Risk v Northern Territory of Australia [2007] FCAFC 46

Northern Territory
Federal Court
Legislation considered: 
s 223 Native Title Act 1993 (Cth)

The primary judge dismissed the consolidated applications of the Larrakia people and Danggalaba clan on the ground that the present society, comprising the two groups, did not now have the rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the Larrakia people at sovereignty, because their current laws and customs were not ‘traditional’ in the sense required by s 223(1) Native Title Act 1993 (Cth).

Two main grounds of appeal were pressed by Larrakia. The first is that his Honour failed to deal in his reasons with a significant body of oral evidence bearing on whether there had been a substantial interruption in the observance of traditional laws and customs. The second  is that his Honour mis-applied Yorta Yorta in determining that Larrakia’s traditional laws acknowledged and customs observed had been discontinued at some stage during the twentieth century. 

Failure to deal with evidence

In relation to the evidence, the Full Court noted that there were 47 Aboriginal witnesses, many expert witnesses, and a great deal of documentary material in a hearing which lasted 68 days. The Full Court applied the findings of Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 that considerable caution is appropriate before finding that evidence was not considered. Applying Yorta Yorta, the Full Court found 'no reason to conclude from the failure of his Honour expressly to refer to, or evaluate, particular aspects of the evidence, that he did not take them into account.'

Misapplication of Yorta Yorta

​The claimants contended that the primary Judge compared the laws and customs that existed at sovereignty to those that existed today rather than simply determining that the laws and customs of the group have their origins in the laws and customs that existed at sovereignty. The Full Court found that the the primary Judge did not misapply Yorta Yorta.

The appeal was dismissed by the Full Court.