High Court dismisses Yorta Yorta claim for native title - 12 December 2002

by Native Title specialists

Thiss ruling upholds the 1998 Federal Court decision, where the trial judge had held that any native title connection to the land had been swept away by the tide of history.

While the High Court today handed down four separate judgments in the case, the majority dismissed the appeal by members of the Yorta Yorta Aboriginal Community. Justices Kirby and Gaudron would have allowed the appeal, but on the basis that the trial judge had focused too narrowly on a continuing connection with the land. They would have ordered that the claim be sent back to the court for further determination.

What is clear from the three separate majority judgments is that native title claimants will now be required to focus on proof of their traditional rights and customs - dating back to before the time that sovereignty was acquired by Great Britain.

There may be some allowance for adaptation of those traditional laws or customs or some interruption, but it is still necessary to establish the continued existence of those laws and customs, which probably implies some ongoing connection with the land.

In a joint judgment, Chief Justice Gleeson and Justices Gummow and Hayne stated:

The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?

We believe that this higher burden of proof may slow down the negotiation or trial of native title claims, as it may be necessary to refocus anthropological evidence already obtained. It is also fair to say that claimants in heavily settled areas will face substantial difficulties of proof, in order to establish a claim of continuing native title.


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