Student Number: 9444911

LS 364: Indigenous Law

Name: Andrew Ferrari

Student Number: 9444911

Unit Coordinator: Jennifer Greaney Case Note: Members of the Yorta Yorta Aboriginal Community v
Victoria [2002] 214 CLR 422

Due Date: 11th January 2010

Word Count: 1971

Student Number: 9444911

Case Citation Members of the Yorta Yorta Aboriginal Community v Victoria [2002] 214 CLR 422

Facts An application was made on behalf of the Yorta Yorta Aboriginal Community to the registrar of native title seeking a determination under the Native Title Act 1993 (Cth) (the Act).1 The application concerned public land and waterways in the Murray and Goulburn regions of southern NSW and Northern Victoria.2

The Yorta had inhabited the claimed area from a time well before sovereignty was asserted in 1788 and remained on the land in a traditional physical sense until the 1860s.3 The establishment of missions, the declaration of reserves and the granting of leases had a significant affect in taking traditional lands from the Yorta community and forcibly severed their physical connection to land.4 However, notwithstanding this physical dispossession, the Yorta maintained their spiritual, emotional and cultural connections to land.

1 2

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,[9] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [1] 3 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [17] 4 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [14]

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In accordance with the Act, the registrar of native title referred the claim to the Federal Court, where the matter was heard at first instance by Justice Olney between October 1996 and November 1998.5 Justice Olney determined that native title did not exist.6 The Yorta made an application to appeal to the Full Court of the Federal Court which was dismissed.7 As a last resort and by special leave, the Yorta appealed to the High Court.

Legal Issues Various issues were raised during the course of proceedings. However, three main issues can be identified:

The first issue concerned a determination of whether the Act represented the primary source of law in regards to native title claims. This required an interpretation of the Act and the relevant common law as set out in Mabo No. 2.8

The second issue concerned the question of whether an interruption to the observance of traditional laws and customs meant that the requirements of the

5 6

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [5] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [6] 7 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [7] 8 Mabo v Queensland (No. 2) (1992) 175 CLR 1

Student Number: 9444911

Act had not been met. Underlying this issue was the further question of how to establish the acknowledgement of, and observance of, traditional laws.

The third issue concerned the trial justices treatment of oral and documentary evidence at first instance. It was submitted on behalf of the members of the Yorta on appeal that the trial judge gave preferential treatment to documentary evidence and inadequate consideration to oral testimony provided on their behalf.

Summary of the Courts Analysis Gleeson CJ, Gummow and Hayne JJ, in Majority, were of the view that the claimants application and the relief sought were both creatures of the Act, not the common law.9 Their Honours cited six members of the High Court in Fejo who said: Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law.10

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [9] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [31]; citing Fejo v Northern Territory (1998) 195 CLR 96, 128, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ
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As native title was not a creature of the common law, the common law was not the correct medium for a determination of the existence of native title.11 The correct medium for such a determination was that defined and described in s 223(1) of the Act.12

Much of the argument presented by the claimant was based on a construction of s 223 (c) of the Act and a consideration of what was meant by the rights and interests are recognised by the common law of Australia.13 However, the Majority took the view that the questions which arose in this matter turned more on s 223 (a), than they did on s 223 (c), and a consideration of what was meant by traditional laws acknowledged and traditional customs observed.14

In their attempt to satisfy the requirements of s 223 (a), the claimants argued that the Act only required the present possession of rights or interests and a present connection between the claimants and the land and water claimed.15 However, continuity since sovereignty was viewed as a requirement by the majority in the context of establishing that laws and customs were traditional.16

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Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [75] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [75] 13 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [11] 14 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [12] 15 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [85] 16 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [87]

Student Number: 9444911

Moreover, the majority considered that for a system of tradition such as native title to be recognised it must be normative. In drawing upon the words of Professor Julius Stone who described laws and customs to be socially derivative and non-autonomous, the majority concluded that once laws and customs are no longer practiced, they cease to exist.17 Thus, the majority reasoned that practices which are not part of a normative system cannot be traditional. The majority used this reasoning as part of their determination that the requirements of the Act were not satisfied and traditional law did not exist.

