Gleeson CJ, Gaudron, Gummow, Kirby, Hayne, McHugh and Callinan JJ
The appeal by Marandoo Yanner against a conviction for taking crocodile without a licence was handed down in the High Court on Thursday, 7 October 1999. In a joint majority judgement, Gleeson CJ, Gaudron, Kirby and Hayne JJ, allowed the appeal, with Gummow J also in the majority allowing the appeal though offering separate reasons.
The majority held that Yanner was exercising a traditional right which constituted part of the native title of the Gunnamalla and that the right was not extinguished by the Queensland Fauna Conservation Act, which provided that all fauna is the 'property' of the Crown.
The joint judgement and that of Gummow J made some important comments on the nature of property. This aspect of the decision is likely to have wider significance. In the joint judgement their Honours said that, 'property does not refer to a thing; it is a description of a legal relationship with a thing'.
In contrast to the judges of the minority (McHugh and Callinan JJ), their Honours said that to describe property as vesting in the Crown did not assume absolute ownership, rather, the terms may be indicative of 'all or any of the many different kinds of relationships between a person and a subject matter', and therefore further investigation of the purpose of the Act was necessary. Gummow J also construed the concept of property in this way, suggesting that property is an aggregate of legal relations not of things.
In the joint judgement, their Honours outlined a number of reasons why property in this instance was not absolute ownership, to conclude that the vesting of property here was '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"'. (citing a US case)
Therefore, the 'property' referred to in the Act is 'no more than an aggregate of the various rights of control by the executive' to prohibit the taking of fauna without a licence.
If that vesting was inconsistent with the native title rights being asserted, then native title may still have been extinguished to the extent of any inconsistency, in accordance with the Wik decision. Examining the extent of any inconsistency, their Honours concluded:
It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists.
Of course the grey area between absolute prohibition and extinguishment was noted but was not considered to arise in this instance.
Their Honours also noted than in considering the question of inconsistency the nature of native title must always be kept in mind. They said that native title rights and interests 'not only find their origin in Aboriginal law and custom, they reflect connection with the land'. This may be understood as spiritual, cultural and social connection. The importance of this, especially in this case, was said to be that regulating a particular incidence of native title will not sever the connection with the land that sustains native title.
Gummow J also picked up on this point, when emphasising that native title is not a 'unitary concept', that is, it varies from one case to another depending on the community's traditional laws and customs. Gummow J also noted the distinction between native title rights and interests, which reside with the community, and the privileges or rights which flow from that to individuals within the community. Gummow J concluded:
The exercise of the native title right to hunt was a matter within the control of the appellants 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.
The majority identified that the right is further protected by section 211 of the Native Title Act which preserves certain native title rights and interests on lands occupied by Indigenous peoples. In turn, the Racial Discrimination Act and section 109 of the Australian Constitution further protect those rights against extinguishment by state legislation.
The minority judgements differed in the construction of the concept of property, preferring the submissions of the respondents that 'property' in the Act meant absolute ownership and therefore extinguished native title.
This case is of immense importance to Indigenous peoples in the assertion of rights to use and control resources. It should be noted that similar language, vesting property in the Crown, is the basis of the assumption of Crown ownership of minerals in many state legislative regimes. This decision also gives support to the decision of Justice Lee in the Miriuwung Gajerrong determination on the issues of resources.
The decision is consistent with overseas precedents although it does not deal with many of the issues raised, for example, in the Sparrow case Canada, which would arise when new legislation is sought to be introduced which may impinge on native title.
The decision also moves the direction away from previous discussions of 'a vulnerable title' and 'a bundle of rights' which seemed to suggest a constraining of the concept of native title (although Callinan J maintained this restrictive conception). The earlier focus on property no longer holds the same connotations or implications, because the concept of property has been construed in a way that is more akin to Indigenous understandings of their relationship with land and there is, hopefully, therefore a little less scope for missed meanings.