Case: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 ; [2002] HCA 58
Outcome: cited
An important issue which has been addressed in much native title litigation is the significance of change in the traditional laws acknowledged and traditional customs observed by applicants. The history of the impact of white settlement on indigenous peoples means that change is an almost invariable feature of these cases. In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 ; [2002] HCA 58 ( Yorta Yorta ) the joint judgment of Gleeson CJ, Gummow and Hayne JJ addressed the issue thus (at [83]): The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified? 29 The application of these principles on a case by case basis allows for a good deal of flexibility in approach. Where, as in this case, parties seek orders under s 87 as the result of agreements reached after extensive negotiations, the Court is not privy to the basis on which agreement is reached. Those negotiations are confidential. In the present case the Fletcher document gives some insight into the approach taken by the State to the information in its hands. On the central issue of the Thalanyji laws and customs concerning land holding the Fletcher document states the following: 23. Rights to Thalanyji land were traditionally held and transmitted patrilineally at the local, estate, group level. However, in response to the dramatic decline in their population following British sovereignty and other effects of settlement, the traditional system of conferring rights and interests in Thalanyji country adapted to a system whereby today all Thalanyji people hold generalised rights to Thalanyji country, however some Thalanyji families are also responsible for certain areas in Thalanyji country and have primacy over that area. 24. These families are recognised as the primary spokespersons or custodians with responsibility for designated parts of Thalanyji country, referred to as 'special places' or 'districts'. The Thalanyji rule is that a senior member (or members) of the family may be described as being the custodian or maatha ('boss') for each special place. These people represent their families as the primary spokespersons in relation to these special places and, under Thalanyji law and custom, are to be consulted in relation to the use of this land. 25. The evidence suggests that some Thalanyji families have occupied estate group or special areas for generations. Further, members of certain Thalanyji families have also been handed responsibility for a number of other estate group areas, as well as various special places, throughout the claim area, from other Thalanyji predecessors (who often died without surviving offspring). 26. These more recent patterns of transmission of responsibilities or rights to speak for particular areas of land generally reflect an attenuation of the traditional laws of patrilineal clan inheritance to accommodate the population decline that occurred following sovereignty. The succession of present-day Thalanyji people to the country of extinct Thalanyji local groups occurred under an ongoing system of law and custom in relation to the land whereby estates of extinct local groups were cared for, and gradually succeeded to, by custodians from other Thalanyji local groups. 30 The conclusion arrived at by the State concerning the impact of the change in acknowledgment of traditional laws and observance of traditional customs concerning land holding demonstrates a liberal, flexible, fair and just application of the principles expounded in the joint judgment in Yorta Yorta . That approach is particularly appropriate to the process envisaged by the agreement making provisions of the Act such as s 87. The State is to be commended on its approach in this regard. Having said this, it should be emphasised that the Court is not in a position to know whether or not the connection material required to be provided by the applicants was excessive. There have been instances in other cases where excessive demands for information seem to have been made. As explained earlier in these reasons, that approach is inconsistent with the concept of agreement making provided by the Act. 31 In this case, all of the parties to the application were represented by independent competent lawyers. The process adopted by the State was comprehensive. The preservation evidence allowed the Court to hear the voice of the Thalanyji people directly and the evidence went a considerable way to establishing the requirements of the Act for a determination of native title. 32 The parties are to be congratulated for their efforts over a long period in arriving at this agreement. No doubt the work of the Tribunal, and particularly members Dan O'Dea and John Catlin who oversaw the mediation, were central to the positive outcome. Mr Bower, who appeared at the hearing as counsel for the applicants, described the great assistance given by the Tribunal to resolving the key problems of overlaps with other application areas. Mr Bower also described the overall approach of the State as demanding but helpful. 33 For these reasons I am satisfied that it is appropriate to act in accordance with the agreement and make the orders sought. 34 Where a native title determination is made, the Court must make a determination concerning the holding of the native title rights and interests, involving the nomination of a prescribed body corporate. Section 55 of the Act relevantly provides: Determinations by Federal Court If: (a) the Federal Court proposes to make an approved determination of native title; and (b) the determination is that native title exists at the time of making the determination; the Federal Court must, at the same time as it makes the determination, make the determinations in sections 56 (which deals with holding the native title on trust)...