Eaton v Yanner, ex parte Eaton [1998] QCA 20

IN THE COURT OF APPEAL [1998] QCA 20 SUPREME COURT OF QUEENSLAND Appeal No. 10389 of 1996 Brisbane [Eaton v. Yanner; ex parte Eaton] BETWEEN: GRAHAM JOHN EATON (Applicant) Appellant AND: MURRANDOO BULANYI MUNGABAYI YANNER (Respondent) Respondent EX PARTE GRAHAM JOHN EATON Fitzgerald P. McPherson J.A. Moynihan J. Judgment delivered 27 February 1998 SEPARATE REASONS FOR JUDGMENT OF EACH MEMBER OF THE COURT, FITZGERALD P. DISSENTING. ORDER NISI MADE ABSOLUTE. THE ORDER DISMISSING THE COMPLAINT IS SET ASIDE. THE PROCEEDINGS ARE TO BE REMITTED TO THE MAGISTRATES COURT IN MOUNT ISA AND IT IS DIRECTED THAT THE MATTER PROCEED ACCORDING TO LAW. CATCHWORDS: Criminal law (Qld) - Taking fauna without licence - Defence - Native title rights and interests - Whether traditional interests continue to be recognised by common law of Australia - Effect of Crown ownership of fauna on native title rights and interests - Fauna Conservation Act 1974 (Q.), ss. 7, 54 - Native Title Act 1993 (Cth), ss. 211, 223. Aboriginals - Native title - Usufructuary rights and interests - -- 1 of 48 -- Hunting for purpose of satisfying personal, domestic or non- commercial communal needs - Whether traditional interests continue to be recognised by common law of Australia - Effect of Crown ownership of fauna on native title rights and interests - Fauna Conservation Act 1974 (Q.), ss. 7, 54 - Native Title Act 1993 (Cth), ss. 211, 223. Environmental law - Nature conservation - Native title rights and interests - Hunting for purpose of satisfying personal, domestic or non-commercial communal needs - Whether statutory purpose of nature conservation inconsistent with native title right to take fauna - Fauna Conservation Act 1974 (Q.), ss. 7, 54 - Native Title Act 1993 (Cth), ss. 211, 223. Counsel: Mr P.A. Keane Q.C. with him Mr G.J. Koppenol for the appellant. Mr A. Vasta Q.C. for the respondent. Solicitors: Crown Solicitor for the appellant. National Aboriginal and Islander Legal Services Secretariat for the respondent. Hearing Date: 5 June 1997 -- 2 of 48 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 10389 of 1996 Brisbane Before Fitzgerald P. McPherson J.A. Moynihan J. [Eaton v. Yanner; ex parte Eaton] BETWEEN: GRAHAM JOHN EATON (Applicant) Appellant AND: MURRANDOO BULANYI MUNGABAYI YANNER (Respondent) Respondent EX PARTE GRAHAM JOHN EATON REASONS FOR JUDGMENT - FITZGERALD P. Judgment delivered 27 February 1998 The respondent is a member of the Gunnamulla clan of the Gungaletta tribe, the traditional owners of land near Doomadgee in which Cliffdale Creek is located. Between 31 October and 1 December 1994, he killed and took two estuarine crocodiles from Cliffdale Creek, and he and other members of his clan ate parts of the crocodile meat. At the time, he was not the holder of a licence, permit, certificate or other lawful authority granted under the Fauna Conservation Act 1974,1 nor was he protected by sub-s. 54(1)(b) of that Act. By an Order-in-Council2 dated 29 August 1974 and published in the Government Gazette on 1 Since repealed by the Nature Conservation Act 1992, which came into force on 19 December 1994. 2 It is convenient to pass over the respondent’s contention that the Order-in-Council was required to be, but was not, proved. Reference was made to ss. 45 and 48 of the Evidence Act 1977. See, however, s. 36 of the Acts Interpretation Act 1954, “statutory instrument”, sub-s. 43(b) of the Evidence Act, and s. 7 of the Statutory Instruments Act, 1992. -- 3 of 48 -- 31 August 1974, estuarine crocodiles had been declared to be “fauna” as defined in s. 5 of the Fauna Conservation Act. Sub-section 7(1) of that Act provided that “[a]ll fauna, save fauna taken and kept during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority”.3 By s. 5, “Fauna Authority” meant the Minister and subject to the Minister, the Director. Subject to exceptions provided for in the Act,4 sub-s. 54(1)(a) made it an offence to take fauna unless the holder of a licence, permit, certificate or other authority under the Act.5 The respondent was charged with a breach of sub-s. 54(1)(a). Although the elements of the offence according to the terms of that subsection were established, the Magistrates Court at Mount Isa dismissed the charge on 11 October 1996. The complainant obtained an order to review that decision on 28 November 1996. In addition to contending that the Order-in-Council by which estuarine crocodiles were declared to the “fauna” was not properly proved in evidence, the respondent sought to uphold the decision in his favour on the basis that his conduct was permitted by s. 211 of the Native Title Act 1993 (Cth). The appellant argued that that section had no material operation because the Native Title Act only applies in relation to native title rights and interests which continued in existence when that Act came into force, and the respondent’s right to kill and eat the crocodiles had been extinguished by the Fauna Conservation Act and the material Order-in-Council prior to the enactment of the Native Title Act. The appeal proceeded on the basis that the respondent and his clan had had a common law 3 See also s. 84. 4 For example, sub-ss. 27(1) and 54(1)(b). 5 The argument did not involve other sections of the Fauna Conservation Act, and it does not appear necessary to summarise or analyse the Act in more detail because of the decision in Walden v. Hensler (1987) 163 C.L.R. 561. However, the Act contains a number of provisions authorising the grant of licences, etc.; for example, ss. 30, 43 and 53, Part X Division 1, and ss. 60-64 and 66. -- 4 of 48 -- “native title” right to kill and eat estuarine crocodiles and that factual issues related to the material provisions of the Native Title Act had been resolved in favour of the respondent.6 The appellant drew attention to a number of earlier statutory provisions7 which were accepted as consistent with the continued existence of the respondent’s native title right at that time. It was not argued that the native title right of the respondent and his clan to kill and eat estuarine crocodiles did not survive those Acts,8 or their repeal.9 The appellant’s submission was that the respondent’s native title right was extinguished by the Fauna Conservation Act when estuarine crocodiles became fauna for the purposes of that Act by virtue of the Act and the material Order-in-Council. Reliance was placed on statements in Walden v. Hensler10 and Wik Peoples v. State of Queensland.11 The respondent did not question the validity12 of the Fauna Conservation Act and the Order- in-Council, which preceded the Racial Discrimination Act 1975 (Cth).13 It was implicitly accepted that, when the Racial Discrimination Act came into effect, it did not invalidate earlier State legislation which had already extinguished native title rights and interests to the extent that the State legislation had had that effect. In the circumstances, it is obviously unnecessary to consider whether material provisions of the Fauna Conservation Act could have been validated by, or under, the Native Title Act. 6 See, for example, Mason v. Tritton (1994) 34 N.S.W.L.R. 572; Derschaw v. Sutton (W.A. Full Court, unreported, 16 August 1996). 7 Native Animals Protection Act 1906, sub-s. 9(c); Animals & Birds Acts 1921, ss. 8A and 17(b); Fauna Protection Act 1937, ss. 15 and 25; Fauna Conservation Act 1952, ss. 6(2) and 78. 8 Cf. Derschaw. 9 The last of those Acts, the Fauna Conservation Act 1952, was repealed by the Fauna Conservation Act 1974. 10 (1987) 163 C.L.R. 561, at 566-567. 11 (1995-96) 63 F.C.R. 450, at 501. 12 Under s. 109 of the Commonwealth Constitution. Cf. Mabo v. Queensland (No. 1) (1988) 166 C.L.R. 186, in which the Queensland Coast Islands Declaratory Act was held invalid. 13 The Racial Discrimination Act, which implemented Australia’s obligations as a party to the International Convention on the Elimination of all Forms of Racial Discrimination, became law on 31 October 1995. -- 5 of 48 -- That Act was a legislative response to the decision of the High Court in Mabo v. Queensland (No. 2).14 It is extremely complex legislation, as is evident from decisions of the High Court in Western Australia v. The Commonwealth15 and Wik Peoples v. Queensland.16 Broadly speaking, so far as presently material, the Act: (a) recognised that Aboriginal peoples and Torres Strait Islanders had rights and interests17 in respect of land and waters according to the common law, and gave that common law force as a law of the Commonwealth;18 (b) subjected native title to the laws of Australia, including State and Territory laws which are consistent with the Act;19 and (c) recognised the total or partial20 extinguishment of native title by inconsistent legislative or executive governmental activity, including valid State legislation, which was sufficiently plain and unambiguous in its intention to do so.21 A sufficient understanding of the presently material provisions of the Native Title Act can be gleaned from two passages in the joint judgment of six members of the High Court22 in Western Australia v. The Commonwealth. The first passage23 is as follows: “3. The Native Title Act: its constitutional character As native title survived the establishment of the Colony of Western Australia and as the WA Act failed in its purpose of extinguishing native title, native title survived or was capable of surviving in Western Australia as at 1 January 1994, when the substantive provisions [Except Pt 10] of the Native Title Act commenced operation. The common law concept of ‘native title’ is incorporated into the definition contained in s 223(1) of the Act: 14 (1992) 175 C.L.R. 1. 15 (1995) 183 C.L.R. 373. 16 (1996) 141 A.L.R. 129. 17 “native title”, now defined in s. 223. See also the definition of “native title holder” in s. 224. 18 ss. 3, 10 and 11. 19 s. 8. 20 To the extent of the inconsistency. 21 Western Australia v. The Commonwealth, at pp. 442-443, 452-453; Mabo [No. 2], e.g. at pp. 64, 188, 192, 196; Wik Peoples v. Queensland (1996) 141 A.L.R. 129. 22 Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh JJ. 23 pp. 452-455. -- 6 of 48 -- ‘The expression “native title” or “native title rights and interests” means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.’ It is unnecessary to consider sub-s (3) of s 223 which brings within the definition of ‘native title’ statutory rights and interests into which native title rights and interests have been compulsorily converted. The constitutional character of the Native Title Act is determined by reference to its operation [Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1 at 7, 16]. Its operation must be ascertained not only from its terms but from the circumstances in and upon which the Act takes effect and the change it makes in the law [The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 152, 245]. Under the common law, as stated in Mabo [No.2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title. Three aspects of the operation of the Native Title Act are of central importance to its constitutional character: the recognition and protection of native title, the giving of full force and effect to past acts which might not otherwise have been effective to extinguish or impair native title and the giving of full force and effect to future acts which might not otherwise be effective to extinguish or impair native title. The key provisions are to be found in Pt 2 of the Act, the terms used therein being defined in Pt 15. The recognition and protection of native title The first of the enacted objects of the Native Title Act is ‘to provide for the recognition and protection of native title’ (s 3(a)). This object is achieved by a statutory declaration (s 11(1)) that native title ‘is not able to be extinguished contrary to this Act.’ The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title. -- 7 of 48 -- Of course, as this Court held in Mabo [No. 1], native title was substantially protected against extinguishment by the Racial Discrimination Act on and after 31 October 1975. But the Native Title Act expressly makes ‘valid’ - a term which is defined to include ‘having full force and effect’ (s 253) - certain ‘past acts’ that affect native title to the exclusion of the protection extended by the Racial Discrimination Act. Although s 7(1) of the Native Title Act provides that nothing in that Act ‘affects the operation of the Racial Discrimination Act 1975', s 7(2) declares that s 7(1) ‘does not affect the validation of past acts by or in accordance with this Act.’ [Although nothing in the Native Title Act affects the operation of the Racial Discrimination Act, nothing in the Racial Discrimination Act is capable of affecting the operation of the Native Title Act truly construed. However, to construe the Native Title Act and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act if that construction would remove the ambiguity.] Past acts and ‘future acts’ are defined by Div 2 of Pt 15 of the Native Title Act. These definitions are carefully drafted to comprehend a large number of qualifying factors. Any attempt to summarise their terms and the substantive provisions of Pt 2 with which they interlock will inevitably be inexact, but a summary must suffice to expose the salient features of the Act that are relevant to its constitutional character. An ‘act’, whether past or future, includes the making, amendment or repeal of any legislation, ... (s 226). The definition of ‘past act’ (s 228) distinguishes in point of terminal date [An act (other than the enactment of a law) done on or after 1 January 1994 may also be within the definition if the act is done in exercise of some anterior right to do the act or to have the act done: s 228(3)-(9). The terminal date for legislative acts prevents the WA Act from satisfying the definition of a ‘past act’.] between the enactment of a law (1 July 1993) and other ‘acts’ (1 January 1994). To be a ‘past act’, the act done before the terminal date must have been ‘invalid’ to some extent on account of the existence of native title. As the chief, and perhaps the only, way in which the existence of native title might have produced invalidity in a past act attributable to a State or Territory is by attracting the overriding operation of the Racial Discrimination Act, the definition of past acts gathers in those legislative and other acts which discriminated, albeit unintentionally, against the Aboriginal and Torres Strait Islander holders of native title. The overriding operation of the Racial Discrimination Act would have made inconsistent State and Territory laws inoperative or would have required the reading down of State and Territory laws so as to be consistent with the Racial Discrimination Act. ... The definition of ‘past act’ is the lynchpin for the provisions of the Native Title Act which permit State laws enacted in the future to give full force and effect to earlier acts which purported to extinguish or impair native title but which were ineffective at the time when the acts were done. An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is given force and effect by the Act. But, as acts purporting to extinguish or impair native title might be impugned as inconsistent with the Racial Discrimination Act if they were done after that Act came into operation [On 31 October 1975] the Parliament has chosen to -- 8 of 48 -- include certain legislative and executive acts of the Crown within the definition of ‘past acts’. Section 14 then confers (or confirms, if only to remove doubt) validity on the past acts of the Commonwealth. Section 19(1) permits State and Territory laws enacted in the future to confer (or confirm, if only to remove doubt) validity on the past acts of the State or Territory. ... The provision authorising the future validation of past acts attributable to a State is not affected by the principle that a law of the Commonwealth cannot retrospectively avoid the operation of s 109 of the Constitution on a State law that was inconsistent with a law of the Commonwealth [University of Wollongong v. Metwally (1984) 158 CLR 447.] Section 19 of the Native Title Act does not purport to deny the overriding effect of the Racial Discrimination Act upon any inconsistent law of a State in the past. Section 19 removes any invalidating inconsistency between, on the one hand, a State law enacted in the future that purports to validate past acts attributable to a State and, on the other, the Racial Discrimination Act or any other law of the Commonwealth (including the Native Title Act itself). The validation of past acts attributable to a State is effected by a State law which, at the time of its enactment, is not subject to an overriding law of the Commonwealth. The force and effect of a past act consisting of a State law which was ‘invalid’ by force of s 109 of the Constitution because of inconsistency with the Racial Discrimination Act is recognised only from and by reason of the enactment of the future State law but, from that time onwards, the force and effect of the past act is determined by the terms of the State law enacted in conformity with s 19.” Section 211 of the Native Title Act was not mentioned in that passage.24 However, it was discussed later in the joint judgment in Western Australia v. The Commonwealth, as will be seen. It is desirable first to set out s. 211, together with 223 and 224. Those provisions are as follows: “Preservation of certain native title rights and interests Requirements for removal of prohibition etc. on native title holders 211.(1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and (c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders. Removal of prohibition etc. on native title holders (2) If this subsection applies, the law does not prohibit or restrict the 24 Nor was s. 211 of the Native Title Act mentioned in Wik. -- 9 of 48 -- native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non- commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests. Definition of ‘class of activity’ (3) Each of the following is a separate ‘class of activity’: (a) hunting; (b) fishing; (c) gathering; (d) a cultural or spiritual activity; (e) any other kind of activity prescribed for the purpose of this paragraph. ... Native title Common law rights and interests 223.(1) The expression ‘native title’ or ‘native title rights and interests’ means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), ‘rights and interests’ in that subsection includes hunting, gathering, or fishing, rights and interests. Statutory rights and interests (3) Subject to subsection (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression ‘native title’ or ‘native title rights and interests’. ... Native title holder 224. The expression ‘native title holder’, in relation to native title, means: (a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust - the prescribed body corporate; or -- 10 of 48 -- (b) in any other case - the person or persons who hold the native title.” Section 211 was the subject of a number of separate questions in Western Australia v. The Commonwealth.25 Its validity was upheld, and its operation was described in the joint judgment as follows:26 “The usufructuary rights comprehended by sub-s (3) are, by virtue of sub-s (2)(b), rights and interests which are incidents of native title. They are, by definition (s 223(1)), rights and interests that are recognised by the common law and, by operation of s 11(1), they cannot be extinguished except in conformity with the Act. Section 211(2) removes the requirement of a ‘licence, permit or other instrument granted or issued ... under the law’ referred to in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in sub-s (3). If the affected law be a law of a State, its validity is unimpaired, but its operation is suspended in order to allow the enjoyment of the native title rights and interests which, by s 211, are to be enjoyed without the necessity of first obtaining ‘a licence, permit or other instrument’. Again, the effect of s 211 is not to control the exercise of State legislative power, but to exclude laws made in exercise of that power (inter alia) from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s 211.” There is authoritative support for the appellant’s general proposition that the Native Title Act only applies in relation to native title rights and interests which continued in existence when that Act came into force. Thus, for example, in discussing the general scheme of the Native Title Act and its fundamental effects for the purpose of determining its constitutional validity, it was said in Western Australia v. The Commonwealth27 that “[a]n act28 which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act.”29 There is also authoritative support for the appellant’s general propositions that an unequivocal vesting or appropriation of the full beneficial ownership of property by the Crown in or for itself will effect an extinguishment of native 25 Questions 7, 10 and 11. 26 p. 474. 27 183 C.L.R. 373. 28 State legislation is an “act” as defined in s. 226 of the Native Title Act. 29 Western Australia v. The Commonwealth at p. 454 per Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh JJ; cited in Wik at p. 219 by Gummow J. See also Djaigween v. Douglas (1994) 48 F.C.R. 535, 541; Yuin Council of Elders Aboriginal Corporation v. New South Wales (1995) 60 F.C.R. 501, 508. -- 11 of 48 -- title,30 and lawful legislative or executive grants of property to other persons which are inconsistent with the continued existence of native title rights and interests extinguish those rights and interests to the extent of the inconsistency.31 However, in my opinion, the solution to the present dispute cannot be found in those general propositions, which give no convincing indication that s. 211 of the Native Title Act is not intended to operate according to its terms. While the Native Title Act has only prospective, not retrospective operation,32 it came into effect prior to the conduct of the respondent which is the subject of the present charge under sub-s. 54(1)(a) of the Fauna Conservation Act. Section 211 of the Native Title Act therefore has potential application to the operation of sub-s. 54(1)(a) of the Fauna Conservation Act with respect to the respondent’s conduct. The critical issues for decision are the meaning of s. 211 in the context of ss. 223 and 224, and the operation of s. 211 upon the Fauna Conservation Act and the material Order-in-Council. In resolving those issues, it is necessary to bear in mind that, as the appellant pointed out, the present tense is used in sub- ss. 211(1)(a),33 223(1),34 and 224(b)35 of the Native Title Act The history of the insertion of s. 211 into the Native Title Act indicates that particular provision with respect to a special subject was made incrementally to the general legislative scheme. The clause which became s. 211 was not in the Bill when it was introduced into Parliament, and was not dealt with in the Explanatory Memorandum or in the Second Reading Speech.36 The clause was introduced by amendment in the Senate.37 The 30 Mabo [No. 2], pp. 50, 69-70, 110; Western Australia v. The Commonwealth, pp. 434, 492, 495; Re. Selpam Pty Ltd (1995) 121 F.L.R. 87, at pp. 91, 94, 95. 31 Wik, at pp. 184, 209, 220, 233, 284; Mabo [No. 2], at pp. 68, 111; Western Australia v. The Commonwealth, at p. 442; Delgamuukw v. British Columbia (1993) 104 D.L.R. (4th) 470, 522. 32 However, there is nothing to suggest that the Native Title Act is confined to future laws which meet the tests prescribed in sub-ss. 211(1)(b) and (c). 33 “consists of or includes”. 34 “are possessed” (sub-s. 223(1)(a)), “have” (sub-s. 223(1)(b)) and “are recognised” (sub-s. 223(1)(c)). 35 “hold”. 36 By the Prime Minister in the House of Representatives on 16 November 1993: see Parliamentary Debates, Vol. H of R 190, pp. 2877-2883. 