Members of the Yorta Yorta Aboriginal Community v Victoria

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Note: This is the High Court case. For the Federal Court case, please see Yorta Yorta Aboriginal Community v Victoria.

Citation: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 256-63 [3.106]

Contents

Background Facts

  • The claimants made a native title claim for certain areas of Victoria and NSW.
  • The primary judge made a determination that native title did not exist.
  • An appeal to the Federal Court was dismissed in favour of Victoria 2:1 (see here).
  • The claimants appealed to the High Court.

Legal issues

  • Native title
    • The meaning of ‘traditional’ in s 223 (1)(a).
    • The meaning of ‘connection’ in s 223 (1) (b).
    • The meaning of ‘recognition by the common law’ in s 223(1) (c).

Judgment

  • All elements of the definition of native title in s 223 must be given full effect.
  • The native title rights and interests to which the Act refers are rights and interests finding their origin in pre-sovereignty normative law and custom (has to be from before colonisation).

Traditional

  • ‘Traditional’ does not mean only that which is transferred from generation to generation. It is means law and custom which has existed before colonisation, and has been continually observed (without substantial interruption) change since colonisation.
  • If it was not observed since before colonisation, the ensuing rights will cease to exist.
    • A later attempt to revive those traditional laws and customs will not establish native title.
  • One has to look not merely at the present, but also at the relationship between the laws and customs now observed and those observed pre-sovereignty, and if they were traditional.
  • Change and interruption to traditional law and custom are not necessarily fatal to a native title claim. However, they may be significant.
    • The key question is whether the law and custom can still be seen to be traditional law and traditional custom.

Connection

  • Connection refers not to physical presence on the land but rather a connection to the land via traditional laws and customs.
  • Thus, the physical presence can be interrupted, whilst the abandonment of traditional laws cannot.

Recognition

  • This has a negative operation - it means that indigenous rights and interests which may be ‘antithetical to the common law’ will not be recognised.
  • This is a requirement that ‘emphasizes the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty.’

References

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