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[1999] HCA 69
High Court of Australia
1998-02-27
Gleeson CJ, Callinan JJ, Williams J, Hayne JJ
Original judgment source is linked above.
High Court of Australia Gleeson CJ Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ Yanner v Eaton [No 2] (B52/1998) [1999] HCA 69
Summary Practice and procedure - Costs - Whether successful appellant entitled to costs of appeals in summary criminal proceedings. Justices Act 1886 (Q), ss 214, 273(2). ORDER
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 fourteen 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 fourteen days, written submissions on the reserved question of costs.
Respondent to pay appellant's costs in the Court of Appeal of the Supreme Court of Queensland and in this Court.
7 October 1999 Gleeson CJ, Gaudron, Kirby and Hayne JJ.
The name of the tribe is sometimes spelled "Gungaletta". The spelling "Gangalidda" was given by the appellant in his interview with police.
In 1994, the Fauna Conservation Act 1974 Q (the Fauna Act) provided, by s 54(1)(a), that:
A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act. (The Fauna Act was repealed and replaced by the Nature Conservation Act 1992 Q which came into operation on 19 December 1994. It was, however, common ground, and clearly correct, that these proceedings fell to be decided in accordance with the Fauna Act.)
The appellant was not the holder of any licence, permit, certificate or other authority granted and issued under the Fauna Act. He was charged in the Magistrates Court of Queensland with one count of taking fauna contrary to the Fauna Act. The appellant contended, and the Magistrate accepted, that s 211 of the Native Title Act 1993 Cth applied. That section provided at the relevant time:
(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.
(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.
(3) Each of the following is a separate class of activity:
(e) any other kind of activity prescribed for the purpose of this paragraph.
The Magistrate found that the appellant's clan "have a connection with the area of land from which the crocodiles were taken" and that this connection had existed "before the common law came into being in the colony of Queensland in 1823 and thereafter continued". He further found that it was a traditional custom of the clan to hunt juvenile crocodiles for food and that the evidence suggested that the taking of juvenile rather than adult crocodiles had "tribal totemic significance and [was based on] spiritual belief". The Magistrate found the appellant not guilty and dismissed the charge.
In effect, then, the Magistrate found that: (a) the exercise or enjoyment of native title rights and interests in relation to the land or waters where the crocodiles were taken consisted of or included hunting or fishing [2] ; (b) a law of the State (the Fauna Act) prohibited or restricted persons from carrying on those classes of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the Fauna Act [3] ; (c) the Fauna Act was not one that conferred rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders [4] ; and accordingly (d) the Fauna Act did not prohibit or restrict the native title holders from carrying on those classes of activity (hunting and fishing) or from gaining access to the land or waters for the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title rights and interests [5] .
All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority. It followed, so the respondent submitted, that the Native Title Act provisions preserving native title rights and interests to hunt and fish had no relevant operation in this case, because the native title rights and interests upon which the appellant relied had been extinguished before the Native Title Act was enacted.
"Fauna" was defined by the Fauna Act (in effect) as any bird or mammal indigenous to Australia or declared by Order in Council to be fauna, and any animal or member of a species of animal declared by Order in Council to be fauna (s 5). "Fauna" included the young, the egg, the carcass, skin or nest of the animal or member of species but did not include any processed products except those declared by Order in Council (s 5). "Bird" and "mammal" were defined respectively to mean a bird or mammal, "wild by nature whether native to a State or Territory of the Commonwealth, migratory or introduced, in captivity, bred in captivity or tamed" (s 5). Estuarine crocodiles were declared by Order in Council made on 29 August 1974 to be fauna for the purposes of the Act.
The Fauna Act divided fauna into four classes: "permanently protected fauna", "protected fauna", "non-protected fauna" and "prohibited fauna" (s 6). Fauna other than permanently protected fauna, non-protected fauna and prohibited fauna was defined as protected fauna for the purposes of the Act (s 22). Subject to declaration of an open season, protected fauna could lawfully be taken or kept only in certain limited circumstances: if it was orphaned, injured, sick or emaciated (s 24); or if it was causing or likely to cause damage or injury (s 25). In addition, a snake or estuarine crocodile might be killed if it had caused, was causing or was likely to cause injury to a person (s 24A). Non-protected fauna might be taken at any time (s 27(1)). An open season might be declared in respect of protected fauna and in that case permits could be issued permitting the taking of that fauna [10] . Additionally, the Director of National Parks and Wildlife was empowered to issue permits to fauna dealers to buy, keep, sell or otherwise dispose of protected fauna during a close season (s 60).
The terms of s 54(1)(a) prohibiting the taking or keeping of fauna without a licence are set out above. The apparent generality of that prohibition must be understood in the light of not only its reference to the holder of a licence, permit, certificate or other authority granted and issued under the Fauna Act, but also the further exemptions created by s 54(1)(b). That paragraph exempted (among other things) the keeping of protected fauna that was taken otherwise than in contravention of the Act during an open season (s 54(1)(b)(i)) and the taking of fauna at a time and place when and where it is non-protected fauna (s 54(1)(b)(ii)). The penalty for contravening s 54(1)(a) was a fine or imprisonment (or both) and the offender was liable "in any case to an additional penalty not exceeding twice the royalty on each fauna in respect of which the offence is committed" (s 54(2)).
The reference to royalty is significant. Section 67 of the Fauna Act provided:
(1) Subject to subsection (4), royalty at the rates prescribed shall be payable to the Crown on prescribed fauna.
(2) Notwithstanding this Act or any other Act or law, payment of royalty on fauna pursuant to this Act does not transfer property in that fauna from the Crown.
(3) Rates of royalty may vary in respect of different species of fauna.
(4) The regulations may exempt from the payment of royalty species of fauna specified therein in cases where that fauna is taken otherwise than in contravention of this Act.
Fauna protection legislation in Queensland had contained generally similar royalty provisions for many years [11] . They were introduced in 1924 to take the benefit of what was seen at the time to be a valuable and developing fur trade [12] . 1. Animals and Birds Act 1921 Q, s 8B (inserted by s 2(4) of the Animals and Birds Act Amendment Act 1924 Q); Fauna Protection Act 1937 Q, s 16; Fauna Conservation Act 1952 Q, s 56. 2. Queensland; Legislative Assembly; Parliamentary Debates (Hansard); 12 September 1924, pp 824-826.
The obligation to pay royalty under the Fauna Act was supported by several other provisions of that Act including s 69 which made it an offence to fail to pay royalty, s 70 which provided for recovery by summary proceeding under the Justices Act 1886 Q or by action "as for a debt due to the Crown", and s 71 which permitted a fauna officer to detain fauna in respect of which royalty payable was not paid. Section 71(2) provided that:
Fauna so seized and detained shall, without further or other authority, be forfeited to Her Majesty, unless all royalty payable thereon is paid within one month of its seizure and detention. Similar provision was made by s 83 in respect of fauna, appliances or other things seized under the Act. Section 83(3) provided that: Notwithstanding this Act, the Minister may order that any fauna, appliance or other thing seized under this Act be forfeited to Her Majesty though proceedings have not been taken for, nor any person convicted of, an offence against this Act in respect thereof. No doubt ss 71(2) and 83(3) must be read in the light of s 84 which provided that: The provisions of this Act with respect to the seizure, detention or forfeiture of fauna shall not prejudice or affect in any way the rights of the Crown with respect to fauna that by virtue of section 7 is the property of the Crown, and those rights may be exercised at any time.
