	Home \| Databases \| WorldLII \| Search \| Feedback Australian Indigenous Law Reporter

Home | Databases | WorldLII | Search | Feedback

Australian Indigenous Law Reporter

You are here: AustLII >> Databases >> Australian Indigenous Law Reporter >> 1999 >> [1999] AUIndigLawRpr 18

Editors --- "Eaton v Yanner; Ex parte Eaton - Case Summary" [1999] AUIndigLawRpr 18; (1999) 4(2) Australian Indigenous Law Reporter 38

Eaton v Yanner; Ex parte Eaton

Supreme Court of Queensland - Court of Appeal (Fitzgerald P, McPherson JA and Moynihan J)

27 February 1998

Butterworths Unreported Judgments BC9800571

Native Title - Taking fauna without licence - 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 (Qld), ss 7, 54 - Native Title Act 1993 (Cth), ss 211, 223.

Facts:

Section 54(1)(a) of the Fauna Conservation Act 1974 (Qld) makes it an offence to hunt certain fauna without holding a licence. The respondent, a member of the Gunnamulla clan of the Gungaletta tribe, was charged with breaching this provision after killing two estuarine crocodiles. He argued in his defence that as a traditional owner of the land upon which the crocodiles were killed, he was entitled under s 211 of the Native Title Act 1993 (Cth) to exercise his native title right to hunt crocodiles without the sanctioning requirement of a licence. Section 211 of the Native Title Act permits native title holders to practice particular classes of native title activity which would otherwise be dependent upon gaining a licence. The respondent's position was accepted at first instance but appealed on the grounds that s 211 had no material operation because the respondent's native title right to hunt had been extinguished by s 7 of the Fauna Conservation Act which dictates that all prescribed fauna is Crown property.

Held:

By majority: The order dismissing the complaint be set aside.

Per McPherson JA: For s 211 of the Native Title Act to suspend the prohibition on hunting fauna effected by s 54(1)(a), s 223 of the Native Title Act requires that native title rights are either legally 'possessed' by Aboriginal people or 'recognised' by the common law of Australia. Neither of these requirements was satisfied because like any other owner or occupier of land, the respondent's common law right to hunt was abrogated when s 7 of the Fauna Conservation Act vested the ownership of fauna in the Crown. This conclusion was supported Brennan J's obiter dicta comments made in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561.

Per Moynihan J: Until 1974, the Fauna Conservation Act expressly exempted Aboriginals who killed fauna for domestic purposes from the prohibitions against the unauthorised taking of fauna. The removal of this exemption in the Act's revised form, combined with the unconditional vesting of ownership of fauna in the Crown by s 7, was sufficient to preclude the exercise of the respondent's common law native title hunting rights. Therefore, the Fauna Conservation Act manifested an intention to extinguish the respondent's native title right to hunt.

Per Fitzgerald P (dissenting): The purposive interpretation of s 7 of the Fauna Conservation Act contained in Walden v Hensler indicates that rather than vesting property in the Crown to the exclusion of all other rights (including native title hunting rights and interests), s 7 merely provides a necessary basis for the regulatory provisions of the Act.

Although the respondent's pre-existing native title usufructuary right to hunt crocodiles was subject to the regulatory restrictions enunciated in the Fauna Conservation Act, it nonetheless continued in a practical and legal sense, upon the condition of obtaining a licence, until the Native Title Act was enacted. Consequently, the respondent fulfilled the requirements of the Native Title Act and could claim the benefit of s 211 of that Act in relation to s 54(1)(a) of the Fauna Conservation Act. This outcome is consistent with statements made by Brennan J in Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 and Kirby P in Mason v Tritton (1994) 34 NSWLR 572. [1]

The full bench of the High Court heard an appeal of this case on 4-5 May 1999. (The judgment is expected later this year.)

