Yorta Yorta & Abandonment
On December 19, 1998 Justice Olney of the Federal Court handed down his determination of the Yorta Yorta application for native title to be recognised over 113,000 ha. of land and waters in the vicinity of the Owens, Goulburn and Murray Rivers in Victoria and NSW, stating simply that, 'The Court determines native title does not exist in relation to areas of land and waters identified in the application.'
The Yorta Yorta determination is the first to reject native title based on a loss of connection through abandonment of traditional laws and customs. This decision does not bode well for Indigenous peoples in the more settled areas of Australia and stands in stark contrast to the Miriuwung Gajerrong determination less than a month earlier. The judge in the case, Justice Olney, based the determination on the idea that despite efforts to rejuvenate their traditions and laws, the 'tide of history' had washed away any real connection the Yorta Yorta may have had with their traditional law and custom in relation to their land and therefore could not make out the maintenance of a connection required to prove native title. Understandably, many commentators have criticised the judge's approach to the case. (The Members of the Yorta Yorta Aboriginal Community v The State of Victoria and Ors (unreported decision Federal Court of Australia, Justice Lee, 18 December 1998).
The Yorta Yorta determination is the first to reject native title based on a loss of connection through abandonment of traditional laws and customs. This decision does not bode well for Indigenous peoples in the more settled areas of Australia and stands in stark contrast to the Miriuwung Gajerrong determination less than a month earlier. The judge in the case, Justice Olney, based the determination on the idea that despite efforts to rejuvenate their traditions and laws, the 'tide of history' had washed away any real connection the Yorta Yorta may have had with their traditional law and custom in relation to their land and therefore could not make out the maintenance of a connection required to prove native title. Understandably, many commentators have criticised the judge's approach to the case. (The Members of the Yorta Yorta Aboriginal Community v The State of Victoria and Ors (unreported decision Federal Court of Australia, Justice Lee, 18 December 1998).
Keywords: determinations, Federal Court of Australia, Miriuwung Gajerrong Determination, Murray River, native title claim, New South Wales, Victoria, Yorta Yorta, Yorta Yorta Decision, 1998
Author: Strelein, Lisa