Facts of the case
On 21 February 1994, The Yorta Yorta Murray Goulburn Rivers Clans Incorporated made a native title application in respect of land and waters in northern Victoria and southern New South Wales .
At the time, native title could only be held by a ‘person or persons’ (not a corporation). So, on 2 May 1995, an application was made to the National Native Title Tribunal to substitute eight named persons as applicant: Ella Anselmi, Wayne Atkinson, Geraldine Briggs, Kenneth Briggs, Elizabeth Hoffman, Desmond Morgan, Colin Walker and Margaret Wirrpunda on behalf of the members of the Yorta Yorta Aboriginal community (Members of the Yorta Yorta).
The claimed land was within the Yorta Yorta the traditional land and waters on both sides of the Murray, Goulburn and Ovens Rivers, including the Barmah and Moira State Forests (Case, 1999). This was the first application for a determination of native title to go to trial after the enactment of the Native Title Act 1993 (Cth) (the NTA) .
The High Court appeal was primarily concerned with the definition of native title in s 223(1) of the NTA. Particularly, the Court was concerned with interpreting what the section meant by the words ‘traditional’ laws and customs.
The case is significant because of the extensive impact of colonisation in the claimed area, and the difficulties this meant for the Appellants in attempting to prove native title rights (Henriss-Anderssen, 2003).
First instance decision
On 18 December 1998, Olney J made a determination under the NTA that native title did not exist in relation to the lands and waters identified in the application area (Members of the Yorta Yorta Aboriginal Community v Victoria & Ors  FCA 1606).
His Honour identified four requirements that a claim group must meet for a determination of native title under the NTA : That is that the group must:
(1) prove that the members of the group are descended from people who occupied the claimed area prior to the assertion of Crown sovereignty;
(2) prove the nature and content of the traditional laws and customs observed by their ancestors (the original occupants of the area) original occupants;
(3) prove that the traditional connection with the land has been ‘substantially maintained’ since the time sovereignty was asserted; and
(4) have the rights and interests they possess recognised by the common law of Australia..
Olney J found that the second and third requirements were not met in this case.
Citing Brennan J in Mabo No 2, Olney J found that the third requirement will not be met when ‘the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs’ .
His Honour found that an 1881 petition written by the original Traditional Owners (members of the Moira and Ulupna tribes) contained evidence that they had ceased to occupy the land and had abandoned traditional laws and customs . The petition stated that ‘all the land within our tribal boundaries has been taken possession of by the Government and white settlers’ and expressed their desire to ‘settl[e] down to more orderly habits of industry’ rather than retaining an ‘old mode of life’ -.
Olney J compared contemporary practices of the Yorta Yorta tradition with the written records of settlers in the 1840s and concluded that they did not continuously observe traditional laws and customs (; Henriss-Anderssen, 2003). He found that these written settler accounts were the ‘most credible source of information’ concerning the traditional laws and customs, and that ‘less weight’ should be given to the claimant group’s oral evidence which had been ‘passed down through many generations’ over a period of more than 200 years .
When considering traditional law related to land access, his Honour found that ‘the tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised in relation to controlling access to their land within the claim area’ .
Having concluded that native title rights and interests had been lost, Olney J found that they were ‘not capable of revival’, even despite ‘genuine efforts of members of the claimant group to revive the lost culture of their ancestors’ .
An appeal to the Full Court of the Federal Court was dismissed by majority of 2 – 1.
Details of Judgment
On December 12, 2002, by a majority of 5-2, the High Court dismissed the appeal from the Full Court.
The Court defined native title for the purpose of s 223(1) of the NTA, as the continued acknowledgement and observance of traditional laws and customs are acknowledged with accompanying rights and interests that are recognisable under the common law -.
Gleeson CJ, Gummow and Hayne JJ
The Gleeson CJ, Gummow and Hayne JJ in a joint judgment held that where a claim fails to demonstrate that a system of traditional laws and customs has had a ‘continuous existence and vitality since sovereignty’ then any rights and interests held under it will no longer exist .
Concluding the first instance trial and the decision of the Full Court, the joint judgment noted that finding an interruption in observance of traditional law and customs meant that the ‘society’ that the traditional laws and customs originated was no longer present . As such, the Yorta Yorta community's claim to native title failed because ‘there was no evidence that they continued to acknowledge and observe’ the traditional laws and customs of those that occupied the land and waters prior to sovereignty .
As such, the joint judgment found the appeal should be dismissed with costs .
Conversely, McHugh J held that he was ‘unconvinced’ the definition given to s 223 in the joint judgment was in line with what Parliament intended . Citing Senator Evans’ comments on the intention of the NTA in 1993, his Honour found that Parliament’s intention was that the content of native title would work with the developing common law . The NTA was ‘not attempting to define with precision the extent and incidence of native title’ through s 223 .
Despite this, McHugh J held that the joint judgment was correct. He also reasoned that the Yorta Yorta community’s claim must fail, as they could not demonstrate a present connection to the land and waters, through the continued acknowledgement and observance of the laws and customs of those that existed prior to sovereignty .
McHugh J also found that the appeal should be dismissed with costs .
Callinan J frames his judgment on the basis that native title rights and interests must be found in relation to a precise boundary , the persons entitled who observe the traditional laws and customs , and a physical presence .
His Honour notes the claimants are described generally as members of the Yorta Yorta Aboriginal community, and are men, women and children who are descendants of ‘original inhabitants of the region’ .
