Members of the Yorta Yorta Aboriginal Community v. Victoria: indigenous and colonial traditions in Native Title.

• Jurisdiction: Australia
• Author: Cockayne, James
• Date: 01 December 2001

I INTRODUCTION

In Yorta Yorta, the Full Federal Court, handing down its decision in an appeal of an earlier decision by Olney J, (1) continues the development of native title in Australia. Yorta Yorta provides a number of important insights into the trends of that development. In this case note, I want to focus on those insights which relate to the role of `tradition' in native title. (2) Yorta Yorta provides two very different approaches to the concept of tradition: one is based on an understanding of traditions as discrete, historical practices, the other on treating traditions as socio-legal orders. (3) These approaches offer two very different possibilities for the development of native title: one, along a colonial path, and the other, on a more reconciliatory path. I suggest that the latter path is both legally and socially preferable, and that the High Court should be guided by it in its upcoming judgment in Western Australia v Ward. (4) Only by adopting an understanding of indigenous traditions as socio-legal orders can we transform native title from a colonial tradition into a vehicle for reconciliation.

II THE CASE

A Background

From the outset, a number of aspects of the claim by the group calling themselves the Yorta Yorta indicated that this case would play an important part in the development of native title. The claim, over a large area of land and waters in northern Victoria and southern New South Wales, (5) was the first native title application to come on for trial after the enactment of the Native Title Act 1993 (Cth) (`NTA'). (6) More than 500 respondents were joined to the claim, including three States. (7) It raised central questions about the impact of European settlement on native title rights and interests, indigenous dispossession and the consequent abandonment of traditional indigenous lifestyles, as well as evidentiary issues in cases where it is claimed that the foundation for native title disappeared long ago. (8)

The matter was originally referred by the National Native Title Tribunal to the Federal Court for determination in 1995. The trial commenced in 1996 and concluded in May 1998. The hearing lasted 114 days, 201 witnesses were heard, 48 witness statements were admitted into evidence, and the transcript comprised 11 664 pages. (9) Judgment was given in December 1998.

B At Trial

Olney J found against the claimants. His decision was based on a finding of fact that, by the end of the 19th century, the impact of European settlement in the claim area was such that the claimants' forebears had lost their traditional connection with the land. (10)

Olney J held that, of all the evidence, the most credible source of information about traditional laws and customs was the amateur anthropological observations of the pastoralist Edward Curr from the 1840s, and not the contemporary accounts of the claimants. (11) Olney J compared the evidence of the lifestyle of the claimant group's ancestors at various times with the evidence of traditional practices contained in extracts of Curr's work. (12) In his opinion, the evidence was silent as to the continued observance, in the late 19th century, of the `aspects of traditional lifestyle' observed by Curr. (13) In contrast, a copy of an 1881 petition to the Governor of New South Wales calling for a land grant, signed by 42 local Aborigines, provided `positive evidence emanating from the Aboriginals themselves' of the abandonment of this `traditional lifestyle'. (14)

Olney J held that, by abandoning their traditional lifestyle, the claimant group's ancestors had severed the observance and acknowledgment of traditional laws and customs necessary to found native title rights and interests, and native title had, as a result, been extinguished. Once expired, the native title could not be revived, notwithstanding the genuine efforts of the claimants to revive the lost culture. (15) Recalling the words of Brennan J in Mabo v Queensland [No 2], (16) Olney J held that `[t]he tide of history [had] indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs.' (17) Since this conclusion was determinative of the whole matter, it was not necessary for him to deal with arguments raised by some of the respondents that native title had in any event been extinguished, nor to make comprehensive findings about the current beliefs and practices of the claimant group. (18) He dismissed the application.

