Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors M19/2001

The High Court of Australia heard an appeal from the Federal Court of Australia concerning the claim by the Yorta Yorta Aboriginal Community for recognition of native title over certain lands and waters in Victoria. The applicants, the Members of the Yorta Yorta Aboriginal Community, sought to establish native title rights and interests under the *Native Title Act 1993* (Cth) in relation to an area encompassing the Murray River and surrounding lands. The respondents included the State of Victoria and other parties with interests in the land.

The central legal issue before the High Court was whether the Yorta Yorta people had maintained their traditional laws and customs, and their connection to the land and waters, in accordance with the requirements of the *Native Title Act 1993* (Cth) since sovereignty was asserted by the Crown. Specifically, the Court had to determine if the Yorta Yorta people had demonstrated an unimpaired continuity of their connection to the claimed area, notwithstanding the impact of colonial settlement and legislative changes. This involved an examination of the nature and extent of traditional laws and customs and the physical and spiritual connection to the land.

The High Court, by majority, dismissed the appeal. The majority judges, McHugh and Gummow JJ, held that the Yorta Yorta people had not established that their traditional laws and customs had been continuously observed to the extent required by the *Native Title Act 1993* (Cth) since sovereignty. They reasoned that the evidence did not demonstrate a sufficient and unbroken connection to the land and waters, finding that the traditional social and physical connection had been significantly disrupted by the imposition of Crown sovereignty and subsequent legislative and administrative actions. Kirby J, in dissent, found that the majority had applied too stringent a test for continuity and that the Yorta Yorta people had maintained their connection.