37 Parliamentary Debates, 16 December 1993, Vol. S161, pp. 5440-5454. -- 12 of 48 -- considerable discussion in that Chamber reveals that it was intended that conduct which otherwise would only be lawful if licensed under a State law be lawful for indigenous people without such a licence subject to the limitations prescribed by the section; for example, hunting in accordance with traditional laws and customs in areas to which the indigenous person or group is traditionally connected, and for personal, domestic or non-commercial communal needs.38 When the Bill was returned to the House of Representatives on 22 December 1993, the amendments were agreed to on the motion of the Prime Minister.39 If it is permissible to refer to the parliamentary material,40 it tends to support a construction of s. 211 which is favourable to the respondent. At its broadest, the appellant’s argument was that any law which satisfied sub-ss. 211(1)(b) and (c) would have extinguished native title rights and interests and that the Fauna Conservation Act with the material Order-in-Council satisfied those provisions. Obviously, if that is correct and sub-s. 211 (1)(a) applies only to native title rights and interests which continued to exist when the Native Title Act became law, s. 211 missed most of its target. On the appellant’s hypothesis, s. 211 can only operate with respect to statutory rights and interests which are native title rights and interests by virtue of sub-s. 223(3). That is to say, 38 The stated purpose of s. 211 was “... to ensure that Aboriginal people are not prevented from exercising their inherent native title rights and interests in circumstances where state and Commonwealth laws allow others to engage in those activities. The amendment does not prevent a state or the Commonwealth from prohibiting a native title activity where it is necessary, for example, for genuine conservation reasons, but it does prevent them from doing so while allowing others to engage in that same activity. In other words, the amendment prevents laws from having a discriminatory operation on Aboriginal people whose rights to conduct certain activities can sometimes be traced back many thousands of years. “The clause is particularly important for those Aboriginal and Torres Strait Islander people who may already be largely dispossessed and whose native title rights are limited to particular activities or resources. Without it there could be a creeping process of dispossession as native title rights are regulated out of existence, one by one, while other people remain free to carry out those same activities. “The clause is critical in protecting Aboriginal rights to hunt, fish and gather where the impact of the activity is not such as to require its non-discriminatory prohibition. The clause is limited in its operation to native title rights in relation to hunting, fishing, gathering or cultural or spiritual activities where those activities are for personal, domestic or communal purposes. Other types of activities can also be prescribed if the need arises. A similar protection of native title rights exists in Canada and New Zealand.” 39 Parliamentary Debates, Vol. H of R 191, pp. 4541 ff. 40 Acts Interpretation Act, sub-s. 15AB(1)(a). -- 13 of 48 -- s. 211 is only applicable if previously existing native title rights and interests had earlier been “compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land and waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders”.41 In my opinion, the use of the present tense in ss. 223 and 224 of the Native Title Act is insufficient to justify such a restrictive operation for s. 211, in disregard of the apparent purpose of that section according to both its language and the parliamentary material. The premise underpinning s. 211 is that a law does not extinguish native title rights and interests, and thereby exclude the operation of the section, or accord it only a minimal operation, merely because the law satisfies sub-ss. 211(1)(b) and (c). The appellant next argued that, even if all prior laws which satisfied sub-ss. 211(1)(b) and (c) of the Native Title Act had not for that reason extinguished pre-existing native title rights and interests, the Fauna Conservation Act and the material Order-in-Council did so because of s. 7 of that Act.42 It was submitted that the assertion of Crown ownership of the property in fauna by s. 7 of the Act, taken in conjunction with its other provisions, notably sub- s. 54(1)(a), manifested a legislative intention by the Queensland Parliament to extinguish the respondent’s pre-existing native title right to kill and eat estuarine crocodiles43. As earlier stated, the appellant relied on the decision of the High Court in Walden v. Hensler.44 The passage which provides most assistance to the appellant is the following statement by Brennan J.:45 “... The Act eliminated any right which Aborigines or others might have acquired lawfully to take and keep ‘fauna’ as defined in the Act, and any entitlement which Aborigines might have enjoyed at common law to take and keep fauna (assuming that such an entitlement had survived the alienation by the Crown of land over which Aborigines had traditionally hunted).” However, the point there discussed by his Honour was not in issue in the case. And the 41 See sub-s. 223(3). It was not argued that an entitlement to apply for a licence, etc., was a statutory right or interest within the meaning of sub-s. 223(3). 42 And implicitly some other legislation might do so because of some provision additional to provisions which satisfy sub-ss. 211(1)(b) and (c) of the Native Title Act. 43 Mabo [No. 2]; Western Australia v. The Commonwealth; Wik. 44 163 C.L.R. 561. 45 Ibid. at p. 567 -- 14 of 48 -- Native Title Act had not been enacted. In Walden, a majority of the High Court46 upheld the conviction of an Aborigine for an offence against sub-s. 54(1)(a) of the Fauna Conservation Act. The Aborigine was not the holder of a licence, permit, certificate or other authority under that Act, and the issue was whether s. 22 of the Criminal Code provided a defence on the basis that, although he had not been legally entitled to take the fauna, the Aborigine believed that he was entitled to do so in accordance with Aboriginal custom. Brennan J. himself demonstrated the lack of significance held by the passage quoted above, for present purposes, by later going on to say:47 “... The gist of the offences created by s. 54 is the physical destruction or control of fauna, irrespective of any rights over or in respect of fauna which might be vested in any person. The acts prohibited by s. 54 are not defined as having the consequence of infringing another's rights. It may be that, by reason of s. 7, any act which is done in contravention of s. 54 will infringe the rights of the Crown, but infringement is not an element of any offence created by s. 54. It is immaterial for the purposes of s 54 whether or not fauna is the property of the Crown (or, after an amendment of the Act in 1984, of an ‘authorized person’: see s. 7(1A)). Standing alone, s. 54 does not create an offence relating to property. “Does the existence of s. 7 turn an offence created by s. 54 into an offence relating to property? I think not. If an infringement of the Crown's rights in protected fauna is not an element of the offences created by s. 54, the vesting of such rights in the Crown does not add the qualifying element to the offence. Section 54 has the same meaning and effect whether or not regard is had to s. 7: it is a provision calculated not to protect the Crown's or any other person's rights over or in respect of fauna but to protect fauna from destruction or control. ...” Deane J. said:48 “... That provision [s.7] provides a basis of the royalty system which Part XI of the Act establishes. If the offence of taking or keeping fauna without authority under the Act, which s. 54 creates, could properly be seen as an incident of that royalty system or as designed to protect the property rights of the Crown in fauna, there would be force in the view that an honest belief of ownership of the fauna or of the existence of traditional hunting rights in relation to it might constitute the foundation of a defence of ‘claim of right’ 46 Brennan, Deane and Dawson JJ.; Toohey and Gaudron JJ. dissenting. 47 p. 575. See also per Toohey J. at p. 600 and Gaudron J. at p. 606. 48 pp. 582-583. -- 15 of 48 -- under s. 22 of the Code. Close examination of the Act as a whole discloses, however, that so to see the offence created by s. 54 would be to misunderstand both the nature and purpose of that section. “The provisions designed to ensure the observance of the Act's royalty system are to be found in Part XI itself: ... Section 54 is in Part IX which is concerned with the general regulation, for conservation purposes, of the keeping and protecting of fauna, including fauna taken before the commencement of the Act. The provisions of s. 54 and the other sections in Part IX are neither based upon nor restricted by reference to the royalty system which the Act establishes or the proprietary rights of the Crown which the Act proclaims. In its context in Part IX, s. 54 is properly to be seen as a general conservation provision for the protection of ‘fauna in its habitats’: see the Act, long title. Neither failure to pay royalty, which is an offence under Part XI (s. 69), nor interference with the proprietary or possessory interest of the Crown in fauna constitutes an element of the offence created by s 54. Both the fact that the prescribed amount of royalty has been paid and the identity of the holder of any proprietary or possessory rights in the fauna are irrelevant to an offence against the sub-section. ... [T]he general words of s. 54(1) are such as to make the taking or keeping of prescribed fauna by a person an offence regardless of whether the person is exercising what would, if the criminal law creating the offence had not been enacted, have been rights of ownership or traditional rights of hunting with respect to that fauna. ... In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights. Accordingly, the defence of honest claim of right was not available to the appellant in the circumstances of the present case.” Dawson J. said:49 “... s. 54(1)(a) imposes a prohibition against the keeping of fauna which is of general application irrespective of any proprietary or lesser right in the fauna and so affords no scope for the exercise of any claim of right.” (emphasis added) The judgment of Deane J. in Walden explained the nexus between the Crown’s ownership of fauna under s. 7 and the royalty scheme in Part XI of the Fauna Conservation Act. The statutory scheme of Crown ownership and control of “fauna” was broadly consistent with the common law principle that wild animals are incapable of ownership until killed or caught,50 which was not affected by the recognition of common law “native title”. In Mabo (No. 2), it 49 pp. 593-594. 50 See, for example, Walden at p. 566 per Brennan J. and p. 605 per Gaudron J.; Wik Peoples (1995-96) 63 F.C.R. 450 at p. 501 per Drummond J. -- 16 of 48 -- was observed that the only common law rights of individual Aborigines might be “usufructuary rights” - including the right to hunt, take and kill - “that are not proprietary in nature”.51 However, the Fauna Conservation Act did not seek to establish a comprehensive, cohesive, statutory scheme relating the requirement of a “licence, permit, certificate or other authority” or an offence against sub-s. 54(1)(a) to Crown ownership of fauna. On the contrary. For example, sub-s. 7(1) provided that “fauna taken and kept during an open season with respect to that fauna” either did not become, or ceased to be, “the property of the Crown”. Nonetheless, a permit was required to take protected fauna during an open season in respect of that protected fauna.52 Conversely, no “licence, permit, certificate or other authority” was required to take “non-protected fauna”,53 notwithstanding that “non-protected fauna” appears to have been the property of the Crown. The pre-existing native title, non- proprietary, usufructuary rights to kill and eat fauna encountered a statutory assertion of Crown property in the fauna not as an absolute obstacle to any continued exercise of the right to kill and eat fauna but as an incident of the regulation of that right. It is instructive to notice some further remarks of Brennan J in Mabo [No. 2]. His Honour said:54 “A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title, or which creates a regime of control that is consistent with the continued enjoyment of native title.” Later, he added:55 “Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished.” Finally, in the course of a summary, he said:56 51 Pp. 51-52, per Brennan J. 52 Sub-s. 30(1). 