What, then, is the meaning to be given to s 7(1) and its provision that some fauna is the property of the Crown and under the control of the Fauna Authority? Did it, as the respondent submitted, give rights to the Crown in respect of fauna that were inconsistent with the rights and interests upon which the appellant relied?
The word "property" is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, "property" does not refer to a thing; it is a description of a legal relationship with a thing [13] . It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of "property" may be elusive. Usually it is treated as a "bundle of rights" [14] . But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said [15] , that "the ultimate fact about property is that it does not really exist: it is mere illusion". Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by "property" in a subject matter [16] . So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of "property" as an analytical tool [17] . No doubt the examples could be multiplied.
Thirdly, there are several aspects of the Fauna Act which tend to suggest that the property in fauna conferred on the Crown may not easily be equated with the property an individual may have in a domestic animal. The property rights of the Crown would come and go according to the operation of the exception contained in s 7(1) of fauna taken or kept "otherwise than in contravention of this Act during an open season with respect to that fauna". As open seasons were declared and fauna taken, what otherwise was the property of the Crown, ceased to be. Next there are the references in ss 71(2) and 83(3) to forfeiture of fauna to the Crown. Even accepting that s 84 says that these sections shall not prejudice or affect the rights of the Crown conferred by s 7, why were ss 71(2) and 83(3) necessary if the Crown owned the fauna? Then there are the provisions of s 7(2) that "[l]iability at law shall not attach to the Crown by reason only of the vesting of fauna in the Crown pursuant to this section". The Crown's property is property with no responsibility. None of these aspects of the Fauna Act concludes the question what is meant by "property of the Crown", but each tends to suggest that it is an unusual kind of property and is less than full beneficial, or absolute, ownership.
Fourthly, it is necessary to consider why property in some fauna is vested in the Crown. Provisions vesting property in fauna in the Crown were introduced into Queensland legislation at the same time as provisions imposing a royalty on the skins of animals or birds taken or killed in Queensland [30] . A "royalty" is a fee exacted by someone having property in a resource from someone who exploits that resource. As was pointed out in Stanton v Federal Commissioner of Taxation [31] :
the modern applications of the term [royalty] seem to fall under two heads, namely the payments which the grantees of monopolies such as patents and copyrights receive under licences and payments which the owner of the soil obtains in respect of the taking of some special thing forming part of it or attached to it which he suffers to be taken. That being so, the drafter of the early Queensland fauna legislation may well have seen it as desirable (if not positively essential) to provide for the vesting of some property in fauna in the Crown as a necessary step in creating a royalty system. Further, the statutory vesting of property in fauna in the Crown may also owe much to a perceived need to differentiate the levy imposed by the successive Queensland fauna statutes from an excise. For that reason it may well have been thought important to make the levy as similar as possible not only to traditional royalties recognised in Australia and imposed by a proprietor for taking minerals or timber from land, but also to some other rights (such as warren and piscary) which never made the journey from England to Australia. 1. Animals and Birds Act 1921 Q, s 8B (inserted by the Animals and Birds Act Amendment Act 1924 Q, s 2(4)). 2. (1955) 92 CLR 630 at 641, per Dixon CJ, Williams, Webb, Fullagar and Kitto JJ.
In light of all these considerations, the statutory vesting of "property" in the Crown by the successive Queensland fauna Acts can be seen to be nothing more than "a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource" [32] . So much was acknowledged in the second reading speech on the Bill which first vested property in fauna in the Crown. The Minister said [33] :
It [the fur industry] is an industry that really belongs to the people, and although the Bill, amongst other things, makes it quite clear that the native animals of the State belong to the people of the State, I do not think there is any doubt in the minds of any one regarding that question already. The native animals belong to the people in just the same way as the timber and the minerals belong to the people, and they cannot be sold without permission. 1. Toomer v Witsell (1948) 334 US 385 at 402, per Vinson CJ (footnote omitted). 2. Queensland; Legislative Assembly; Parliamentary Debates (Hansard); 12 September 1924 at p 825 .
Roscoe Pound explained why wild animals and other things not the subject of private ownership are spoken of as being publicly owned. He said [34] :
We are also tending to limit the idea of discovery and occupation by making res nullius (eg, wild game) into res publicae and to justify a more stringent regulation of individual use of res communes (eg, of the use of running water for irrigation or for power) by declaring that they are the property of the state or are "owned by the state in trust for the people". It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium, not dominium. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of res communes to eliminate friction and prevent waste, and requires limitation of the times when, places where, and persons by whom res nullius may be acquired in order to prevent their extermination. Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned. (Emphasis added.) 1. Pound, An Introduction to the Philosophy of Law (rev ed) (1954), p 111.
The "property" which the Fauna Act and its predecessors vested in the Crown was therefore no more than the aggregate of the various rights of control by the Executive that the legislation created. So far as now relevant those were rights to limit what fauna might be taken and how it might be taken (ss 24, 24A, 25, 27, 30, 60), rights to possession of fauna that had been reduced to possession (ss 71(2), 83(3)), and rights to receive royalty in respect of fauna that was taken (s 67) (all coupled with, or supported by, a prohibition against taking or keeping fauna except in accordance with the Act (s 54(1)(a)). Those rights are less than the rights of full beneficial, or absolute, ownership. Taken as a whole the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act.
The respondent expressly disclaimed a contention that the enactment of legislation forbidding the taking or keeping of fauna except pursuant to licence would be sufficient to extinguish the rights and interests relied on by the appellant. This concession was rightly made and it follows, therefore, from what we have said about the meaning and effect of the Fauna Act (and, in particular, the vesting of property in some fauna in the Crown) that the Act did not extinguish those rights and interests. It is as well, however, to examine why the respondent's concession was right. That examination must begin from a consideration of what is meant by native title rights and interests.
Section 223 of the Native Title Act provides (in part):
(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.
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
The hunting and fishing rights and interests upon which the appellant relied (and which the Magistrate found to exist) were rights and interests "possessed under the traditional laws acknowledged, and the traditional customs observed", by the clan and tribe of which the appellant was a member [35] . The Magistrate found that by those laws and customs, the appellant's clan and tribe had a connection with the land and waters where the crocodiles were taken [36] . At least until the passing of the Fauna Act those rights and interests were recognised by the common law of Australia [37] .
Not only did the respondent not contend that such a law severed that connection, s 211 of the Native Title Act assumes that it does not. Section 211 provides that a law which "prohibits or restricts persons" from hunting or fishing "other than in accordance with a licence, permit or other instrument granted or issued to them under the law", does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists. By doing so, the section necessarily assumes that a conditional prohibition of the kind described does not affect the existence of the native title rights and interests in relation to which the activity is pursued.
