Native title is not a blank cheque for symbolic redress. Section 223 of the Native Title Act 1993 (Cth) demands three iron-clad elements: rights and interests possessed under traditional laws and customs that are still acknowledged and observed; a continuous connection with the claim area from sovereignty to the present; and those rights not extinguished by valid government acts.
Fail any one and the claim collapses. That is the law, Mabo (No 2), Yorta Yorta, Wik, Ward, Fejo, Brown, every High Court decision since 1992 has hammered the point. The Wurundjeri Woi-wurrung claim over metropolitan Melbourne is therefore legally audacious and evidentially precarious. Here's why, without the hand-wringing.
1.Continuity in a Megacity? The Evidence Bar Is Stratospheric Melbourne was founded 1835. By 1840 it was a surveyed grid; by 1851 a gold-rush boomtown; by 1901 the national capital. Freehold title, the absolute extinguisher under s 15 of the Act, blankets the CBD, inner suburbs, and most of the claim area. What remains is Crown land fragments: parks, road reserves, riverbanks.
To win, claimants must prove every generation since 1835 acknowledged and observed the same traditional laws and customs on those fragments. Not "some" customs. Not "revived" customs. The same.
Yorta Yorta (2002) lost because the tidal wave of settlement "washed away" continuity. Risk v Northern Territory (2002) lost because a single generation's break in practice snapped the chain. Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 at [89]: "The tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs."
Melbourne's "tide" was a tsunami. Urbanisation, mission stations, assimilation policies, the Stolen Generations, all documented disruptors. The claimants' own anthropologists will need unbroken genealogical, oral, and archival proof across 190 years of dislocation. Anything less is speculation, not evidence. The Federal Court will not accept "we feel connected"; it demands contemporaneous records or unassailable oral testimony that survives cross-examination.
Prediction: the claim will either be narrowed to tiny Crown parcels or dismissed on continuity. Betting against the latter is betting against two decades of High Court precedent.
2.Extinguishment Is Not a Loophole—It's a Wall: Fejo v Northern Territory (1998): Freehold grants extinguish native title forever. No revival. No compensation pre-1975. Western Australia v Ward (2002): Even partial inconsistent grants (e.g., pastoral leases with improvements) extinguish to the extent of inconsistency.
Melbourne's freehold map is a mosaic of extinguishment. Every Victorian title issued since 1835 is valid and paramount under s 15. The claimants concede this, yet still lodge a city-wide claim. Why? Because symbolism is cheaper than evidence.
3.The Elite Hypocrisy Clause: Put Your Title Where Your Virtue Is The loudest cheerleaders—inner-city progressives, QCs in South Yarra, vice-chancellors in Kew—own freehold in the claim area. Their titles are untouchable under the Act.
If moral restitution is the true goal, amend the Act, as Professor X suggests. Introduce a statutory urban land-return scheme with: compulsory acquisition of private freehold in Toorak, Hawthorn, Brighton, Canterbury; market-value compensation paid by the Commonwealth; transfer to the prescribed body corporate.
Call it the "Elite Equity Act". Watch the same voices scream "property rights!" the moment their heritage-listed terrace is on the table.
Until they table that bill, spare us the lectures. Moral grandstanding is cost-free when the cost falls only on Crown land, i.e., the taxpayer.
4.The Real Risk: Poisoning the Native Title Well Every overreach erodes public consent. 45% of Australia is already under some agreement. 290+ prescribed bodies corporate manage it without drama.
Push evidence-thin urban mega-claims and you gift ammunition to the abolitionists. The next Pauline Hanson bill to cap native title at "remote Australia" will cite Melbourne as Exhibit A. And good for her and One nation.
Legitimate claimants in the Kimberley, the Pilbara, Cape York, who can prove continuity, will pay the price.
Bottom Line, Legally, Not Emotionally Prove continuity across 190 years of urbanisation or lose. Private title is extinguished. Full stop. Want private land returned? Legislate it, and own the political cost. Stop weaponising a fragile legal doctrine for virtue points.
The Wurundjeri Woi-wurrung claim is legally doomed unless it shrinks to a postage-stamp of Crown land with bullet-proof evidence. Anything else is theatre, and the audience is rightly sceptical. It is simply woke on steroids and growth hormone.