22nd December 1998
The expectation that the Yorta Yorta native title determination by the Federal Courts may provide guidance on the question of native title rights over inland water has proved wrong, however, the judgement has provided guidance on the question of native title rights, and the requirement by aboriginal claimant groups to establish the nature of those rights.
Speaking after examining the judgement in some detail, New South Wales Farmers Association President John Cobb said the issue of the nature of native title rights over inland water, which was expected to be a key feature of the judgement, has not been addressed by Justice Olney in his findings.
"Judge Olney required first that the connection between the claimant group and the claim area be proven, and then he required evidence that traditional laws and customs were still observed by the claim group. However, Justice Olney found that traditional laws and customs were still not observed, and so there was no need to proceed to define what rights might flow from these.
"The judgement is, of course, subject to appeal in a higher court, and to that extent it is unwise to rush to any conclusions about its significance," Mr Cobb said.
"However, what may be significant about the judgement is that some of the principals laid down in Mabo no 2 were used to examine whether the claim group had established its connection with the land, and, perhaps just as importantly, to attempt to translate tribal customs into what might be present day rights and interests in the area in question.
"In the Yorta Yorta decision, the Judge has laid down three steps that must be taken to determine what native title rights and interests might still arise:
firstly, it is necessary to prove that the members of the claimant group are descendants of the indigenous people who occupied the claim area prior to the assertion of Crown sovereignty;
secondly, the nature and content of the traditional laws and the traditional customs in relation to the traditional land must be established;
thirdly, it must be demonstrated that the traditional connection with the land of the ancestors of the claimant group has been substantially maintained since the time that sovereignty was asserted.
"In this case. The Judge found that the nature and content of traditional laws and customs were not established by evidence, a requirement observed by Justice Brennan in Mabo No 2."
Mr Keogh said the Judge also found that "notwithstanding the genuine efforts of members of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival".
Judge Olney concluded, "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 native title, had ceased to occupy their traditional lands 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 rights in relation to the land previously occupied by those 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".
Mr Cobb said the Yorta Yorta judgement, if uncontested, would have significant implications for other claims that have currently been lodged in New South Wales.
"It appears that a successful native title claim will involve much more than simply proving some form of ancestral connection to the land. It will also require evidence to demonstrate the nature of traditional laws and customs, and evidence to show that those laws and customs have been continuously observed by members of the claim group.
"It is hoped that, as a result of this finding, the Aboriginal representative bodies and the claimant groups in some of the existing native title claims in New South Wales might reconsider the nature of their claims," Mr Cobb said.