The majority did not see any basis for supporting the claim that the reason for a lack of continuance had a bearing on the requirement of continuance. The majority took the view that the only justification for considering the reason for non-continuance was to assist in deciding whether an interruption had in fact occurred.18

The majority also considered the oral and written evidence presented to the primary judge. It was submitted on behalf of the claimants on appeal that the primary judge gave preferential treatment to the documentary evidence and inadequate consideration to the oral testimony provided on their behalf. The majority found no error on the part of the primary judge in using different forms of evidence to different degrees and upheld the decisions of the primary judge
17 18

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [49] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [90, 91]

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and Full Federal Court.19 It was held that so long as the weight given to a particular piece of evidence was not based on a premise of the greater reliability of such evidence, it was open to the primary judge to apply as much weight as they wanted to a given piece of evidence.

The minority judgment of Gaudron and Kirby JJ acknowledged that the Act set out the requirements of native title, but viewed the Acts requirements in a broader context. The minority held that continuity was not a requirement of the Act, but qualified this with the view that continuity supported the assertion that current practices are traditional.20 The minority took the view that a spiritual connection was sufficient and that a physical connection was not a requirement of the Act.

On consideration that continued observance would have often been impracticable, if not impossible, the minority held that dispersion did not mean that traditional laws and customs had ceased. Their Honours took the view that such laws and customs continued to be acknowledged, awaiting more robust practice on the regrouping of the clan.21

19 20

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [63] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [114] 21 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [118]

Student Number: 9444911

The majority considered that the laws and customs relied upon must be presovereign. From the time the crown acquired sovereignty, the normative system which then existed could no longer validly create new rights, duties or interests.22 The majority took the view that land rights or interests created after sovereignty which originate and continue to exist only in a normative system other than sovereign power would no longer be given effect by the sovereign.23 However, this did not mean that alterations to traditional laws and customs that occurred after sovereignty could not be given effect.24

The court considered that the assertion of British sovereignty necessarily resulted in the situation where no parallel law-making system could exist.25 The significance of this is that the only rights or interests in land and waters which originate outside of British sovereign order, to be recognised by sovereign order, are those which originate in pre-sovereignty law and customs.26

The majority also considered the newly inserted requirement of adherence to the rules of evidence into the Act,27 but refrained from making a determination and

22 23

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [43] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [43] 24 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [44] 25 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [44] 26 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [44] 27 Native Title Act 1993 (Cth), s 82

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nor did the claimants raise it as an issue when given the opportunity by the primary judge.28

Decision of the Court By majority, the High Court dismissed the appeal.29 The major findings included that 1) the Native Title Act 1993 (Cth) is the correct source for a determination of native title in Australia,30 and 2) the existence of native title requires inter alia an acknowledgement of, and observance of, traditional laws and customs substantially uninterrupted since sovereignty.31

Significance of the Case for Legal Principle Yorta32 was the first native title case focused on urban land and waters. As such this case was seen as a test case.33 The decision, however, is one which is broadly viewed as a disappointment since the promise of Mabo.34 The decision in Yorta35 is significant to legal principle for the following reasons:

28 29

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [81] Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ; Gaudron and Kirby JJ in dissent 30 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [32, 33] 31 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [83, 89] 32 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 33 Kristin Anker, Law in the present tense: tradition and cultural continuity in Members of the Yorta Yorta Aboriginal Community v Victoria (2004) 28 Melbourne University Law Review 1, 2 34 Mabo v Queensland (No. 2) (1992) 175 CLR 1 35 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

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1. The first issue of significance is the requirement of continuity. As a result of the decision of the majority, a native title claim post Yorta could only be successful if it inter alia acknowledged and observed traditional laws and customs substantially uninterrupted from the time of sovereignty.36 This part of the decision has been given some credibility by application in cases such as De Rose37 and Risk38. However, the requirement of continuity has also been criticised as unnecessary and ignorant by commentators such as Seidel,39 and it is the view of this author that the decision makes success in claims of this nature almost impossible.

Further, given that the High Court in Mabo held that an act of acquisition under the pseudo-authority of terra nullius was not legal, it is the view of this author that secondary acts undertaken as a consequence of terra nullius are also likely to be void.

