Members of the Yorta Yorta Community v The State of Victoria & Ors [1997] FCA 1181

FEDERAL COURT OF AUSTRALIA NATIVE TITLE - application for a determination of native title - proof of continuity of traditional laws and customs - evidence of affinity to claimed land and waters - whether evidence of non-Aboriginals of a similar affinity is relevant. EVIDENCE - Native Title Act - application for a determination of native title - statutory provision that rules of evidence do not apply - admissibility of irrelevant evidence. Native Title Act 1993 (Cth) s 82, 223, 225, 253, 255 Van der Peet v The Queen (1996) 137 DLR (4th) 289, referred to Mabo & Ors v The State of Queensland & Ors (No 2) (1992) 175 CLR 1, referred to MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY v THE STATE OF VICTORIA & ORS VG 6001 of 1995 OLNEY J MELBOURNE 29 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY no 6001/95

BETWEEN: YORTA YORTA ABORIGINAL COMMUNITY & ORS

Applicant

AND: STATE OF VICTORIA & ORS

Respondent

JUDGE(S): OLNEY J

DATE OF ORDER:

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No 6001 of 1995

BETWEEN: YORTA YORTA ABORIGINAL COMMUNITY & ORS

Applicant

AND: STATE OF VICTORIA & ORS

Respondent

JUDGE: OLNEY J

DATE: 29 October 1997

PLACE: MELBOURNE

REASONS FOR RULING ON ADMISSIBILITY OF EVIDENCE INTRODUCTION In this proceeding the applicants seek a determination of native title in relation to certain land and waters in Victoria and New South Wales. The application is brought pursuant to the provisions of the Native Title Act 1993 (Cth). In the course of the triala question arose as to the admissibility of certain evidence sought to be tendered by a witness called by New South Wales. After hearing brief submissions I ruled that the evidence was not admissible on the ground that it was not relevant to any issue in the proceeding. However, the same issue arose subsequently on several occasions and as my initial ruling affected parties other than New South Wales I invited all parties to make written submissions with a view, if appropriate, to reviewing my earlier ruling.