53 Sub-s. 27(1).. See also sub-s. 54(1)(b). 54 At p. 64. 55 At p. 68. -- 17 of 48 -- “5. Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use... and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (e.g., land set aside as a national park).” There is no reason to doubt that Brennan J.’s statements in relation to native title rights and interests with respect to land are equally applicable in relation to other property, including “fauna”. In particular, nature conservation and native title rights and interests are not necessarily mutually exclusive. In the course of argument, reference was made to the decision of the High Court in Thorpes Limited v. Grant Pastoral Company Proprietary Limited57. Thorpes held that the Water Act 1912 (N.S.W.) had not deprived a landowner of his right to complain that water, silt and debris had been thrown on his land by an obstruction made to the channel or natural flood channel of a stream without lawful justification or excuse. The leading judgment was delivered by Fullagar J.,58 who said:59 “The argument for the defendant appellant is that the plaintiff's action is an action for damages for the infringement of a right in respect of water, a right vested in it by virtue of its ownership of riparian land, and that in New South Wales no private person has had any such right since the enactment of the Water Rights Act 1896. Section 1 of that Act provided, so far as material, that ‘The right to the use and flow and to the control of the water in all rivers and lakes which flow through or past or are situate within the land of two or more occupiers shall, subject only to the restrictions hereinafter mentioned, vest in the Crown. And in the exercise of that right the Crown by its officers and servants may enter any land, and take such measures as may be thought fit or may be prescribed for the conservation and supply of such water as aforesaid and its more equal distribution and beneficial use, and its protection from pollution and for preventing the unauthorised obstruction of rivers’. The ‘restrictions’ referred to are then set out: the only one that need be mentioned is that which makes the rights of the Crown subject to the right of a riparian 56 At pp. 69-70. 57 (1954) 92 C.L.R. 317. 58 So far as presently material, Dixon C.J., Webb and Kitto and, perhaps, McTiernan JJ. agreed. 59 At p. 328. -- 18 of 48 -- owner to use the water of a river or lake for domestic purposes or for stock or for the irrigation of a garden not exceeding five acres in area. The Act of 1896 has been repealed, and the relevant statutory provision now in force is s. 4A of the Water Act 1912-1946 which does not differ materially in terms from s. 1 of the Act of 1896. ...” After deciding that the defendant appellant’s argument failed,60 his Honour went on to consider decisions which had been relied upon for the defendant appellant, and said:61 “I should have thought, ... , that the real object of the Water Rights Act 1896, as revealed by the latter part of s. 1, was to enable the Crown, in a country in which water is a comparatively scarce and important commodity, to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destroy anybody's rights, but it was necessary to give to the Crown, or to some statutory authority, overriding rights to which private rights must, if need arise, give way. ... The view which I am disposed to take is that the Act does not directly affect any private rights, but gives to the Crown new rights - not riparian rights - which are superior to, and may be exercised in derogation of, private riparian rights, but that, until those new and superior rights are exercised, private rights can and do co-exist with them. ...” While what was said there cannot be directly transferred to the present dispute, Thorpes is consonant with a conclusion that Crown ownership of fauna which may be killed and eaten provided that a licence is first obtained does not necessarily extinguish a pre-existing native title right to kill and eat the fauna, but rather is one element of a statutory scheme which conditions the pre-existing native title right to the acquisition of a licence. If that is so, the position is precisely that at which s. 211 of the Native Title Act is directed. Ultimately, the issue is whether the Fauna Conservation Act, taken as a whole and with the material Order-in-Council, was practically incompatible with the continued, albeit conditional, native title right of the respondent to kill and eat estuarine crocodiles. For this purpose, it is, in my opinion, legitimate to have regard to both the terms and the purpose of the Fauna Conservation Act. That Act did not prohibit, but merely regulated, the material 60 p. 329. 61 p. 331. -- 19 of 48 -- activity. It did not exclude the killing of fauna; while it limited that activity, it expressly authorised it in specified circumstances and subject to specified conditions. Relevantly, the only condition, and the extent of any inconsistency between the respondent’s native title right and the Fauna Conservation Act, was the Act’s insistence upon acquisition of a licence, which is the direct subject of sub-s. 211(1)(b) of the Native Title Act. Finally, I have derived some assistance from the obiter statements of Kirby P. in Mason v. Tritton.62 In that case, an Aborigine was charged with breaches of regulations 34(1)(c) and 44(2) of the Fisheries and Oyster Farms (General) Regulation 1989, which had been made under the Fisheries and Oyster Farms Act 1935 (N.S.W.). The first of the two regulations prohibited possession of more than a specified number of abalone without a licence or permit, and the second prohibited shucking abalone in or on or adjacent to any waters by a person other than a licensed fisherman. The Aborigine argued unsuccessfully that he had a native title right to fish in the relevant waters, his appeal being dismissed because of the inadequacy of the evidence upon which he relied. However, Kirby P. went on to “consider whether, assuming the appellant’s claim to native title to have been properly made out, the Regulation would, in any case, have extinguished such native title. Or whether it merely regulates the exercise of the entitlements under such title.”63 At p. 591, His Honour said: “Generally, ‘the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the legislature or by the Executive’: see Mabo (at 64) per Brennan J. The requirement that there be a clear and plain intention to extinguish the entitlements of indigenous peoples accords with the approach adopted in Canada, the United States and New Zealand: see the cases cited by Brennan J in Mabo (at 64, notes 76 and 77). No clear and plain intention to extinguish native title is revealed by a ‘law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title’: see Mabo (at 64) per Brennan J. ...” After further discussion of the judgment of Brennan J. in Mabo [No. 2], Kirby P. concluded 62 (1994) 34 N.S.W.L.R. 572, at pp. 590-593. 63 pp. 590-591. -- 20 of 48 -- as follows:64 “Assuming the appellant's claim to native title to have been made out, and assuming the large legislative power of the New South Wales Parliament to extinguish, modify or regulate such title, a number of comments can be made in considering the application of the above principles: 1. Neither the provisions of the Fisheries and Oyster Farms (General) Regulation 1989 nor the Fisheries and Oyster Farms Act 1935 reveal a clear and plain intention to extinguish native title as such. Thus, native title is not extinguished by any express manifestation of parliament's will. 2. The application of the Regulation to the appellant is not such that, as a matter of practical effect, the Regulation is so inconsistent with the appellant's continued enjoyment of his native title that the Regulation would necessarily be deemed to have extinguished his native title. Indeed, the practical effect of the Regulation is merely to regulate the activities of all those who fish the waters of New South Wales in an equal manner. This aspect is further discussed below. Hence, without more, the practical operation of the Regulation does not, by implication, extinguish native title or rights derived from such title. 64 At pp. 592-593. -- 21 of 48 -- 3. Upon this view, the Regulation merely regulates the enjoyment of native title. The Regulation was made pursuant to s 4N of the Fisheries and Oyster Farms Act 1935. That section provides that regulations may be made ‘for the management of the fishery’ (s 4N(1)(a)). The Regulation in question limited the permissible catch of, among other ocean dwelling creatures, abalone. It prohibited the shucking of abalone adjacent to the waters. In R v Sparrow (1990) 70 DLR (4th) 385, the Supreme Court of Canada considered a claim similar to that made in the present case. In Sparrow, the accused was charged under s 61(1) of the Fisheries Act 1970 (Can) of a contravention of the regulations made pursuant to that Act. The accused had used a longer than permissible drift-net. Section 34(a) of that Act bestowed on the Governor in Council broad powers to make regulations, including ‘for the proper management and control of the seacoast and inland fisheries’. Dickson CJC and La Forest J said (at 400-401): ‘At bottom, the respondent's argument confuses regulation with extinguishment. That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished.’ The same distinction would, in my view, be applicable in the present case. The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulation establishes a regime of control of the New South Wales fisheries in a manner amounting to stringent regulation, but not extinguishment, of any otherwise established proprietary right. No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property are so curtailed that proprietary rights can no longer be enjoyed. Whether that is the case is ultimately a question of fact. It is not, in my opinion, the case here. In the ordinary case, control and regulation of the rights and privileges associated with property ownership is consistent with continued property ownership. Indeed, civilised societies demand that proprietary rights and interests be highly regulated. I do not take it to be the intent of the High Court in Mabo that successful claimants to a form of native title should then be able to remove themselves from the ordinary regulatory mechanisms of Australian society. In the particular context of this case, the control and the regulation of fishing activity applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise.” Those statements seem to me to assist the respondent, especially since the material intent for present purposes is not that of the High Court in Mabo [No. 2] but that of the Commonwealth Parliament as manifested by s. 211 of the Native Title Act. In my opinion, the Crown’s ownership of estuarine crocodiles after the Order-in-Council was gazetted neither increased nor decreased the respondent’s right to kill crocodiles. Irrespective of any question of ownership, his native title right to kill and eat those crocodiles was not -- 22 of 48 -- extinguished, but rather was subjected by sub-s. 54(1)(a) of the Fauna Conservation Act to a condition, namely, that he first possess a licence, permit, certificate or other lawful authority granted under that Act. He was therefore prohibited by that Act from killing estuarine crocodiles “other than in accordance with a licence, permit or other instrument granted or issued” within the meaning of s. 211(1)(b) of the Native Title Act.65 That continued to be the legal position until the operation of the Fauna Conservation Act was “suspended”66 by s. 211(2) of the Native Title Act, which, by way of the operation of s. 109 of the Constitution, “removes”67 the requirement for such a licence, etc. Accordingly, I consider that the charge against the respondent was correctly dismissed. The order to review should be discharged, with costs to be taxed. 