And now:[EMAIL PROTECTED] (S.I.S.I.S.) writes:
:-:-:-:-:-:-:-:-:-:-:-:-:Forwarded message:-:-:-:-:-:-:-:-:-:-:-:-:
Date: Thu, 28 Jan 1999 20:48:59 +1100
To: [EMAIL PROTECTED] (S.I.S.I.S.)
From: [EMAIL PROTECTED] (Rod Hagen)
Subject: Yorta Yorta Appeal lodged
The Yorta Yorta lodged an appeal to the full bench of the Australian
Federal Court late today (Thursday 28th January, 1999) against the decision
of Olney J in their case for recognition of Native Title to traditional
lands in Victoria and NSW, Australia.
The appeal grounds are as follows:
GROUNDS OF APPEAL
The learned trial judge:
1 Erred in law in failing to apply the test prescribed by section 223
of the Native Title Act 1993 for deciding whether or not native title
exists, namely:
(a) whether the appellants possess communal, group or individual rights
and interests in the land or waters the subject of the application ("the
subject land and waters") under traditional laws acknowledged, and
traditional customs observed, by them;
(b) whether the appellants have a connection with the subject land and
waters by the traditional laws acknowledged, and traditional customs
observed, by them;
(c) whether the rights and interests of the appellants are otherwise
incapable of being recognised by the common law of Australia.
2 Erred in law in failing to make findings of fact concerning the
traditional laws acknowledged, and the traditional customs observed, by the
appellants, the rights and interests in the subject land and waters
possessed by the appellants under those laws and customs, and the
connection of the appellants to the subject land and waters by those laws
and customs.
Particulars
Traditional laws and customs of the appellants not dealt with by his Honour
include:
(a) The appellants are an identified community with a traditionally
based authority structure centred upon the elders of the community.
(b) The traditional law and custom of the appellants that as the
descendants of the indigenous inhabitants of the subject land and waters
they are the owners of the subject land and waters.
(c) The traditional law and custom of the appellants that the subject
land and waters are the creation of a being known as Biami, who determined
the relationship that the appellants have with the subject land and waters.
(d) The traditional law and custom of the appellants that entitles the
appellants to occupy, use and enjoy the subject land and waters.
(e) The traditional law and custom of the appellants that the spirits
of their ancestors inhabit the subject land and waters and requiring that
deceased members of the Yorta Yorta Aboriginal Community be buried in the
subject land.
(f) The traditional law and custom of the appellants requiring them to
protect the subject land and waters and places of significance associated
with their ancestors.
(g) The traditional law and custom of the appellants requiring them to
speak for the subject land and waters and to make decisions in respect of
the use of the subject land and waters.
(h) The traditional law and custom of the appellants requiring them to
maintain beliefs and practices associated with the subject land and waters
and to transmit knowledge of them to their descendants.
3 Erred in law in applying an incorrect test for deciding whether or
not native title exists, namely, that it was necessary for the appellants
to establish that they, and each generation of their ancestors since 1788,
had acknowledged and observed the same traditional laws and customs as
their ancestors had acknowledged and observed in 1788.
His Honour expressed this erroneous test in the following ways:
(a) it is necessary to identify the nature of the entitlement which the
indigenous inhabitants enjoyed in relation to their traditional lands in
accordance with their Iaws and customs (para. 105);
(b) by implication from the quotations from the Recollections of the
19th century squatter Edward Curr in paragraphs 111 to 116, it is necessary
for the appellants to establish that they, and each generation of their
ancestors since 1788, have observed the same lifestyle and practices of
Aboriginal people as recorded by Curr in relation to social organisation,
family relationships, tooth removal, ornamental scarring, conflict
resolution, punishment, warfare, subservience of women to men, use of food
and burial methods (paras. 117, 118);
(c) it is necessary to identify the traditional laws and customs of the
ancestors of the appellants as it is those traditional laws and customs
which are said to have constituted a burden on the radical title of the
British Crown at the time it claimed sovereignty in respect of the colony
of New South Wales (paras. 25, 117);
(d) it is necessary to provide evidence concerning the continued
observance in Matthews' time (being a period from 1864 to 1887 according to
his Honour paras. 37, 40) of those aspects of traditional lifestyle to
which reference is made in the passages quoted from Curr (paras. 118, 119);
(e) it is necessary to prove that Edward Walker and Kitty
Atkinson/Cooper and their immediate descendants continued to acknowledge
the traditional laws or observe the traditional customs of their forebears
in relation to land (para. 118);
(f) the signing of the 1881 petition proved that all relevant ancestors
of the appellants had ceased to observe those laws and customs based on
tradition which might otherwise have provided a basis for the native title
