Case: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: cited
As to the factual basis for the assertion in s 190B(5)(c) of the Native Title Act , the Delegate stated, inter alia: The reasons for my decision here and at ss 190B(5)(a) and (b) are closely linked. I am not satisfied that there is a sufficient factual basis to support the assertion that native title rights and interest of the claim group exist because I am not satisfied that there is a sufficient factual basis to support the assertion that the laws and customs acknowledged and observed by that group are 'traditional', in the Yorta Yorta sense. I have formed this view due to the lack of information I have been given about the existence of a society at sovereignty and moreover, the removal of two of the three apical ancestors from the application area. I draw on the statements I considered under ss 190B(5)(a) and (b) with respect to the removal of the two of the apical ancestors from the application area, namely, Emily Underwood and James White and their respective descendants. Attachment F goes further it talks of James White and his family being removed to the Palm Island settlement in 1920, with the members of this family returning to live permanently on the claim area in the 1980s. It also said in Attachment F that 'once it was possible (from the 1970s onwards) to move back to the Townsville [sic] many descendants of the Disapora community did so'. The information speaks of James White, but also Ada Underwood's descendants living 'a long way away for several generations' (from page 7 of the report authored by Mr Heijm). I consider that these 50 to 60 years represent a significant break in the continuity of observance and acknowledgement of the law and customs of the group. In light of this information, it is not possible that I can be satisfied that there is a sufficient factual basis to support the assertion that the native title claim group has continued to hold its native title rights and interests by acknowledging and observing traditional laws and customs in a substantially uninterrupted way. And as reasoned above, I am not satisfied that the factual basis provided shows that the laws and customs are 'traditional'. The Delegate's reference to "Yorta Yorta" in the passage quoted is a reference to Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422. 30 As to s 190B(6) of the Native Title Act , the Delegate was not satisfied that there was a sufficient factual basis to support the assertion that the native title rights and interests claimed in the application could be established, prima facie . 31 In respect of s 190B(7) of the Native Title Act , the Delegate stated: In accordance with my reasoning at ss 190B(5) and (6), I cannot be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. This is the case as I am not of the view that the requirement of 'traditional' has been established in this application. I accept that Ms George currently has a physical connection with the application area but I am not able to establish that it is a 'traditional' connection in the Yorta Yorta sense.