The Fauna Act did not extinguish the rights and interests upon which the appellant relied. Accordingly, by operation of s 211(2) of the Native Title Act and s 109 of the Constitution, the Fauna Act did not prohibit or restrict the appellant, as a native title holder, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs. The Magistrate was right to dismiss the information.
For completeness it is as well to note two further matters. First, although the respondent referred to the earlier decision of this Court in Walden v Hensler [44] it must be recalled that the issues discussed in that case were radically different from those that arise in the present, not least because they arose before the passing of the Native Title Act. Secondly, a number of submissions were made in the course of argument that touched upon questions much broader than those that must be decided in this proceeding. It is neither necessary nor desirable to express any view about them when this case can be decided on the narrow question whether the Fauna Act should be given the construction for which the respondent and the Commonwealth contended. It should not be given that construction.
The appeal should be allowed, the orders of the Court of Appeal of Queensland set aside and in lieu it should be ordered that the order nisi be discharged. For the reasons given by Gummow J, costs should be disposed of as his Honour has proposed.
The critical question in this case is a simple one. It is whether, by force of the Fauna Conservation Act 1974 Q (the Act), property in all fauna in Queensland, present or future, became or becomes vested in the Crown after the commencement of the Act. If that is the effect of the Act, the two estuarine crocodiles which the appellant killed were the property of the Crown and he had no right to kill them by reason of the Native Title Act 1993 Cth or otherwise.
Whether the property was vested in the Crown turns on the construction of s 7 of the Act which, at the time of its enactment, relevantly provided:
(1) All fauna, save fauna taken or kept during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority.
(2) Liability at law shall not attach to the Crown by reason only of the vesting of fauna in the Crown pursuant to this section.
The Act effectively defined (s 5) "fauna" to mean any bird or mammal indigenous to Australia or any animal which was declared by Order in Council to be fauna. The Act defined (s 5) "bird" and "mammal" to mean a bird or mammal "wild by nature whether native to a State or Territory of the Commonwealth, migratory or introduced, in captivity, bred in captivity or tamed". An Order in Council made on 29 August 1974 declared estuarine crocodiles to be fauna for the purposes of the Act.
In its natural and ordinary meaning, s 7 vests in the Crown, and takes away from everyone else, the right to deal with fauna as defined by the Act. Other provisions of the Act give a right to apply for a licence to take fauna. But s 7 destroyed all existing rights to take fauna. At common law, the only right of property in wild animals was "the exclusive right to catch, kill and appropriate such animals which is sometimes called by the law a reduction of them into possession" [45] . That right arose from the possession of land on which the animals happened to be or from a Crown grant to enter another's land for the purpose of catching, killing or appropriating wild game. No doubt in Australia, the existence of common law native title rights meant that Aboriginals had similar rights over fauna.
But the Act changed the law. It vested the property in all fauna in the Crown (s 7) and prohibited the taking or keeping of fauna without a licence, etc. 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). 1. Native Animals Protection Act 1906 Q, s 9(c). The Animals and Birds Act 1921 Q, s 17(b), the Fauna Protection Act 1937 Q, s 25 and the Fauna Conservation Act 1952 Q, s 78 were to similar effect. 2. (1987) 163 CLR 561 at 566-567.
The short answer to the appellant's arguments is that s 7 says that all fauna is the property of the Crown. Acts of Parliament speak from their enactment. Consequently, the ordinary and natural meaning of s 7 is that, after the commencement of the Act, the property in fauna is and always remains in the Crown until it disposes of it or a person, acting in accordance with the Act, puts an end to the Crown's property in particular fauna. Moreover, the fauna is and remains "under the control of the Fauna Authority". To the absolute rule that property in fauna in Queensland is in the Crown, s 7(1) contains an exception - when fauna is taken in open season in accordance with the Act, the property in the fauna passes to the person who has taken it. However, I cannot see how that exception provides any ground for thinking that the nature of the property that the Crown has in the fauna is less than every right, power, privilege and benefit that does or will exist in respect of the fauna or that from the commencement of the Act the Crown did not have the right to exclude every other person from enjoying those rights, powers, privileges and benefits. To contend that the Crown obtains no property in fauna until it is taken, killed or appropriated is to deny the plain words of s 7(1).
It is also to deny the assumption on which s 7(2) of the Act is based. That assumption is that, but for s 7(2), the Crown's ownership of the fauna might make it liable for the damage or harm that particular birds or mammals might cause while at large.
Consider also some of the consequences of upholding the appellant's arguments. The Crown would obtain property in fauna only when a bird, mammal or declared animal was killed, taken, or otherwise appropriated by a third party. Presumably, the Crown would lose its property as soon as the third party gave up possession of it - at all events if that party set the bird or mammal free. The arguments of the appellant must also mean that "the control of the Fauna Authority" (s 7(1)) only commences when a third party has killed, taken or appropriated fauna. Presumably, the hapless officers of the Authority, seeing an unlicensed person about to kill or otherwise take or deal with fauna, would have no statutory authority to act until the unlicensed person takes action. Until death, taking or appropriation had occurred, the officers would have no more legal authority to act to protect the bird or mammal than any other citizen.
The appellant contended that it would be absurd for the legislature to have intended that the Crown should have property in wild animals before they were caught. Illustrations were given during argument - the migratory bird flying through Queensland being one example. Once it is perceived that the purpose of the Act is to put an end to arguments about who has the property in or the right to hunt fauna as defined, I see nothing absurd in the legislature of Queensland giving to the Crown the property in all fauna in Queensland - even migratory birds. In any event, it leads to no more absurd results than the opposing contention which would vest property in the Crown when a young boy trapped a migratory bird but would divest it when he let it go, making property in fauna in Queensland depend upon a kind of statutory version of what old system conveyancers called springing and shifting uses.
Nor is there anything unusual in a person having property in an object of which he or she is unaware. The common law has long recognised that a person may have property in an object although he or she was unaware of its existence. Thus in R v Rowe [50] , an indictment for larceny charged the accused with stealing a piece of iron from the bed of a canal and laid the property in the iron in the canal owner who apparently did not know of its existence. The Court of Crown Cases Reserved held that the indictment was good.
By declaring (s 7) that the property in fauna in Queensland is vested in the Crown and then in subsequent sections defining the circumstances in which others may take that property, the Act proclaimed upon its commencement that henceforth no one, land owner, Aboriginal or holder of a grant from the Crown, had any right to kill, take or appropriate fauna as defined. That being so, the appellant had no right which the Native Title Act protected when it came into force. The reasons why that is so are fully explained in the judgment of Callinan J.
Index Paragraph I Introduction [59] II The Offence [61] III The Appellant's Conduct [67] IV Common Law Native Title [72] V Preliminary Matters [78] Racial Discrimination Act [79] Animals at common law [80] VI The Fauna Act [82] The meaning of "property" [85] The vesting of property and Crown immunity [87] The qualification in s 7(1) [91] The meaning of "Crown" [96] VII Subsequent Amendments to the Fauna Act [102] VIII Extinguishment [106] IX Operation of the Native Title Act [119] X Conclusion [125]
That between the 31st day of October 1994 and the 1st day of December 1994 at Cliffdale Creek via Doomadgee in the Magistrates Courts District of Mount Isa in the state of Queensland [the appellant] did take fauna namely 2 [estuarine] crocodile when he was not the holder of a licence permit certificate or other lawful authority granted and issued under the [Fauna Act] and when the [appellant] was not exempted by section 54(1)(b) of the [Fauna Act]. At the time of the alleged offence, s 54(1) materially provided:
(a) A person shall not take [57] , keep [58] or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act.
