Yorta Yorta native title case

by Ken Jagger

On 12 December 2002, the High Court handed down its decision in Yorta Yorta Aboriginal Community v Victoria (Yorta Yorta).

The Yorta Yorta people claimed native title to an area of land and waters in Northern Victoria and Southern New South Wales and had appealed from a decision of the Federal Court dismissing the claim. The High Court rejected the appeal and has now clarified the law with respect to the evidence required to prove native title.

The Federal Court proceedings

The claim was initially dismissed by Justice Olney in the Federal Court. His Honour concluded that the evidence did not support the claim because the facts showed that the Yorta Yorta people had ceased to occupy their traditional lands in accordance with their traditional laws and customs before the end of the 19th Century, adding that 'the tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs.'

On appeal, a majority of the Full Court of the Federal Court upheld Olney J's findings.

The Yorta Yorta people appealed to the High Court, claiming that the trial judge and the majority of the Full Court had erred in requiring the claimants to prove continuous acknowledgement and observance of traditional laws and customs in relation to land.

The High Court's decision

The High Court upheld the decision of the Full Court of the Federal Court by a majority of five to two. The Court in reading its decision considered the meaning of the phrase 'traditional laws and customs' and the requirement for the continuous observation of these laws and customs.

Meaning of 'traditional laws and customs'

The Court considered section 223(1) of the Act, which defines native title to be 'the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where...the rights and interest are possessed under the traditional laws acknowledged and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders' (emphasis added).

The Court placed considerable emphasis on the meaning of the term 'traditional', finding that the term does not mean only that which is transferred by word of mouth from generation to generation. Rather, 'traditional' laws and customs are those that are based in pre-sovereignty laws and customs, that is, the law and customs acknowledged and observed by the ancestors of the claimants at the time of acquisition of European sovereignty.

Continuity of observance of laws and customs

The Court held that in order to prove native title, claimants must establish there has been an acknowledgment and observance of laws and customs on a substantially uninterrupted basis since sovereignty.

The claimants acknowledged at trial that, as a result of European settlement, the way in which the Yorta Yorta people exercised their laws and customs had changed dramatically. The Court stated that changes in traditional laws or customs will not necessarily be fatal to a native title claim. The question will be whether the law or custom can still be seen to be 'traditional'. Where there is a substantialchange in laws and customs, they can no longer be described as 'traditional' laws and customs and a native title claim must fail.

In Yorta Yorta, the evidence indicated that at some point in the late 19th century the Yorta Yorta people ceased to occupy their land in accordance with traditional laws and customs and, therefore, ceased to function as recognisable traditional community. The evidence established that this break in continuity was substantial and therefore fatal to the Yorta Yorta people's native title claim.

The Court noted that an attempt by the Yorta Yorta people to revive laws and customs that had been effectively lost at some point in the past was not sufficient to establish native title.


The Yorta Yorta decision ultimately rests on the evidence relied on by the claimants at trial, which did not support crucial elements in the definition of native title.

The case does however indicate that it may be difficult for claimants to establish native title, particularly over areas of land where there has been intensive European settlement. In many cases, claimants may find it difficult to adduce the oral and historic evidence necessary to meet the criteria set down by the High Court.

It is possible that in more remote areas of Australia, particularly in Western Australia and Queensland, which have not been the subject of intensive European settlement, native title claimants may not face the same evidentiary difficulties confronted by the Yorta Yorta claimants. However, the findings relating to proof of native title in the Yorta Yorta case, together with the High Court's earlier findings relating to the extinguishment of native title in the Ben Ward case, will make it increasingly difficult for claimants to succeed in obtaining a meaningful determination of native title.


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