A Greater Sense of Tradition: The Implications of The Normative System Principles in Yorta Yorta for Native Title Determination Applications
AbstractThis paper analyses the implications of Members of the Yorta Yorta Aboriginal Community v Victoria, a decision of the High Court of Australia in 2002 that rejected an appeal against the refusal to recognise native title rights over the traditional land of the indigenous Yorta Yorta people in the Murray-Goulburn regions in the south-east of the continent. The paper discusses the principles of the majority judgment in the case, attempts to apply them to other scenarios and analyses the implications for applications under the Native Title Act (Cth) 1993. The author concludes that to win native title recognition in Australia, an indigenous society must have remained traditional yet vital; and for most of eastern and southern Australia, native title cannot ever be a legal reality in light of the Yorta Yorta doctrine. Elsewhere in Australia an 'onerous burden' of significant care, research and preparation must be undertaken for applications to be successful. |