In nativ e title cases a judge mu st dete rmine the ex tent to which the curre nt practic es o f applicants for nati ve title relate to the pra ctices of their forebears at so vereignty. It is proposed that e vidence of the continuity and preservation of trad ition from the time of so vereignty must be derived from records and/or exper t opinion. Thi s is so because brief historica l recall is institu ted in Abo rigi nal soci eties and cultures and, therefore, Abor iginal witnesses cannot testify to cont inuities that belon g to wh at, for them , is time immemorial. Relevant observa tions are cited from the literature to establish the qu iddit ies of brief recall and the editing of historie s of deviati on. Ab original hunter-gathers are then compared with the peopl es of feuding co rporatio ns, blood -debt and the heritable grudge in order to answer the question: Why in Ab original Australia is there an instituted and rapid onset of temps perdu?
'Kn ow est thou it because thou wast then born ?Or becau se the number of thy days is great?' (Job, 38:21 -Auth orised version of the Bible )In this essay I address the backward reach of time in traditional Aboriginal societies and cultures .' My reason for embarking on this course is that the depth of Aboriginal recall is relevant to the nat ive title demand that a judge, as fact finde r, will determin e the extent to which the current practice s of the applicants in a native title case relate to the practic es of their forebears at sovere ignty. More particularly, on the authority of Yorta Yorta (HC ) as set out in Yulara (FC) at 192, the native title requirements are that:The claimed native title right s and interests had their orig in in the body of norm s or the normat ive system that existed before sovereignty;The laws and customs of the indigenous people that existed at sovereignty constituted a body of normative rules that could give rise (and did give rise) to interests in land; and The pre-sovereignty normative system has had a continuous existence and vitalit y since sovereignty.