GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MURRANDOO BULANYI MUNGABAYI YANNER APPELLANT
AND
GRAEME JOHN EATON RESPONDENT
Yanner v Eaton [1999] HCA 53 7 October 1999 B52/1998
ORDER
Appeal allowed.
Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 27 February 1998; and in lieu thereof, order that the order nisi of Williams J dated 28 November 1996 be discharged.
Order that each of the Attorney-General of the Commonwealth, the Attorney-General of the State of Western Australia, the Attorney-General of the State of South Australia and the Attorney-General of the Northern Territory pay to the appellant the additional costs incurred by him by reason of the intervention of that Attorney-General, such additional costs to be taxed.
The question of costs in respect of the proceedings in this Court and in the Court of Appeal of the Supreme Court of Queensland be reserved.
The appellant is to have leave to file and serve, within 14 days of the date of this order, written submissions on the reserved question of costs.
The respondent is to have leave to file and serve, within a further 14 days, written submissions on the reserved question of costs.
On appeal from the Supreme Court of Queensland
2.
Representation:
D F Jackson QC with A Vasta QC for the appellant (instructed by Hogan & Besley)
G J Gibson QC with G J Koppenol and A M Preston for the respondent (instructed by Crown Solicitor for Queensland)
Interveners:
D M J Bennett QC, Solicitor-General for the Commonwealth with H C Burmester QC and K L Eastman intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
T I Pauling QC, Solicitor-General for the Northern Territory with A D Rorrison intervening on behalf of the Attorney-General of the Northern Territory (instructed by the Solicitor for the Northern Territory)
B M Selway QC, Solicitor-General for the State of South Australia with R P Smith intervening on behalf of the Attorney-General of the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
R J Meadows QC, Solicitor-General for the State of Western Australia with P D Quinlan intervening on behalf of the Attorney-General of the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
W Sofronoff QC with G C Newton intervening on behalf of the Cape York Land Council (Aboriginal Corporation) (instructed by Ebsworth & Ebsworth)
J Basten QC intervening on behalf of Walden & Ors on behalf of the Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples and intervening on behalf of the Northern Land Council (instructed by Andrew Chalk Associates and B Midena, Northern Land Council)
M L Barker QC with W J Hammond intervening on behalf of Ben Ward & Ors on behalf of the Miriuwung and Gajerrong People (instructed by the Aboriginal Legal Service of Western Australia (Inc))
Notice: This copy of the Court’s Reasons for Judgment is subject…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Yanner v Eaton [1999] HCA 53
Case
[1999] HCA 53
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning the appellant, Mr Yanner, and the respondent, Mr Eaton, who was a fauna officer. The dispute arose from Mr Yanner's assertion of a native title right to hunt crocodiles in Queensland, which was challenged by the State's fauna protection legislation. The central question was whether this legislation was inconsistent with the continued existence of Mr Yanner's native title rights, particularly in light of the *Native Title Act 1993* (Cth) and the *Racial Discrimination Act 1975* (Cth).
The legal issues before the High Court included whether the *Fauna Conservation Act 1952* (Qld) and the *Nature Conservation Act 1992* (Qld) extinguished native title rights to hunt fauna, and if so, whether this extinguishment was valid under the *Native Title Act 1993* (Cth). The Court also had to consider the nature of the property interest vested in the Crown by the fauna protection legislation and whether this interest was absolute or merely regulatory. Furthermore, the Court examined the potential inconsistency between State and Commonwealth laws, and the operation of the *Racial Discrimination Act 1975* (Cth) in this context.
The High Court, in allowing the appeal, reasoned that the vesting of property in the Crown under the fauna protection legislation did not amount to an absolute beneficial ownership that would extinguish native title. Instead, the legislation was interpreted as a regulatory scheme for the exercise of rights, not an assertion of ownership that necessarily displaced pre-existing native title. The Court held that the State legislation, by its terms, did not extinguish native title rights and that any regulation of those rights by the State was not inconsistent with the *Native Title Act 1993* (Cth) in a manner that would render the State law invalid. The Court emphasised that the Crown's property interest was a proprietary right to control and manage fauna, not an ownership that precluded the existence of native title.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal of the Supreme Court of Queensland. The order nisi of Williams J was discharged. The Attorneys-General of the Commonwealth, Western Australia, South Australia, and the Northern Territory were ordered to pay the appellant's additional costs incurred by reason of their intervention. The question of costs in the High Court and the Court of Appeal was reserved, with leave granted for written submissions on this matter.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 27 February 1998; and in lieu thereof, order that the order nisi of Williams J dated 28 November 1996 be discharged.
3.
Order that each of the Attorney-General of the Commonwealth, the Attorney-General of the State of Western Australia, the Attorney-General of the State of South Australia and the Attorney-General of the Northern Territory pay to the appellant the additional costs incurred by him by reason of the intervention of that Attorney-General, such additional costs to be taxed.
4.
The question of costs in respect of the proceedings in this Court and in the Court of Appeal of the Supreme Court of Queensland be reserved.
5.
The appellant is to have leave to file and serve, within 14 days of the date of this order, written submissions on the reserved question of costs.
6.
The respondent is to have leave to file and serve, within a further 14 days, written submissions on the reserved question of costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
GUMMOW J
GLEESON CJ, GAUDRON, KIRBY AND HAYNE JJ
CJ, GAUDRON, KIRBY AND HAYNE JJ
HUGH J
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Ratio Decidendi
Legal Principle Established
Established by:
GUMMOW J,
GLEESON CJ, GAUDRON, KIRBY AND HAYNE JJ,
CJ, GAUDRON, KIRBY AND HAYNE JJ,
HUGH J