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Yanner win a legal landmark

FAIRA Aboriginal Corporation

November 1999 - In a landmark decision on October 8, the High Court found Queensland's conservation laws do not extinguish the native title rights of Aboriginal and Torres Strait Islander peoples to carry out traditional hunting on their lands. LRQ looks at the background to the case and some of the ramifications of the ruling.

THE right of Murrandoo Yanner, under the Native Title Act, to hunt, fish, gather food and conduct spiritual activities on traditional land has not been extinguished by state fauna laws.

All states and territories would now have to recognise Indigenous hunting and fishing rights, including in national parks, Mr Yanner said.

ATSIC Native Title Commissioner Geoff Clark welcomed the signal to native title holders that the courts would provide some justice and protection for their rights.

"It is significant that a clear majority of the High Court were reluctant to find that the broad government regulation of activities extinguish native title," he said.

"If the court had not come to this decision there would have been no native title hunting rights in Queensland."

The High Court by a majority of 5 to 2, decided that the Queensland Fauna Conservation Act did not extinguish native title rights in the wild animals of Queensland. The Queensland Government had claimed that its legislation had extinguished native title rights in respect of wildlife.

Following a crocodile hunting trip in 1994, Mr Yanner, who is a member of the Gunnamulla clan of the Gangalidda tribe, was charged in the Queensland Magistrates Court with hunting without a permit. The charges were dismissed.

The Queensland Court of Appeal decided that the magistrate was wrong in holding that Mr Yanner had native title rights to take the crocodiles and ordered the magistrate to reconsider the case.

But the High Court has ruled that the charges be thrown out, saying Mr Yanner had the right under native title laws to carry out traditional hunting and fishing, despite the Queensland Fauna Conservation Act. Where state laws are inconsistent with a federal law, the federal law takes precedence.

The ruling refers only to traditional hunting and only where the hunting is part of local tradition and culture.

But other cases before the courts could benefit. These include cases involving the taking of fish off Murray Island, in Torres Strait, seagull eggs at Yarrabah, a dugong at Mackay and an echidna at Charleville.

Reaction among lawyers has been divided on the the extent to which the judgement might have wider implications for native title and mineral ownership. One lawyer said the judgment was specific to wildlife and would not affect property such as minerals. Another pointed out that native title hunting rights would not override the rights of someone with a valid commercial fishing permit.

But miners will be looking to see whether the concept in the judgement of "property" in wildlife has implications for the granting of mining rights where there might be native title claims to minerals.

Source: FAIRA Aboriginal Corporation

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