The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] FCA 1606

FEDERAL COURT OF AUSTRALIA

CATCHWORDS

ABORIGINES – Native title – Native Title Act 1993 – application for a determination of native title – claim to ownership and exclusive possession, occupation, use and enjoyment of land, waters and natural resources.

EVIDENCE – Native title – proof of descent from indigenous inhabitants – proof of traditional laws and customs of ancestors – evidence based upon oral tradition – use of historical and ethnographic material – whether continued acknowledgment and observance of traditional laws and customs. Aboriginal Land Rights Act 1983 (NSW) s 22; Crown Lands Occupation Act 1861 (NSW); Irrigation Act 1912 (NSW); Irrigation Corporations Act 1994 (NSW); Native Title Act 1993 (Cth) ss 3, 23B, 23C, 23E, 47A, 47B, 61, 82, 94A, 223, 225, 237A, 253; Native Title Amendment Act 1998 (Cth) Schedule 5, Part 3 item 8, Part 5 item 24, Part 9 item 36; River Murray Waters Act 1915 (Cth); Water Act 1912 (NSW).

Fejo v Northern Territory 156 ALR 721 Refd; Mabo v Queensland (No 2) 175 CLR 1 Appl; Re Mining Lease Application No 70149, unreported, Supreme Court of Queensland, 5 June 1998 Appl; The Wik Peoples v Queensland 187 CLR l Refd; United States v Santa Fe Pacific Railroad Co (1941) 314 US 339 Refd; Western Australia v The Commonwealth 183 CLR 373 Refd.

THE MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY v THE STATE OF VICTORIA AND OTHERS. VG No 6001 OF 1995

OLNEY J MELBOURNE 18 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 6001 of 1995

between:

the members of the yorta yorta aboriginal community

Applicants

AND

THE STATE OF VICTORIA AND OTHERS

Respondents

DETERMINATION OF NATIVE TITLE PURSUANT TO THE NATIVE TITLE ACT

JUDGE: OLNEY J

DATE OF ORDER: 18 DECEMBER 1998

WHERE MADE: MELBOURNE

The Court determines that native title does not exist in relation to the areas of land and waters identified in Schedule D to Native Title Determination Application VN 94/1 accepted by The Native Title Registrar on 26 May 1994. NOTE: Settlement and entry of orders is dealt with in rule 36 of the Federal Court Rules.