(b) Save as is otherwise expressly provided by this Act, a person who -
(i) keeps protected fauna which fauna was taken otherwise than in contravention of this Act during an open season with respect to that protected fauna in a place to which that open season refers;
(ii) takes fauna at a time and place when and where that fauna is non-protected fauna;
(iii) continues to keep fauna taken and kept lawfully prior to the date of commencement of this Act;
(c) The exemption granted by provision (i) of paragraph (b) shall not apply to the keeping of live protected fauna by any person.
I believe there's a greater law than a State law, there's a Commonwealth law called the Native Title Act and that was in at that stage I took the crocodiles, so I was quite confident that I was being lawful. The appellant submits before this Court that s 54(1) of the Fauna Act is inconsistent with s 211(2) of the Native Title Act and therefore s 109 of the Constitution renders s 54(1) invalid to the extent of the inconsistency. Consequently, the appellant's alleged liability under s 54(1) of the Fauna Act never arose and the complaint laid against him had to be dismissed.
(a) that the Magistrates Court erred in law in failing to find that any entitlement which Aborigines might have enjoyed at common law to take or hunt estuarine crocodiles has previously been validly extinguished by the enactment of the [Fauna Act] and the operation of an order in council dated 29 August 1974 made under that Act and published in the Government Gazette on 31 August 1974; and that accordingly
(b) the Magistrates Court erred in law in finding that the [appellant] is a person who holds native title rights and/or interests within the meaning of the [Native Title Act] which rights and/or interests entitled him to take the said estuarine crocodiles.
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia's indigenous peoples, the Aboriginals and Torres Strait Islanders, provide its content. It is the relationship [63] between a community of indigenous people and the land, defined by reference to that community's traditional laws and customs, which is the bridgehead to the common law. As a corollary, native title does not exhibit the uniformity of rights and interests of an estate in land at common law and "ingrained habits of thought and understanding" [64] must be adjusted to reflect the diverse rights and interests which arise under the rubric of "native title". To repeat what was said in Wik Peoples v Queensland [65] : The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time [66] . At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein [67] . In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence. [68] 1. (1992) 175 CLR 1 at 58. 2. See Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 459; The Commonwealth v TasmaniaTasmanian Dam Case (the) (1983) 158 CLR 1 at 274-275. 3. Wik Peoples v Queensland (1996) 187 CLR 1 at 177. 4. (1996) 187 CLR 1 at 169. 5. Mabo [No 2] (1992) 175 CLR 1 at 66-67. 6. Mabo [No 2] (1992) 175 CLR 1 at 89. 7. Mabo [No 2] (1992) 175 CLR 1 at 58.
[I]t may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated; or, in the law phrase, is said to be merged, that is, sunk or drowned, in the greater. The coalescence of rights and interests under the doctrine of merger is apt to be misleading when considering the intersection of native title rights and interests with an estate or statutory interest in land held by one and the same indigenous community. Moreover, it should be noted that whilst at law the doctrine of merger applied irrespective of the will of the parties concerned, equity's inclination to follow the law here gave way to its preference for substance over form. As Sir William Grant MR put it in Forbes v Moffatt [78] , in equity: "[t]he question is upon the intention, actual or presumed, of the person, in whom the interests are united." In Queensland, as in other States, the equity rule as to merger of estates prevails [79] . 1. Commentaries on the Laws of England, vol 2, p 177. 2. (1811) 18 Ves Jun 384 at 390 [34 ER 362 at 364]. See also Commissioner of Stamp Duties (NSW) v Perpetual Trustee Co Ltd (1915) 21 CLR 69 at 77, 87; In re Waugh [1955] NZLR 1129 at 1130. 3. Judicature Act 1876 Q, s 5(4); Property Law Act 1974 Q, s 17.
It is appropriate now to consider the operation of the Fauna Act on the native title right, or incident, to hunt estuarine crocodiles which was exercised by the appellant.
The Fauna Act was assented to on 2 May 1974 and commenced on 1 September 1974, and was not amended in the period prior to the Commencement Date. The long title described it as an "Act to consolidate and amend the law relating to the conservation of fauna in its habitats and throughout its distribution in the State, the introduction into and removal from the State of fauna, and for other purposes". Section 3 divided the Fauna Act into 12 Parts. Part I (ss 1-9) and Pt II (ss 10-17) were respectively entitled " Preliminary " and " Administration ". The principal point of contention between the parties concerns the operation of s 7(1), the construction of which will be considered below. Section 6(1) of the Act divided "fauna" into four categories, (a) permanently protected fauna, (b) protected fauna, (c) non-protected fauna, and (d) prohibited fauna. Part III (ss 18-21) of the Act regulated permanently protected fauna, whilst Pt IV (ss 22-25) regulated protected fauna and Pt V (ss 26-27) regulated both non-protected and prohibited fauna. Part VI (ss 28-33), entitled " Open Seasons ", Pt VII (ss 34-46), entitled " Sanctuaries, Refuges and Reserves ", and Pt XI (ss 67-71), entitled " Royalty ", were broadly self-descriptive of the objects which each regulated. It will be necessary later to refer more fully to the royalty regime created by Pt XI. Parts VIII (ss 47-51), IX (ss 52-54) and X (ss 55-56) created an enforcement regime for the protection of fauna, whilst Pt XII (ss 72-94) contained miscellaneous provisions and the Schedule listed permanently protected fauna.
"Fauna" was defined in s 5 to mean "a mammal or bird: the term includes also any other animal or group of animals wild by nature declared by Order in Council to be fauna". Estuarine crocodiles neither fell within the definition of mammal nor bird in s 5. By Order in Council dated 29 August 1974 and published in the Queensland Government Gazette on 31 August 1974 (the Order in Council), the Governor in Council declared estuarine crocodiles to be "fauna for the purposes of [the Fauna Act] throughout the State" in accordance with s 11 of the Fauna Act. This occurred after the passing of the Fauna Act but before its commencement on 1 September 1974. Section 17 of the Acts Interpretation Act 1954 Q provided that the power under s 11 could be exercised at any time after the passing of the Fauna Act provided that the Order in Council made under that power did not have any effect until the Fauna Act came into operation. The initial date for considering the Fauna Act's operation on the native title right, or incident, to hunt crocodiles at issue was therefore 1 September 1974, more than a year before the Commencement Date. Upon that date, estuarine crocodiles, two of which were later killed by the appellant, were "fauna" within the meaning of the Fauna Act.
The respondent's submission is that, with effect from 1 September 1974, s 7(1) of the Fauna Act operated to extinguish the appellant's right as an incident of the native title of his community to hunt estuarine crocodiles. Section 7 provided:
(1) All fauna, save fauna taken or kept [88] during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority.
