Yanner v Eaton - Detailed case brief, including paragraph/page references Property law: PDF

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Detailed case brief, including paragraph/page references
Property law:...

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Yanner v Eaton Area of law concerned:

Property

Court: Date:

1999

Judge:

Gleeson CJ, Gaudron, Kirby and Hayne JJ

Counsel: Summary of Facts:

The appellant is a member of an aboriginal tribe. He used a traditional harpoon to catch two juvenile crocodiles. The meat was eaten and frozen, and the skins were kept. This was allegedly contrary to the Fauna Act, which provided by s54(1): “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.” At 2

The appellant contended that s211 of the Native Title Act applied. This protects native activities such as hunting, fishing, etc. Relief sought: Issues:

Did the Fauna Act extinguish the rights in the Native Title Act by making all fauna the property of the Crown? Respondent contended that the Fauna Act extinguished the native title right or interest to hunt crocodiles, as it made fauna property of the Crown. Appellant contended that the Fauna Act was invalidated by the Constitution 7-8

Relevant Statute(s): Procedural History: Plaintiff/Appellant’s arguments Defendant/Respondent’s arguments: Result: Judge’s reasoning (majority):

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. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. Common vs legal interpretation of property 17

Professsor Gray has noted the difficulty in coming to a definite definition of property. Detailed analysis on p367

There are several reasons to conclude that the ‘property’ conferred on the Crown is not accurate described as ‘full beneficial or absolute ownership:

First, there is difficulty in identifying what fauna is owned by the Crown. What if fauna leaves the boundaries or enters the boundaries of Queensland? 22

Secondly, what exactly is meant by saying that the Crown has full beneficial, or absolute ownership of a wild animal? At common law, wild animals were subject of only the most limited property rights. There could only be ‘qualified property’. No person could have property in a wild animal. Only right to kill, etc. but no property in the actual animal 24

‘ownership connotes a legal right to have and to dispose of possession and enjoyment of the subjet matter. The subject matter dealt with by the Fauna Act is intended always to remain outside the possession of, and beyond disposition by humans. Possession is important in ownership 25

Thirdly, the property rights of the Crown would come and go, due to open seasons. 71(2) deals with forfeiture of fauna to the Crown- this wouldn’t be necessary if the Crown already owned it. In light of all these considerations, the statutory vesting of ‘property’ in the Crown by the Acts can be seen as 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.’ It’s not real property. It’s more a regulation thing allowing Crown to have control over it.

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 e sold without permission. 28

“it should be said, however, that while in form our courts and legislature 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 (eg wild game) is only a sort of guardianship for social purposes… The state as a corporation does not own a river as it owns the furniture in the state house…. Roscoe Pound on state ownership of wild things 29

The ‘property’ which the Fauna Act vested in the Crown was therefore no more than the aggregate of the various rights of control by the Executive that the legislation created. They limit what fauna might be taken and how, rights to possession of fauna, and rights to receive royalty in respect of fauna that was taken. Those rights are less than the rights of full beneficial, or absolute, ownership. Taken as a whoe the effect of the Act was to establish a regime forbidding the taking or

keeping of fauna except pursuant to licence granted by or under the Act. Following on from Pound, the rights given are more administrative than ownership 30

At least until the passing of the Fauna Act the rights and interests of native peoples were recognised by the Australian common law. 33

It is clear that native title in land is extinguished by a grant in fee simple of that land… because the rights that are given by a grant in fee simple are rights inconsistent with the native title holders continuing to hold any interests or rights. Simple enough really 35

Will the blues ever win another NZ derby? Hope we beat Crusaders this week  Lol past Dan, we lost^

The critical contention of the respondent was that the Fauna Act created a legal regime that was inconsistent with the native title holders in Queensland continuing to hold one of the rights and interests (hunting and fishing) that made up native title that the Magistrate found to exist. Respondent’s argument- native rights inconsistent with fauna act 36

It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with the continued existence of native title rights. The Fauna Act did not extinguish the rights and interests upon which the appellant relied… The magistrate was right… At 40

Minority Decision

The critical question of this case is a simple one. It is whether, by force of the Fauna 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 crocs 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 or otherwise. At 43

No doubt in Australia, the existence of common law native title rights meant that Aboriginals had similar rights over fauna. Section 7 of the Act reverses the common law rules and vests all rights of catching, killng and appropriating fauna in Queensland in the Crown. It therefore gives to the Crown the sole right of catching, killing and appropriating fauna in Queensland together with the right to exclude… Section 7 reverses the common law position

The section gives to the Crown every right, power, privilege and benefit that does or will exist in respect of fauna together with the right,

subject to the Act, to exclude every other person from enjoying those rights, powers, privileges and benefits. Taking the ordinary meaning of property At 49

The appellant would have it that s7 has a more limited meaning… His argument suggests that the property is vested in the Crown only upon other persons taking or dealing with the fauna. Negative form of property 50

The short answer to the appellant’s arguments is that s7 says that all fauna is the property of the Crown. And that includes every right, power, privilege and benefit… 52

Absurd consequences of the appellant’s arguments: Crown only obtains property in fauna when fauna has been killed, taken or appropriated by a third party. Also, Crown won’t be able to prevent appropriation by third party 54

Appeal dismissed Dickhead...