Alternative Law Journal
ALEXANDER REILLY[*] discusses the appeal decision in the native title claim of the Yorta Yorta Aboriginal Community.
On 8 February 2001, the Full Court of the Federal Court, by a majority of 2 to 1, upheld the judgment of Olney J that the native title claim of the members of the Yorta Yorta Aboriginal Community was unsuccessful in its entirety. Yorta Yorta was the first native title claim to go to trial in the Federal Court. It is also the only claim to date to have been rejected by the courts on the basis that a continuing connection to land has not been maintained from the time of the assertion of British sovereignty to the present.
To reach the conclusion of extinguishment, Olney J relied heavily on historical evidence on the question of the continuing connection of the claimants to the claim area, and in particular, the memoirs of Edward Curr, Recollections of Squatting in Victoria (1883). He concluded that, ‘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’.  According to this conclusion, Olney J did not need to rely on the claimants evidence of traditional laws and customs at all, since these laws and customs could not possibly be traditional in the sense required by the Native Title Act 1993.
On appeal to the Full Court, the Yorta Yorta community attacked the trial judge’s approach to the evidence, in particular his strict use of chronology in the consideration of evidence and his understanding of the evolution of tradition. The majority judges, Branson and Katz JJ, held that it was open to the trial judge to look primarily at historical evidence to determine that the traditional basis of contemporary laws and customs had expired. Since there was sufficient evidence that the requisite connection to land had been lost some time between 1788 and the present, his conclusion that native title had expired in the 19th century was open on the facts.
In dissent, Black CJ upheld the appeal finding that the trial judge’s focus on historical evidence had diverted him from a proper assessment of evidence of the claimants’ contemporary observance of laws and customs based in tradition. Black CJ was concerned that historical sources might be used to perpetuate the dispossession of Aboriginal people from their land through the native title process. He warned against an over-emphasis on historical records that assert a version of history as objective truth when it can only ever be the ‘truth’ from a particular cultural perspective. – There is a danger of drawing conclusions from snapshots of events, when a broader picture might reveal the snapshot to be part of an explicable evolution.  Black also questioned the very possibility of determining a point in time when traditional laws and customs had ceased to be observed.  He concluded that:
the determinative finding of expiry before the end of the 19th century was erroneous. The test applied was too restrictive in its approach to what is ‘traditional’ and the conclusion of expiry … was flawed as a result.
The evolution of tradition
In determining the nature and extent of native title rights, the courts make choices about how they will treat the evidence. It is possible to start with evidence of the past and work to evidence of the present, or vice versa. (Note, though, that both approaches assume that continuing connection requires an unbroken linear connection which, though a requirement in native title law, might be questioned culturally.) Working from past to present, traditional laws and customs from the past are given precedence. What was the nature of past traditions and what was the degree of their continuance are central to the inquiry. Working from the present to the past, the inquiry necessarily considers the present practice of laws and customs in terms of their tradition. The richer the evidence of the present practice of laws and customs and their connection to land, the more compelling is the case of them having emerged from a continuous past tradition. By starting with the past, the present experience of laws and customs might be denied the opportunity of establishing any such connection, as was the case in Yorta Yorta.
The judgments of Branson and Katz JJ and of Black CJ in Yorta Yorta differ in relation to the importance they place on evidence of the past and of the present. For Branson and Katz JJ, once those objecting to a native title claim have presented historical evidence of abandonment of traditional life, the burden of proving continued connection falls squarely on the claimants to rebut this evidence. It would seem that for Olney J this rebuttal could only be achieved through producing evidence of a similar (that is, historical) nature, and not through evidence of contemporary observance of laws and customs. For Black CJ, on the other hand, in light of oral testimony of contemporary observance of laws and customs based in tradition, a burden falls on the respondents to demonstrate a break in the connection between contemporary and past observance of traditional laws and customs. Furthermore, Black CJ held that to be relevant for this purpose, historical evidence of loss of connection would have to ‘overcome difficulties of a formidable nature’.  Here Black CJ is referring to the inherent dangers in the use of isolated historical documents to demonstrate a break in the observance of an oral tradition of traditional laws and customs.
The difference between Black CJ and the majority can also be framed as a difference in the understanding of ‘tradition’, of the nature of history, and of the reliability of historical evidence. Where Black CJ cast doubt on whether historical sources could ever be used to determine the extent of the observance of traditional laws and customs at some time in the past, Branson and Katz JJ alluded to a single, determinate written history  that can be used to assess objectively whether ‘a law acknowledged … is a traditional law’.  For Branson and Katz JJ, then, it is possible to uphold the trial judge’s focus on pre-20th century relationships to land based on the historical sources. – For Black CJ, these historical sources are not a full answer to the claim since ‘to answer a claim based substantially on an orally transmitted tradition [the determination] needs to take fully into account the potential richness and strength of orally-based traditions’.  Given the very different understanding of the majority and minority on the relative weight to be attributed to historical documents and to oral testimony, their different conclusions in Yorta Yorta followed as a matter of course.
The result in Yorta Yorta puts the law in Australia at odds with the equivalent law in Canada. In Delgamuukw v British Columbia (1997) 153 DLR 4th 193, the Supreme Court of Canada went to great lengths to explain the importance of oral testimony in determining the continuing existence and extent of native title rights. If the Australian courts focus on historical sources to the extent that they did in Yorta Yorta they are likely to perpetuate the extinguishment of the traditional laws and customs of which these histories speak. This is perhaps particularly so when those sources are the memoirs of pastoralists such as Edward Curr who entered the landscape in the 19th century armed with the laws of an alien culture and a Lockean understanding of land as an economic resource to be exploited. Mabo’s rejection of terra nullius challenged the common law to be open to acknowledging the legal status of a connection to land which, although it did not understand it, the common law could at least recognise. Given that native title claims are about acknowledging Aboriginal traditional laws and customs associated with the land, it seems strange to rely almost exclusively on colonial stories of Indigenous connections to land to determine the existence (or not) of native title.
As currently formulated, the existence and extent of native title rights can be determined without any attempt to understand the contemporary observance of traditional laws and customs and how they speak to the land and to the past. The result in Yorta Yorta puts into serious question the possibility of ever successfully claiming native title where there is not considerable documentary evidence attesting to a continuing occupation of land under traditional laws and customs by the claimant community. Native title emerged from the realisation that the law had failed to account for the different relationship to land of Indigenous peoples in Australia, thus dispelling the myth of terra nullius. Terra nullius took hold because European conceptions of occupation and ownership failed to understand Indigenous relationships to land. As with land, it may be that there needs to be an openness to other conceptions of the past that do not fit neatly into linear chronologies with convenient written signposts along the way. Mabo burdened the common law with the task of recognising native title. The law must bring openness and imagination to the task.
[*] Alexander Reilly teaches law at Macquarie University.
A separate comment focusing on the findings of the trial judge and of the Federal Court is published in the Indigenous Law Bulletin.
©2001 Alexander Reilly
 Members of the Yorta Yorta Aboriginal Community v State of Victoria and Others, Full Court of the Federal Court, 8 February 2001. Page nos in square brackets refer to the transcript of the decision.
 The trial commenced on 8 October 1996.
 For an extended analysis of the use of Curr’s Recollections in Yorta Yorta, see Reilly, ‘The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title’, (2000) 28 Federal Law Review 453–475.