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.

The High Court’s comments in the Yanner decision about the content, proof, and extinguishment of native title will be critical in future test cases on native title determinations, including any appeals in the landmark West Kimberley decision by Justice Lee in 1998 and the equally important Alice Springs decision by Justice Olney in 1999. Those decisions cover a wide range of land titles and governmental actions, and their capacity to extinguish native title, including mining, rural, and other commercial land grants as well as governmental actions concerning land and waters.

Limitations

What are the limits on the Yanner decision’s implications? It says little about the role of the Commonwealth’s 1975 Racial Discrimination Act, because the Queensland Act predated that Act. However, there are likely to be State and Territory Acts passed between 31 October 1975 (when the Racial Discrimination Act commenced) and June 1992 (when native title was legally recognised for the first time in Australia in the landmark Mabo decision) which cover the vesting or ownership of property by the Crown and which will need reviewing in light of this decision, the Racial Discrimination Act, and the Native Title Act.

Similarly, there are likely to be a range of Commonwealth, State, and Territory regulatory regimes which establish licensing or other lawful requirements which purportedly apply to native title owners and everyone else, and which now need reviewing to establish whether the exemption from licensing in section 211 of the Commonwealth Native Title Act might also apply to them.

Impact on State Vesting and Ownership of Minerals and Resources

As a decision about the capacity of statutory regimes of Crown ownership and control of resources to extinguish native title, the Yanner decision clearly has flow-on implications for a range of licensing and other regulatory regimes at Commonwealth, State, and Territory levels. In theory, this could extend to vesting and ownership regimes relating to mineral resources, land and waters, national parks, Crown-to-Crown grants, flora and fauna, harbours, natural resources, and other elements of the environment. This is because the Queensland Act in the Yanner case made fauna "the property of the Crown", and yet the High Court said that "property" here meant a non-exclusive right of the State to exercise power over wildlife, rather than an exclusive right of ownership in the conventional sense. Every Act which establishes Crown "ownership" of, or "property" in, a natural resource will need assessing on its merits in light of the principles and result in the Yanner decision. At the same time, the principles in the Yanner decision do not translate automatically to those other contexts, where crucial differences can apply. So, in practice, its effect is possibly more confined.

An immediate reaction to this aspect of the decision might be to ask why the States and Territories, armed with this guidance on government ownership of natural resources from the High Court, do not simply redraft their vesting and ownership regimes to ensure that native title is extinguished. Policy issues aside, the simple answer is that both the Native Title Act and the Racial Discrimination Act limit what these governments can do. The "future act" regime in the native title legislation applies to legislative actions as well as things such as government grants of titles, and so detailed procedural restrictions and compensation rights will apply to any such future extinguishment of native title. Of course, that says nothing one way or the other about the capacity of pre-1975 Crown ownership and vesting regimes to confer complete ownership of relevant resources on the Crown. It also says nothing about legislation which regulates but does not extinguish native title.

Anyone who asserts that the Yanner decision creates a legal domino effect which automatically means that exclusive Crown ownership of mineral resources is no longer guaranteed under legislation is overstating the decision’s immediate impact. Any challenge to legislation vesting mineral ownership in the Crown will need to overcome a number of obstacles. Such a challenge will probably be made in light of the Yanner decision, because of the High Court’s opening up of the concept of "property" to include things other than complete and exclusive ownership, depending upon the context and terms of the legislation vesting ownership of a resource in the Crown.

However, the outcome of any challenge is not a fait accompli after the Yanner decision. While some High Court comments in the Yanner case drew analogies between State ownership of minerals and wildlife for comparative purposes, those comments are not determinative. Concepts of property ownership and use of royalties apply to both mineral and fauna legislation. However, the uses are not always exactly the same in both situations. Every mining and petroleum Act in every jurisdiction will need to be examined on its own terms. Moreover, the circumstances of native title use of wildlife differ significantly from the circumstances of native title use and ownership of mineral resources.

Importantly, the High Court has not yet ruled definitively on this issue. Justice Drummond’s decision at trial level about the extinguishing impact on native title of legislative vesting of mineral resources in the Crown was not tested in the High Court appeal in the Wik decision, thus leaving the issue technically open for later review. One of the key mining Acts analysed by Justice Drummond stated, amongst other things, that "(a)ll other minerals on or below the surface of all land which is not alienated in fee-simple from the Crown at the commencement of this Act are the property of the Crown". Compare and contrast that statutory formula with the Yanner case’s statutory formula, stating that "(a)ll fauna … is the property of the Crown".

Immediately after the High Court’s Yanner decision, one prominent native title lawyer active in the corporate and resources sectors declared that the High Court’s decision was specific to wildlife and that there was "no open season on minerals". Strictly speaking, that is right. Yet, once an Act stating that, with limited exceptions, "all fauna … is the property of the Crown" can be interpreted by the High Court as conferring something less than full and exclusive ownership of the resource upon the Crown, other Crown ownership regimes must at least be investigated in light of the Yanner decision.

Conservation, Environment, and Heritage Regimes

At the same time, it is likely that the Yanner decision will cause some Australian governments to review the extent to which their wildlife protection and conservation laws allow room for sustainable Indigenous uses of wildlife, and the factors – conservation, commerce, respect for human rights, etc – which affect the judgement of what is "sustainable". The Australian Democrats have already signalled the need for moves in this area. In the immediate aftermath of the Yanner decision, Federal Environment Minister Robert Hill reportedly was interested in advice on its implications for World Heritage areas and the Great Barrier Reef Marine Park.

Concluding Remarks

The High Court has put governments, corporations, and citizens on notice that old assumptions and practices from pre-Mabo times about property use and ownership as well as statutory regimes governing property in all forms must all be studied afresh in light of the changes to Australian law caused by native title’s legal recognition in 1992. In the Yanner decision, Justice Gummow repeated his warning in the Wik decision that "ingrained, but misleading, habits of thought and understanding lurk in this area of law".

Much will be made of the Yanner decision and its impact. Its implications are unlikely to be limited to native title hunting rights. Will it result in wholesale judicial reinterpretation of statutory regimes relating to Crown vesting and ownership of land and resources of various kinds? Anyone involved in native title litigation before the High Court knows that the only constant in predictions about the High Court’s future decision-making on native title is "never say never". Just ask the Australian governments who wrongly acted on the pre-Wik assumption that the High Court would eventually decide that pastoral leases completely extinguish native title.