Alternative Law Journal
Many years ago now, in more optimistic times, the Yorta Yorta peoples lodged their claim for what is rightfully theirs. Native title. There are approximately 4000 people within the Yorta Yorta Nation enjoying common ancestry from the beginnings of time. They are the Yorta Yorta peoples. They carry through generations a relationship to country in and around the Murray, Goulburn, Campaspe, Edward and Ovens Rivers of northern Victoria and southern New South Wales. It is Yorta Yorta country. When the Yorta Yorta pass on their laws and customs to their kin, they do it by telling stories. Hard, difficult, secret stories. Stories of courage and pride. This is Yorta Yorta oral history. Part of this living history is an extraordinary knowledge of direct links of descent to ancestors now dead but whose spirits live on in Yorta Yorta country. The old people. Part of it also is a rich knowledge about country and their relationship to it handed from generation to generation, brought into being by their creator spirit: Biami.
In their native title claim, in a generous spirit of peaceful co-existence, the Yorta Yorta peoples sought recognition of a basic truth: that they are and always have been an intimate part of Yorta Yorta country. They own it. It owns them.
It has been a treasured privilege for me to begin to gain an understanding of the Yorta Yorta perspective and listen to their powerful stories during my 10 years as their lawyer in their monumental struggle for justice, and for recognition that they have survived as an identifiable peoples, still walking Yorta Yorta country. But on 12 December 2002, the majority of the High Court dismissed the Yorta Yorta appeal, thereby upholding Olney J's finding in the Federal Court that native title did not exist because there was an 'interruption' in the Yorta Yorta's observance of traditional law and custom in 1881. Dismissing the appeal, the majority of the High Court upheld Olney J's finding that the society that had once observed traditional laws and customs had ceased to do so and consequently no longer constituted the society out of which the traditional laws and customs sprang. In other words, to the High Court majority, the Yorta Yorta peoples are not the society they thought they were.
And so came to an end the Yorta Yorta struggle for native title justice in Australia's domestic court and tribunal system under the Native Title Act 1993 (Cth).
So how did the state of the law of native title in Australia as applied to the Yorta Yorta peoples come to settle in such a miserable, inhospitable place? The answer to that question requires an examination of the various legal milestones in the Yorta Yorta struggle for native title justice.
The Yorta Yorta peoples lodged a native title determination application with the National Native Title Tribunal (NNTT) on 21 February 1994. The Yorta Yorta claimed native title in the public lands and waters ('the claim area') within their original homelands. The balance of the area, which comprises about 90% of traditional Yorta Yorta country, is for the most part freehold land, which was not subject to claim. The Yorta Yorta sought the right to possession, occupation, use and enjoyment of the claim area and its natural resources, and the right to be recognised as the Indigenous owners of the claim area and its natural resources.
At trial, the case presented by the Yorta Yorta peoples was that the laws and customs currently acknowledged and observed by them were traditional laws and customs, derived from the Yorta Yorta in the past, and handed on to them by senior members of the community, principally at the generation levels of their parents and grandparents. They adduced historical evidence establishing that, at the time of European contact in the 1840s, the land was occupied and used by Aboriginal peoples according to a system of laws and customs possessed by that community. They submitted that it can rightly be presumed that the body of laws and customs in relation to land existed in previous generations back beyond 1788 and through to today, and that occupation in 1788 and today is the key source of their native title. Their case was that they were not required to identify particular laws and customs relating to land that existed in 1788 or in t,he 1840s. Nor were they required to trace particular laws and customs from 1788 to the present to prove that they had been continuously acknowledged and observed. But that's what those of the respondents who claimed Yorta Yorta native title had been abandoned over 100 years ago argued.
Following the lodgment of the application, a compulsory mediation process was held before Gray J, Deputy President of the NNTI, between September 1994 and Apri11995. Despite every good faith effort by the Yorta Yorta and by Gray J and his team, the mediation process did not result in the NNTI making a consent determination that native title exists. Consequently, the Registrar of the NNTI referred the matter to the Federal Court for hearing and determination on 25 May 1995.
There were approximately 500 named respondents. Amongst the respondents were the States of Victoria, New South Wales and South Australia, the Murray Darling Basin Commission, Telstra, various Shire Councils, timber, grazing, tourism or water pump licensees, bee keepers and various recreational users, including campers, bush walkers and water skiers.
