Yorta Yorta - Some further consideration
by Andrew Buchanan
A 'pure' reading of the legislation
The media have reported substantial disappointment amongst the indigenous community as a result of this decision. This disappointment is understandable on the one hand as it is going to be substantially more difficult to establish native title in settled areas where traditional laws and customs have not been maintained. However, the High Court now seems to be confining native title to the more pure enunciation in the original Mabo case. That case recognised the fragile nature of native title and its susceptibility to extinguishment when faced with the challenge of the impact of the British legal system, something which was to be central to the final Yorta Yorta outcome.
The Yorta Yorta claimed title to land and waters in northern Victoria and southern New South Wales straddling the Murray River. That land, of course, has been closely settled since the 1850s. The original trial judge found that the descendants of the original Yorta Yorta people had ceased to occupy the claimed land in accordance with their traditional laws and customs.
That finding was upheld by a majority of the Full Court of the Federal Court on appeal. The High Court ruling was a final appeal against that earlier decision.
The head count
As in many High Court decisions (in this case five-two), the majority decision is better understood in the context of the individual judgments. The High Court has made the task somewhat easier in the Yorta Yorta case because a joint judgment was delivered by Chief Justice Gleeson, Justice Gummow and Justice Hayne. That decision was, in effect, reluctantly agreed with by Justice McHugh. However, he remains more willing to allow the content of native title to depend upon the developing common law.
Justice Callinan also dismissed the Yorta Yorta appeal, taking a line similar to the joint judgment, but extending it somewhat.
Justices Gaudron and Kirby dissented in a joint judgment. These judges focused on the analysis by the trial judge which they said indicated that the trial judge was concerned solely to identify acknowledgment of laws and observance of customs with respect to the utilisation or occupation of land. These two judges said that that was an error of law and there is nothing in the Native Title Act which requires that the traditional connection with the land be substantially maintained. Justices Gaudron and Kirby would have referred the matter back to the trial judge for further determination.
The leading judgment
The joint majority judgment referred to above analysed the theoretical legal basis for the continuation of native title.
The first consideration, according to that judgment, is that native title rights and interests owe their origin to traditional laws acknowledged and traditional customs observed by the indigenous people concerned. This was referred to as a 'normative' system.
The second consideration was the acquisition of sovereignty over parts of Australia from time to time. When sovereignty was acquired, the Crown acquired what is known as a radical title to the land, but native title survived. However, once the Crown acquired sovereignty, the native title system which then existed could not validly create any new rights or interests from that time on. Rights or interests created after sovereignty and which originated only as part of the normative system, would not be given effect by the new legal order as they were not recognised by that new system.
As the earlier note pointed out, the relevant criteria to be applied in deciding the significance of any changes to, or adaptations of, traditional laws or customs is whether it can still be seen as a traditional law or custom. If the rights or interests are changed to such an extent that they can no longer be said to be the rights or interests arising under the traditional laws or customs, then the new rights cannot be recognised.
In summary, claimants must demonstrate native title rights acquired through traditional laws and customs and demonstrate, on the balance of probability, that those traditional laws and customs predate the acquisition of sovereignty. The judges recognised that there would be difficulties of proof.
The implications of the Yorta Yorta decision will be profound for many of the native title claims currently in existence. In settled areas, like the Murray region, where none of the claimants live anything approaching a traditional lifestyle, claimants will have difficulties in establishing native title. Before those claims are resolved, parties involved in negotiations for exploration permits and indigenous land use agreements etc will naturally look at the possibility of native title being established over the claimed area when considering the compensation to be offered.
From the claimants point of view, it means that much greater emphasis will be placed on evidence gathering. Establishing ongoing observances of traditions will be essential. The joint High Court judgment makes it clear that attempts to re-establish traditions is not sufficient.
The result of this decision may also be to breathe new life into the fund set up to acquire land for indigenous groups when it was thought that pastoral leases had extinguished native title over much of Australia.