65 Native Title Act, sub-s. 211(1)(b). 66 Western Australia v. The Commonwealth, p. 474. 67 Western Australia v. The Commonwealth, p. 474. -- 23 of 48 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 10389 of 1996 Brisbane Before Fitzgerald P. McPherson J.A. Moynihan J. [Eaton v. Yanner; ex parte Eaton] BETWEEN: GRAEME JOHN EATON (Applicant) Appellant AND: MURRANDOO BULANYI MUNGABAYI YANNER (Respondent) Respondent EX PARTE GRAEME JOHN EATON REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered 27 February 1998 The respondent, who is a man of the Gunnamulla clan of the Gungaletta people, killed an estuarine crocodile at Cliffdale Creek on 31 October 1994 and another such crocodile there on 1 December 1994. The crocodiles were caught using a wop which is a form of harpoon commonly used for taking dugong, and one or both of them was also hit on the head with a tomahawk. The flesh of the two crocodiles was shared and eaten by the respondent and other members of the Gungaletta people in the area. They are Aboriginals who inhabit a northern coastal strip of Queensland extending for about 100 kms from the Northern Territory border, and have done so for many years. Archaeological investigations suggest that such people have lived there from a time before the first European settlement of Australia. The most recent proved occupation of the area covers the period from 1780 to 1900. -- 24 of 48 -- In the magistrates court at Mount Isa the respondent was charged under s.54(1)(a) of the Fauna Conservation Act 1974 (Qld.) with having taken fauna without being the holder of a licence, permit, or certificate or authority under the Act. In relation to fauna, the word “take” is defined in s.5 of the Act as including hunting, killing, spearing and catching. The respondent did each of those acts. The term “fauna” is defined in s.5 to mean primarily a mammal or bird. A crocodile is neither a mammal nor a bird but a reptile. However, the definition of “fauna” goes on to include “any other animal or group of animals wild by nature declared by Order in Council to be fauna”. Estuarine crocodiles were by an Order in Council made under the Act on 31 August 1974 declared to be fauna. There is a question on this appeal whether that matter was properly established in the magistrates court below; but, subject to that point and also to what follows, the respondent was proved to have committed an offence in terms of s.54(1)(a) of the Act. The magistrate who heard the complaint nevertheless dismissed it. He did so because of the provisions of ss.213, 223 and 224 of the Native Title Act 1993 (Cth.). Section 211(2) limits the operation of laws that impose prohibitions on persons from carrying on various kinds of activity. It does so in the following terms: “211.(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests.” For s.211(2) to apply, the conditions specified in s.211(1) must first be satisfied. It is in the following terms: “211.(1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class -- 25 of 48 -- of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and (c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.” By s.211(3)(a) “hunting” is defined as a “class of activity” for the purpose of both ss.211(1) and 211(2). In terms of s.211(1)(b), the provisions of s.54(1)(a) of the Fauna Conservation Act 1974 answer the description of “a law of ... a State” which prohibits or restricts persons from carrying on” hunting because s.54(1)(a) makes it an offence to take (meaning to kill, spear or catch) fauna, which since 1974 has included an estuarine crocodile, unless that person has a licence, etc. Section 211(1)(b) of the Commonwealth Act is therefore satisfied. Section 211(1)(c) is also satisfied because s.54(1)(a) of the Fauna Conservation Act does not confer rights or interests only on or for the benefit of Aboriginal people. Indeed, it confers no rights or interests on anyone, but, on the contrary, operates only to take rights and interests away. The requirements of both paras.(b) and (c) of s.211(1) are therefore fulfilled. Only s.211(1)(a) remains to be considered. It too is satisfied if “hunting” can be said to be “the exercise or enjoyment of native title rights and interests in relation to land or water ...”. The expression “native title rights and interests” is defined in s.223(1) to mean “the communal, group, or individual rights of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: “(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal people or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.” The magistrate found that both paras.(a) and (b) of the definition in s.223(1) were fulfilled. The expression “rights and interests” is defined in s.223(2) to include “hunting ... rights and interests”. He also found that, in terms of s.223(1)(a), the hunting of crocodiles for -- 26 of 48 -- food was a traditional custom, and that the hunting methods that were in fact used by the respondent did not depart from that custom. As to s.223(1)(b), the magistrate was persuaded on the evidence that the Gunnamulla clan of the Gungaletta had a connection with the area of land from which the crocodiles were taken. Although he appears to have assumed rather than decided, in the case of both paras. (a) and (b) of s.223(1), that these requirements were fulfilled under both “traditional laws acknowledged and traditional customs observed” by the Aboriginal peoples, no point about this was taken by the complainant on appeal. The result of these findings was that, subject to satisfying the further requirement in s.223(1)(c) that those rights and interests are recognised by the common law of Australia (which will be deferred for later consideration), the three conditions for applying s.211(1) were, according to the magistrate’s view of them, also fulfilled. Once all three of those conditions in s.211(1) were fulfilled, s.211(2) became applicable. It applies in favour of “the native title holders” who carry on hunting: “(a) for the purpose of satisfying their personal domestic or non-commercial needs; and (b) in exercise or enjoyment of their native title rights and interests”. Again, the magistrate considered on the evidence that the crocodiles were, within s.211(2)(a), taken for the respondent’s domestic and non-commercial needs; and, having found that the hunting of crocodiles was, within s.211(2)(b), carried on in exercising or enjoying native title rights and interests, he concluded that s.211(2) applied. In what is a convoluted series of provisions that are by no means easy to follow, I am not altogether confident that the magistrate made a further specific finding that the Gunnamulla clan of the Gungaletta people, of whom the respondent is one, were “native title holders” within the terms of s.211(2). The expression is, in relation to native title, defined in s.224 to mean: “(a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust - the prescribed body corporate; or (b) in any other case - the person or persons who hold the native title”. -- 27 of 48 -- From the police record of interview with the respondent it appears that, when the crocodiles were killed or taken, they were in Cliffdale Creek forming part of the Bundella Pastoral Property or Holding, which, according to the evidence, is subject to a pastoral lease in favour of the Corporation of the Carpentaria Land Council. The evidence does not show whether or not the Corporation is entered on the Register as holding the native title rights or at all. On the other hand, the respondent in his testimony said that the pastoral lease was owned by Aboriginal people; that it was traditional country which had been “purchased back”; and that “we basically own Gunnamulla”, and the magistrate found as proved the matters specified in both paras. (a) and (b) in s.223(1) in respect of those people. Section 223(1) defines “native title”, and, to that extent, he appears to have found that the respondent was a “native title holder” who, in terms of s.211(2), was not prohibited from carrying on hunting in the manner prescribed by that subsection. Again, no point was raised by the complainant at the hearing of this appeal about any supposed deficiencies in the proof of that matter. Once this point is reached, the effect of s.211(2), read with s.109 of the Constitution, is to displace or suspend the operation of s.54(1)(a) of the Fauna Conservation Act to the extent that it prohibited or restricted the respondent from hunting estuarine crocodiles. The remaining question, which in these reasons has so far been deferred, concerns the meaning and effect of the requirement in s.223(1)(c) of the Native Title Act, which is that: “(c) the rights and interests are recognised by the common law of Australia.” The expression “the common law of Australia” in s.223(1)(c) is not without an element of ambiguity. In Eerie Railroad Co. v. Tomkins (1938) 304 U.S. 64 there was held to be no federal general common law of the United States. In Australia the same question produced conflicting opinions in R. v. Kidman (1915) 20 C.L.R. 425, 435-436, 445-446. However, it seems plain that what is referred to in s.223(1)(c) is not a federal common law of -- 28 of 48 -- Australia, but the national common law as it is (or perhaps will be) declared to be by decisions of the High Court of Australia, irrespective of divergences in versions of particular common law rules that may prevail among the States before those decisions are given: cf Western Australia v. The Commonwealth (1995) 183 C.L.R. 373, 486-488. Moreover, although in the United States, it is accepted that applicable pre-settlement and even pre-independence English and British statute law has been received as part of the common law (see Manoukian v. Tomasian 237 F.2d 211), it seems clear from the context of s.223(1)(c) that it refers to common law or judge-made decisional law, as opposed to statute law, of Australia: Western Australia v. The Commonwealth, at 485-486. If then one asks where the relevant “common law of Australia” is to be found, the answer is in the decisional law of the High Court and, where appropriate, of other Australian courts, state and federal, applying that law. Specifically as regards Aboriginal hunting rights and interests, the starting point is Mabo v. Queensland (No. 2) (1992) 175 C.L.R. 1, which determined that native title to unalienated Crown land in Australia survives and in some circumstances continues to be recognised at common law. The English legal system, said Brennan J. in Mabo [No.2] (1992) 175 C.L.R. 1, 49: “... accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant”. Later, his Honour went on to say (175 C.L.R. 1, 57) that the “preferable rule” equated the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land, adding that such rights and interests, whether commercial, group or individual, possessed under the traditional laws acknowledged and traditional customs observed by those indigenous inhabitants, were conveniently described as “native title”. It is plainly from this common law source that s.223(1)(a) has derived both its language and effect. We are directly concerned here not with native title to land as such, but -- 29 of 48 -- with the right to hunt and take wild animals inhabiting such land or, in this case, land and water. Hunting and taking such animals is, however, a right or interest that, in the terminology of the learned Chief Justice (as his Honour now is) in Mabo [No. 2] (1992) 175 C.L.R. 1, 49, is “derived from occupation of land”. The right is one that was and is recognised at common law in England. Statute apart, the rule of the common law is that animals ferae naturae or wild animals, so long as they continue in their wild state, are not the absolute property of anyone. The owner or occupier of the land is, however, considered as having a qualified property in such animals, such that, on exercising the right to kill and take such animals on his land, they become his property