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Case, Natasha --- "Tide of History or Tsunami? The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors (1998)" [1999] IndigLawB 9; (1999) 4(17) Indigenous Law Bulletin 20

Tide of History or Tsunami?
The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors (1998)

The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors (1998)

Federal Court of Australia

Olney J

Determination of native title pursuant to the Native Title Act 1993 (Cth)

18 December 1998

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.[i]

...dispossession of the original inhabitants and their descendants has continued to the present time...(para 121)...The tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised...[ii]

Initiated in February 1994 under the Native Title Act 1993 (Cth), the Yorta Yorta native title application was accepted by the Native Title Registrar and referred to the Federal Court in May 1995. The Yorta Yorta Community sought a determination that native title, including exclusive rights to own, possess, occupy and use, exists in relation to land, waters and natural resources in the area claimed (para 11). The area claimed comprises Crown land within the traditional territories of the claimants’ ancestors, who were the original owners of land on both sides of the Murray River, including the region of the Barmah and Moira State forests and land around the Goulburn and Ovens Rivers.

Referring to the judgments of Justices Toohey and Brennan (see above) in Mabo (No 2) (‘Mabo’),[iii] Justice Olney stated, at paragraphs three and four of his judgment, that the applicants must prove, to the standard required by the Act (paras 15 & 17), the following elements of common law native title:

1) Occupation

In Mabo, Justice Toohey called this element ‘the foundation of the title', defining it as the physical '...presence of indigenous inhabitants on acquired land...amounting to occupancy.’[iv] For Justice Brennan, on the other hand, the foundation of native title depends upon the ‘real acknowledgment of traditional laws and...real observance of traditional customs’ constituting the practical side of indigenous peoples’ ‘traditional connection with the land’.[v] Such tradition must, ‘so far as practicable’, be ‘substantially maintained’ in order to prove a claim for native title.

Justice Olney ostensibly applies Justice Toohey’s definition as the test for this element of native title, stating that it is ‘essential’, in order to prove that presence amounted to occupancy, to establish ‘the kind of presence on or use of land’ by indigenous inhabitants in 1788.[vi] This interpretation of Justice Toohey’s dictum that '[S]o long as occupancy by a traditional society is established now and at the time of annexation, traditional rights exist',[vii] partly explains Justice Olney’s requirement that the applicants detail the content of the laws and customs of the indigenous society inhabiting the claim area in 1788 in order to establish the element of occupation. According to Justice Olney, it is these laws and customs which constitute the ‘traditional society’ and the ‘relevant sense’ in which the claimants must have occupied, and must continue to occupy, the claimed area.

Yet Justice Toohey, as cited by Justice Olney, goes on to say that ‘[T]raditional title arises from the fact of occupancy, not the occupation of a particular kind of society or way of life’,[viii] stating explicitly that there is ‘no separate element to prove the kind of society’ enjoying title[ix] in his test for occupation.

His Honour found, at para 121, that

No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. The claimant group clearly fails Toohey J's test of occupation by a traditional society now and at the time of annexation.

It is suggested that in so finding, his Honour failed to take into account Justice Brennan’s ‘“general propositions” about native title which could be stated without reference to the evidence’ (per Olney J at para 3). It is further suggested that his Honour converts Justice Toohey’s test for occupation into one requiring a comparison between ‘contemporary’ and ‘traditional’ indigenous societies, a comparison which does not constitute an element of Toohey’s test. By his construction of the words ‘tradition’ and ‘traditional’, and by his narrowing of Justice Toohey’s use of the term ‘occupation’, Justice Olney sets an impossible standard of proof for the elements of ‘traditional law and custom’ and ‘traditional connection’ (see points three and four, below). The logical implication of Justice Olney’s reasoning is that 1788 is the originating date of both common law native title and the laws and customs constituting traditional indigenous society. His test effectively requires the original indigenous inhabitants and their descendants to have somehow anticipated the Australian common law’s eventual recognition of native title.

2) Descent

The applicants were required to demonstrate a 'genealogical connection to the original inhabitants’ (para 52). In order to do this, it was necessary firstly to establish ‘the identity of one or more persons who occupied the relevant area at or prior to 1788’ and secondly to establish that ‘one or more of the claimant group is a descendant of such ancestor or ancestors’ (para 51).