The Federal Court proceedings commenced on 8 October 1996. The evidence concluded on 30 October 1997. Fifty-three Yorta Yorta witnesses gave 'evidence, as did three Indigenous peoples from neighbouring communities, supporting the evidence on territorial boundaries given by Yorta Yorta witnesses. In total, the Court sat on 114 days and heard 201 witnesses.
On 18 December 1998, nearly five years after the application was lodged with the NNTI, Olney J determined that native title did not exist in any part of the claim area. On 28 January 1999, the Yorta Yorta filed a notice of appeal, which sought to set aside the determination on the grounds that it was vitiated by a number of specific errors of law. The appeal was heard by the Full Court, comprising Black CJ and Branson and Katz JJ, from 18 to 26 August 1999. By a majority, the Full Court dismissed the appeal on 8 February 2001.
The late Ron Castan QC led the legal team on behalf of the Yorta Yorta peoples. It was the last case Ron argued prior to his tragic death in October 1999. The Yorta Yorta High Court appeal was heard by the Full Court of the High Court on 23 and 24 May 2002 and the appeal was d1smissed on 12 December 2002.
Justice Olney found that a significant number of the claimant group are descended from either Kitty Atkinson/Cooper or Edward Walker, who themselves were descended from people who were in 1788 Indigenous inhabitants of part of the claim area. Despite this, Olney J dismissed the applicat1on. The critical reason given was his conclusion:
that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession
of their 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 for the present native title claim.
Justice Olney reached this 'crucial finding' by several steps. First, he relied on the written observations of Edward Curr, a European pastoralist who resided in the claim area in the 1840s, concerning practices such as tooth avulsion, burial methods, ornamental scarring, profligacy with food and gender subservience to infer that these were 'aspects of traditional lifestyle' prior to the assertion of sovereignty that did not subsist today. Justice Olney found that Curr's writings provided the 'most credible source of information concerning the traditional laws and customs of the area from which Edward Walker's and Kitty Atkinson/Cooper's early forebears came' and that 'less weight' should be accorded to the oral evidence of the Yorta Yorta witnesses. Second, he noted that there was no written record of these practices in the 1870s: 'the evidence is silent concerning the continuing observance in Matthew's time of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr'. Third, he chose the date of 1881 as the date of expiration of native title because, in that year, 42 men, as 'Aboriginal natives', 'residents on the Murray river', and 'members of the Moira and Ulupna tribes' had signed a petition to the Governor ofthe Colony requesting 'farming assistance'. To Olney J, this evinced a departure from traditional practices and customs. But this 1gnored the fact that only a fraction of the Yorta Yorta ancestors known to present Yorta Yorta generations signed that petition, which Olney J acknowledged had been written by a missionary, Daniel Matthews. No women signed it Despite all this, Olney J was prepared to use the petition in support of h1s thesis that native title had expired by that precise year.
There were three grounds to the appeal to the Full Court of the Federal Court. First, rt was argued that the trial judge had set himself the wrong task in seeking to determine the nature and content of the laws and customs of the ancestors of the Yorta Yorta in 1788 and enquiring whether such laws and customs have been continuously acknowledged and observed ever since. Second, it was argued that the 'crucial finding'of Olney J was unsound. It was argued that this finding ignored the oral testimony of Yorta Yorta witnesses and that it was contrary to reason to use the 1881 petition in the way that he did. Third, it was argued that the trial judge failed to make necessary findings concerning the native title rights and interests enjoyed by the Yorta Yorta peoples today.
In his oral submissions before the Fu(l Court of the Federal Court, the late Ron Castan QC argued powerfully that the task of a court determining a native title application is to concentrate on the evidence of today's Indigenous community, submitting that:
there is no room ... in this field of discourse and under the statute and in the common law for some notion of a pre- existing pnst1ne stereotype of what comprises ... traditional laws and what comprises traditional customs ....
Ron captured the essence of this challenge in his final submission to the Court:
There is no image of the Aborigine standing on the hill with a spear against the sunset that conditions the exercise of the native title jurisdiction.
