Reilly, Alexander --- "History Always Repeats: Members of the Yorta Yorta Aboriginal Community v State of Victoria" [2001] IndigLawB 14; (2001) 5(6) Indigenous Law Bulletin 25

• Judgment At First Instance
• Judgment Of The Full Court
• Analysis

---

History Always Repeats:

Members of the Yorta Yorta Aboriginal Community v State of Victoria

[2001] FCA 45

Appeal to full Federal Court

8 February 2001

By Alexander Reilly

On 8 February 2001, the full Federal Court, by a majority of two to one, upheld the judgment of Justice Olney that the native title claim of the members of the Yorta Yorta Aboriginal Community was unsuccessful in its entirety.[1] Yorta Yorta was the first native title claim to go to trial in the Federal Court. [2] It is also the only claim to date to have been rejected by the courts on the basis that the traditional laws and customs of the original occupants are no longer observed by the claimants. Other trial decisions that have progressed to the High Court or full Federal Court have focussed on the nature and extent of native title rights and on the extinguishment of title by inconsistent statutory grants.[3]

Yorta Yorta raises many important philosophical and legal issues. To what extent can traditional laws and customs change over time and still be the basis of a native title claim? On what basis do the courts determine when laws and customs are based in ‘tradition’? What use can and should be made of historical sources in the determination of the observance of traditional laws and customs? What weight should be attributed to the oral testimony of claimants of their contemporary observance of traditional laws and customs? Despite the importance of these questions for the litigants in Yorta Yorta and for future native title determinations, there was an inexplicable gap of over two years between the hearing of the appeal and the handing down of judgment.

Judgment at First Instance

Justice Olney rejected the native title claim at first instance because the ancestors of the members of the Yorta Yorta community had lost their traditional connection to the land sometime before the end of the 19th century.[4] On four occasions, his Honour referred to the impact of ‘the tide of history’,[5] concluding that ’[W]hen 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.’[6]

Justice Olney accepted the reliability of historical evidence without question, stating that ‘[I]n addition to the oral testimony of the witnesses, the applicants tendered and relied upon a considerable volume of documentary material. Much of it is of an historical nature and uncontentious.’[7] Furthermore, his Honour placed greater weight on historical evidence than on oral testimony, suggesting that oral testimony must be tested against historical evidence.[8]

Justice Olney's preference for historical evidence extended not only to proof of a continuing connection of the claimants to the claim area but also to proof of traditional laws and customs. In the light of a conflict between historical evidence and oral testimony on the nature of traditional laws and customs, his Honour accepted the former.[9] He concluded that native title had expired before the end of the 19th Century with little regard to the oral testimony of the claimants of their contemporary observance and acknowledgment of laws and customs which they claimed were based in tradition. Justice Olney reasoned that, if the evidence suggested that traditional laws and customs had already expired, the claimants evidence of contemporary laws and customs could not be traditional in the sense required by the Native Title Act 1993 (Cth) (‘the NTA’).

Judgment of the Full Court

On appeal, the Yorta Yorta community argued that Justice Olney had misdirected himself as to what was required to make out a native title claim. They argued that his Honour had looked for evidence of traditional laws and customs that were ‘frozen in time’ and that he was wrong to look at the evidence ‘chronologically’, as this emphasised past laws and customs where the NTA emphasised the contemporary observance of traditional laws and customs.

The majority judges, Justices Branson and Katz held that even if Justice Olney had ‘mistakenly’ looked for ‘traditional’ laws and customs that were ‘frozen in time’, his conclusion that native title had expired in the 19th century was still open on the facts. The minority judgment of Chief Justice Black upheld the appeal, accepting that the judge had adopted an incorrect approach to assessing the evidence.

According to Chief Justice Black, although Justice Olney had not required evidence of traditional laws and customs that were ‘frozen in time’, his focus on historical evidence had diverted him from a proper assessment of evidence of the claimant’s contemporary observance of laws and customs based in tradition. Justice Olney therefore effectively relied only on evidence of past traditional laws and customs to make his determination.[10]

Chief Justice Black’s criticism of Justice Olney could also be levelled at the majority on appeal. Although the majority rejected the ‘frozen in time’ approach to determining traditional laws and customs, they still accepted that historical evidence of the expiration of such laws and customs was sufficient to determine the claim.

What is required to prove native title, upon whom the burden of proof rests and when title is extinguished are not yet completely settled in the case law.[11] All of the judges added their own observations on these questions.

Among other things, Justices Branson and Katz emphasised that native title rights can be no greater than their extent at sovereignty. They can only diminish from that point, with the lowest point of observance of traditional laws and customs being the maximum extent of native title rights.[12] Thus, if a community has ceased observing traditional laws and customs at any point from the time of sovereignty to the present, native title rights are extinguished. Since native title rights cannot revive, they are extinguished irrevocably.