His Honour found that the applicants could establish that two ancestors of the claimant group were present at the time that non-indigenous presence in the area became permanent (para 51). Because these ancestors were recognised as ‘full bloods’ (para 100) by non-indigenous people and because there were written records connecting them to the Wollithiga and Moitheriban sub-clans of the Yorta Yorta people, his Honour found it reasonable to infer that these ancestors were descendants of indigenous inhabitants who occupied the area in 1788 (para 104). In so finding, His Honour confined the element of occupation (addressed above) to the traditional lands of the two ancestor’s associated clans within the larger claimant group.

3) Traditional Laws and Customs

Having established that some of their number were descended from indigenous inhabitants of the claimed area (para 101), the applicants were required to identify 'the native title rights of those ancestors' (para 59). More particularly, they were required to identify the ‘nature of the entitlement which the indigenous inhabitants enjoyed in relation to their traditional lands in accordance with their law and customs and the extent of the traditional lands.' (para 105)

Implicit to Justice Olney’s test for occupation is the notion that tradition is the timeless and fixed essence of indigenous society. For the purpose of establishing and supporting a claim for native title, his Honour would accept no less from the contemporary indigenous community than the acknowledgment and observance of those laws and customs which were acknowledged and observed by the indigenous inhabitants of 1788. Yet, by his own admission, there is no reliable evidence describing these practices (para 56).

The oral traditions tendered in evidence were described by Justice Olney as indirect and secondary (para 25).[x] In order to be accorded due weight (para 56), such evidence required corroboration by written evidence, including official records and the ‘recorded observations of non-indigenous people who witnessed activities and events about which the members of the claimant group know only what has been passed down to them by their forbears’ (para 22, cf para 106).

In his Honour’s opinion, 'the most credible' source of information on the traditional laws and customs of the two ancestors recognised as native title holders for the purposes of the application is Edward M Curr’s book Recollections of Squatting in Victoria (1883).[xi] The evidence contained in Curr’s Recollections was preferred over the applicants’ evidence because Curr had, in Justice Olney’s opinion, 'at least observed an Aboriginal society that had not yet disintegrated' (para 106, italics added). His Honour did not comment on the fact that Curr, who lived in the area between 1841 and 1851, compiled and published his book thirty-two years after leaving the area (and more than sixty-five years after annexation). In accepting that Curr’s Recollections constitute evidence of traditional laws and customs, Justice Olney is prepared to impute an absolute continuity between the indigenous laws and customs prevailing in 1788 and those practiced by the indigenous inhabitants at the time of ‘earliest contact with Europeans’ (para 59).

Finding no evidence that these same traditional practices were exercised after 1851, Justice Olney refers, at paras 119-120, to a petition lodged in 1881 by forty-two Aboriginal people resident at Maloga Mission, within the claim area. The petition requested from the Governor of New South Wales a grant of land to 'cultivate and raise stock' so as to ‘settle down to more orderly habits of industry’. The letter also states the petitioner’s ‘desire to change “our old mode of life”’ (para 120). The petitioners included some of the children of those ancestors found to be ‘indigenous inhabitants’ for the purposes of the present application. It is on the basis of this petition that his Honour concludes, at para 121, that:

It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of the tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued to the present time.

Justice Toohey says that the traditional law and custom from which the nature and content of a native title is necessarily derived ‘must be understood from the point of view of the members of the society’.[xii] It is suggested that Justice Olney’s treatment of the indigenous evidence as subordinate to other available written evidence, like his construction of ‘tradition’, is at odds with Justice Toohey’s recommendation.

4) Substantial Maintenance of Traditional Connection

The applicants were required to demonstrate that their traditional connection with the land of their ancestors had been substantially maintained since the time sovereignty was asserted. In order to meet this requirement to Justice Olney’s satisfaction, they had to prove that the laws and customs through which their traditional connection was maintained were the same as those laws and customs prevailing in the indigenous society of 1788. This, as Justice Olney himself acknowledges, is impossible to prove, particularly in light of his virtual dismissal of the evidence derived from, or constituting, oral histories and traditions (see above, point three, and paras 24, 65, 106).

