Law in the Present Tense: Continuity and Tradition InnThe Yorta Yorta Aboriginal Community v Victoria

Abstract

In the 12 years since native title was first recognised in Australia, 32 determinations, of a total of 49, have pronounced native title to be extinguished over at least part of the area claimed (as of 25 March 2004). This has been as a result of either government acts that are inconsistent with native title rights, or because the contemporary existence of traditional law could not be proved. The Yorta Yorta case, in many ways a test case for native title rights in south-eastern Australia, considered the second manner of extinguishment. This article critically assesses the Federal and High Court decisions,and argues that the courts have applied a notion of tradition and cultural continuity that is unnecessarily narrow, denying recognition of the rights of Aboriginal people who, in spite of colonisation, see their law as existing in the present tense.