Members of Yorta Yorta Aboriginal Community v Victoria

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne JJ,Gaudron,Kirby JJ,McHugh J,Callinan J
• Judgment Date: 12 December 2002
• Neutral Citation: [2002] HCA 58,2002-1212 HCA B
• Court: High Court
• Docket Number: M128/2001
• Date: 12 December 2002

Members of the Yorta Yorta Aboriginal Community

Appellant

and

State of Victoria & Ors

Respondents

[2002] HCA 58

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

M128/2001

HIGH COURT OF AUSTRALIA

Members of the Yorta Yorta Aboriginal Community v Victoria

Aboriginals — Native title to land — Determination of native title — Native title rights and interests in s 223(1) Native Title Act 1993 (Cth) — Possessed under traditional laws acknowledged and traditional customs observed in s 223(1)(a).

Aboriginals — Native title to land — Determination of native title — Consequences of sovereignty — Whether traditional laws and customs observed must originate in pre-sovereignty laws and customs — Effect of development of, or changes in, traditional laws and customs since sovereignty — Whether proof of continuous acknowledgment and observance of traditional laws and customs required — Effect of interruption to continuous acknowledgment and observance of traditional laws and customs — Whether substantially uninterrupted acknowledgment and observance is sufficient — Whether traditional law and customs need only be presently acknowledged and observed — Whether continuous existence of claimant society required — Effect of cessation of claimant society on acknowledgment and observance of traditional laws and customs.

Aboriginals — Native title to land — Native title rights and interests — Section 223(1)(c) Native Title Act 1993 (Cth) — Meaning of rights and interests recognised by the common law of Australia — Whether there are common law requirements of native title.

Aboriginals — Native title to land — Extinguishment of native title — Whether s 223 Native Title Act 1993 (Cth) incorporates notions of extinguishment of native title — Whether concepts of ‘abandonment’ or ‘expiration’ of native title can be applied.

Aboriginals — Native title to land — Evidence — Proof — Oral and written testimony.

Words and phrases — Traditional laws and customs — Traditional — Determination of native title — Native title rights and interests — Rights and interests recognised by the common law of Australia.

Native Title Act 1993 (Cth), ss 223, 225.

Representation:

N J Young QC with K R Howie SC and T P Keely for the appellant (instructed by Arnold Bloch Leibler)

G Griffith QC with H M Wright QC, M Sloss and S G E McLeish for the first respondents (instructed by Victorian Government Solicitor)

V B Hughston SC with J A Waters for the second respondent (instructed by Crown Solicitor for the State of New South Wales)

G E Hiley QC with G J Moloney for the first, third and fourth named third respondents (instructed by Suzanna Sheed & Associates)

No appearance for the second, fifth, sixth, seventh and eighth named third respondents

A C Neal with P G Willis for the fourth and fifth respondents (instructed by J G Thompson and Williams Love Lawyers)

J E Curtis-Smith for the sixth respondents (instructed by Hargraves)

No appearance for the seventh and eighth respondents

B M Selway QC, Solicitor-General for the State of South Australia with J H Dnistrianski for the ninth respondent (instructed by Crown Solicitor for the State of South Australia)

J Basten QC with R W Blowes for the tenth respondent (instructed by Chalk & Fitzgerald)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth of Australia with M A Perry intervening on behalf of the Attorney-General of the Commonwealth of Australia (instructed by Australian Government Solictor)

B W Walker SC with S E Pritchard intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)

M F Rynne intervening on behalf of the South West Aboriginal Land and Sea Council Aboriginal Corporation (instructed by South West Aboriginal Land and Sea Council Aboriginal Corporation)

ORDER

Appeal dismissed with costs.

1 Gleeson CJ, Gummow and Hayne JJ. In February 1994, application was made to the Native Title Registrar for a determination of native title to land and waters in northern Victoria and southern New South Wales. Several areas of land and waters were claimed; all were said to be public lands and waters. For the most part, the areas claimed straddled the Murray River (from a point in the west near Cohuna to a point in the east near Howlong) or straddled the Goulburn River (from its junction with the Murray, south to a point near Murchison). In addition to those areas, a number of other areas were claimed. All the areas claimed lay within a more or less oval-shaped area bisected by the Murray River (measuring about 150 kilometres on its north-south axis and over 200 kilometres on its east-west axis) which was said to be traditional Yorta Yorta territory. The precise basis for fixing the boundaries of this oval-shaped area was later to be said by the trial judge in this matter not to have been established in evidence.

2 The application was originally made in the name of an incorporated body, but later, eight named persons were substituted as applicants on behalf of the members of the Yorta Yorta Aboriginal community. Although the proceedings in this Court, and in the courts below, have described the claimant party simply as ‘Members of the Yorta Yorta Aboriginal community’ it is convenient to refer to them as ‘the claimants’ or ‘the appellants’.

3 Pursuant to the Native Title Act 1993 (Cth), as it stood at the relevant time, the application was accepted by the Native Title Registrar in May 1994, and in May 1995, under the then applicable provisions of that Act, the matter was referred to the Federal Court for decision.

4 This was the first application for determination of native title to come on for trial after the enactment of the Native Title Act. It was tried between October 1996 and November 1998. Oral evidence was taken at trial from 201 witnesses; 48 witness statements were admitted into evidence without formal proof. The hearing occupied 114 days.

5 After evidence had been completed, and the primary judge had reserved his decision, the Native Title Amendment Act 1998 (Cth) (‘the 1998 Amendment Act’) came into operation. The parties were invited to, and did, make submissions to the primary judge (Olney J) about the consequences of those amendments. It will be necessary to return to consider some of the changes made by that Act.

6 On 18 December 1998, Olney J published his reasons for decision 1 and made a determination of native title under the Native Title Act that:

‘Native title does not exist in relation to the areas of land and waters identified in Schedule D to Native Title Determination Application VN 94/1 accepted by the Native Title Registrar on 26 May 1994.’

7 From this determination the claimants appealed to the Full Court of the Federal Court. The Full Court, by majority (Branson and Katz JJ, Black CJ dissenting) 2, dismissed the appeal. By special leave, the claimants now appeal to this Court.

8 In order to understand the issues that fall for decision in this Court, it is necessary to begin with the statutory provisions from which those issues arise and to do so by reference first to what it was that the claimants sought.

An application for determination of native title

9 By their application, the claimants sought a determination of native title under the Native Title Act. The application which the claimants made, and the relief which they sought by that application, were both creatures of that Act. At the time the trial judge made his determination, s 225 of the Act provided that:

‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

• (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

• (b) the nature and extent of the native title rights and interests in relation to the determination area; and

• (c) the nature and extent of any other interests in relation to the determination area; and

• (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

• (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease — whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’

As originally enacted, the Native Title Act had contained a different definition of ‘determination of native title’ but that had been repealed, and a new definition substituted by the 1998 Amendment Act. The transitional provisions of the 1998 Amendment Act 3 provided that the new form of the definition applied to all determinations made after the commencement of the 1998 Amendment Act regardless of when the native title determination application was made. Accordingly, what the claimants sought was a determination having the characteristics identified in the definition set out above. Those characteristics included, if native title were determined to exist, who the persons, or each group of persons, holding the common or group rights comprising the native title are and, in addition, the nature and extent of the native title rights and interests in relation to the determination area.

10 Several of the terms used in the definition of ‘determination of native title’ are defined elsewhere in the Native Title Act. For present purposes, the most important is the definition of ‘native title’ contained in s 223 of the Act. Although that section was also amended by the 1998 Amendment Act, it is not necessary to notice the changes that were made then; for the purposes of the present matter,...