His Honour refers to the journals of Maloga Mission manager Daniel Matthews, the 'architect' of the petition referred to above and the manager of the Cummeragunja Aboriginal reserve when it was granted in 1882. He cites Matthews’ practices of suppression of language and custom (paras 117-118) as evidence supporting his finding that:

the absence of a continuous link back to the laws and customs of the original inhabitants deprives those activities of the character of traditional laws acknowledged and traditional customs observed in relation to land and waters which is a necessary element of both the statutory and the common law concept of native title rights and interests.(para 128)

Furthermore, the ‘laws acknowledged’ and ‘customs observed’ by the contemporary community were found by his Honour to be inconsistent with Curr’s account of traditional lifestyle, and/or largely indistinguishable from modern non-indigenous practices.[xiii] Such contemporary cultural practices as conservative use of resources (para 123), care for sites of significance (para 122), re-burial of ancestors (para 124), though ‘commendable, cannot be regarded as the continuation of a traditional custom’ (para 123).

His Honour stated, in conclusion, that

The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to the land of their forebears. The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional land in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by the ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival. This conclusion effectively resolves the application for a determination of native title (para 129).

Justice Olney does not consider to what extent the continued acknowledgment and observance of traditional laws and customs by the ancestors’ descendants was ‘practicable’ under ‘the circumstances they found themselves in’. Nor does he attempt to assess the question, a qualitative one, of how ‘substantially’ that tradition was maintained or the extent to which contemporary practices are based upon tradition. Rather, his Honour maintains his ‘narrow focus’ (para 21) on histories purporting to record the ‘disappearance’ (para 129) or ‘expiration’ (para 121) of ‘those activities which are frequently, in other Aboriginal societies, indicative of spiritual attachment to land’, for example initiation or ceremony (para 127).

5) Recognition by Australian Common Law

Having stated that ‘it is not until each of [the above] elements has been proved that it will be possible to determine whether the laws acknowledged and the customs observed by a contemporary clan, group or community should be afforded the protection of Australian law' (para 4), his Honour found it unnecessary to consider whether the claimed rights and interests were recognised by the common law of Australia, the final element of his test for native title.

Justice Olney’s decision in the present case stands in stark contrast to the decision of his brother judge Justice Lee in Miriuwung-Gajerrong. It is suggested that his Honour’s exclusive and narrow view of native title, with his requirement for absolute consistency between those laws and customs practiced by indigenous inhabitants in 1788 and those practiced by the contemporary community; his questionable treatment of the indigenous oral evidence, and his test for proving descent, is not an insuperable view. This is particularly so if both Justice Brennan’s emphasis upon the requirement for 'substantial maintenance' of ‘traditional connection’ with land and Justice Toohey’s emphasis upon occupation in Mabo is borne in mind. An appeal to the Full Court is anticipated.

Natasha Case is Co-editor of the Indigenous Law Bulletin.

[i] Mabo [No 2] [1992] HCA 23; 175 CLR 1 (‘Mabo’) per Brennan J at 59-60, as cited by Olney J in The Members of the Yorta Aboriginal Community v The State of Victoria & Ors (1998) at para 3 (emphasis added).

[ii] Id per Olney J at para 126.

[iii] [1992] HCA 23; 175 CLR 1. See introductory quotes.

[iv] Id, per Toohey J at 188, as cited by justice Olney at para 3.

[v] Ibid, per Brennan J at pp 59-60.

[vi] Olney para 3. Cf, para 52 where he states that 'the mere presence of one or more persons at as particular place at a particular time in history goes nowhere to proving either the traditional rights and interests of the descendants of such person or persons in relation to land or waters, or the geographical limits of the land and waters in relation to which it is said native title rights and

interests are enjoyed'.

[vii] Op cit, n 6.

[viii] Ibid, per Toohey J at 192.

[ix] Ibid, per Toohey J at pp187-88.

[x] The evidence of the contemporary community as to the boundaries of the traditional lands claimed, for instance, ‘must necessarily be regarded as suspect' (para 61), and constituted, for the purposes of Justice Olney’s determination, ‘no evidence’ at all (para 9).

[xi] Another work by the same author to which His Honour referred was a four-volume work entitled The Australian Race: its origin, languages, customs, place of landing in Australia, and the routes by which it spread itself over that continent (1886).

[xii] Id, per Toohey J at 188.

[xiii] In contextualising Olney’s comments on the issue of contemporary indigenous culture and society (as opposed to traditional law and custom), his earlier determination in Members of the Yorta Yorta community v The State of Victoria & Ors (1997) FCR, is instructive.

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