The Yanner case | Rights
and regulations | Threatend
bush tucker ruling
IN 1994, MURRANDOO
YANNER, a member of the Gunnamulla clan of the Gangalidda tribe
of Aboriginal Australians, speared two juvenile estuarine crocodiles
on country in the Gulf of Carpentaria. These were then shared with
other members of his clan for food. For this he was charged with
hunting without a permit under the Queensland Fauna Act. The action
ricocheted through the courts until, in October this year, the High
Court of Australia set aside the prosecution and confirmed the native
title right of Aboriginal traditional owners to hunt wild animals.
This decision is the
first in the High Court where the Native Title Act has been used
to confirm a native title right. It marks a small but significant
turn in the progressive, though belated, accommodation of native
title rights within Australia’s land law system.
The Yanner case is
timely for environmentalists. In Queensland, nine major groups representative
of the State environment agenda are currently developing a broad-based
policy position on native title and protected areas. This work is
occurring in the context of a Queensland Government review of legislation
and policy relating to indigenous title to, and management of, national
parks and protected areas.
The review is being
carried out consistent with Premier Beattie’s approach to ‘negotiate,
not litigate’, and is governed by the "Building Reconciliation"
Protocol between the Queensland Government and the Queensland Indigenous
Working Group, the State’s peak Aboriginal representative body.
of the National Aboriginal and Torres Strait Islander Legal Service
Secretariat, sees in the Yanner ruling "a step towards reconciliation",
while confirming that the decision "will not mean random killing
"There’s no commercial
element", he said, "You just simply cannot go around slaughtering
animals here and there".
Atkinson is firm that
"it’s not a case where you just take 2,000 turtles or anything
tonight". It is a situation where the take must be "in
accordance with the tradition and custom of the relevant area. You
must be a person who comes from the relevant area and it must be
shown that … is traditional food for your particular clan".
This is true of traditional
practice and consistent with Section 223 of the Native Title Act.
The Act defines native title or native title rights and interests
"as the communal, group or individual rights and interests
of Aboriginal peoples or Torres Strait Islanders in relation to
land or waters". Establishing native title under the Act is
subject to three criteria.
The rights and interests
must be "possessed under the traditional laws acknowledged,
and the traditional customs observed, by the Aboriginal peoples
or Torres Strait Islanders". The Aboriginal peoples or Torres
Strait Islanders, "by those laws and customs" must "have
a connection with the land or waters". The native title must
also be "recognised by the common law of Australia". Section
223 states that native title rights and interests "include
hunting, gathering, or fishing".
The High Court Judges
referred to this section when they confirmed that the taking of
the crocodiles by Murrandoo Yanner at Cliffdale Creek was based
on native title rights and interests acknowledged and observed by
the clan and tribe of which he is a member.
In the opinion of Justices
Gleeson, Gaudron, Kirby and Hayne, "an important aspect of
... native title rights and interests that is recognised by the
common law is the spiritual, cultural and social connection with
the land". Regulating particular aspects of this relationship
"does not sever the connection of the Aboriginal peoples concerned
with the land … It is sufficient to say that regulating the way
in which rights and interests may be exercised is not inconsistent
with their continued existence. Indeed, regulating the way in which
a right may be exercised presupposes that the right exists. No doubt,
of course, regulation may shade into prohibition and the line between
the two may be difficult to discern".
Enforcing Section 211
of the Native Title Act over State law they said "a law which
‘prohibits or restricts persons’ from hunting or fishing ‘other
than in accordance with a licence, permit or other instrument granted
or issued to them under the law’, does not prohibit or restrict
the pursuit of that activity in certain circumstances where native
The Justices declared
that "the Fauna Act did not extinguish the rights and interests"
upon which Yanner relied in his argument. Nor did it "prohibit
or restrict" him as a native title holder "from hunting
or fishing for the crocodiles he took for the purpose of satisfying
personal, domestic or non-commercial communal needs".
This ruling clearly
secures the native title right to hunt, gather and fish in accordance
with traditional laws and customs. This is unremarkable in itself.
In fact, as Andrew Chalk, a lawyer for Yanner’s people said: "Had
the decision gone the other way it would have stripped native title
of any real content in many areas". He described the Commonwealth
Native Title law as allowing "a very narrow exemption"
for indigenous people to hunt, fish or gather in a customary way,
without the need for a permit.
rights and conservation regulations
THE Queensland Nature
Conservation Act, the principal piece of legislation for the protection
or conservation of wildlife in the State, is brought into focus
by this case. The Act says that protected species are "to be
managed to conserve the wildlife and its values" and "ensure
the survival and natural development of the wildlife in the wild".
Under the Nature Conservation Regulation 1994 an ‘authority’ can
be granted by the ‘chief executive’ to indigenous people with an
interest in a particular area, permitting "an individual to
take, use, keep or interfere with a cultural or natural resource
of a protected area under Aboriginal tradition or Island custom".
