4 Property and Crown ownership

HIGH COURT OF AUSTRALIA, 1999

In allowing an appeal against a conviction for taking crocodiles without a licence, the High Court in Yanner v Eaton (1999) (Yanner) held that Marandoo Yanner was exercising a traditional right that constituted part of the native title of the Gunnamalla clan of the Gangalidda tribe.¹ Moreover, the right was not extinguished by the Queensland Fauna Conservation Act 1974 (Qld), which provided that all fauna is the ‘property’ of the Crown. Yanner had used a traditional harpoon to catch two juvenile estuarine crocodiles in Cliffdale Creek in the Gulf of Carpentaria. Yanner did not hold a licence or permit under the Fauna Conservation Act and was charged with taking fauna contrary to s 54(1)(a). The magistrate who heard the case in the first instance accepted that the appellant’s clan has a connection to the land and waters where the crocodiles were taken and that it was a traditional custom to take juvenile crocodiles. Moreover, it was determined that this practice was of ‘tribal totemic significance and based on spiritual belief ’.² The Queensland Court of Appeal set aside the order of the magistrate and the appellant was granted special leave to appeal to the High Court.

THE NATURE OF PROPERTY

The opportunity to discuss the nature of the Crown’s proprietary interest in fauna led the High Court to develop a more sophisticated conception of property in the native title context. The Court noted the inherent danger in employing concepts of property that were often misunderstood and could lead to ‘false thinking’, noting that usually property ‘is treated as a “bundle of rights”. But even this may have its limits as an analytical tool or accurate description.’³ Further, the joint judgment explained that, ‘“property” does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as a power permissibly exercised over the thing.’⁴ Justice Gummow also construed the concept of property in this way, suggesting that property is an aggregate of legal relations, not of things.

‘VESTING’ AND CROWN PROPERTY

In contrast to the judges of the dissenting minority (Justices McHugh and Callinan), the majority said that reference in the Fauna Conservation Act to property 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’,⁵ and therefore further investigation of the purpose of the Act was necessary.

The joint judgment outlined a number of reasons that property in this instance was not absolute ownership and concluded 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”’.⁶ The dissenting judgments differed in the construction of the concept of Crown property, preferring the submissions of the respondents that ‘property’ in the Act meant absolute ownership and therefore extinguished native title.⁷