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YORTA YORTABackground“How much compensation have we had? How much of our land has been paid for? Not one iota! Again, we state that we are the original owners of the country. We have been ejected and despoiled of our god-given right and our inheritance has been forcibly taken from us” - William Cooper, Yorta Yorta, 1939 In December 2002, a majority of five to two in the High Court failed to recognise the native title rights of the Yorta Yorta Aboriginal community. The Court upheld the decision of the trial judge, Olney J in determining that the 'tide of history' had washed away and thereby extinguished their native title rights.
The news was greeted with anger and grief by members of the Yorta Yorta community and their supporters in Melbourne and across Australia. The rejection of the case in the High Court, after more than 10 years of struggle and costly litigation, has demonstrated the legal and political barriers that Indigenous people face in the recognition of their rights to land.
Furthermore, the possibilities for land
justice in Victoria look to be in greater doubt than ever. The Yorta
Yorta case has confirmed the difficulties for native title claimants
in more settled regions of Australia and has implications for other
cases nation wide.
Yorta Yorta country encompasses parts of northern Victoria and southern New South Wales, including the towns of Shepparton, Mooroopna, Echuca, Mathoura, Yarrawonga and Wangaratta; the Barmah and Moira Forests; and the Murray, Ovens, Goulburn and Edwards Rivers.
However, the claim area was only over public (Crown) land and waters. Contrary to popular opinion, other types of land are automatically ruled out by the Native Title Act and previous High Court decisions. The lands and waters claimed included timber and mining leases, which included many agricultural and several large food-processing industries. The heart of the country is the Barmah-Millewa forest with its lakes and parts of the Murray River.
In regions like this, due to massacres, missions and other forms of genocide, there have been periods of time where Aboriginal people have been forced to live a kind of underground existence just to enable the culture to survive. This fact was recognised by Justices Michael Kirby and Mary Gaudron, who made analogies during the Appeal hearing to the situation for Christians in Roman times or Jewish people during the Holocaust.
However, the majority decision confirmed that colonial oppression justifies the continuing theft of Yorta Yorta land today. Fundamental rights have been compromised to further the position of non-Indigenous Australians. This demonstrates that power, rather than principles of justice and equality before the law, is operating in Australia today.
Barriers in the Yorta Yorta case
The Yorta Yorta were one of the first Aboriginal groups on mainland Australia to lodge a native title claim when the Native Title Act was passed. Following the success of Mabo, there was optimism that a new platform had emerged from which Aboriginal rights could be recognised. Senior Yorta Yorta man, Wayne Atkinson, conveys, 'The barriers to Native Title, it appeared, had been dismantled, and a more level playing field was set for Indigenous claimants.'
However, throughout the mediation that began in 1994 up until the final High Court decision almost a decade later in 2002, the Yorta Yorta have experienced barriers in almost every level of community, government, industry and corporate sectors.
Mediation
At the beginning of the
native title claim, the Yorta Yorta were advised to proceed by mediation,
rather than taking their case directly to the courts. They were
confidant that the new procedures under the Native Title Act, at
that point untested, could provide a positive way forward. The trial judge
Justice Olney took only 19 seconds in December 1998 to hand down his judgement denying native title rights to the Yorta Yorta people. The fundamental flaw in the trial judgement was Justice Olney's use and treatment of evidence and his misuse of common law principles in his interpretation of native title. In Mabo, Brennan J and others asserted that 'when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.' The 'tide of history' metaphor was described by Brennan and others to represent native title loss in the worst case scenario, and was never meant to present a legal principle or precedent. Rather, the 'tide of history' was a passing metaphor used to qualify the question of extinguishment against the principles of continuity. Olney J however, misused this principle to dismiss the Yorta Yorta claim, holding they had neither maintained the legally required connection to land nor their traditional laws and customs. According to Wayne Atkinson, its inappropriate use represents the height of 'bad law' and grossly distorts the original meaning of the metaphor as the Yorta Yorta people were able to demonstrate that cultural continuity was the outcome of the forced changes that the 'tide of history' imposed.