Their Honours also held that it is not necessary to establish the extent of rights at sovereignty, ‘if the traditional character of currently observed laws and customs can be established by other means’.[13] Despite this, they 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, this was a final determination of the claim.

In dissent, Chief Justice Black accepted the submission of the appellants that the trial judge’s approach to the determination of traditional laws and customs was misconceived because it gave too much weight to historical sources and too little weight to contemporary observance of traditional laws and customs. He pointed to a number of considerations in legislation and the case law which indicate that contemporary observance of laws and customs should be the starting point of an investigation into the existence of native title rights.[14] These include:

1. The definition of native title in section 223 of the NTA directs attention to the present.
2. Laws and customs that are adapted or evolved may still be ‘traditional’ if they are ‘rooted in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown’.
3. Native title rights and interests may continue to exist notwithstanding profound impacts upon and changes to Aboriginal society or to a particular community.
4. Native title rights and interests may continue notwithstanding the dispossession of traditional lands.
5. Native title rights and interests may persist despite the cessation of a traditional – in the sense of pre-contact – lifestyle.

Chief Justice Black 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,[15] emphasising the danger of the written word carrying more authority than it warrants because of its concrete existence and repetition[16] and of drawing conclusions from snapshots of events, such as observance of traditional laws and customs, when a broader picture might reveal the snapshot to be part of an explicable evolution.[17] Chief Justice Black questioned the very possibility of determining a point in time when traditional laws and customs had ceased to be observed.[18] He concluded that the trial judge had not taken sufficient caution in his assessment of the evidence, and 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.[19]

Analysis

Although the judgments of Justices Branson and Katz and of Chief Justice Black both acknowledge that there is scope for laws and customs to change significantly while still remaining traditional, there is a distinction between them either in relation to where the evidentiary burden lies in the proof or disproof of continuing traditional connection to land, or in relation to what can be proved through historical evidence to satisfy this burden.

For Justices Branson and Katz, having presented historical evidence of abandonment of traditional life sometime in the 19th Century, the respondents had satisfied an evidentiary burden, and the burden of proving continued connection fell squarely on the claimants to rebut this evidence. It would seem that this rebuttal could only be achieved through producing evidence of a similar (ie historical) nature, and not through evidence of contemporary observance of laws and customs.

For Chief Justice Black, in light of oral testimony of contemporary observance of laws and customs based in tradition, an evidentiary burden fell on the respondents to rebut this evidence. Furthermore, the use of historical evidence for this purpose would have to ‘overcome difficulties of a formidable nature’.[20]

Behind this difference between the judges on where the evidentiary burden lies and how it might be satisfied, is a more fundamental distinction between the judges in their understanding of the nature of historical sources, and how they can be used as evidence in native title litigation.

Where Chief Justice Black cast doubt on the possibility of determining the extent of the observance of traditional laws and customs through the use of historical sources, Justices Branson and Katz alluded to a single, determinate written history[21] that can be used to assess objectively whether ‘a law acknowledged ... is a traditional law.’[22]

For Justices Branson and Katz, then, it is possible to uphold the trial judge’s focus on pre-20th century relationships to land based on the historical sources.[23] For Chief Justice Black, on the other hand, these historical sources are not a full answer to the claim since

to answer a claim based substantially upon an orally-transmitted tradition [the determination] needs to take fully into account the potential richness and strength of orally-based traditions.’[24]

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.

Alexander Reilly is a Senior Lecturer in the Division of Law, Macquarie University.

---

[1] Members of the Yorta Yorta Community v State of Victoria [2001] FCA 45 (Unreported, Black CJ, Katz & Branson JJ, 8 February 2001).

[2] The trial commenced on 8 October 1996.

[3] See for example, Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426, 503 and Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159.

[4] Members of the Yorta Yorta Community v State of Victoria [1998] FCA 1606 (Unreported, Olney J, 18 December 1998).

[5] Ibid 3 (quoting Brennan J in Mabo v State of Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1, 59-60), 19, 126 & 129.

[6] Ibid.

[7] Ibid 22 (emphasis added).

[8] Ibid.

[9] Ibid 106.

[10] Members of the Yorta Yorta Community v State of Victoria [2001] FCA 45 (Unreported, Black CJ, Katz & Branson JJ, 8 February 2001) 70-71.

[11] Leave to appeal has been granted to the High Court from Full Court of the Federal Court decisions in Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 and Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159. The High Court will make significant determinations on these fundamental issues in these cases.

[12] Above n 8, 131.

[13] Ibid 144.

[14] Ibid 49.

[15] Ibid 58-63.

[16] Ibid 58.

[17] Ibid 61.

[18] Ibid.

[19] Ibid 91.

[20] Ibid 54.

[21] Ibid 126.

[22] Ibid 127.

[23] Ibid 131 – 133.

[24] Ibid 55.