Yanner v Eaton [1999] HCA 53 (7 October 1999)

Gulf of Carpentaria

Between: Murrandoo Bulanyi Mungabayi Yanner (Appellant) and Graeme John Eaton (Respondent)

Judges: Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

Judgment

A majority of the High Court of Australia (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) held that Yanner did not breach the Fauna Conservation Act 1974 (Qld). Delivered in two written judgments, the Court found that the hunting and fishing rights conferred by Yanner's status as a native title holder were not extinguished by the Act.

McHugh and Callinan JJ dissented.

Background

Murrandoo Bulyani Mungabayi Yanner (the appellant) is a member of the Gunnamulla clan of the Gangalidda People,  in far north Queensland on the Gulf of Carpentaria.

Between 31 October and 1 December 1994, the appellant used a harpoon to catch two juvenile crocodiles in Cliffdale Creek. He and other members of the Gunnamulla clan ate the crocodile meat, and the appellant froze the remaining meat and kept the skins.

The Gangalidda people have always sustainably fished and hunted in the river systems of this area, and crocodile is a part of the traditional diet (Blanco, 2017).

Litigation History

The appellant was charged with taking and keeping fauna without a permit under the Fauna Conservation Act 1974 (Qld) (Fauna Act).

At trial, the magistrate found that the Gunnamulla clan had a connection with the land from which the crocodiles were taken, which had existed before the common law in Queensland. This connection continued, and included the custom of hunting juvenile crocodiles for food. Evidence suggested that juvenile crocodiles (rather than adult)were a totem of cultural significance and that taking them was based on spiritual belief.

The magistrate found the appellant not guilty and dismissed the charge.

Details of the Judgment in the High Court

A majority of the High Court held that Yanner did not contravene the Fauna Act because it did not extinguish his rights as a native title holder.

Gleeson CJ, Gaudron, Kirby, and Hayne JJ held that the appellant's rights and interests as a native title holder were not extinguished by, and could therefore coexist with, the Fauna Act. Section 223 of the NTA explains what native title is, while s 221(2) of the NTA says that a law which prohibits or restricts activities such as hunting, or fishing, does not apply to native title holders in the exercise of their native title rights.

The majority reaffirmed the magistrates finding that hunting and fishing rights were 'possessed under the traditional rights and customs' of the appellant's clan within s 223 of the NTA, and s 211(2) of the NTA applied, allowing the native title rights to coexist with the Fauna Act. The appellant was therefore allowed to hunt and fish in areas protected by the Fauna Act without a permit because his rights as a native title holder continued to exist.

In addition, s 109 of the Australian Constitution states that where inconsistency arises between State and Commonwealth laws, Commonwealth law will prevail. Therefore, any native title rights conferred by the NTA will continue to exist when in conflict with State legislation. 

Gummow J in a separate judgement also found that s 211(2) of the NTA applied, and by virtue of s 109 of the Constitution, it prevailed over the Fauna Act. The appellant was therefore allowed to hunt crocodiles without a permit, by virtue of his native title rights, without a permit.

McHugh J, in dissent, framed the legal issue as one of property. He found that property of fauna in Queensland is vested in the Crown, and that the Fauna Act proclaimed no one had any right to kill, take or appropriate fauna. The appellant had no rights protected under the <>NTA, and therefore, was in breach of the Fauna Act.

Callinan J, also in dissent, found that the Fauna Act did extinguish the native title rights of Yanner and other native title holders. He found the Fauna Act wholly valid and effective, even in relation to native title rights, therefore extinguishing them.

Significance of case

Ultimately, Yanner walked away with no fines or charges. More importantly, the landmark case set a precedent that remains significant today (Gordon, 2019). The case allowed for de-regulation and flexibility of hunting and fishing for native title holders within determination areas. The case is significant in the way that native title and native title rights should and would be interpreted into the future (Gordon, 2019).

The earlier case of Walden v Hensler [1987] HCA 54 can highlight the importance of the NTA in protecting the traditional rights and interests of Indigenous peoples in Australia. The case occurred before the introduction of the NTA in 1993. Walden shot and ate a bird in contravention of the Fauna Act. He claimed his traditional and cultural rights allowed him to do so, but the Court upheld his conviction, as he did not have the protection of the NTA, so the Court was able to dismiss traditional hunting rights and interests (Carpentaria Land Council Aboriginal Corporation, n.d.).

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References

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