The Regulation is highly
prescriptive. The ‘authority’ sets out the terms and conditions
for taking wildlife. The holder of an Aboriginal tradition or Island
custom authority "must ensure anyone acting under the authority
takes … a cultural or natural resource of a protected area in a
way consistent with Aboriginal tradition or Island custom applicable
to the area". The authority must be administered by a representative
Aboriginal Corporation and is for a set time not exceeding one year.
The Regulation prohibits
the taking of "rare or threatened wildlife" or the taking
of "wildlife (other than rare or threatened wildlife) if the
taking … will reduce its ability to maintain or recover its natural
population levels in the area". In a way that seems limiting
of traditional practice, the chief executive may only issue an authority
after having regard to "a reasonable alternative to taking
… the cultural or natural resource".
Public use issues are
a factor. The chief executive may have regard to the "extent
to which the proposed activity will interfere with the public’s
use of the area". Public safety is, seemingly, also an issue.
An authority cannot be given if "the way the cultural or natural
resource is to be taken … involves the use of a weapon" or
"the way the cultural or natural resource is to be taken …
may endanger anyone visiting the protected area".
Set against the Yanner
decision, this would amount to a fairly restrictive interpretation
of indigenous hunting and gathering rights. In fact, the regulation
is not grounded in indigenous rights at all. Ironically, in an unproclaimed
section of the Act, ‘bush tucker rights’ received greater recognition.
Section 93 of the Nature
Conservation Act set out to confirm "use of the wildlife …
by Aboriginal people" so long as it "is ecologically sustainable".
This unproclaimed section is explicit as it states that "despite
any other Act, an Aborigine or Torres Strait Islander may take,
use or keep protected wildlife under Aboriginal tradition or Island
custom". This is "subject to any provision of a conservation
plan that expressly applies to the taking, using or keeping of protected
wildlife under Aboriginal tradition or Island custom".
Recognising and understanding
indigenous laws and customs is a key task for environmentalists.
Gummow, in his judgement in the Yanner case makes this task clear.
He said: "Native title is not treated by the common law as
a unitary concept. The heterogeneous laws and customs of Australia’s
indigenous peoples, the Aboriginals and Torres Strait Islanders,
provide its content. It is the relationship between a community
of indigenous people and the land, defined by reference to that
community’s traditional laws and customs, which is the bridgehead
to the common law. As a corollary, native title does not exhibit
the uniformity of rights and interests of an estate in land at common
law and ‘ingrained habits of thought and understanding’ must
be adjusted to reflect the diverse rights and interests which arise
under the rubric of ‘native title’". [Emphasis added].
Chris Roberts, in a
1998 paper on Aboriginal Burning, Coexistence and Regional Agreements,
given on behalf of Balkanu Cape York Development Corporation, said
"native title rights vary from place to place. This is because
different Aboriginal peoples belong to different places and express
culture and rights in different ways. Native title rights are what
particular groups say they are, according to their tradition. Commonly
quoted Aboriginal aspirations include access to country for obligatory
traditional purposes like visiting sites, hunting, fishing or just
being on their places by camping there".
regulation by the State need not present any serious conflict with
native title hunting, gathering and fishing rights. In looking at
nature conservation and the protection of threatened and endangered
wildlife, the line between regulation and prohibition may not be
so difficult to discern. The logical approach is case by case. There
are no grounds for blanket prohibitions on the taking of wildlife
by indigenous people and such an approach would be destined to fail.
It is also important
for environmentalists to recognise as the National Strategy for
the Conservation of Australian Species and Communities Threatened
with Extinction does, that "hunting has not been a major cause
of extinctions on the Australian mainland". It goes further.
The Strategy recognises the critical role of indigenous people in
species protection. It says that "Aboriginal traditional knowledge
is sometimes the main source of information about the biology of
endangered and vulnerable species and Aborigines are often the only
people living in the same areas as endangered species. They are
therefore on the spot for practical management and most State [and]
Territory conservation agencies have working relationships with
Aboriginal people on wildlife management".
The Strategy highlights
aboriginal burning as a critical feature of management. "The
life cycles of most Australian plants and animals are well adapted
to survive fire and other natural disturbances", it says. "However,
in many parts of Australia there have been major changes in these
regimes since European settlement. For example, fire regimes resulting
from Aboriginal land management practices and those followed by
Europeans may be quite different. It is these changed fire regimes
(fire frequency, intensity, season, pattern, size) that have threatened
species. Suitable fire regimes will vary with the species or habitat
under consideration. The management of some endangered species,
for example the ground parrot, involves appropriately frequent fires.
On the other hand, rainforest species are usually fire sensitive
and generally need protection from fire". Of course, the Strategy
recognises that land clearing and radical modifications to country
through agriculture, pastoralism, industrialisation and urbanisation
are the major contributing factors to loss of biodiversity.
