A Greater Sense of Tradition: The Implications of The Normative System Principles in Yorta Yorta for Native Title Determination Applications

[Extract] In December 2002, the High Court of Australia handed down the decision of Members of the Yorta Yorta Aboriginal Community v Victoria.[1] By a majority of 5:2, the High Court dismissed an appeal by the native title claimants against a trial finding that, for the Yorta Yorta People, native title rights and interests could not be recognised because they had ceased to acknowledge their laws and customs in the period since the assertion of sovereignty by the Crown. The tide of history, the trial judge found, had washed away any real observance of their traditional laws and customs. The High Court upheld this conclusion essentially determining that the jural foundations of the native title capable of recognition under the Native Title Act 1993("NTA") had been irrevocably eroded. For the majority, Gleeson CJ, Gummow and Hayne JJ. gave a joint opinion, and McHugh J and Callinan J wrote separate judgments likewise dismissing the appeal. McHugh J's short opinion concurred with the joint majority judgment. Gaudron and Kirby JJ. jointly dissented.

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