(2) Liability at law shall not attach to the Crown by reason only of the vesting of fauna in the Crown pursuant to this section.
The operation of s 7(1) turns, first, on the construction of the word "property" therein and, secondly, on the manner in which s 7 vests "property" in the Crown. 1. Section 7(1) was amended on 15 May 1984 by the Fauna Conservation Act and Another Act Amendment Act 1984 Q (the 1984 Amendment Act), s 5. The words "otherwise than in contravention of this Act" were inserted after the phrase "taken or kept". Nothing turns on this amendment.
Property is used in the law in various senses to describe a range of legal and equitable estates and interests, corporeal and incorporeal. Distinct corporeal and incorporeal property rights in relation to the one object may exist concurrently and be held by different parties [89] . Ownership may be divorced from possession. At common law, wrongful possession of land might give rise to an estate in fee simple with the rightful owner having but a right of re-entry [90] . Property need not necessarily be susceptible of transfer. A common law debt, albeit not assignable, was nonetheless property [91] . Equity brings particular sophistications to the subject. The degree of protection afforded by equity to confidential information makes it appropriate to describe it as having a proprietary character, but that is not because property is the basis upon which protection is given; rather this is because of the effect of that protection [92] . Hohfeld identified the term "property" as a striking example of the inherent ambiguity and looseness in legal terminology [93] . The risk of confusion is increased when, without further definition, statutory or constitutional rights and liabilities are so expressed as to turn upon the existence of "property". The content of the term then becomes a question of statutory or constitutional interpretation [94] .
Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc, relate; then again - with far greater discrimination and accuracy - the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning to the other. At times, also, the term is used in such a "blended" sense as to convey no definite meaning whatever. "Property" is used in the latter sense in s 7(1), that is, as an aggregate of legal relations between the "Crown" and "fauna". In order to determine the content of these legal relations, it is necessary to consider: first, the manner in which "property" is vested in the Crown; secondly, the Crown's immunity under s 7(2) from such liability as would otherwise have arisen from the vesting of property; thirdly, the qualification contained in s 7(1); and, fourthly, the meaning of the term "Crown". 1. Wily v St George Partnership Banking Ltd (1999) 84 FCR 423 at 431. 2. "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning", Yale Law Journal, vol 23 (1913) 16, at pp 21-22 . See also Gray and Gray, "The Idea of Property in Land", in Bright and Dewar (eds), Land Law: Themes and Perspectives (1998) 15, at pp 27-30 .
[B]efore federation, in all the Australian colonies save Victoria, legislation had established procedures whereby claims in tort as well as in contract might be brought against the colonial governments. [98] 1. (1997) 191 CLR 471 at 544-545. 2. Maguire v Simpson (1977) 139 CLR 362 at 371-373. See Finn, "Claims Against the Government Legislation", in Finn (ed), Essays on Law and Government, vol 2, The Citizen and the State in the Courts (1996) 25, at pp 26-32 .
This assists in determining the statutory meaning of "property" in s 7(1). For example, if an open season be declared for estuarine crocodiles and a tourist boat "injures", "damages" or even "disturbs" an estuarine crocodile, the result is that the "property" in the crocodile does not vest in the Crown. This is because the creature has been "taken" in an "open season". Thus, where an "open season" has been declared in respect to particular fauna, the vesting and subsistence of "property" in such fauna is conditioned upon the actions of third parties. The interests in fauna created by s 7(1) differ in nature from the ordinary understanding of property in a chattel conferred by the common law.
These matters support a construction of s 7(1) that the legal relations, described in s 7 as the "vesting" of "property", arise only if a person "takes" or "keeps" "fauna". If the fauna is taken or kept, during an open season with respect to that fauna, "property" does not vest in the Crown. However, if fauna is otherwise "taken" or "kept", within the meaning of s 5, "property" is vested in the Crown and the immunity provided for in s 7(2) for the Crown has a relevant operation.
The scope of the legal relations, known as "property", between estuarine crocodiles and the Crown remains to be identified. It is necessary now to consider the meaning of "vesting" in s 7(2). In Attorney-General (Quebec) v Attorney-General (Canada) [105] , a Canadian provincial statute provided that "tracts of land shall be and are hereby respectively set apart and appropriated to and for the use of the several Indian tribes in Lower Canada and the said tracts of land shall accordingly, by virtue of this Act be vested in and managed by the Commissioner of Indian Lands for Lower Canada". The Privy Council observed that [106] :
It is not unimportant, however, to notice that the term "vest" is of elastic import; and a declaration that lands are "vested" in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively. (Emphasis added.) 1. [1921] 1 AC 401. 2. Attorney-General (Quebec) [1921] 1 AC 401 at 409. See also The Commonwealth v New South Wales (1923) 33 CLR 1 at 45; Perth Corporation v Crystal Park Ltd (1940) 64 CLR 153 at 168; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at 587-592.
In this case, s 7(1) does not in terms provide that it is for particular public or statutory purposes that fauna "is the property of the Crown and under the control of the Fauna Authority". As a matter of construction, should s 7(1) be read as so limited?
To construe s 7(1) in its statutory context, it is necessary to determine the meaning of the word "Crown" in s 7(1) in a manner which is consistent with the remaining provisions of the Fauna Act. Section 7(1) identifies the Crown in two senses. First, fauna is the property of the "Crown" and secondly, fauna was under the control of the "Fauna Authority" which was defined in s 5 to mean the "Minister and subject to the Minister the Under Secretary and the Conservator". "Minister" in turn was defined in s 5 to mean "the Minister for Primary Industries or other Minister of the Crown who at the material time is charged with the administration of this Act: the term includes a Minister of the Crown who is temporarily performing the duties of the Minister". Section 7(1) therefore placed control of fauna in a persona designata of the Crown, that is a Minister of the Crown in right of Queensland. In contrast, the reference in s 7(1) to fauna being the "property of the Crown" must be taken to be a reference to that body politic which is the State of Queensland.
This construction of s 7(1) accords with the structure of the Fauna Act as a whole. Section 10 provides that the "Act shall be administered" by the designated person, whilst numerous provisions throughout the remainder of the Act provide that the Governor in Council may undertake certain activities in order, broadly, to effectuate the purposes of the Act. In contrast, the "Crown", as the State of Queensland, is referred to in the Fauna Act for the limited purpose of recouping money sums which may become payable from time to time under the Act.
The principal reference to the "Crown", as the State of Queensland, is found in Pt XI of the Fauna Act. To adopt the language of Deane J in Walden v Hensler [107] , s 7(1) provides a "basis of the royalty system which Pt XI of the [Fauna Act] establishes". The collection of royalty sums, as opposed to the physical possession of fauna, is the relevant legal interest of the Crown manifested in Pt XI (ss 67-71). Section 71(1) confirms this construction. It provides for the seizure and forfeiture of fauna in default of payment of royalty sums.
