ABSTRACT
Representatives of the Yorta Yorta peoples sought recognition of their native title over land and waters in the early-settled and intensively used Murray River area. The trial judge concluded that whatever the contemporary practices of the community, the claimants’ ancestors had ceased to occupy their traditional lands in accordance with their traditional laws and customs, and therefore, the foundations of the claim had disappeared. The Full Court of the Federal Court upheld this decision, as did the High Court which found that there was a discontinuity in the observance of traditional laws and custom by the Yorta Yorta peoples. The ‘missing’ High Court judgment, written from an Indigenous sovereignty perspective, is offered here. It focuses on the survival of the Yorta Yorta peoples and their custodial ethic and reframes the challenge for the courts as recognising adaptation and resilience rather than measuring cultural erosion.
