Beyond Yorta Yorta (Based on a paper prepared for the AIATSIS Native Title Conference Alice Springs ­June 2003)

In this paper John Basten focuses on the nature and extent of recognition of Native Title in Australia. Despite the title, it is not limited to a discussion of the recent High Court decision in Yorta Yorta Aboriginal Community v Victoria. Indeed, it posits that Yorta Yorta involves no major departure from settled principle. Rather, the point of principle Yorta Yorta establishes (or confirms) must be viewed within the factual confines of the case. However, the case was concerned with the operation of s.223 of the Native Title Act, a matter also considered in Commonwealth v Yarmirr and, more broadly in Western Australia v Ward. The operation of this section, and its relationship to the judgments in Mabo [No 2] 4 are considered. The second topic addressed concerns the principles governing extinguishment. On key issues the Court has confirmed a policy approach which, although evident in Mabo [No. 2], is unnecessarily restrictive, and to such an extent that it was partially reversed by the Parliament in 1998. Thirdly, the paper seeks to provide some limited perspective on where we have come from, with some suggestions as to the form of future initiatives and directions.