C On Appeal to the Full Federal Court

On appeal, the appellants argued primarily that the trial judge erroneously adopted a `frozen in time' approach. (19) They contended that Olney J failed to give sufficient recognition to the capacity of traditional laws and customs to adapt to changed circumstances in his interpretation of `traditional laws acknowledged and the traditional customs observed' under s 223 of the NTA. (20) As a result, he had 'wrongly equated the existence of native title with the existence of a "traditional society" or a "traditional lifestyle"'. (21)

The appellants' second argument was that Olney J had failed to take significant and important evidence into account -- in particular, the evidence of living witnesses bearing upon the situation in the late 19th century. (22) They argued that the learned trial judge approached the matter from the wrong point in time, commencing with the past rather than, as he should, with the present. (23) A process of inquiry which commenced with an analysis of the situation at the time of annexation and traced traditional laws and customs forward to the present was itself, in the submission of the appellants, likely to result in an erroneous `frozen in time' approach being adopted. (24) According to the appellants, the focus should not be on whether laws and customs within the historical tradition of the group had survived through to the present day, but whether the group's present day laws and customs could be traced back to the former inhabitants.

The respondents contested the `frozen in time' argument, submitting that Olney J gave proper recognition to the capacity of traditional laws and customs to adapt to changed circumstances. (25) They argued that Olney J's finding of expiry of native title was correctly made, that it was a finding that was open on the evidence, that it had not been shown to be wrong and that it resolved the whole case. (26)

III THE JUDGMENTS

The Full Court delivered two judgments. The majority, Branson and Katz JJ, held that Olney J had not adopted a `frozen in time' approach, but that if he had it would have been wrong. (27) His failure to refer expressly to, or evaluate, particular aspects of the evidence did not indicate that those aspects had not been taken into account. (28) Since the finding of fact that the tide of history had washed away any basis for native title by the late 19th century was open to Olney J, and as he had not erred in the process of making this finding, the appeal should be dismissed.

Black CJ dissented, finding that Olney J had erred by applying too restrictive an approach to the concept of what is `traditional', (29) and by failing to make findings on various aspects of the evidence. (30) Black CJ would have allowed the appeal and remitted the matter to the trial judge for further hearing. (31)

The appeal was, accordingly, dismissed. (32) The reasons for judgment reveal a consensus on two central points: first, that the traditional laws and customs that form the foundation for native title may adapt and change without native title being lost, (33) and, second, that a `frozen in time' approach to the determination of native title would be incorrect. (34) In the remainder of this Part, I will attempt to draw out how this apparent consensus conceals two very different approaches to native title. To do this, I will focus on the role `tradition' plays in each of the judgments.

A The Reasons for Judgment of the Majority

Branson and Katz JJ upheld Olney J's approach to the concept of `tradition' and determined that no case had been made out for overturning the decision which flowed from it. (35) It was, in their opinion, open to Olney J to find that the Yorta Yorta community had `lost its character as a traditional community.' (36) For the majority, the case turned on the correct interpretation of s 223 of the NTA, and in particular the meaning of the term `traditional'. (37) In their opinion, the correct conclusion to be drawn from the legislative history (38) and prior judicial interpretation (39) was that, while 'traditionally-based' laws and customs are maintained, native title survives. (40) `Traditional' practices need not be `frozen' at any point in the past, and can retain their `traditional' characteristics despite `evolutionary or adaptive changes to the subject matter of a tradition.' (41) In the majority's opinion, the `traditional' essence of practices is preserved if the change is itself `according to the practices or customs' observed. (42) Native title will survive the modification of those `traditionally-based' practices, but it will be lost when they cease to be `properly characterised as traditional' (43) -- when the modifications to the practice `reflect a breaking with the past rather than the maintenance of the ways of the past in changed circumstances.' (44) The majority argued that the test of whether a law or custom is traditional is not subjective,' (45) but objective: `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.' (46)

The majority rejected the appellants' argument that a number of statements in Olney J's judgment (47) indicated that he had adopted a `frozen in time' approach, and held that, even if he had, it would not be determinative of the outcome of the appeal. (48) In their view, it was open to Olney J to...