The Yorta Yorta community submitted that at the heart of Olney J's approach to Aboriginality lay the fallacy that no changes must be made to an Indigenous community's way of life to either cope with the impact of white occupation or to incorporate new ways of thinking or new knowledge. It is as if there is a model 'authentic Aborigine' which the contemporary Yorta Yorta were required to emulate if they were to succeed in their application.
In the Full Court, Branson and Katz JJ found errors in the reasoning of Olney J, but upheld his determination and dismissed the appeal. They found that the legal burden of proof rests on the Yorta Yorta to establish that extinguishment, by expiration of the native title, had not occurred. For Branson and Katz JJ, common law native title is incorporated through para 223(1)(c) of the Native Title Act. It requires applicants for a determination of native title to prove the negative factual proposition that, at no time since 1788, have they or their ancestors ceased to be an identifiable community the members of which, under 1ts traditional laws, observed and practised traditional customs and possessed interests in the relevant land. The supreme difficulty, if not impossibility, of proving such matters is obvious. They also held that, although Olney J did fall into error, those errors were not such as to warrant interference with his critical findings. But the errors that Branson and Katz JJ identified went to the very heart of Olney J’s decision. By upholding the decision of the trial judge on the ground that his critical find1ngs had not been successfully challenged,the majority perpetuated the very same errors. In other words, having declared that it would have been an error for the trial judge to require the appellants 'to demonstrate that the laws and customs acknowledged and observed by the occupants of the claimed lands and waters in 1788 had cont1nued thereafter to be observed until the present time, an error which clearly determined Olney's approach, Branson and Katz JJ themselves held that the Yorta Yorta were required to prove that the traditional laws and customs of the Yorta Yorta on which their native title had been founded had been continuously acknowledged and observed since 1788. This statement does not differ at all in substance from the approach of Olney J that they declared to be erroneous.
By contrast, Justice Black CJ. in dissent, warned against the danger of placing too much reliance on 'the h1stoncal snapshot of adventitious content', particularly where the subject matter of the observation may be in a state of change. Similarly, he considered that there is a compelling case against reaching any conclusion about expiry of native title without considering a very substantial time frame, and that 'caution is compelled by the ... irreversible consequences for Indigenous people of a finding that, long ago, their ancestors ceased to acknowledge traditional laws and observe traditional customs'.
In the High Court, Gleeson CJ and Gummow and Hayne n. accepted that errors of law were made at trial, but did not analyse them in any detail. They commented that Olney J's assessment of some written evidence as more useful than oral evidence was acceptable as it did not begin from the 'impermissible premise' that written evidence is inherently better or more reliable than oral test1mony. And it was open to Olney J to attach the considerable significance he did to the 1881 petition. Their Honours found that the Full Federal Court had erred in holding that paragraph 223(1)(c) of the Native Title Act incorporates the common law requirements for establishing native title. Native title is what is defined and described in sub-s 223(1) of the Native T1tle Act. They also found that the errors in relation to para 223(1)(c) and those identified by the Full Court majority as being made at trial did not bear upon the primary judge's critical findings of fact. To them, Olney J's 1881 finding stood unaffected by error of law. Consequently, the claim to native title failed.
For Gleeson CJ and Gummow and Hayne JJ, when the Crown acquired sovereignty and radical title in Australia, certain pre-existing rights and interests in relation to land and water survived, which owed their origins to a normative system under which traditional laws and customs were acknowledged and observed. For rights and interests to be presently possessed under traditional laws and customs according to sub-s 223(1), two features must exist. First, they must have normative qualities. Second, the normative system from which the interests derive their normative qualities must have been in continuous existence since the acquisition of Crown sovereignty. The only rights or interests in relation to land or waters originating otherwise than in the new sovereign order are those that find their origin in pre-sovereignty laws and customs. To determine whether the laws and customs are traditional, it is necessary to consider the relationship between those laws and customs now acknowledged and those observed prior to the acquisition of sovereignty by reference to rules of transmission of rights and interests under traditional laws and customs which then existed. An 'interruption' occurs where a law or custom cannot be seen to be a traditional law or traditional custom. Where both change and interruption in exercise have occurred, native title will probably not be established. Acknowledgment and observance of the pre-sovereignty laws and customs must have continued substantially uninterrupted since then. It is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of a society which came under a new sovereign order when the Crown asserted sovereignty, not a normative system rooted in some other different society. From that it must be shown
that the society, under whose laws and customs the native title rights and interests are sa1d to be possessed, has continued to exist throughout that period as a body united by 1ts acknowledgement and observance of the laws and customs.