Fitzgerald P:

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 (Qld), [2] nor was he protected by s 54(1)(b) of that 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] Subject to exceptions provided for in the Act, [4] 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 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 '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'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 Hensler⁷and Wik Peoples v State of Queensland. [8]

That Act was a legislative response to the decision of the High Court in Mabo v Queensland [No 2]. [9] It is extremely complex legislation, as is evident from decisions of the High Court in Western Australia v The Commonwealth¹⁰and Wik Peoples v Queensland. [11] Broadly speaking, so far as presently material, the Act:

(a) recognised that Aboriginal peoples and Torres Strait Islanders had rights and interests [12] in respect of land and waters according to the common law, and gave that common law force as a law of the Commonwealth; [13]
(b) subjected native title to the laws of Australia, including State and Territory laws which are consistent with the Act; [14] and
(c) recognised the total or partial [15] 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. [16]

It is desirable first to set out s 211, together with ss 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) Subs (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 subs (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 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 subs (1), 'rights and interests' in that subsection includes hunting, gathering, or fishing, rights and interests.
Statutory rights and interests
(3) Subject to subs (4), if native title rights and interests as defined by subs (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
(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. [17] Its validity was upheld, and its operation was described in the joint judgment as follows: [18]

The usufructuary rights comprehended by subs (3) are, by virtue of subs (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 subs (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 Commonwealth [19] that '[a]n act [20] 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'. [21] 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 title, [22] 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. [23] 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, [24] it came into effect prior to the conduct of the respondent which is the subject of the present charge under subs 54(1)(a) of the Fauna Conservation Act. Section 211 of the Native Title Act therefore has potential application to the operation of subs 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 subss 211(1)(a) [25] 223(1) [26] and 224(b) [27] of the Native Title Act.

The appellant next argued that, even if all prior laws which satisfied subss 211(1)(b) and 211(1)(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. [28] 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 subs 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 crocodiles. [29]

As earlier stated, the appellant relied on the decision of the High Court in Walden v Hensler. [30] The passage which provides most assistance to the appellant is the following statement by Brennan J: [31]

... 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 Native Title Act had not been enacted.

In Walden, a majority of the High Court [32] upheld the conviction of an Aborigine for an offence against subs 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:³³

... 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: [34]

... That provision [s 7] provides a basis of the royalty system which Pt 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' 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 Pt XI itself: ... Section 54 is in Pt 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 Pt 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 Pt 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 Pt 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 subsection ... [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.

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 Pt 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, [35] which was not affected by the recognition of common law 'native title'. In Mabo [No 2], it 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'. [36] 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 subs 54(1)(a) to Crown ownership of fauna. On the contrary. For example, subs 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. [37] Conversely, no 'licence, permit, certificate or other authority' was required to take 'non-protected fauna', [38] 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 cat 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: [39]

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: [40]

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 specific purpose - at least for a time - and native title will not be extinguished.

Finally, in the course of a summary, he said: [41]

Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing light 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 (for example 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.

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 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
subs 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. [42] In that case, an Aborigine was charged with breaches of regs 34(1)(c) and 44(2) of the Fisheries and Oyster Farms (General) Regulations 1989, which had been made under the Fisheries and Oyster Farms Act 1935 (NSW). 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'. [43]

At 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.

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 extinguished, but rather was subjected by subs 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. [44] That continued to be the legal position until the operation of the Fauna Conservation Act was 'suspended' [45] by s 211(2) of the Native Title Act, which, by way of the operation of s 109 of the Constitution, 'removes' [46] 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.

McPherson JA:

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

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). Subs (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 subs (3));
(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.

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 11(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;
(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 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.

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 '(a) the rights and interests are recognised by the common law of Australia'.

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] HCA 23; (1992) 175 CLR 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] HCA 23; (1992) 175 CLR 1 at 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 [1992] HCA 23; (175 CLR 1 at 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 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] HCA 23; (1992) 175 CLR 1 at 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] EngR 593; (1865) 11 HLC 621; 11 ER 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

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.

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 Title 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

This view of the law is supported by what was said by Brennan J in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 566-567, where, speaking of the Fauna Conservation Act 1974, his Honour said:

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).

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: Re Selpam Pty Ltd (1995) 121 FLR 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 ALR 129 at 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 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) 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] HCA 47; (1995) 183 CLR 373 at 454; [1995] HCA 47; 128 ALR 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 93(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'.

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 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 ...' and so on. 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 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 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 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 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).

Moynihan J:

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

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 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 34 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] (Mabo [No 2]), [47] and The State of Western Australia v The Commonwealth. [48]

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],⁴⁹Mason v Tritton. [50]

It is the unequivocal nature of the effect of the provisions of the Native Title Act and the comprehensiveness of that effect which extinguishes the respondent's native title, cf Mabo [No 2]; [51] Re Selpam Pty Ltd; [52] Western Australia v The Commonwealth [53] and Delagmwukw v British Columbia. [54]

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.

