (at 64) per Brennan J. The requirement that there be a clear and plain intention to extinguish the entitlements of indigenous peoples accords with the approach adopted in Canada, the United States and New Zealand: see the cases cited by Brennan J in Mabo (at 64, notes 76 and 77). No clear and plain intention to extinguish native title is revealed by a ‘law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title’: see Mabo (at 64) per Brennan J. ...”
After further discussion of the judgment of Brennan J. in Mabo [No. 2], Kirby P. concluded as
follows:[64]
[63] pp. 590-591.
[64] At pp. 592-593.
“Assuming the appellant's claim to native title to have been made out, and assuming the large legislative power of the New South Wales Parliament to extinguish, modify or regulate such title, a number of comments can be made in considering the application of the above principles:
1. Neither the provisions of the Fisheries and Oyster Farms (General) Regulation 1989 nor the Fisheries and Oyster Farms Act 1935 reveal a clear and plain intention to extinguish native title as such. Thus, native title is not extinguished by any express manifestation of parliament's will.
2. The application of the Regulation to the appellant is not such that, as a matter of practical effect, the Regulation is so inconsistent with the appellant's continued enjoyment of his native title that the Regulation would necessarily be deemed to have extinguished his native title. Indeed, the practical effect of the Regulation is merely to regulate the activities of all those who fish the waters of New South Wales in an equal manner. This aspect is further discussed below. Hence, without more, the practical operation of the Regulation does not, by implication, extinguish native title or rights derived from such title.
3. Upon this view, the Regulation merely regulates the enjoyment of native title. The Regulation was made pursuant to s 4N of the Fisheries and Oyster Farms Act 1935. That section provides that regulations may be made ‘for the management of the fishery’ (s 4N(1)(a)). The Regulation in question limited the permissible catch of, among other ocean dwelling creatures, abalone. It prohibited the shucking of abalone adjacent to the waters. In R v Sparrow (1990) 70 DLR (4th) 385, the Supreme Court of Canada considered a claim similar to that made in the present case. In Sparrow, the accused was charged under s 61(1) of the Fisheries Act 1970 (Can) of a contravention of the regulations made pursuant to that Act. The accused had used a longer than permissible drift-net. Section 34(a) of that Act bestowed on the Governor in Council broad powers to make regulations, including ‘for the proper management and control of the seacoast and inland fisheries’. Dickson CJC and La Forest J said (at 400-401): ‘At bottom, the respondent's argument confuses regulation with extinguishment. That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished.’ The same distinction would, in my view, be applicable in the present case. The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulation establishes a regime of control of the New South Wales fisheries in a manner amounting to stringent regulation, but not extinguishment, of any otherwise established proprietary right. No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property are so curtailed that proprietary rights can no longer be enjoyed. Whether that is the case is ultimately a question of fact. It is not, in my opinion, the case here. In the ordinary case, control and regulation of the rights and privileges associated with property ownership is consistent with continued property ownership. Indeed, civilised societies demand that proprietary rights and interests be highly regulated. I do not take it to be the intent of the High Court in Mabo that successful claimants to a form of native title should then be able to remove themselves from the ordinary regulatory mechanisms of Australian society. In the particular context of this case, the control and the regulation of fishing activity applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise.”
Those statements seem to me to assist the respondent, especially since the material intent for
present purposes is not that of the High Court in Mabo [No. 2] but that of the Commonwealth
Parliament as manifested by s. 211 of the Native Title Act.
In my opinion, the Crown’s ownership of estuarine crocodiles after the Order-in-Council was
gazetted neither increased nor decreased the respondent’s right to kill crocodiles. Irrespective
of any question of ownership, his native title right to kill and eat those crocodiles was not
extinguished, but rather was subjected by sub-s. 54(1)(a) of the Fauna Conservation Act to a
condition, namely, that he first possess a licence, permit, certificate or other lawful authority
granted under that Act. He was therefore prohibited by that Act from killing estuarine crocodiles
“other than in accordance with a licence, permit or other instrument granted or issued” within the
meaning of s. 211(1)(b) of the Native Title Act.[65] That continued to be the legal position until
[65] Native Title Act, sub-s. 211(1)(b).
the operation of the Fauna Conservation Act was “suspended”[66] by s. 211(2) of the Native Title
[66] Western Australia v. The Commonwealth, p. 474.
Act, which, by way of the operation of s. 109 of the Constitution, “removes”[67] the requirement
[67] Western Australia v. The Commonwealth, p. 474.
for such a licence, etc..
Accordingly, I consider that the charge against the respondent was correctly dismissed.
The order to review should be discharged, with costs to be taxed.
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | Appeal No. 10389 of 1996 |
| Brisbane | |
| Before | Fitzgerald P. McPherson J.A. Moynihan J. |
[Eaton v. Yanner; ex parte Eaton]
BETWEEN:
GRAHAM JOHN EATON
(Applicant) Appellant
AND:
MURRANDOO BULANYI MUNGABAYI YANNER
(Respondent) Respondent
EX PARTE GRAHAM JOHN EATON
REASONS FOR JUDGMENT - MOYNIHAN J.