By this ultra-clinical and legalistic analysis, Gleeson CJ and Gummow and Hayne JJ sidestep the serious implications for claimants that arise from it. Rather, they treat the implications as utterly natural and unavoidable. It's as if the meaning of sub-s 223(1) was waiting to be uncovered and they were simply delivering a message: mere conduits through which the law's ultimate truth has now been revealed. The judgment evidences statutory interpretation with disregard to the context, consideration of detrimental implications for the less powerful players and key international human rights standards. Coldly comforting, they accept that 'demonstrating the content of ... traditional law and custom may very well present difficult problems of proof, and that this will be 'an especially difficult burden of proof for claimants', particularly where laws and customs have been adapted in response to the impact of European settlement. But where in the world hasn't adaptation been a survival mechanism for Indigenous peoples?
The treatment of Olney J's errors exemplifies the broader failure of the judges to consider their theory of native title in context. This failure remains a theme of the legally positivist judgment. On numerous occasions they explain that interruption in observance and acknowledgement occurs when a society ceases to exist. Here, the specific year of 1881 was chosen for reasons adverted to earlier. But how is it that a society ceases to be, and how can such a specific pronouncement of cessation be made, let alone with any reliability? A 'society', which is a fluid, adapting and changing entity, cannot simply be deemed to have disappeared; washed away with nothing remaining. The judgment does not elaborate on this issue. In the context of the appeal result, this is a key issue. Yet it is treated with breathtaking gloss. And what of its Implications? Have the Yorta Yorta been living a lie ever since? Of course they haven't, but that seems to be the regrettable corollary.
Similar treatment is meted out to the Yorta Yorta contention that Olney J had privileged the written record over oral testimony. Chief Justice Gleeson and Gummow and Hayne JJ found that Olney J did not begin from the assumption that written evidence is inherently better than oral testimony. But this flies in the face of what Olney J wrote and how Olney J arrived at his 'crucial finding'. Justice Olney explicitly privileged the written record with his statement that:
oral testimony of the Witnesses from the claimant group is a further source of ev1dence but be1ng based upon oral tradition passed down through many generat1ons extending over a period of 1n excess of two hundred years, less we1ght should be accorded to 1t than the information recorded by Curr.
He also inferentially did so in his requirement that there be written proof of continuity of what Curr observed from 1788 to the present. On any view, this approach consigns oral testimony to a marginal role.
Justice Olney's inquiry is accepted by the High Court as being directed at what were traditional laws and customs at the time of European settlement. Justice Olney assessed that the written record was more reliable than oral history 'about that subject'. But this does not compare like with like and ignores some basic facts. It is generally accepted that European settlement in the claim area was between 1830 and 1840, around Curr's time. Yorta Yorta oral testimony about traditional laws and customs generally reaches back several generations to the late 19th and early 20th centuries, and is based on what parents and grandparents and sometimes great grandparents handed down. justice Olney made absolutely no reference whatsoever in his judgment to the evidence of living wrtnesses concerning their ancestors. There was much evidence to that effect. It is wrong to suggest that an assessment could be or was made of the oral testimony of the Yorta Yorta witnesses on the same subject as the writings of Curr. For all these reasons, the majority judgment, with which McHugh J concurred, is and will always remain profoundly disappointing.
Justice Callinan also dismissed the appeal. On his way to doing so he discussed particular disadvantages faced by the Yorta Yorta. For him, this includes the lack of a written language and the absence of any Indigenous contemporaneous documents, coupled with the need to rely extensively on the spoken word of their forebears, which he states human experience knows is at risk of being influenced and distorted in transmission through the generations. Adding colour to his dubious thesis, Callinan J muses whether a motorboat powered by processed liquid fluid and the use of a tomahawk remained in accordance with tradrtional law and custom.
