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

Category: Case Law
Binomial Name: High Court of Australia
Sub Category:Case Law
Location:Queensland, Australia
Subject Matter:Native Title
Summary Information:
'In 1994, the appellant, a member of the Gunnamulla clan of the Gangalidda tribe, used a traditional form of harpoon to catch two juvenile estuary crocodiles in Queensland. The appellant was charged before a magistrate with the offence of taking and keeping fauna without a permit under the Fauna Conservation Act 1974 (Qld). The magistrate found that the appellant's clan had a connection with the land from which the crocodiles were taken, of which connection had existed before the common law came into being in the colony of Queensland in 1823 and 'thereafter continued'; and that it was a 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 totem significance and [was based on] spiritual belief'. The magistrate found the appellant not guilty and dismissed the charge.'
Detailed Information:
'The High Court found per Gleeson, Gaudron, Gummow, Kirby and Hayne (McHugh and Callinan dissenting):
(i) The appellant's hunting and fishing rights and interests found to exist by the magistrate were rights and interests 'possessed under the traditional rights acknowledged, and the traditional customs observed', by the clan and tribe which the appellant was a member within s223 of the Native Title Act 1993 (Cth).
(ii) Those rights and interests were recognised by the common law of Australia at least until the passing of the Fauna Conservation Act 1974 (Qld) and its predecessors (the Fauna Act).
(iii) The Fauna Act did not extinguish the rights and interests upon which the appellant relied. The Fauna Act went no further than regulating the way in which rights and interests could be exercised and was not inconsistent with the continued existence of those rights and interests.
(iv) Accordingly, by operation of s211(2) of the Native Title Act 1993 (Cth) and s109 of the Commonwealth 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.'

Related Entries

Organisation
  • Commonwealth of Australia
  • High Court of Australia
  • Legislation
  • Native Title Act 1993 (Cth)

  • Glossary

    Native Title (Australia)

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