Published: Fri, 12 Oct 2018
Yanner v Eaton  HCA 53
AUSTRALIAN LAW – SUBJECT-MATTER OF PROPERTY – WHAT IS A PROPERTY RIGHT
The appellant was an indigenous hunter who killed two animals in a creek for his own consumption. He was later charged with taking ‘fauna’ from the area without a license, contrary to statute. This statute made all ‘fauna’ ‘property’ of the Crown. Unlike the previous statute, there was no exception for native hunting rights.
The issue in this case was the meaning of ‘property’ under the statute. What the statute meant by ‘property’ was determinative of whether the appellant’s native hunting rights had been extinguished by the statute.
The High Court held in favour of the appellant.
The court explained that the term ‘property’ does not necessarily mean full, beneficial or legal ownership. Rather, property is a ‘legal relationship’ with an objectwhich grants a person a right to exercise power over the object in some respect. As such, property is a variable concept which can have different degrees of intensity.
In the present case, it could not be concluded that the statute granted full beneficial ownership or a possessory right over fauna to the Crown when it referred to ‘property’: this would lead to absurd results in the case of migratory birds, for example. Rather, as the purpose of the statute was to create a paid licensing system, the reference to property was merely ‘a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource’ (). The reference to property in the statute was a mere licensing right.
Superior legislation provided that licensing rights and requirements do not apply to native title rights, and so the natives’ right to hunt had not been extinguished.
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