VIC: Shooting of kangaroos is an evolving tradition: QC

AAP General News (Australia)
08-19-1999
VIC: Shooting of kangaroos is an evolving tradition: QC

MELBOURNE, Aug 19 AAP - Shooting kangaroos instead of spearing them was an example of the
way Aboriginal customs had evolved since Europeans arrived in Australia, a land rights' appeal
was told today.

Ron Castan, QC, representing the Yorta Yorta people of northern Victoria and southern New
South Wales, said another example was the hunting of rabbits - animals not present when
Europeans arrived.

Mr Castan said the laws and customs might have evolved, but they were still traditionally
based, and that was one of the critical issues in proving claims for native title.

The Yorta Yorta are appealing against the rejection last December by Justice Howard Olney
of a native title claim for some 2,000 square kilometres of their traditional lands.

Justice Olney ruled that the "tide of history had washed away" the Yorta Yorta's traditional
rights.

But Mr Castan said Justice Olney made mistake after mistake in his legal ruling because he
wrongly tried to insist the Yorta Yorta must prove they followed exactly the same laws and
customs as their forebears in 1788, when Europeans arrived.

Mr Castan said it was legally wrong to apply such a test for native title, and for Justice
Olney to have concluded that the Yorta Yorta had stopped observing traditional customs by
1881.

He said it was legally wrong to try to form such a conclusion, and anyway it was
historically impossible because there was no-one around at the time qualified to make relevant
observations.

Mr Castan's argument that Aboriginal customs could evolve over time appeared to be well
received by the three appeal court judges.

Justice Catherine Branson suggested an analogy with judges wearing robes, which might not
be precisely the same as the robes worn 200 years ago but were nevertheless traditional
judicial garb.

"Tradition, by its nature, evolves," Mr Castan said, agreeing with the analogy.

Justice Leslie Katz suggested another example of a traditional custom that might have
evolved was the use of modern fishing equipment such as nylon fishing line.

Native title for the Yorta Yorta is being opposed by the Victorian government and numerous
other parties with interests in the claimed land.

The appeal is continuing.

AAP gf/wjf

KEYWORD: YORTA DAYLEAD

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