In the context of the Yorta case, the Victorian Governments opposition to the claim for native title was in part based on their rights to the claimed land as created by terra nullius and in part due to the social, cultural and economic constraints imposed on traditional ways that lead to the Yorta being dispossessed. Notwithstanding that terra nullius was overruled in Mabo, the court in Yorta did not appear to consider that the basis of the white Australian
36 37

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [83, 89] De Rose v State of South Australia [2002] FCA 1342 38 Risk v Northern Territory of Australia [2007] FCAFC 46 39 Peter Seidel, Native Title The struggle for justice for the Yorta Yorta Nation (2004) 29(2) Alternative Law Journal 70,73

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rights to the claimed land and waters was a direct consequence of radical title, and therefore without merit. The significance of this part of the decision is that it appears to reverse the ground breaking decision of Mabo and it has produced a questionable legal outcome.

2. The second issue of significance concerns the majority view that to establish the existence of traditional laws and customs, an objective analysis must be undertaken to determine whether the system is normative. In this context, the system is required to adhere to such laws and customs. The significance of this part of the decision majority decision is that it fails to acknowledge the impact of forcibly dispossessing the people of the Yorta nation from their land and sets a standard for establishing the existence of traditional laws and customs that would be almost impossible to achieve in future matters of this nature.

However, commentators such as Kristin Anker have suggested that a system may be normative as a result of either objective or subjective analysis, and a subjective obligation can be maintained in a dispersed society.40 This is consistent with the views of the minority in Yorta, whom believed that a spiritual or emotional connection, notwithstanding the absence of a physical connection, was sufficient to satisfy the requirements of a normative system.41

40

Kristin Anker, Law in the present tense: tradition and cultural continuity in Members of the Yorta Yorta Aboriginal Community v Victoria (2004) 28 Melbourne University Law Review 1, 16 41 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [118]

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The significance of the minority view on this element of the decision is that it effectively left the door open for a more socially responsible court to overturn the impossible standards set by the majority. It is the view of this author that by allowing for a subjective response to the obligation, the requirements of 1) continuity, and 2) traditional laws and customs may be more fairly established while still satisfying the requirement of being a normative system.

3. The third issue of significance concerns the courts application of the burden of proof. Prior to Yorta, the general presumption was for recognition of existing title and the onus was on the party who had claimed it had expired to prove as much. This is consistent with the view that if native title existed prior to sovereignty, it was presumed to continue until extinguished. In this context, it would be the act of extinguishment that would bring about an end to native title.

The significance of Yorta is that the burden of proof was applied in contrast to how it has been applied in similar cases in other jurisdictions.42 The court required proof of native titles ongoing existence, which is somewhat repugnant to contemporary principle. While this was only a decision of the majority and no precedent was set, it would appear that cases of a similar nature post Yorta may have to establish the ongoing existence of native title to satisfy the burden of proof.

Richard Bartlett, Humpies not Houses or The Denial of Native Title: A Comparative Assessment of Australias Museum Mentality (2003) 10 Australian Property Law Journal 83, 91-92

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4.

The fourth issue of significance concerns the court requiring the claimants to present evidence in a form foreign to their culture, directed solely towards the efficacy of the courts. The significance of this is that it created a cultural bias not only against the Yorta, but against any indigenous nation that brought a native title action before the court after the Yorta decision. It is also the view of this author that the 1998 amendments to the Act exacerbated this bias by further raising the bar in terms of the evidentiary and technical requirements of litigation.43

5.

The fifth issue of significance concerns the courts confirmation of the Act as the sole source for the recognition of native title. The significance of this is that the question of whether the common law had the authority to define or determine native title was finally resolved in the negative.

Thus, the uncertainty in regards to the source of recognition of native title had been overcome by the decision in Yorta. However, many other uncertainties and inequities were created.

43

Native Title Act 1993 (Cth) s 82

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Bibliography
Cases
De Rose v State of South Australia [2002] FCA 1342 Fejo v Northern Territory (1998) 195 CLR 96 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] 214 CLR 422 Mabo v Queensland (No. 2) (1992) 175 CLR 1 Risk v Northern Territory of Australia [2007] FCAFC 46

Legislation
Native Title Act 1993 (Cth)

Secondary Sources
a) Kristin Anker, Law in the present tense: tradition and cultural continuity in Members of the Yorta Yorta Aboriginal Community v Victoria (2004) 28 Melbourne University Law Review 1 b) Richard Bartlett, Humpies not Houses or The Denial of Native Title: A Comparative Assessment of Australias Museum Mentality (2003) 10 Australian Property Law Journal 83 c) Peter Seidel, Native Title The struggle for justice for the Yorta Yorta Nation (2004) 29(2) Alternative Law Journal 70

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