Judgment delivered 27 February 1998
This is an application for an order to review pursuant to s.209 of the Justices Act 1886
(Qld). The decision sought to be reviewed is a magistrate’s dismissal of a charge that the
respondent had breached s.54(1)(a) of the Fauna Conservation Act 1974 (Qld) by taking two
estuarine crocodiles on separate occasions between 31 October and 1 December 1994 without
being the holder of a licence, permit, certificate or other authority under the Act.
Estuarine crocodiles were declared to be “fauna” in terms of the Fauna Conservation Act
by an order in council of 29 August 1974 published in the Government Gazette of 31 August.
Although a copy of the gazettal was not received into evidence below, s.43 of the Evidence Act
1977 (Qld) required the magistrate to take judicial notice of the Order-in-Council and the date
on which it came into operation.
The magistrate found the respondent had harpooned, killed and taken two estuarine
crocodiles from an area called Cliffdale Creek in far north Queensland and, together with other
members of his clan, eaten parts of the crocodile meat. Other findings included that the
defendant’s people had occupied and hunted in the area for generations.
The respondent was acquitted on the basis that he had the benefit of s.211(2) of the
Native Title Act 1993 (Cth) which operated to remove any prohibition effected by s.54(1)(a) of
the Fauna Conservation Act on the respondent's exercise of his native title rights. It was
submitted for the applicant that this constituted an error of law, essentially because the
respondent’s native title rights in respect of the taking of estuarine crocodiles had been
extinguished by the operation of the Fauna Conservation Act before the Native Title Act came
into operation. It was submitted for the respondent that his right had not been extinguished by
the Fauna Conservation Act and that in any event the Native Title Act, permitted him to take the
crocodiles notwithstanding any provision of the Fauna Conservation Act.
The appeal proceeded on the basis that the evidence established the elements of the
offence charged and that (subject to the effect of the Fauna Conservation Act), the respondent
had a common law native title right to take estuarine crocodiles. The validity of the Fauna
Conservation Act was not in issue. It was accepted that the factual issues founding the
application of the relevant provisions of the Native Title Act, to which it will be subsequently
necessary to turn, were resolved in the respondent's favour.
In the light of those considerations, it seems to me that the appeal turns on two
considerations; whether the Fauna Conservation Act extinguished the respondent's rights to take
the estuarine crocodiles, and the effect of the Native Title Act on his conduct.
When estuarine crocodiles became fauna in terms of the Fauna Conservation Act, as a
consequence of the Order-in-Council of August 1974, the effect of s.7 of the Act was that they
became the property of the Crown. The Act provided that the estuarine crocodiles were under
the control of the Fauna Authority (the Minister and subject to the Minister the Under-Secretary,
s.5), constituted by the Act, while s.54 prohibited their taking without authority. It should be
noted that until 1974 Queensland legislation expressly excepted “any aboriginal killing any native
(animal or fauna) for his own food” from prohibition against taking fauna, but there is no such
provision in the 1974 Act.
Native title rights may be expressly or impliedly extinguished by valid State legislation;
Mabo & Ors v. The State of Queensland (No.2)[1], (Mabo No.2) [2] and The State of Western
Australia v. The Commonwealth[3].
It seems to me that the Fauna Preservation Act extinguished the respondent’s common
law right to hunt and take estuarine crocodiles, once the Order-in-Council of August 1974
declared them to be fauna. It is difficult to see how the unconditional vesting of property in the
Crown, in conjunction with the vesting of control and the prohibition of unauthorised taking, left
any scope for the operation of the respondent’s common law rights with respect to estuarine crocodiles. The legislation goes beyond regulating the exercise of entitlements under common
law native title; cf. Mabo No.2,[4] Mason v. Tritton[5].
Reference was made to Thorps Limited v. Grant Pastoral Company Pty Ltd[6]. In that case
provisions of the Water Rights Act 1896 (NSW) vested in the Crown the right to the use of the
flow and to the control of water in rivers and lakes. The purpose of the Act was to enable the
Crown to exercise full dominion over the water of rivers and lakes and to undertake generally the
conservation and distribution of water. To that end it was necessary to give the Crown overriding
rights to which private rights must, if needs be, give way but, subject to that, it was not necessary
to destroy anybody else’s rights; see per Fullager J. at 331. The Act was therefore held not to
deprive a land owner of a right to complain that an obstruction made in the channel or a stream
without lawful justification or excuse had caused damage to his land by throwing water, silt and
debris on it. In other words, Thorpe conditioned extinguishment on the exercise of the superior
right of the Crown given by the Act to the necessity of the particular circumstances.
The difficulty of applying that approach to this case seems to me to lie in the fact that the
Fauna Conservation Act vests the property in the Crown, control in the Authority and prohibits
the unauthorised taking of fauna and the combined effect of those consequences is inconsistent
with the respondent’s rights. The position would perhaps be arguably different if s.54 arose for
consideration in isolation or if s.7 dealt simply with the vesting of control and s.54 prohibited
unauthorised taking, cf. Thorpe[7].