claim (para. 121);
(g) the importance attached by the appellants to the presence of
scarred trees, middens, oven mounds and places of burial on the subject
land, as evidence of the presence of their ancestors on the land, and
places which they wish to protect, is irrelevant as the use that the
appellants' ancestors made of such places was purely utilitarian and no
traditional law or custom required them to be preserved (para. 122);
(h) the practice of the appellants of taking from the subject land and
waters only such food as is necessary for immediate consumption is not a
traditional custom as it was not a practice of the Aboriginal people with
whom Edward Curr came into contact, according to his written observations
(para. 123);
(i) the modern practices associated with reburial of skeletal remains
are not part of the traditional laws and customs handed down from the
original inhabitants (para. 124);
(j) the concern expressed by the appellants regarding conservation of
timber and water resources, including the advent of extensive logging of,
and the introduction of cattle into, the forests in the claim area together
with the interference with the natural flow of the river systems, are
issues of relatively recent origin about which the original inhabitants
could have had no concern and which cannot be regarded as matters relating
to the observance of traditional laws and customs (para. 125);
(k) a continuous link back to the laws and customs of the original
inhabitants is a necessary element of both the statutory and the common law
concept of native title rights and interests (para. 128);
(l) it is necessary for there to be evidence to support a finding that
the descendants of the original inhabitants of the claimed land have
continued to observe and acknowledge the traditional laws and customs in
relation to land of their forebears throughout the period since 1788 (para.
129).
4 Erred in law in applying an incorrect test for determination of
native title, namely, that it was necessary for the appellants to establish
that they, and each generation of their ancestors since 1788, occupied the
subject land and waters in the same manner as their ancestors had occupied
the land and waters in 1788 (paras. 121, 129).
5 Erred in law in requiring the appellants to demonstrate that they
were "in possession of their tribal lands" (para. 121).
6 Erred in law in applying an incorrect test for the connection the
appellants are required to have to the subject land and waters, namely,
that it was necessary for the appellants to prove that the traditional
connection with the land of the ancestors of the appellants had been
substantially maintained since the time sovereignty was asserted and that
it remained the same over the whole of that period (paras. 4, 129).
7 Erred in law and in fact in finding that there was no evidence upon
which an inference could be drawn that Bagot Morgan, Alfred Morgan, Louisa
Frost, Annabella Howard, Sarah Walker, Mary Friday/Brangy, Tommy McCrae,
Maggie Toodles and George Middleton were descended from indigenous
inhabitants of the subject land and waters or part of them, such finding
being against the evidence and the weight of the evidence (paras. 88-104).
8 Erred in law in his evaluation of the oral testimony of the
appellants: (a) in ruling that their oral testimony as to their
traditional lands should be accorded less weight than the writings of
Edward Curr (para. 106);
(b) in failing to take account of the appellants' perspective regarding
their laws and customs; and
(c) in failing to consider the appellants' evidence concerning the
identity of the group of which their ancestors were members, being the
indigenous group inhabiting the subject land and waters.
9 Erred in law:
(a) in applying an erroneous test in determining whether or not the
appellants had a connection with the subject land and waters by reason of
spiritual attachment (para. 127);
(b) in wrongly stating that the appellants' evidence of secret men's
sites was not relied upon as part of the appellants' case (para. 127)
notwithstanding express reliance on the evidence in para. 11.125 of the
written submissions of the appellants dated 16 December 1997.
10 Erred in law and in fact in ruling that to identify the traditional
lands of the appellants the evidence did not require the Court to look
beyond the areas nominated by Edward Curr as the areas occupied by
Aboriginal people identified as Wollithiga and Moitheriban, such rulings
further being contrary to the evidence and the weight of the evidence
(para. 109).
11 Erred in law and in fact in finding that the appellants do not
occupy the subject lands and waters or any part of it and that they and
their ancestors have not done so for over a century, such finding being
against the evidence and the weight of the evidence (paras. 121, 129).
ORDERS SOUGHT
1 The appeal be allowed.
2 The determination made on 18 December 1998 be set aside.
3 In the alternative to 2, the determination made on 18 December 1998
be varied to accord with the reasons for decision of this Honourable Court
on appeal.
4 In the alternative to 3, the matter be remitted to a single judge
to be further heard and determined in accordance with law.
5 Such other orders as this Honourable Court considers appropriate.
Cheers
Rod Hagen
Rod Hagen
[EMAIL PROTECTED]
Hurstbridge, Victoria, Australia
WWW http://www.netspace.net.au/~rodhagen