Part XI vastly expands the royalties, or sums payable, which at common law otherwise would have attached as a privilege of the Crown in respect of certain animals [108] . As first enacted in 1974, Pt XI created a royalty regime for "prescribed fauna". Sub-section (1) of s 67 provided that "royalty at the rates prescribed shall be payable to the Crown on prescribed fauna", whilst sub-s (2) stated:
Notwithstanding this Act or any other Act or law, payment of royalty on fauna pursuant to this Act does not transfer property in that fauna from the Crown. The persons liable for payment of royalty were identified in s 68(1): The following persons shall be jointly and severally liable for the payment of royalty: -
(b) a fauna dealer or other person who at any time after the taking of the fauna receives or keeps the fauna or fauna obtained therefrom.
(c) in a case to which subparagraph (a) applies, immediately upon the taking of the fauna in question;
(d) in a case to which subparagraph (b) applies, immediately upon the receipt of the fauna in question.
The first event which triggers liability for the payment of royalty is a "taking" of prescribed fauna. At a time thereafter actual payment of the royalty may or may not be made. If that payment occurs, s 67(2) confirms that it does "not transfer property in that fauna from the Crown". Section 67(2) assumes that "property" in fauna in the Crown vests before payment of the royalty. These provisions are therefore consistent with the construction of s 7(1) considered above whereby "property" in fauna vests in the Crown upon a taking or keeping of the fauna, events anterior to any time when a royalty payment is to be made. 1. See Case of Swans (1592) 7 Co Rep 15b [77 ER 435]; Chitty, A Treatise on the Law of the Prerogatives of the Crown, (1820), pp 142-144. As to the meaning of "royalties of the Crown", see Stanton v Federal Commissioner of Taxation (1955) 92 CLR 630 at 641.
The second implicit reference in the Fauna Act to the Crown, as the State of Queensland, is found in the enforcement provisions. These impose penalties upon persons who contravene the statutory proscriptions supporting the royalty regime. Section 54(1)(a), the text of which is set out in Section II of these reasons, is one such enforcement provision. As first enacted, s 54(2) provided:
A person who commits an offence against this section is liable to a penalty of not less than $50 and not more than $1,000, and in addition to a penalty of twice the royalty payable on each fauna in respect of which the offence is committed. The Crown, as the State of Queensland, is the entity to which the penalty was payable [109] . 1. Earl of Selborne LC in Bradlaugh v Clarke (1883) 8 App Cas 354 at 358 said that it is an "incontestable proposition of law, that "where a penalty is created by statute, and nothing is said as to who may recover it, and it is not created for the benefit of a party grieved, and the offence is not against an individual, it belongs to the Crown, and the Crown alone can maintain a suit for it" ". This construction of the Fauna Act is supported by the saving provision in s 84 and by s 85 which provided that "all penalties, costs, fees, royalty and compensation recovered under this Act shall be paid into and form part of the Consolidated Revenue Fund".
Accordingly, the State of Queensland had two interests conferred by the Fauna Act, first, the recovery of royalties under Pt XI and, secondly, the recovery of penalty sums under the various enforcement provisions in the Act, such as s 54(2). The legal relations between the Crown, as the State of Queensland, and "fauna", created by s 7(1) by the vesting of "property" in the Crown, supported these limited statutory interests. The rights of "the Crown" in fauna created by the vesting of "property" by s 7(1), as enacted in 1974, were limited to those which may have arisen, from time to time, first by way of royalty and, secondly, by penalty exacted from a person who contravened the statutory proscriptions supporting the royalty regime.
Before considering the question of extinguishment, it is necessary to inquire whether the amendments to the Fauna Act, subsequent to the Commencement Date and before the time of the appellant's alleged offence [110] , effected a change in the Crown's rights under the Fauna Act in respect to "fauna".
The amendments did not materially alter the construction of the Fauna Act set out in Section VI of these reasons nor did they expand the rights conferred on the Crown arising from the vesting of "property" in the Crown in s 7(1). However, reference should be made to the insertion of s 7(1A) by s 5 of the 1984 Amendment Act. Section 66 forbad, without a permit, the breeding of prescribed fauna for gain or reward, and the sale of fauna so bred. Section 7(1A), with effect from 15 May 1984, made provision with respect to the transfer, royalty-free, of property to an authorised breeder. It stated:
Notwithstanding the provisions of this Act, and subject to the provisions of any Act dealing with the farming of deer, the Conservator may, with the consent in writing of the Minister, transfer the property in fauna that is obtained by an authorised person from the breeding of fauna for gain or reward in accordance with the provisions of section 66 from the Crown to that authorised person and no royalty shall be payable on that fauna or any farm-bred progeny therefrom.
Property in the Crown would arise, in respect of fauna bred for gain or reward by a permit holder under s 66, because it was "kept" by that breeder. A royalty would be payable under s 68 because the fauna had been "taken" or had been "obtained" from such fauna. Section 7(1A) provided for a relaxation of that royalty regime.
It is convenient now to consider whether the vesting of these rights in the Crown in respect to estuarine crocodiles extinguished the appellant's native title right, or incident, to hunt estuarine crocodiles.
In Wik [111] , this Court considered the effect of rights conferred by statute on native title rights. It was held that native title rights will be extinguished where they are inconsistent with the statutory rights. This requires [112] :
a comparison between the legal nature and incidents of the existing right and of the statutory right. The question is whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right. 1. (1996) 187 CLR 1. 2. Wik (1996) 187 CLR 1 at 185. See also Fejo (1998) 195 CLR 96 at 126.
Whether in a given case native title rights have been extinguished is a question of law. The inquiry turns on the legal criterion of inconsistency. Where there has been a grant of a fee simple, the application of this criterion is not determined by the existence, as a matter of fact, of an indigenous community's attachment or connection to the land, whether spiritual, cultural, social or economic. This inquiry relates to the anterior question of whether, but for the relevant inconsistency, native title would still subsist. For example, a non-indigenous owner of land in fee simple may continue to permit indigenous people to retain connections to the land but this will not derogate from the conclusion that the grant of fee simple extinguished native title on that land. Further, the existence, as a matter of fact, of indigenous peoples' continued connection to land which has been the subject of a grant in fee simple does not permit a "springing" back of native title at some future time [113] .
The continued subsistence of native title will turn upon the extent of the inconsistency in question. In the case of a grant of a fee simple or of a leasehold interest, as known to the common law, this second step will be unnecessary; subject to the observations above concerning the intersection of native title rights and estates, the comprehensiveness of the grant precludes any question of partial extinguishment.
Before turning to whether inconsistency arose in the present appeal, it is important to clarify the utility of factual findings. Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the indigenous community. The ambit of the native title right is a finding of law. This must then be placed against the statutory rights which are said to abrogate it. The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title right without in any degree abrogating it.
In Wik, the Court considered the grant of particular statutory interests. The statutory grants did not "clearly, plainly and distinctly [authorise] activities and other enjoyment of the land which necessarily were inconsistent with the continued existence of any of the incidents of native title which could have been subsisting at the time of these grants" [114] . Further, the subsistence of native title rights was not abrogated by the mere existence of unperformed conditions in the grant of a pastoral lease [115] . These conditions had no immediate legal effect, in terms of inconsistency, whilst unperformed. If performance had occurred, questions would have arisen respecting operational inconsistency between the performed condition and the continued exercise of native title rights.