absolutely. See Blades v. Higgs (1865) 11 H.L.C. 621; 11 E.R. 1474. As that decision shows, the common law rule extends to vest property in the owner or occupier even if the animal is killed and taken on land not by the owner or occupier himself but by a trespasser who comes on the land. So in Blades v. Higgs, rabbits killed by a trespasser and taken from land belonging to the Marquis of Exeter were held thereby to have become the property of the Marquis, and so to have been tortiously converted by someone who later bought them from the trespasser. And that remains so even if, owing to a peculiarity of the law of larceny, an indictment would not lie against the trespasser for stealing by killing and taking them. The animal, while living, is regarded as in some sense a natural product of the land, and the ownership of it is, in the words of Lord Westbury in that case (11 H.L.C. 621, 635, 636; 11 E.R. 1474, 1480, 1481), considered “as incident to the property in the land” and “part of the realty”. On the settlement of Australia, or at any rate on or after 25 July 1828, the common law of England became the common law of New South Wales. It did so either by the operation of the first ruling in Anonymous (1722) 2 P. Wms. 75 or by force of the Australian Courts Act 1828, s.24, re-enacted in Queensland as s.20 of the Supreme Court Act of 1867. Subject to later legislation, it continues now to be the common law of this and the other three -- 30 of 48 -- eastern States of Australia. In South Australia and Western Australia, to which the Act of 1828 did not apply, the common law was carried there and introduced at settlement without direct statutory intervention save as to the dates of reception in each of those two colonies. See A.C. Castles (1963) 2 Adelaide L.Rev.1, at 2-3. It is thus correct to regard the English common law rule as “the common law of Australia”, or as what predictably would be held by the High Court to be the common law of Australia if the question were to come before it for decision. See Walden v. Hensler (1987) 163 C.L.R. 561, 565-566; and cf. State Government Insurance Commission v. Trigwell (1979) 142 C.L.R. 617. If, therefore, the issue on this appeal fell to be determined solely by reference to the common law of Australia, the result would be as follows. The owner or occupier of Cliffdale Creek would in 1994 have had a qualified property in the two crocodiles as wild animals in or on the water or banks of that Creek. Upon those animals being killed and taken, that owner or occupier would have become the absolute owner of the crocodiles. It is, as I have said, not entirely clear who is the owner or occupier of that land and water. It may be the Corporation of the Carpentaria Land Council; or it may be, as the magistrate appears to have found, the Gungaletta people, of whom the respondent is one. In any event, and even if the radical title to that land is in the Crown, it seems clear that the respondent was at common law entitled to go on that part of the land or water, and to kill and take the two crocodiles so as to become the absolute owner of them. I doubt if it would have been necessary for him to found his right to do so on the Native Title Act. If he was an owner or occupier of the land, even if in common with others, he would at common law have been entitled to go or be on it and to reduce the crocodiles into his possession by killing and taking them. It may be that, having done so, the carcases would at common law have belonged to all the occupiers of the land; but he shared their flesh with the others; and, in any event, he is not charged with the offence of stealing or larceny of the animals. -- 31 of 48 -- That is, as I see it, the state of affairs that would prevail according to the common law of Australia. For the complainant, however, it was submitted that it had ceased to be the law at the time the crocodiles were killed and taken in 1994. By then s.7(1) of the Fauna Conservation Act 1974 had intervened. It provides that “all fauna ... is the property of the Crown and under the control of the Fauna Authority”. The ownership of the two crocodiles were, so the submission runs, therefore already vested in the Crown in right of the State of Queensland. Not even a qualified property remained in the occupiers of Cliffdale Creek that was capable of being enlarged by the respondent into absolute ownership by killing and taking those crocodiles. There was therefore nothing on which the Native Titles Act could operate. The first matter to be determined is whether, apart from the provisions of the Native Title Act, the Fauna Preservation Act has the effect of extinguishing the common law right to hunt and take wild animals on land of which he is the owner or occupier. No doubt it is possible to hunt, in the limited sense of chase, a wild animal without killing or capturing it. But that is not the ordinary sense of the word; and it is not the sense in which it is understood at common law, under which the essence of the right to hunt is, as appears from Blades v. Higgs, the right to reduce a wild animal into possession by killing and taking it as an incident of property rights in land. Viewed in that way, it is plain that the Fauna Preservation Act is quite inconsistent with any such right. An owner or occupier of land is no longer entitled to kill or take a wild animal that is “fauna” which he finds upon his land. He is no longer entitled to kill, catch or pursue it, because to do so constitutes a taking of the animal as defined in s.5, which is something that by s.54(1)(a) is made an offence; but, quite apart from that provision, he is no longer entitled to take away and eat the animal or its carcase because it is, by s.7(1) of the Act, now the property of the Crown. Taking it would amount to conversion of the Crown’s property in the same way that in Blades v. Higgs taking rabbits from the land was inconsistent with the rights in those animals of the landowner in that case and a tortious conversion of what had in law become his rabbits. This view of the law is supported by what was said by Brennan J. in Walden v. Hensler (1987) 163 C.L.R. 561, 566-567, where, speaking of the Fauna Conservation Act 1974, his Honour said: -- 32 of 48 -- “It follows that, apart from the provisions of the Act of which the appellant was ignorant, he was entitled by law to keep the birds which he had taken. But the Act changed the law. It vested the property in all fauna in the Crown (s.7) and prohibited the taking or keeping of fauna without a licence, etc. The Act eliminated any right which Aborigines or others might have acquired lawfully to take and keep ‘fauna’ as defined in the Act, and any entitlement which Aborigines might have enjoyed at common law to take and keep fauna (assuming that such an entitlement had survived alienation by the Crown of land over which Aborigines had traditionally hunted).” It is in my respectful opinion not possible to escape this conclusion by reference to what was said by the High Court in Thorpes Limited v. Grant Pastoral Company Pty. Ltd. (1954) 92 C.L.R. 317, 328. In that instance s.1 of the Water Rights Act 1896 (N.S.W.) vested in the Crown the right to the use and flow, and to the control, of the water in all rivers or lakes which flowed through the land of two or more occupiers. The right so vested in the Crown was subject to restrictions, which included the right of a riparian owner in certain circumstances to use the water of a river or lake for domestic purposes, for stock, or for irrigation of a garden. In giving reasons, concurred in by the other members of the Court, Fullagar J. said (92 C.L.R. 317, 331) that the object of the Act was to enable the Crown to exercise full dominion over water of rivers and lakes for the purpose of undertaking the conservation and distribution of water; but that in order to attain that object it was not necessary to destroy or affect private rights, which continued to exist “until those new and superior rights [of the Crown] were exercised”. Simply to state those circumstances is to appreciate how different they are from the purpose and effect of the Fauna Conservation Act. The primary object of the Act is, as the respondent accepted in argument on the appeal, to preserve or conserve “fauna” of all kinds, meaning by that birds or mammals indigenous to Australia as well as any animal declared by Order in Council to be fauna. That object is served by prohibiting any and all such fauna from being hunted except under licence, but, independently of that prohibition, also by vesting the property in them directly in the Crown even before they are reduced into possession. To permit the owner or occupier of land to persist in killing and taking such -- 33 of 48 -- fauna would directly frustrate that object. Far from conserving fauna, it would enable an owner or occupier himself to kill and take fauna, and presumably, as he might at common law, to licence others to do so on his land. To sanction such a course would be directly opposed to and inconsistent with the Act and its obvious purpose. The common law right of an owner or occupier of reducing a wild animal into his possession by killing and taking it has, in my opinion, therefore been abrogated by the provisions of the Fauna Conservation Act. No doubt that right is capable of being revived if the Act were to be repealed; but at the dates when the subject crocodiles were hunted and taken by the respondent in 1994, the common law right of the respondent to do so on what may be assumed to be his own land at Cliffdale Creek had been completely extinguished by the Act. Native title rights of Aboriginals in Queensland to hunt estuarine crocodiles were readily capable of being recognised and accommodated by the common law; but those rights were, in a case like this of land owned or occupied by Aboriginals, scarcely distinguishable from rights which the common law recognised as subsisting in any other owner or occupier of land. If common law rights of killing and taking crocodiles were extinguished by s.7(1) of the Fauna Conservation Act 1974, then, apart from the effect of any Commonwealth legislation, the analogous native title rights of Aboriginals were also extinguished by that provision: cf. Re Selpam Pty. Ltd. (1995) 121 F.L.R. 87. For them to hunt, kill, remove and eat estuarine crocodiles after 31 August 1974 was to deal with those animals in a manner that was directly inconsistent with the Crown’s statutory property in them. What remains to be considered is the impact on this state of affairs of the Native Title Act. A recent statement of its effect, on which reliance was placed by the complainant on this appeal, is to be found in the judgment of Gummow J. in Wik Peoples v. Queensland (1996) 141 A.L.R. 129, 219, where his Honour said: “The litigation stands outside the system for the determination of native title claims established by the Native Title Act. However, it raises issues which may have importance for the operation of that statute. The expressions ‘native -- 34 of 48 -- title’ and ‘native title rights and interests’ are defined in s.223(1) thereof as meaning communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where, among other things, ‘the rights and interests are recognised by the common law of Australia’. If acts done before the commencement on 31 October 1975 of the Racial Discrimination Act 1975 (Cth.) (the Racial Discrimination Act) were effective to extinguish or impair native title, the Native Title Act does not undo that result. In the joint judgment of six members of this Court in Western Australia v. Commonwealth (Native Title Act case) (1995) 183 C.L.R. 373 at 454; 128 A.L.R. 1 at 38) it was said: ‘An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs or is given force and effect by the Act.’” In the present case the extinguishment of title effected by s.7(1) of the Fauna Conservation Act 1974 took effect at latest on 31 August 1974. What has seemed to me to be a possible difficulty in applying that statement to the question in the present case is that s.223(1)(c) requires the matter to be considered