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) subs(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 subs(3));
(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;
(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 Commonwealth [55] where its operation was characterised in these terms:

The usufructuary rights comprehended by subs (3) are, by virtue of subs (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 subs (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 & Ors; [56] The State of Western Australia v The Commonwealth; [57] Yuin Council of Elders Aboriginal Corporation v New South Wales, [58] Djaigween v Douglas; [59] and Djaigween v The State of Western Australia & Ors. [60] 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.

Sections 223(1)(a) and 223(1)(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 JA in the final paragraph of his reasons.

Order:

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.

Counsel for the appellant: PAKeane QC

Solicitor for the appellant: Crown Solicitor

Counsel for the respondent: A Vasta

Solicitor for the respondent: National Aboriginal and Islander Legal Services Secretariat

Endnotes

[1] See casenote in (1998) 4 ILB (13) 10.

[2] Since repealed by the Nature Conservation Act 1992, which came into force on 19 December 1994.

[3] See also s 84.

[4] For example, subss 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] HCA 54; (1987) 163 CLR 561. However, the Act contains a number of provisions authorising the grant of licences, for example, ss 30, 43 and 53, Pt X Division 1, and ss 60, 64 and 66.

[6] See, for example, Mason v Tritton (1994) 34 NSWLR 572; Derschaw v Sutton (WA Full Court, unreported, 16 August 1996).

[7] [1987] HCA 54; (1987) 163 CLR 561 at 566-7.

[8] [1995] HCA 47; (1995) 183 CLR 373.

[9] [1992] HCA 23; (1992) 175 CLR 1.

[10] [1995] HCA 47; (1995) 183 CLR 373.

[11] (1996) 141 ALR 129.

[12] 'Native title', now defined in s 223. See also the definition of 'native title holder' in s 224.

[13] Sections 3, 10 and 11.

[14] Section 8.

[15] To the extent of the inconsistency.

[16] Western Australia v The Commonwealth, at 442-3, 452-3; Mabo [No 2], for example at 64, 188, 192 and 196; Wik Peoples v Queensland (1996) 141 ALR 129.

[17] Questions 7, 10 and 11.

[18] Page 474.

[19] [1995] HCA 47; 183 CLR 373.

[20] State legislation is an 'act' defined in s 226 of the Native Title Act.

[21] Western Australia v The Commonwealth at 454 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; cited in Wik at 219 by Gummow J. See also Djaigween v Douglas [1994] FCA 951; (1994) 48 FCR 535, 541; Yuin Council of Elders Aboriginal Corporation v New South Wales (1995) 60 FCR 501, 508.

[22] Mabo [No 2], 50, 69-70 and 110; Western Australia v The Commonwealth, 434, 472 and 495; Re Selpam Pty Ltd (1995) 121 FLR 87, at 91, 94-5.

[23] Wik at 184, 209, 220, 233, and 284; Mabo [No 2], at 68 and 111; Western Australia v The Commonwealth at 442; Delgamuukw v British Columbia (1993) 104 DLR (4th) 470, 522.

[24] However, there is nothing to suggest that the Native Title Act is confined to future laws which meet the tests prescribed in subss 211(1)(b) and 211(1)(c).

[25] 'consists of or includes'.

[26] 'are possessed' (subs 223(1)(a)), 'have' (subs 223(1)(b) and 'are recognised' (subs 223(1)(c)).

[27] 'hold'.

[28] And implicitly some other legislation might do so because of some provision additional to provisions which satisfy subs 211(1)(b) and 211(1)(c) of the Native Title Act.

[29] Mabo [No 2]; Western Australia v The Commonwealth; Wik.

[30] [1987] HCA 54; 163 CLR 561.

[31] Ibid at 567.

[32] Brennan, Deane and Dawson JJ; Toohey and Gaudron JJ, dissenting.

[33] Page 575. See also per Toohey J at 600 and Gaudron J at 606.

[34] At 582-3.

[35] See, for example, Walden at 566 per Brennan J and 605 per Gaudron J; Wik Peoples (1995-96) 63 FCR 450 at 501 per Drummond J.

[36] At 51-2, per Brennan J.

[37] Sub-section 30(1).

[38] Sub-section 27(1). See also subs 4(1)(b).

[39] At 64.

[40] At 68.