Justices Gaudron and Kirby dissented. To them, it is not necessary to establish that native title rights and interests 'have been continuously availed of in relation to land, or, even, that they are presently availed of and s 223(1)(b) requires only that there be a present connection to land and waters. It does not require that the connection be physical. Continuing occupancy can be spiritual too. The question whether a community has ceased to exist is not one that can be answered solely by reference to external indicia or the observations of those who are not or were not members of the community. It is primarily whether throughout the period in issue there have been people who have identified themselves and each other as members of the community in question.
And so, the law of native title in Australia today has settled in a place that requires claimants to positively prove that traditional law has continued substantially uninterrupted from 1788. For those many thousands of Yorta Yorta supporters anxious for some Yorta Yorta land justice, one of the most disappointing aspects of the result is that the High Court simply accepted that it was open to Olney J, using his sad and derivative metaphor, to find that Yorta Yorta native title had been 'washed away by the tide of history' in 1881. The result is a travesty considering that Olney J based his 'crucial finding' partly on the written account of a European squatter living for a period in Yorta Yorta country from around 1840, and his descriptions of burial of the dead, ornamental scarring, wastage of food and the mistreatment of women. The result is even more disappointing when this reasoning is combined with the fact that the trial judge considered it part of his task to look for continuity in the written record from the mid 1800s of similar observations to those of Curr. Justice Olney chose 1881 because in that year 42 men had signed a petition drafted by a missionary to the governor of the colony seeking farming assistance. For him this was 'positive evidence', an admission against interest, that the ancestors of the Yorta Yorta had abandoned traditional laws, as if somehow the ancestors of the Yorta Yorta were required to be cognisant of the requirements of the Native Tttle Act in 1881. The High Court simply accepted that Olney J's conclusion was open and in doing so accepted as correct his questionable methodology.
The High Court dished out similar rough treatment to the Yorta Yorta contention that Olney J unfairly preferenced the written record over their oral testimony. The High Court's finding here flies in the face of what Olney J wrote and how he arrived at his 'crucial finding' of abandonment by 1881. To the High Court, Olney J did nothing more than assess that the written record was more reliable than oral history 'about that subject'; the subject being Curr's observations. But Olney J made no reference whatsoever to either the evidence of living witnesses concerning their ancestors or that it was simply not possible to compare the written record with oral testimony about that subject. It is obvious that Olney J was entitled to critically evaluate both Curr and the oral evidence. But he did not, because he believed that less weight should be accorded to oral tradition than the information recorded by Curr. This aspect of his judgment is completely unsatisfactory and the High Court did nothing to redress this situation.
The system has failed the Yorta Yorta peoples, not the Yorta Yorta peoples the system. The Yorta Yorta struggle for justice continues, unabated, unsatiated. Having exhausted domestic remedies, the indefatigable and proud first peoples of the mid-Murray region of northern Victoria and southern New South Wales are now set to lodge a complaint with the United Nations Human Rights Committee, claiming that the desolate, wasteland of a place where the law of native title in Australia has settled breaches key international human rights standards. As an observer and committed supporter of the Yorta Yorta peoples who has also been privileged to work with them during their native title struggle, I marvel at their energy and courage as they march on. But their determination makes sense. It's a determination born of the knowledge that this 'always was, always will be, Yorta Yorta land'.
[*] PETER SEIDEL is a Partner in Public Interest Law with Arnold Bloch Leibier in Melbourne.
© 2004 Peter Seidel
 Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors  HCA 58 (12 December 2002), 
 Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors  FCA 1606 (18 December 1998), 
 Members of the Yorta Yorta Abonginal Community v State of Victoria & Drs  FCA 45 (8 February 2001)
 Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors  FCA 1606, 
 Ibid 
 Ibid , -.
 Ibid 
 Ibid 
 Ibid -
 Transcript of Proceedings, Members of the Yorta Yorta v State of Victoria & Ors (Full Court of the Federal Court, VG34 of 1999, Ron Castan QC, 19 August 1999).
 Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors  FCA 45, 
 Ibid , , , 
 Ibid 
 Ibid , , 
 Ibid .
 Ibid 
 Ibid .
 Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors  HCA 58, 
 Ibid .
 Ibid , 
 Ibid 
 Ibid , .
 Ibid , . .
 Ibid 
 Ibid 
 Ibid .
 Ibid 
 Ibid , Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors  FCA 1606, 
 Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors  HCA 58, (63].
 Ibid .
 Ibid , 
 Ibid .