The other point acknowledged
by the Strategy is that "national parks and other conservation
reserves, which in all cover about 5% of Australia, cannot alone
ensure the survival of species and ecological communities. It is
crucial that lands outside the reserve network be managed in ways
that allow native species, including endangered and vulnerable species,
to flourish over as much as possible of the range they inhabited
before European settlement". Under present tenure arrangements
"13% of Australia is under Aboriginal ownership including areas
important to endangered and vulnerable species particularly ground-dwelling
mammals", it says.
A cooperative and mutual
approach to nature conservation and species protection appears to
be the way forward. By acknowledging common law native title rights,
the issue becomes one of why, how and by whom regulation is to be
effected. It places the onus on the State to provide for the fullest
expression possible, rather than to restrict or prohibit, traditional
owner hunting, gathering or fishing rights in the context of land
allocation and environmental management. It makes the State’s role
in regulating the use or conservation of wildlife, as the High Court
Justices said when quoting Roscoe Pound, a "sort of guardianship
for social purposes".
As native title rights
are progressively embedded in the environmental and land management
regimes of protected areas a range of cooperative management plans
will ensue. At this stage of the debate on native title and protected
areas an effort from environmentalists is required to come to grips
with changes this is likely to produce. The emergence of native
title rights in protected areas challenges the ‘ingrained habits
of thought and understanding’ within the environment protection
agenda of years past.
Some key issues are
apparent when one looks at the ‘bush tucker’ ruling and the difference
between Aboriginal and European perception and management of the
One such issue is ‘bush
tucker’ in relation to ‘wildlife preservation’. As Andrew Chalk
pointed out, "many traditional communities are … dependent
on bush tucker for an important part of their diet". Bush tucker
is also an essential component of Aboriginal identity and Aboriginal
Where a species, and
therefore a wild food source, is in abundance there is no inherent
opposition between an indigenous person’s use of certain plants
and animals as ‘bush tucker’ and an environmentalist’s approach
to wildlife preservation. It is where a species is threatened or
endangered that misgivings may arise. There is, however, no reason
to assume that this matter cannot be resolved through a cooperative
approach that respects rights and interests.
Society, as an exemplar of the wildlife preservation ethic, has
defined a position on this issue in the native title and protected
areas debate. It considers the issue to be one of ‘population viability’
of a species and case by case management plans agreed between indigenous
traditional owners and Government conservation agencies, particularly
concerning endangered species.
The need now is to
demonstrate that ‘viable populations’ of species means plants and
animals are available as an indigenous food source for traditional
owners, and that where this viability is threatened or endangered,
biodiversity suffers and the traditional food source can be lost.
Another, often politically
charged issue is that of the means used in ‘traditional take’. In
his paper, Chris Roberts put the view that "it is unreasonable
to expect traditions of the past to be replayed in strictly traditional
ways as it is unreasonable for crop farmers to use a horse drawn
plough rather than 4WD diesel tractor or cattlemen to use horses
when helicopters, motor bikes and Toyotas provide more cost effective
means to muster. It is the practice that is the tradition and not
the means. [T]he fact that traditional practices might be expressed
in a modern context or that so many people have passed on, should
not detract from the fact that people wish to reconnect with their
country. It is the responsibility of all of us to reconcile and
acknowledge connections to land and sea".
Society discussions have again provided a useful contribution on
this issue. There is a general acceptance of the view that ‘it is
the practice that is the tradition and not the means’, as well as
some animal welfare arguments in its favour.
The issue only sticks
with the question of the use of firearms in protected areas. The
issue can be minimised with reference to the Native Title Act where
the native title rights of hunting, gathering or fishing are expressed
"in accordance with traditional laws and customs".
This does not give, and need not imply, a value statement that traditional
take should be by a particular means, ancient or modern, only that
the practice must accord with tradition as defined and expressed
by traditional owners.
In Queensland the Nature
Conservation Act 1992 and the Weapons Act 1990 already regulate
and define the use of firearms and other hunting implements in protected
areas. In NSW, the issue has been satisfactorily dealt with by reference
to Public Safety laws for the use of hunting weapons, whether traditional
or modern, and management plans. Again, case by case management
plans agreed between indigenous traditional owners and Government
agencies become the focal point for resolution of the issue.
There is little doubt
that the Queensland Government intends to pursue a cooperative and
conciliatory approach to resolving native title and protected area
issues. After years of litigation, recrimination and political division
the chance now exists to move forward by the judicious formulation
of agreements. ‘Caring for country’ is a theme that can promote
the rights and interests of traditional owners and encourage a working
relationship with environment groups.
The cooperation and
policy development between environment groups in the Native Title
and Protected Areas Project will be an important contribution to
The High Court, through
its decision in Yanner v Eaton, has afforded all those interested
in negotiating legislative and policy outcomes for indigenous rights
and environment protection a chance of mutual respect and dignity.
Murrandoo Yanner said
of the outcome of his High Court case: "The reason I went hunting
those crocs at night is that the law made us skulk around, like
thieves in the night. Now we can continue to play our role as proud
and efficient hunters and gatherers and not have to hide behind
trees and stuff and throw our spears".