Indigenous Law

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PART A: Question 4 Survival of Society

Introduction

Following Mabo (No 2) the Native Title Act 1993 (NTA) gave hope to aboriginal communities around Australia. The Yorta Yorta People were the first Aboriginal community to make a claim to the government in an attempt to regain the land that was rightfully theirs. However, in Yorta Yorta Aboriginal Community v Victoria the High Court found that the native title rights of the Yorta Yorta People could not be recognised as the community had failed to maintain a continuous acknowledgement and observance of traditional laws and customs from the time of British sovereignty. In reaching this conclusion the court gave the term ‘traditional’, as used in the statutory definition of native title, ‘a restrictive and forensically onerous meaning’. This constricting approach dealt a harsh blow for aboriginals as the European settlement of Australia entailed a profound impact upon the traditional lifestyles of almost every indigenous community in Australia. Following Yorta Yorta these communities now face the almost impossible task of proving a ‘survival of society’ requirement.

Tradition under the NTA

The interpretation of the phrase ‘traditional laws and customs, under which the rights and interests must be possessed,’ and ‘by which the people have a connection with the land or waters’, was the critical issue in Yorta Yorta. The High Court gave the word ‘traditional’, as used in section 223(1)(a) of the NTA, a far greater meaning than the ordinary sense of the term:

[I]n the context of the Native Title Act, traditional carries with it two other elements in its meaning:

First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those...