according to “the common law of Australia”. More accurately, what it does is to say that certain consequences follow if hunting rights and interests of Aboriginal people “are recognised by” that law. The fact that ownership in fauna has by a Queensland statute been vested in the Crown does not necessarily affect the matter if it falls to be determined not by reference to the law (including the statute law) of Queensland but by “the common law of Australia”. It is, of course, an elementary proposition that statute law or legislation prevails over common law. To the extent that s.7(1) of the Fauna Conservation Act is a provision of a valid and operative enactment of State Parliament, it displaces the common law rules with respect to ownership, killing and taking of wild animals in Queensland. If s.7(1) were to be repealed, the common law would, as I have said, revive; but, until that occurs, any right or interest, qualified or otherwise, of the respondent or of anyone else in wild animals such as crocodiles is extinguished or divested and, by the operation of s.7(1) of that Act, vested in the Crown. It is not unusual to speak of recognising a person’s rights at common law where, as -- 35 of 48 -- for example, in the event of conflict, the rules of equity have since the Judicature Act prevailed over them. Such language is, however, permissible only because such rights at common law continue to subsist until in particular circumstances they come into conflict with rules of equity. It is not, I consider, correct to speak of rights being “recognised” by the common law if those rights have been altogether repealed, displaced or extinguished by statute. The difficulty remains that all that has been done by s.7(1) is to extinguish rights of property and taking that were formerly recognised by the common law of Queensland. The same rights, it might be said, continue to be recognised by the “common law of Australia”, which viewed as a single nation-wide concept, the Queensland Parliament may be, and may always have been, powerless to alter or affect. It may be competent for the Commonwealth Parliament, acting within its legislative powers with respect to a particular subject matter, to preserve or even to set up the common law as a rule or standard under which rights will continue to be “recognised”. If that was what was achieved by s.223(1)(c), then s.109 of the Constitution would have the consequence that any State law inconsistent with that rule or standard was to that extent rendered invalid or at least “inoperative” until the Commonwealth legislation was repealed: Butler v. Attorney-General (Vict.) (1961) 106 C.L.R. 268. To say that the common law right was extinguished before the Commonwealth legislation commenced to operate might not necessarily prevent the Commonwealth enactment from continuing to recognise its existence at some later date. In the end, however, I do not consider it necessary to consider these questions, which were not the subject of submissions on this appeal. Whether or not after the enactment of s.7(1) of the Fauna Conservation Act 1974, it could be said that the common law of Australia continued to recognise Aboriginal hunting rights in Queensland, it is clear that the effect of that provision is to prevent the requirements of s.223(1)(a) of the Native Title Act from being -- 36 of 48 -- satisfied. Section 223(1), it will be recalled, defines the expression “native title” and “native title rights and interests” to mean communal, group or individual rights and interests of Aboriginal peoples in relation to land or waters, where: “(a) the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed, by the Aboriginal peoples ...”. Because by s.223(2) the expression “rights and interests” includes hunting rights and interests, it follows that s.223(1)(a) is to be read as requiring that “hunting rights and interests are possessed ...” etc. This being so, I am unable to see how it can be said of hunting rights and interests of Aboriginal peoples that they “are possessed” under traditional laws acknowledged by the Aboriginal peoples, or under traditional customs observed by them, if those rights have been validly extinguished by s.7(1) of the Fauna Conservation Act. It is, of course, true that Aboriginal people may in a sense continue to acknowledge laws or observe customs that are in conflict with the statute law of the State; but a law or a custom that is overridden by legislation is extinguished and so ceases to exist: see, for example, Evans v. Birmingham Corporation (1853) 21 LTOS 182, 183; Green v. R. (1876) 1 App. Cas. 513. It does so however much people of any kind may profess to acknowledge or to continue to observe it or them. Indeed, for Aboriginal people to continue to observe their custom of hunting, killing and taking wild animals, even on their own land, would be directly inconsistent with the provisions of the State Act for the conservation of fauna such as estuarine crocodiles. It would necessarily involve a tortious conversion of something that by statute now belongs to the Crown in right of the State. It follows that it is not possible to find or to hold, as in this matter the magistrate did, that the Gunnamulla clan of the Gungaletta people “are possessed” under their traditional laws and customs of hunting rights or interests in or with respect to estuarine crocodiles in the land or waters of Cliffdale Creek. Their traditional right to hunt was abrogated or -- 37 of 48 -- extinguished by s.7(1) of the Fauna Conservation Act in 1974, with which it is plainly inconsistent. It in turn follows that the requirements of s.211(1)(a) of the Native Title Act were not satisfied; that is to say, the exercise or enjoyment of native title rights and interests did not include hunting those crocodiles. In consequence, s.211(2) of that Act was not capable of applying so as to remove the prohibition or restriction imposed by s.54(1)(a) of the Fauna Conservation Act 1974 against hunting fauna. The assumption on which these reasons have so far proceeded is that it was established that on 31 August 1974 estuarine crocodiles were declared to be “fauna” within the meaning of the State Act. The relevant extract of the Gazette in which that Order in Council was published was placed before us on the appeal. Section 48 of the Evidence Act 1977 provides that evidence of an order in council made or issued by the Governor in Council may be given: “(d) by the production of the Gazette purporting to contain it; (e) by the production of a document purporting to be a copy of it and purporting to be printed by the government printer or by authority of the Government of the State”. The submission on appeal is that no such copy or extract from the Gazette was produced at the hearing in the magistrates court at Mount Isa, and that this omission was and is fatal to the success of the appeal. The point was not adverted to in the proceedings below but is said to be an element or matter in the case as to which the onus of proof rested on the prosecution. Section 48 of the Evidence Act uses the expression “may” be given. The provision is plainly facultative and does not preclude other methods of establishing the making, existence or contents of an order in council. Section 43 of the Evidence Act 1977 also provides that: “Judicial notice must be taken of the following - (a) every Act; (b) every statutory instrument; (c) the time when every Act or statutory instrument commenced, and every provision of every Act or statutory instrument commenced.” -- 38 of 48 -- By s.7 of the Statutory Instruments Act 1992, “statutory instrument” is defined so as to include an order in council like that in this instance. The provision formerly in s.1 of the Evidence and Discovery Act of 1867 was expressed in similar terms. In Rolls v. Bateman [1946] St.R.Qd. 34, a jockey was sentenced to imprisonment on a charge that, contrary to the Animals Protection Act of 1925, he had, at Closeburn near Brisbane and within 20 miles of the boundary of the Brisbane petty sessions district, ill-treated a mare. On appeal, the Full Court said that there was ample evidence that Closeburn was within that distance of the boundary. It was also held that under s.1 of the Act of 1867, it was the duty of the magistrate to take notice of the boundaries of the petty sessions district because, as was said by E.A. Douglas J. ([1946] St.R.Qd. 34, 40-41), “they are contained in a proclamation”. Philp J. said that, as for the application of s.1 of the 1867 Act, “it is the duty of magistrates to take judicial notice of the boundaries of the petty sessions district in which they are acting” ([1946] St.R.Qd. 34, 43). Matthews J. agreed. The headnote to the report of the decision records that the Full Court itself took notice of the proclamation in the Gazette, which was produced by counsel for the respondent on the appeal. In arriving at their decision, the Full Court relied on the earlier decision of that Court in McLay v. Reis (1899) 9 Q.L.J. 120, which was an appeal from justices dismissing a complaint of obstructing an inspector acting under the Factories and Shops Act of 1896. The area in which the obstruction took place was one in which the Act had by proclamation been declared to be in force; but the justices dismissed the complaint because there was no formal evidence that that was so. In allowing the appeal, Griffith C.J., after referring to s.1 of the Act of 1867, said (9 Q.L.J. 120, 121): “The justices proceeded on the assumption that when a court is required to take judicial notice of a matter of law the document embodying the law must be formally tendered in evidence. That is a misconception. The first question they had to consider was whether this Act was part of the law of that locality. -- 39 of 48 -- That was a matter of law of which they were required to take judicial notice, for which purpose they might make any necessary inquiries. As a matter of law the Act was part of the law of that locality, and they ought to have proceeded on that assumption.” Chubb and Real JJ. agreed, Real J. saying or implying that having the documents formally tendered was not the only way in which the justices could satisfy themselves of the matter in question. In the present case, estuarine crocodiles were, on and from 31 August 1974, “fauna” within the meaning of the Fauna Conservation Act 1974. That was a matter of law, of which the magistrate was under s.43(b) of the Evidence Act required to take judicial notice. The magistrate proceeded on that assumption, which was in law correct. The omission at the hearing to produce a copy of the Gazette was therefore not a deficiency in the complainant’s case against the respondent of having committed offences against s.54(1)(a) of the Fauna Conservation Act 1974. The result is that the respondent committed an offence under s.54(1)(a) of the Fauna Conservation Act when he killed and took estuarine crocodiles at Cliffdale Creek in 1994. In fact, it is clear from the evidence and from the form of the charge in the complaint itself that two separate offences were averred of killing a crocodile, one of them on 31 October and another on 1 December 1994. Having regard to the general principles governing duplicity recently affirmed in Walsh v. Tattersall (1996) 70 A.L.J.R. 884, those two offences should not have been joined together but should have been made the subject of separate charges and complaints. No point was made of this either at the hearing below or on appeal, and it is difficult to see that the respondent has in any way been prejudiced by the oversight. Since in my view, it is necessary to send the proceedings back to the magistrate to continue the hearing, it may at the resumed hearing be open to the complainant to elect to proceed with one of the two offences charged and to abandon the other. In the light of the conclusions arrived at in these reasons, I consider that the proper order is to make absolute the order nisi, and allow the appeal by setting aside the order -- 40 of 48 -- dismissing the complaint and to remit the proceedings to the magistrates court at Mount Isa with a direction