In the present appeal, the narrow issue is whether the creation of certain statutory rights, conditioned upon the exercise of power conferred by the statute, abrogated the exercise of the native title right, or incident, to hunt. The characteristics of the statutory rights created by or pursuant to the exercise of powers conferred by the Fauna Act are described in Section VI of these reasons. The power in question was exercised by the declaration of estuarine crocodiles as fauna by the Order in Council. Only then could any question of inconsistency arise.
The matters which require determination in the present appeal are: (i) when does the question of inconsistency properly arise?; and (ii) what is the effect of the statutory rights on the exercise of the native title right to hunt?
The Crown's "property" in fauna under s 7(1) of the Fauna Act arises only upon a "taking" or "keeping". Further, the provisions in the Fauna Act for the granting of permission to take fauna and for the declaration of animals to be (or not be) fauna reinforce the conclusion that any question of inconsistency arises upon, but not before, a "taking" or "keeping" of fauna.
The exercise of the native title right to hunt was a matter within the control of the appellant's indigenous community. The legislative regulation of that control, by requiring an indigenous person to obtain a permit under the Fauna Act in order to exercise the privilege to hunt, did not abrogate the native title right. Rather, the regulation was consistent with the continued existence of that right.
Further, as described in Section III of these reasons, the native title right to hunt exercised by the appellant was not merely the right to "take" estuarine crocodiles within the meaning of s 5 of the Fauna Act. The native title right has both an anterior and posterior operation. Any anterior exercise of the native title right, prior to a "taking" or "keeping" of an estuarine crocodile, is not inconsistent with the Crown's so-called "property" rights pursuant to s 7(1).
Accordingly, the native title right, or incident, to hunt estuarine crocodiles exercised by the appellant was not extinguished at any time before the "taking" of the estuarine crocodiles which allegedly contravened s 54(1) of the Fauna Act.
Finally, I turn to consider the effect of the Native Title Act on the appellant's common law native title right, or incident, to hunt estuarine crocodiles.
Part 13 (ss 208-215) of the Native Title Act is entitled "Miscellaneous". Section 211 provides:
Preservation of certain native title rights and interests
Requirements for removal of prohibition etc on native title holders
(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.
(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.
(3) Each of the following is a separate class of activity:
(e) any other kind of activity prescribed for the purpose of this paragraph.
Part 15 (ss 222-253) is entitled "Definitions", Div 2 (ss 223-240) therein is entitled "Key concepts: Native title and acts of various kinds etc". Sections 223 and 224 inform the meaning of s 211. They materially state:
(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.
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
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.
In Western Australia v The Commonwealth (Native Title Act Case) [118] , the Court, after setting out the relevant text of s 211, continued:
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. 1. (1995) 183 CLR 373 at 474.
The appellant's conduct in hunting and killing the estuarine crocodiles was a "class of activity" for the purposes of s 211(2) of the Native Title Act. Further, s 54(1)(a) of the Fauna Act was a State law which fell within the terms of s 211(1)(b). It prohibited or restricted persons from carrying on the relevant class of activity at stake in this case, namely hunting, other than in accordance with a licence, permit or other instrument granted or issued to them under the Fauna Act. Equally, s 54(1)(a) of the Fauna Act answered the criteria in s 211(1)(c).
The respondent's principal contention was that the appellant's conduct did not fall within the definition of native title or native title rights and interests in s 223, because the condition in par (c) of s 223(1) that "the rights and interests are recognised by the common law of Australia" could not have been satisfied. The existence of a native title right, which was not extinguished prior to the enactment of s 211, is assumed. Section 211, in conjunction with s 109 of the Constitution, operates to remove prohibitions or restrictions in Commonwealth, State or Territory laws which might otherwise extinguish the relevant native title right.
However, the common law native title right, or incident, to hunt estuarine crocodiles exercised by the appellant was not extinguished by the Fauna Act prior to the "taking" of the two estuarine crocodiles at Cliffdale Creek. Therefore the "native title right" was "recognised by the common law of Australia" within the meaning of par (c) of s 223(1), at the time when the appellant was alleged to have committed the offence against s 54(1) of the Fauna Act.
The Magistrate held that the conditions of s 211(2)(a) were fulfilled in this case. It was not otherwise disputed that the appellant's conduct was in "exercise or enjoyment" of his "native title rights and interests" within the meaning of s 211(2)(b). As a consequence, s 211(2) applied to the appellant's conduct. Direct inconsistency arose between the prohibition purportedly imposed on the appellant by s 54(1) of the Fauna Act and the removal of the prohibition by s 211(2) of the Native Title Act. Section 109 of the Constitution operated to deny what otherwise could have been the appellant's liability to punishment for contravention of s 54(1) of the Fauna Act. Therefore the complaint against the appellant was not well based in law.
I would allow the appeal, order that the orders of the Court of Appeal be set aside and in lieu thereof order that the order nisi of Williams J dated 28 November 1996 be discharged.
The appellant seeks an order for costs in this Court and in the Court of Appeal. The appeal arises out of a prosecution but presents special features. The outcome is dictated by the operation, through the medium of s 109 of the Constitution upon the Fauna Act, of the Native Title Act. This attracted interventions, as to some said to be as of right under s 78A(1) of the Judiciary Act 1903 Cth and as to others admitted to require leave.
It is implicit in what has been said earlier in these reasons that, to the extent necessary to grant leave to any intervener, I would do so.
Section 78A(2) of the Judiciary Act provides for costs orders against intervening Attorneys-General. The appellant seeks such orders in respect of the increase in costs brought about by their interventions. In the end, as might have been expected, this case has turned upon a close analysis of the Fauna Act. The interveners supporting the respondent, the Attorneys-General, between them filed extensive materials which did not assist in that task. There is merit in the appellant's submission that this is a case for the special order he seeks against the intervening Attorneys. I would make an order against each of the intervening Attorneys, that they pay the additional costs of the appellant resulting from their intervention.
There was no argument with respect to the general order for costs sought against the respondent. I would give the appellant leave to present written submissions as to why, notwithstanding the criminal nature of the process involved, there should be such an order in his favour in respect of the proceedings in this Court and in the Court of Appeal. The submissions should be filed not later than fourteen days after delivery of judgment. The respondent should have fourteen days to reply to those submissions.
This case which was commenced in the Magistrates Court in Mount Isa raises a question whether an incident, tradition, right or privilege of or interest in native title has been extinguished by the Fauna Conservation Act 1974 Q (the Act).
The appellant was charged with having taken fauna, crocodiles, without being the holder of a licence, permit, certificate or other authority, under s 54(1)(a) of the Act. Section 54 provides as follows:
(1)(a) A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act.
(b) Save as is otherwise expressly provided by this Act, a person who -
(i) keeps protected fauna which fauna was taken otherwise than in contravention of this Act during an open season with respect to that protected fauna in a place to which that open season refers;
(ii) takes fauna at a time and place when and where that fauna is non-protected fauna;
(iii) continues to keep fauna taken and kept lawfully prior to the date of commencement of this Act;
(v) keeps for his own private domestic enjoyment, not more than five in total of birds of prescribed species which birds have not been unlawfully taken, and who at the same time keeps no birds other than aviary birds;
(c) The exemption granted by provision (i) of paragraph (b) shall not apply to the keeping of live protected fauna by any person.
