Murrandoo Yanner, His Crocodiles, the High Court, and the Native Title Implications

The High Court’s latest native title decision on Indigenous hunting rights - Yanner v Eaton - affects the operation of Commonwealth, State, and Territory legislation regulating natural resources, conservation, and the environment, as well as various licensing and vesting regimes. While concerned with a native title owner’s right to kill and eat crocodiles with impunity notwithstanding legislative regulation about taking wildlife, the decision – like most contemporary High Court decisions – has implications beyond that narrow context. Interestingly, it also shows that native title can be asserted in contexts other than a native title or compensation claim, as here where the existence of a lawful native title right is used as a defence to a prosecution.

Yanner – The Facts

Murrandoo Yanner was charged with the offence of taking fauna (or wildlife) without a licence or other lawful authority to do so under Queensland’s 1974 Fauna Conservation Act, since replaced by the 1992 Nature Conservation Act. He caught, killed, and ate two crocodiles with other members of his traditional group. The Queensland law said that nobody could take or keep any fauna unless they had a licence or other lawful authority for their action.

Murrandoo Yanner asserted that he was simply exercising his traditional native title right to hunt and eat crocodiles. He also said that the Queensland Act had not extinguished this particular native title right. Finally, he said that the Commonwealth Native Title Act specifically exempted his conduct from the operation of the Queensland Act, because the former specifically authorised the exercise of a native title right to hunt for domestic purposes without the need for a licence under the latter. The magistrate accepted evidence of relevant native title rights and ultimately accepted Murrandoo Yanner’s arguments.

Yanner – The Queensland Court of Appeal

The Queensland Court of Appeal ultimately found against Murrandoo Yanner, and sent the matter back to the Magistrate for hearing. In a 2-1 decision, the Court of Appeal decided that the Fauna Conservation Act extinguished the relevant native title rights and vested ownership of fauna in the State. Accordingly, there was no longer any legally recognised native title right to hunt crocodiles in Queensland after that Act’s introduction, and therefore no relevant native title right capable of being protected under the Native Title Act’s exemption from licensing requirements. Justice Fitzgerald dissented from this ruling by Justices McPherson and Moynihan.

Yanner – The High Court Appeal

On appeal to Australia’s highest court, the High Court decided 5-2 in Murrandoo Yanner’s favour on 7 October 1999, overturning the result in the Queensland Court of Appeal. The fundamental legal question before the Court was short and simple. Did the Queensland Act create a regime of State ownership of fauna and power over wildlife which left no room for the ongoing exercise of native title uses of wildlife such as hunting? The High Court decided that the Queensland Act did not contain enough legislative indications to extinguish the native title right to hunt crocodiles. At most, it simply regulated the exercise of native title hunting rights, and the specific exemption from licensing in the Native Title Act applied in Murrandoo Yanner’s favour. The High Court concluded that the Magistrate was right to dismiss the case against Murrandoo Yanner. Justices McHugh and Callinan were the two dissenters.

Misconceptions and Immediate Implications for Native Title Hunting Rights

What are the implications of the Yanner decision? At the outset, let us dispel the usual misconceptions. This decision does not allow any person simply to claim Indigenous links and then hunt and kill native animals anywhere in Queensland. It does authorise any legitimate native title holder to hunt and kill these and possibly other animals for genuine sustenance and other needs and without first obtaining a licence, but only in areas over which native title is held by that group. The decision does not authorise native title owners or anyone else to trap or kill wildlife for commercial purposes.

It says nothing one way or the other about the permissibility of using modern weapons (eg guns) and transportation (eg powered boats) to exercise traditional native title rights to hunt and fish, but there is some law suggesting that the use of modern means to exercise traditional rights still remains an exercise of those traditional rights. The use together of harpoons, a modern boat, an outboard motor, and steel tomahawks to kill the crocodiles as an exercise of native title hunting rights seemed to concern nobody on the High Court bench, with the possible exception of Justice Callinan. Followers of native title developments need to keep in mind the distinction between exercising an established native right in a modern way, as in the Yanner case, and the loss or abandonment of traditional and established native title rights themselves, as found by the trial judge to be a fatal flaw in the Yorta Yorta decision.

Commercial Exploitation of Hunting and Fishing Rights

This issue, namely the extent to which the holders of native title may exercise the relevant rights in a "modern" fashion, and indeed the connected issue of whether they might even commercially exploit those rights, are difficult ones. Whilst not directly in issue in the Yanner case, these issues are of considerable importance in the broader scheme of Australian native title law – and are yet to be answered conclusively. Some important developments in this area are taking place in Canada. In the Supreme Court of Canada’s 1997 decision in Delgamuukw v British Columbia, the majority judges noted that, while the rights of Indigenous title holders in that jurisdiction are not limited to engagement in activities which are aspects of practices, customs, and traditions integral to the claimant group’s distinctive Indigenous culture, lands held by Aboriginal title cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands.

So, for example, tribal hunting areas may not be "strip mined" or, so it would seem, "hunted out" or "fished out" in a large-scale commercial operation. Contrast this with small-scale trading between local Indigenous people and others, for which there is some historical and anthropological evidence in Australia and elsewhere.

There are important legal differences between the doctrines of Aboriginal title in Canada and Australia, but there are also some important similarities which indicate that these Canadian developments might in the future be of relevance in Australia. Of course, it is also important in Australia to note that the Commonwealth Native Title Act moderates but does not destroy the capacity of the States and Territories to regulate the exercise of native title rights along with other rights, as in fishing, conservation, and safety legislation which might apply equally to Indigenous and non-Indigenous people alike.

Wider Implications

Is the Yanner decision limited in its impact to laws which prohibit the taking or killing of wildlife without a licence or other authority? The traditional lawyerly response of "Yes and No" unfortunately applies here too. In the end, the decision largely turned on the provisions of the Queensland Act on fauna conservation, and whether they either extinguished relevant native title rights or at least allowed them to be regulated by requiring native title owners and everyone else to obtain a licence to take or kill wildlife. While wider principles and arguments were canvassed in argument before the High Court, ultimately the decision turned largely on statutory interpretation of the Queensland Act rather than general principles of native title law. This factor prompted the High Court to make the Commonwealth, State, and Territory Attorneys-General who intervened in the High Court hearing pay the additional costs incurred by Murrandoo Yanner because of their intervention, notwithstanding the public importance of the issues at stake in the judgement. So, on one level, this is a decision about a Queensland Act on conservation and its impact on a particular native title right. Of course, the various Attorneys-General and other interveners might not have intervened if the case was restricted in its potential effects to an impact upon native title rights to hunt crocodiles. Obviously, bigger issues were at stake.

The landmark Wik decision in 1996 was concerned with particular (pastoral) titles granted under a Queensland Act, and nobody thought then or now that its impact was confined to that context. Together with the Wik decision, the Yanner decision sets benchmarks of what a statute must do expressly or implicitly in the eyes of the High Court to extinguish native title. In particular, it is likely to cause governments to review the legislative and executive arrangements under which property is vested in or controlled by governments.