Callinan J also described two disadvantages to the Yorta Yorta community’s claim:
- A loss of traditional knowledge and practice due to ‘dislocation and past exploitation;’ and
- The absence of Indigenous contemporary documents, that did not rely on oral history. The oral evidence he said, was not free from the possibility of intergenerational distortion were free from the potential of distorted influence of generational oral tradition.
Both meant that it was much harder for Olney J to determine a present connection to land and waters, and the continued acknowledgement and observance of traditional laws and customs . He held that a claim of native title could not be made out .
Further, Callinan J considered the aspect of physical presence on the land and waters of the claim, noting that by 1855 ‘physical resistance by Indigenous people had ceased’ . His Honour also held, in line with Olney J, that while several of the claimants were found to be direct descendants of those who originated from the ‘society’ that practiced traditional laws and customs prior to sovereignty, there was no evidence to suggest that the present members continued to acknowledge and observe those laws and customs in relation to the land and waters in question .
Ultimately, Callinan J held that the claim failed because proving ownership of rights and interests of the land and waters through biological ancestry alone, is not enough to satisfy the requirements of s 223 of the NTA .
For these reasons, Callinan J also dismissed the appeal with costs.
Gaudron and Kirby JJ would have allowed the appeal .
They held that ‘continuity of community’ is essential to the question of whether laws and customs are ‘traditional’ . Continuity of community exists when, throughout the relevant period, there have continued to be persons who identified themselves and each other as members of the community in question . This does not depend on continued physical presence in a particular place .
Gaudron and Kirby JJ therefore found it problematic that neither the trial judge nor the Full Court on appeal found that the Yorta Yorta people had ceased to exist as an identifiable community. Both the trial judge and the Full Court failed to consider whether, throughout the relevant period, there were persons of Aboriginal descent who identified themselves and others as Yorta Yorta people bound together by ancestry and shared practices and beliefs .
Their Honours also found that the trial judge erred in stating that a determination of native title requires proof that traditional connection with the land has been ‘substantially maintained’ since Crown sovereignty . For Gaudron and Kirby JJ, the relevant issue under ss 223(1)(a) and (b) of the NTA was simply whether the Yorta Yorta people currently acknowledge and observe traditional laws and customs by which they have a connection with the claimed land and waters .
Yorta Yorta has received significant academic criticism. Particularly because the ‘continuity’ requirement imposed by the High Court makes it very difficult for future groups to satisfy the test for a determination of native title (Tehan, 2003).
Olney J’s finding that the Yorta Yorta community had ceased to acknowledge its traditional laws and customs has been labelled ‘dubious’ (Tehan, 2003).
Wayne Atkinson, a member of the Yorta Yorta and principal claimant in the case, strongly condemned Olney J’s use of the ‘tide of history’ metaphor:
Underpinning the events on which this ‘tide’ rests, is a history of land injustice and flagrant human rights abuses. It is a history sourced in violence and bloodshed over the ownership and control of land, acts of genocide in relation to the forced removal and attempted break-up of Indigenous families, and racist government policies aimed at subjugating and controlling Indigenous people. It is ironic in the extreme, many might say obscene, that the crimes against humanity, which constitute this ‘tide’, can be invoked by those seeking to deny Indigenous groups their rights to land (Atkinson, 2001).
On December 12, 2002, Yorta Yorta spokesperson Monica Morgan said the court’s judgment was harmful to the aspirations of Indigenous people across Australia and a ‘dismal day for justice’ (The Age, 2002). Speaking to the media outside the courtroom, she said the judgment was ‘not about native title, it’s about racism’ (SMH, 2002).
Geoff Clark, the Aboriginal and Torres Strait Islander Commision Chairman at the time, called the judgment the ‘a legal dispossession of Aboriginal people’ (SMH, 2002), and a stark opposition from the outcome in Mabo No.2 (The Age, 2002).
In response, the Victorian Government, through Attorney-General Rob Hulls, noted that the outcome highlighted how time consuming, costly and futile the court process can be (The Age, 2002). The Government also commented that they were ‘committed to continuing to negotiate a settlement’ with the Yorta Yorta Aboriginal Community (The Age, 2002).
In June 2019, however, the Yorta Yorta Nation released a statement rejecting the ‘Advancing the Treaty Process with Aboriginal Victorians Act 2018’, stating ‘We view this Treaty process as a trip wire and only a pathway to assimilation as we are not “ABORIGINAL VICTORIANS” but “YORTA YORTA”’ (YYNAC, 2019).
National Native Title Tribunal President, Graeme Neate, noted that the outcome confirmed, to many Indigenous group,s that pursuing claims of native title was a very difficult challenge (National Native Title Tribunal, 2002). Neate also said that despite the evident barriers for Indigenous people to prove their native title rights and interests, it was important their efforts did not diminish in the face of this outcome (Kormendy, 2002), he explained: ‘the challenge for parties is to find practical, just and enduring ways to deal with these interests’ (Kormendy 2002).
After Morgan noted that the Yorta Yorta people could not take their legal battle any further, on February 14, 2003, Morgan announced their intention to take their claim to the United Nation’s International Working Group on Indigenous Populations (Cultural Survival, 2003). In January 2004, the United Nations’ Economic and Social Council released a report that noted the High Court’s inconsistency when deciding matters of native title, citing court decisions based on ‘recognition of aboriginal title’ as encouraging, but that they Yorta Yorta land claim in 2002 made the ‘requirements for native title claims more difficult for indigenous peoples to fulfill’ (United Nations, 2004).