(2) A person who commits an offence against this section is liable -
(a) if the offence is one related to the taking of fauna, to a penalty of 100 penalty units or 12 months imprisonment or both;
(b) if the offence is one related to the keeping of fauna, to a penalty of 40 penalty units,
and in any case to an additional penalty not exceeding twice the royalty on each fauna in respect of which the offence is committed.
Evidence was given in the Magistrates Court without objection, that the appellant took, during a period of five weeks, two young crocodiles from Cliffdale Creek in North Queensland. He and other members of his group or tribe froze and ate part of the catch. The area around Cliffdale Creek was traditionally occupied by the tribe or group of people, the Gungaletta people, of whom the appellant was a member. The precise length of time of this occupation was uncertain. The appellant claimed that the area had been occupied for at least 1,300 years. Dr Trigger, an anthropologist, gave unchallenged evidence that radiocarbon dating conducted in 1983 indicated that shellfish-eating people occupied the area 140 years ago (plus or minus sixty years) and 1,300 years ago (plus or minus eighty years). The appellant and Dr Trigger gave evidence that the appellant's genealogy could be traced back to 1870. The Magistrate concluded that the appellant's tribe or people were identical with those whose presence was revealed by carbon dating. The hunting and taking of crocodiles in the area was a practice which, Mr Yanner stated, his people had been following "forever". He also said that although traditional hunting methods had changed over the years, the way in which he hunted crocodiles was "[p]retty much the same" as the way in which his ancestors had. This claim was made despite the fact that the appellant used a modern boat with an outboard motor and a steel tomahawk to administer the coup de grâce to the crocodiles [119] . Dr Trigger also gave evidence that "Gungaletta customs and traditions have simply been maintained from the earliest processes of colonisation through to the present, though they have changed in certain ways".
[T]he evidence is that the traditional custom was to hunt crocodile for food from time to time, not just crocodile, however, but juvenile creatures. Evidence is that adults are not hunted. Quite apart from the fact that that seems rather prudent, the evidence suggests tribal totemic significance and spiritual belief. The defendant says he complies with that code of behaviour.
Whilst there is the authority for the proposition that "hunting" rights as such are not available on common law principles, the clear inclusion of such in sub-s (2) of s 223 of the Native Title Act now demands of the common law in Australia the statutory interpretation now provided.
Being satisfied that the provisions of cl (c) are complied with and being satisfied that the defendant is a member of a class described in all paragraphs of s 223(1), I accept that the defendant was in the exercise or enjoyment of his Native Title rights and interests, s 211(2)(b). He is therefore a person who holds Native Title rights and interests as defined in s 224.
Having accepted the criteria set out, and as referred to in the Native Title Act, I am satisfied that the defendant has established his defence to the offence alleged under the State legislation. That being the case, the defendant is found not guilty and is discharged.
(1) All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority.
(1a) Notwithstanding the provisions of this Act, and subject to the provisions of any Act dealing with the farming of deer, the [Conservator] may, with the consent in writing of the Minister, transfer the property in fauna that is obtained by an authorised person from the breeding of fauna for gain or reward in accordance with the provisions of section 66 from the Crown to that authorised person and no royalty shall be payable on that fauna or any farm-bred progeny therefrom.
(2) Liability at law shall not attach to the Crown by reason only of the vesting of fauna in the Crown pursuant to this section.
when it is said by writers on the Common Law of England that there is a qualified or special right of property in game, that is in animals ferae naturae which are fit for the food of man, whilst they continue in their wild state, I apprehend that the word "property" can mean no more than the exclusive right to catch, kill and appropriate such animals which is sometimes called by the law a reduction of them into possession.
This right is said in law to exist ratione soli, or ratione privilegii Property ratione soli is the common law right which every owner of land has to kill and take all such animals ferae naturae as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil.
Property ratione privilegii is the right which, by a peculiar franchise anciently granted by the Crown in virtue of its prerogative, one man had of killing and taking animals ferae naturae on the land of another; and in like manner the game, when killed or taken by virtue of the privilege, became the absolute property of the owner of the franchise, just as in the other case it becomes the absolute property of the owner of the soil.
It follows that, apart from the provisions of the Act of which the appellant was ignorant, he was entitled by law to keep the birds which he had taken. But the Act changed the law. It vested the property in all fauna in the Crown (s 7) and prohibited the taking or keeping of fauna without a licence, etc. 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). 1. Walden v Hensler (1987) 163 CLR 561 at 566-567.
12(1) Subject to subsection (4), royalty at the rates prescribed shall be payable to the Crown on prescribed fauna.
(2) Notwithstanding this Act or any other Act or law, payment of royalty on fauna pursuant to this Act does not transfer property in that fauna from the Crown.
(3) Rates of royalty may vary in respect of different species of fauna.
(4) The regulations may exempt from the payment of royalty species of fauna specified therein in cases where that fauna is taken otherwise than in contravention of this Act.
There is a strong presumption that a statute is not intended to extinguish native title. The intention to extinguish native title must be clear and plain, either by the express provision of the statute or by necessary implication. (Footnotes omitted.) 1. (1996) 187 CLR 1 at 185. 2. Wik Peoples v Queensland (1996) 187 CLR 1 at 247.
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty 1. See, eg, Fejo v Northern Territory (1998) 195 CLR 96 at 151. 2. Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58.
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, the Parliament has chosen to include certain legislative and executive acts of the Crown within the definition of "past acts". (Footnote omitted.) The Fauna Conservation Act 1974 Q relevantly answers the description of an Act which was wholly valid and effective when passed in relation to any native title right in respect of the taking of fauna. 1. (1995) 183 CLR 373 at 454.
The Court delivered the following written judgment: -
21 December 1999 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
The court or Judge may make such order as to costs as the court or Judge deems just. There was, therefore, undoubted power in the Court of Appeal to order costs in the proceedings before that Court and it was not suggested that this Court lacked power to make an order dealing with costs of the appeal in this Court.
Yanner
Eaton
(1944) 68 CLR 261
(1968) 122 CLR 25
(1927) 39 CLR 539
(1955) 92 CLR 630
(1992) 175 CLR 1
(1995) 183 CLR 373
(1996) 187 CLR 1
(1998) 195 CLR 96
(1922) 31 CLR 174
(1933) 49 CLR 142
(1941) 65 CLR 88
(1982) 158 CLR 327
(1987) 163 CLR 561
(1998) 159 ALR 483
(1983) 158 CLR 1
(1915) 21 CLR 69
(1996) 185 CLR 595
(1994) 179 CLR 520
(1996) 186 CLR 71
(1934) 52 CLR 609
(1954) 91 CLR 540
(1998) 194 CLR 1
(1999) 84 FCR 423
(1997) 191 CLR 471
(1977) 139 CLR 362
(1999) 199 CLR 462
(1923) 33 CLR 1
(1940) 64 CLR 153
(1998) 195 CLR 566
(1999) 196 CLR 392
(1990) 64 ALJR 593
(1990) 170 CLR 534