PART A: Question 4 Survival of Society
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 ...view middle of the document...
It is only those normative rules that are "traditional" laws and customs.
Secondly, and no less importantly, the reference to rights or interests…requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty.
A) Origin in pre sovereignty society
The majority of the High Court held that because the aboriginal rights and interests over land and water owe their existence to traditional laws and customs, this ‘infers the existence of a normative system other than the common law.’ That is to say, native title rights and interests originate from an indigenous normative system. Upon British sovereignty an intersection between two normative systems occurred between the common law and the indigenous system. Because there can be ‘no parallel law making system after the assertion of sovereignty it follows that the only rights or interests…which will be recognized…are those that find their origin in pre-sovereignty law and custom.’ As summarized by Gleeson CJ, Gummow and Hayne,
“Traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.
Otherwise the term traditional would have no present meaning in the statutory definition.
Continuous existence of society
In order for native title rights and interests to achieve recognition and protection the normative system must have had a continuous existence and vitality. Indigenous societies must have continued to acknowledge and observe the traditional laws and customs since sovereignty. The court qualified that the continuity must be ‘substantially uninterrupted’. The Court explains that this qualification was made for two purposes; to recognize that proof of continuous acknowledgement and observation of oral traditions is extremely difficult, and to acknowledge that due to European settlement it is inevitable that ‘the structure and practices of those societies…will have undergone great change since European settlement.’
It therefore follows that the High Court allowed for an element of change within the traditional laws and customs. The content of the laws and customs does not have to be identical, as long as their origins derive from a pre-sovereignty normative system. It is the normative system, not the content, which must have a continuous existence. Accordingly, Gleeson CJ, Gummow and Hayne JJ stated that adaption of traditional laws and customs is not ‘necessarily’ fatal to a native title claim. The key question is whether the law and custom can still be seen as traditional.
However, the court faced difficulties in the application of this liberal view, and ‘it becomes reasonably clear that the joint judges contemplated little accommodation of adaptation and interruption’. The question still remains ‘How, if at all, is account to be taken of the...