to proceed in the matter according to law. I may say that I reach this conclusion with regret. Earlier legislation on the same subject in Queensland has consistently provided an exception from the prohibition on killing and taking native animals in favour of any Aboriginal who kills native animals for his own food. The exception was, however, omitted from the Fauna Conservation Act 1974, with the consequence, visible in this case, that for an Aboriginal now to kill and take for food an estuarine crocodile on his own land is now an offence under s.54(1)(a). -- 41 of 48 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 10389 of 1996 Brisbane Before Fitzgerald P. McPherson J.A. Moynihan J. [Eaton v. Yanner; ex parte Eaton] BETWEEN: GRAHAM JOHN EATON (Applicant) Appellant AND: MURRANDOO BULANYI MUNGABAYI YANNER (Respondent) Respondent EX PARTE GRAHAM JOHN EATON REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 27 February 1998 This is an application for an order to review pursuant to s.209 of the Justices Act 1886 (Qld). The decision sought to be reviewed is a magistrate’s dismissal of a charge that the respondent had breached s.54(1)(a) of the Fauna Conservation Act 1974 (Qld) by taking two estuarine crocodiles on separate occasions between 31 October and 1 December 1994 without being the holder of a licence, permit, certificate or other authority under the Act. Estuarine crocodiles were declared to be “fauna” in terms of the Fauna Conservation Act by an order in council of 29 August 1974 published in the Government Gazette of 31 August. Although a copy of the gazettal was not received into evidence below, s.43 of the Evidence Act 1977 (Qld) required the magistrate to take judicial notice of the Order-in- Council and the date on which it came into operation. -- 42 of 48 -- The magistrate found the respondent had harpooned, killed and taken two estuarine crocodiles from an area called Cliffdale Creek in far north Queensland and, together with other members of his clan, eaten parts of the crocodile meat. Other findings included that the defendant’s people had occupied and hunted in the area for generations. The respondent was acquitted on the basis that he had the benefit of s.211(2) of the Native Title Act 1993 (Cth) which operated to remove any prohibition effected by s.54(1)(a) of the Fauna Conservation Act on the respondent's exercise of his native title rights. It was submitted for the applicant that this constituted an error of law, essentially because the respondent’s native title rights in respect of the taking of estuarine crocodiles had been extinguished by the operation of the Fauna Conservation Act before the Native Title Act came into operation. It was submitted for the respondent that his right had not been extinguished by the Fauna Conservation Act and that in any event the Native Title Act, permitted him to take the crocodiles notwithstanding any provision of the Fauna Conservation Act. The appeal proceeded on the basis that the evidence established the elements of the offence charged and that (subject to the effect of the Fauna Conservation Act), the respondent had a common law native title right to take estuarine crocodiles. The validity of the Fauna Conservation Act was not in issue. It was accepted that the factual issues founding the application of the relevant provisions of the Native Title Act, to which it will be subsequently necessary to turn, were resolved in the respondent's favour. In the light of those considerations, it seems to me that the appeal turns on two considerations; whether the Fauna Conservation Act extinguished the respondent's rights to take the estuarine crocodiles, and the effect of the Native Title Act on his conduct. When estuarine crocodiles became fauna in terms of the Fauna Conservation Act, as a consequence of the Order-in-Council of August 1974, the effect of s.7 of the Act was that -- 43 of 48 -- they became the property of the Crown. The Act provided that the estuarine crocodiles were under the control of the Fauna Authority (the Minister and subject to the Minister the Under- Secretary, s.5), constituted by the Act, while s.54 prohibited their taking without authority. It should be noted that until 1974 Queensland legislation expressly excepted “any aboriginal killing any native (animal or fauna) for his own food” from prohibition against taking fauna, but there is no such provision in the 1974 Act. Native title rights may be expressly or impliedly extinguished by valid State legislation; Mabo & Ors v. The State of Queensland (No.2)68, (Mabo No.2)69 and The State of Western Australia v. The Commonwealth70. It seems to me that the Fauna Preservation Act extinguished the respondent’s common law right to hunt and take estuarine crocodiles, once the Order-in-Council of August 1974 declared them to be fauna. It is difficult to see how the unconditional vesting of property in the Crown, in conjunction with the vesting of control and the prohibition of unauthorised taking, left any scope for the operation of the respondent’s common law rights with respect to estuarine crocodiles. The legislation goes beyond regulating the exercise of entitlements under common law native title; cf. Mabo No.2,71 Mason v. Tritton72. Reference was made to Thorps Limited v. Grant Pastoral Company Pty Ltd73. In that case provisions of the Water Rights Act 1896 (NSW) vested in the Crown the right to the use of the flow and to the control of water in rivers and lakes. The purpose of the Act was to enable the Crown to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. To that end it was necessary 68 (1992) 175 CLR 11 at 64, 68-70, 110 and 195. 69 Mabo No.2 at 64. 70 (1995) 183 CLR 373 at 418, 452. 71 Mabo No.2 at 64. 72 (1994) 34 NSWLR 572, 590. 73 (1954) 92 CLR 317. -- 44 of 48 -- to give the Crown overriding rights to which private rights must, if needs be, give way but, subject to that, it was not necessary to destroy anybody else’s rights; see per Fullagar J. at 331. The Act was therefore held not to deprive a land owner of a right to complain that an obstruction made in the channel or a stream without lawful justification or excuse had caused damage to his land by throwing water, silt and debris on it. In other words, Thorpe conditioned extinguishment on the exercise of the superior right of the Crown given by the Act to the necessity of the particular circumstances. The difficulty of applying that approach to this case seems to me to lie in the fact that the Fauna Conservation Act vests the property in the Crown, control in the Authority and prohibits the unauthorised taking of fauna and the combined effect of those consequences is inconsistent with the respondent’s rights. The position would perhaps be arguably different if s.54 arose for consideration in isolation or if s.7 dealt simply with the vesting of control and s.54 prohibited unauthorised taking, cf. Thorpe74. It is the unequivocal nature of the effect of the provisions of the Native Title Act and the comprehensioness of that effect which extinguishes the respondent’s native title, cf. Mabo No.275; Re Selpham Pty Ltd76; Western Australia v. The Commonwealth77 and Delagmwukw v. British Columbia78. I turn now to a consideration of the Native Title Act. On the view I take of the matter, the respondent’s title had been extinguished by the Fauna Conservation Act when the Native Title Act became law. Those provisions of the preamble to the Native Title Act of most direct relevance include:- 74 (1954) 92 CLR 317. 75 at 50, 69, 110. 76 (1995) 121 FLR 87 at 91, 94. 77 at 434, 492, 495. 78 (1993) 104 DLR (4th) 470 at 522. Wik Peoples v. State of Queensland & Ors (1996) 141 ALR 129. -- 45 of 48 -- "This preamble sets out considerations taken into account by the Parliament of Australia in enacting the law that follows. . . . . The High Court has: (a) rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement; and (b) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and (c) held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates. The people of Australia intend: (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. . . . . Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect. It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done." Sections 10, 11 and 12 provide:- “10. Native title is recognised, and protected, in accordance with this Act. 11.(1) Native title is not able to be extinguished contrary to this Act. (2) An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title: -- 46 of 48 -- (a) in accordance with Division 3 of Part 2 (which deals with future acts and native title); or (b) by validating past acts in relation to the native title. 12. Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth.” Section 211 of the Act is headed "Preservation of certain native title rights and interests". Section 211(2) of the Act provides:- “(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non- commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests.” The application of subs.(2) is dependent on subs.211(1) being satisfied. That subsection provides:- “211.(1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and (c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.” These references to native title rights must be read in the light of s.223(1) which provides:- “223.(1) The expression `native title’ or `native title rights and interests’ means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.” The validity of s.211 was upheld in Western Australia v. The Commonwealth79 where its operation was characterised in these terms:- 79 (1995) 183 CLR 373. -- 47 of 48 -- “The usufructuary rights comprehended by sub-s (3) are, by virtue of sub-s (2)(b), rights and interests which are incidents of native title. They are, by definition (s 223(1)), rights and interests that are recognized by the common law and, by operation of s 11(1), they cannot be extinguished except in conformity with the Act. Section 211(2) removes the requirement of a `licence, permit or other instrument granted or issued ... under the law’ referred to in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in sub-s (3). If the affected law be a law of a State, its validity is unimpaired, but its operation is suspended in order to allow the enjoyment of the native title rights and interests which, by s 211, are to be enjoyed without the necessity of first obtaining `a licence, permit or other instrument’. Again, the effect of s 211 is not to control the exercise of State legislative power, but to exclude laws made in exercise of that power (inter alia) from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s 211.” (at p.474) The Native Title Act is not retrospective and does not create or revive native title rights as distinct from recognise and give effect to existing or revived rights, see Wik Peoples v. State of Queensland & Ors80; The State of Western Australia v. The Commonwealth, supra81; Yuin Council of Elders Aboriginal Corporation v. New South Wales82; Djaigween v. Douglas83; and Djaigween v. The State of Western Australia & Ors84. It is unnecessary for present purposes to determine whether the respondent’s native title rights can be revived but if they are the Act would operate to protect them. It follows that in my view, the operation of the Native Title Act has to be considered in the light of the plaintiff’s native title being extinguished at the time at which it came into force. Section 223(1)(a) and (c) cannot be satisfied in the present case because of the operation of the Fauna Protection Act in extinguishing the respondent’s native title rights. The proper order is therefore to make the order nisi absolute, set aside the order dismissing the complaint and remit the proceedings to the Magistrates Court at Mt Isa with a direction to proceed according to law. In reaching that conclusion, I share the views expressed by McPherson J.A. in the final paragraph of his reasons. 80 (1996) 141 ALR 129 (HC), 29 per Gummow J. 81 at 454. 82 (1995) 60 FCR 501, 508G. 83 (1994) 48 FCR 535, 541B. 84 Supreme Court of Western Australia (Owen J.), 18 January 1994, unreported, p.29. -- 48 of 48 --