7 Proof of a native title society

HIGH COURT OF AUSTRALIA, 2002

The decision of the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) (Yorta Yorta) confirms that the gap between the aspirations of Indigenous peoples and the capacity of native title to fulfil those expectations is enormous.¹ The interpretation of the requirements of proof, and in particular the meaning attributed to the concept of ‘traditional’, forms a significant part of that gulf.

This is particularly pertinent for Indigenous peoples of the more settled regions of Australia. The Yorta Yorta people’s lands are located along the Murray River, crossing the border between New South Wales and Victoria, in one of the most productive agricultural regions in Australia. The determination against the Yorta Yorta people raised significant questions about what is considered ‘tradition’ in the sense that it could sustain native title. It has been suggested that interpretation of the requirements of proof applied in Yorta Yorta may lead to discriminatory differentiation between one Indigenous people and another based on what are considered appropriately ‘traditional’ Aboriginal or Torres Strait Islander societies.²

TRADITION AND CONTINUITY IN YORTA YORTA

The way that Justice Olney posed the question of proof in Yorta Yorta, at first instance in the Federal Court, assumed that a historical account of the laws and customs of the original inhabitants was required.³ The traditions and customs observed at the time of settlement were said to constitute the title that burdened the Crown and it seemed that the title survived only through continued observance of these particular customs. The forced settlement of Yorta Yorta people on missions within their traditional territories, the suppression of their language and forms of cultural expression and, importantly, the taking up of paid employment and admission of ‘settling down to more orderly habits of industry’⁴ were said by Justice Olney to show that by 1881, a mere forty years after European settlement of the area, the Yorta Yorta people had lost their culture and their status as a ‘traditional society’. This was in large part measured against their adoption of commercial farming and settled lifestyle.⁵

The Yorta Yorta applicants did not shy away from asserting that they maintained a continuing system of custom and tradition that incorporated a traditional relationship to the land through which they maintained a traditional connection with the land, which was supported by continuous physical occupation.⁶ But contemporary practices that the Yorta Yorta people saw as cultural traditions, such as protection of sites of cultural significance and involvement in the management of land and waters in their traditional areas, were rejected by Justice Olney because these practices were not of a kind that were exercised by, or of significance to, the pre-contact society.⁷ Justice Olney concluded that:

To this end, it was deemed appropriate to prefer the writings of a nineteenthcentury squatter over the evidence of the Yorta Yorta witnesses. The traditions and customs observed by the squatter, Curr, were said to constitute the title that burdened the Crown and it seems that only through continued observance of those particular customs could the title survive. Justice Olney observed:

The majority on appeal to the full Federal Court in Yorta Yorta, while not rejecting the ultimate finding of Justice Olney, did reject a strict approach to the tracing of tradition from pre-contact. Justices Branson and Katz stated their interpretation: ‘The primary issue is whether the law or custom has in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community.’¹⁰ Therefore, despite ongoing physical presence, assertion of rights to the land, maintenance of identification as a community entitled to the land and maintenance of cultural identity, the trial judge determined that the Yorta Yorta people did not continuously occupy the land in the relevant sense. The majority of the full Federal Court supported the finding that there was a period of time between 1788 and the time of the claim during which the Yorta Yorta lost their character as a ‘traditional Aboriginal community’ and, as a result, native title had ‘expired’.¹¹

In the High Court, the claimants seized on comments from members of the Court in argument in Commonwealth v Yarmirr (2001) (Yarmirr)¹² regarding the centrality of the s 223 definition of native title and the obvious construction of the provisions in the present tense. The Court agreed that reference to native title rights and interests that ‘are possessed under the traditional laws acknowledged, and the traditional customs observed’ must be read as ‘currently’ possessed.¹³

The majority of the High Court, led by Chief Justice Gleeson and Justices Gummow and Hayne, suggested that the construction of s 223 required a different conception of tradition than is suggested by the ordinary meaning of the word. While they agreed that ‘tradition’ meant the transmission of law or custom from generation to generation, usually by word of mouth and common practice, they argued that more was required in the context of the Native Title Act 1993 (Cth) (NTA).¹⁴

The dissenting joint judgment of Justices Gaudron and Kirby adopted the ordinary definition of tradition and agreed that the word ‘traditional’ in s 223 imported a sense of continuity from the past.¹⁵