It is the unequivocal nature of the effect of the provisions of the Native Title Act and the
comprehensioness of that effect which extinguishes the respondent’s native title, cf. Mabo No.2[8];
Re Selpham Pty Ltd9; Western Australia v. The Commonwealth10 and Delagmwukw v. British
Columbia11.
I turn now to a consideration of the Native Title Act. On the view I take of the matter, the
respondent’s title had been extinguished by the Fauna Conservation Act when the Native Title
Act became law.
Those provisions of the preamble to the Native Title Act of most direct relevance
include:-
"This preamble sets out considerations taken into account by the Parliament of Australia in enacting the law that follows.
. . . .
The High Court has:
(a) rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement; and
(b) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and
(c) held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates.
The people of Australia intend:
(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and
(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
. . . . Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done."
Sections 10, 11 and 12 provide:-
“10. Native title is recognised, and protected, in accordance with this Act.
11.(1) Native title is not able to be extinguished contrary to this Act.
(2) An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:
(a) in accordance with Division 3 of Part 2 (which deals with future acts and native title); or
(b) by validating past acts in relation to the native title.
12. Subject to this Act, the common law of Australia in respect of native title has,
after 30 June 1993, the force of a law of the Commonwealth.”
Section 211 of the Act is headed "Preservation of certain native title rights and interests".
Section 211(2) of the Act provides:-
“(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 non- commercial communal needs; and
(b) in exercise or enjoyment of their native title rights and interests.”
The application of subs.(2) is dependent on subs.211(1) being satisfied. That subsection
provides:-
“211.(1) Subsection (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 subsection (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.”
These references to native title rights must be read in the light of s.223(1) which
provides:-
“223.(1) The expression ǹative title’ or ǹative 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.”
The validity of s.211 was upheld in Western Australia v. The Commonwealth[12] where its
operation was characterised in these terms:-
“The usufructuary rights comprehended by sub-s (3) are, by virtue of sub-s (2)(b), rights and interests which are incidents of native title. They are, by definition (s 223(1)), rights and interests that are recognized by the common law and, by operation of s 11(1), they cannot be extinguished except in conformity with the Act. Section 211(2) removes the requirement of a l̀icence, permit or other instrument granted or issued ... under the law’ referred to in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in sub-s (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 s 211, are to be enjoyed without the necessity of first obtaining à licence, permit or other instrument’. Again, the effect of s 211 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 s 211.” (at p.474)
The Native Title Act is not retrospective and does not create or revive native title rights
as distinct from recognise and give effect to existing or revived rights, see Wik Peoples v. State
of Queensland & Ors[13]; The State of Western Australia v. The Commonwealth, supra[14]; Yuin
Council of Elders Aboriginal Corporation v. New South Wales[15]; Djaigween v. Douglas[16]; and
Djaigween v. The State of Western Australia & Ors[17]. It is unnecessary for present purposes to
determine whether the respondent’s native title rights can be revived but if they are the Act would
operate to protect them.
It follows that in my view, the operation of the Native Title Act has to be considered in
the light of the plaintiff’s native title being extinguished at the time at which it came into force.
Section 223(1)(a) and (c) cannot be satisfied in the present case because of the operation of the Fauna Protection Act in extinguishing the respondent’s native title rights. The proper order is therefore to make the order nisi absolute, set aside the order dismissing the complaint
and remit the proceedings to the Magistrates Court at Mt Isa with a direction to proceed
according to law. In reaching that conclusion, I share the views expressed by McPherson J.A.
in the final paragraph of his reasons.
“The clause is particularly important for those Aboriginal and Torres Strait Islander people who may already be largely dispossessed and whose native title rights are limited to particular activities or resources. Without it there could be a creeping process of dispossession as native title rights are regulated out of existence, one by one, while other people remain free to carry out those same activities.
“The clause is critical in protecting Aboriginal rights to hunt, fish and gather where the impact of the activity is not such as to require its non-discriminatory prohibition. The clause is limited in its operation to native title rights in relation to hunting, fishing, gathering or cultural or spiritual activities where those activities are for personal, domestic or communal purposes. Other types of activities can also be prescribed if the need arises. A similar protection of native title rights exists in Canada and New Zealand.”
[1] (1992) 175 CLR 11 at 64, 68-70, 110 and 195
[2] Mabo No.2 at 64
[3] (1995) 183 CLR 373 at 418, 452
[4] Mabo No.2 at 64
[5] (1994) 34 NSWLR 572, 590
[6] (1954) 92 CLR 317
[7] (1954) 92 CLR 317
[8] at 50, 69, 110
[12] (1995) 183 CLR 373
[13] (1996) 141 ALR 129 (HC), 29 per Gummow J.
[14] at 454
[15] (1995) 60 FCR 501, 508G
[16] (1994) 48 FCR 535, 541B
[17] Supreme Court of Western Australia (Owen J.), 18 January 1994, unreported, p.29
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