Justice Olney relied on a highly stringent and individualised test for the determination of native title, which required an analysis of proof way beyond the standard required in Mabo and the Native Title Act. The definition of native title in Mabo allowed for some change and evolution in traditional laws, customs and usages, provided that the 'general nature' of the connection had remained. However, Olney J applied a 'frozen in time' approach, thereby failing to recognise the dynamic and changing nature of Aboriginal law and culture.
The ruling was confined within an Anglo-centric construction of the past. Olney J ignored the volumes of genealogical evidence provided by senior Yorta Yorta witnesses and relied on the writings of pastoralist Edward Curr and missionary Daniel Matthews, who occupied the area during the 1850s. These historical accounts were written against a background of successive government policies that purported to 'smooth the pillow' of a 'dying Aboriginal race'. Protectionist policies justified the relocation of Aboriginal people to missionaries and reserves, and thereby sanctioned the dispossession of Aboriginal people from their land.
Curr and others like him aided and advantaged from the process of dispossession. However, these cultural biases are not acknowledged in Olney's examination of the evidence. Rather, the human rights abuses have been used against the Yorta Yorta to justify loss of traditional title.
Olney's privileging of white historical sources over traditional Aboriginal knowledge is highly problematic. It is disturbing that a single judge can determine the outcome of a native title claim from evidence that is clearly ill informed. Olney's conservative and often racist treatment of the case constructed a major barrier in the Yorta Yorta case. The prejudice revealed in Olney's judgement is indicative of the demoralising barriers that Aboriginal people face in the recognition of their rights.
The Full Federal Court
The majority of the full federal court criticised Olney's 'frozen in time' approach to native title, but upheld the basis of his judgment in determining that native title did not exist in the areas claimed by the Yorta Yorta.
Other barriers that faced the Yorta Yorta people include Justice Merkels' decision to stand down from the Federal Court bench. So crucial was the appeal to the future of native title claims that opponents of the claim led by the Victorian Government asked for Merkel to be removed. This decision was politically motivated and became a deciding factor in the appeal to the full bench of the Federal Court, which resulted in a 2-1 decision.
The Hight Court
There was some hope that the appeal before the High Court in 2002 would provide justice for the Yorta Yorta people. However, aspirations for a positive outcome were met, yet again, with disappointment.
The Court focused on the definition of native title under section 223 (1) of the Native Title Act rather than applying common law principles. The majority judgement agreed that 'tradition' was the transmission of law or custom from generation to generation. However in the context of the Native Title Act, they argued that more was required and that the Yorta Yorta's native title rights did not exist because the community claiming it was not the same society that had existed in 1788. This requirement is at odds with the decision in Mabo, which suggested that these issues should not be viewed from the perspective of the settler society.
Lisa Strelein, research fellow from AITSIS, argues that the interpretation of the requirement of proof may lead to discriminatory differentiation between one group of Aboriginal people and another, on the basis of 'continuity' and what is considered to be 'traditional.' This is particularly pertinent for Aboriginal people in the more settled areas of Australia. The second key element of the decision was validation of Olney J's ruling as fact that the Yorta Yorta had ceased to acknowledge their traditional laws and customs. As already demonstrated in the section above, Olney's approach warrants scrutiny. Considering the underlying prejudice of these historical accounts, it is alarming that Olney's methodology was allowed to stand yet again.
The fact that the composition of the High Court post-Mabo has changed significantly under Howard's government via the appointment of 4 capital 'C' judges implies that the HC's role has been recast to better support a neo-liberalist agenda, designed to keep a lid on rights based issues such as land justice, refugees and gender based issues.
Implications for other cases
Mabo was a victory for the Meriam people and seemingly a breakthrough for Indigenous land justice. However, as the Yorta Yorta native title case demonstrates, the subsequent development of the doctrine native title through legislation and common law has been one let down to many Aboriginal communities.
Non-Indigenous community and industry awareness of native title has on the whole been largely misinformed and unaccommodating. Native Title is an increasingly complex body of law and has been propagated by the failure of governments to adequately inform the general public and industry sectors.
That being said, there have been some extremely positive moves by farmers and individual landowners to embrace the concept of coexistence and shared land ownership. These stories are truly inspiring and demonstrate a possible way forward.
This is particularly true in the more settled regions of Australia and stems from the delusion that Aboriginal people will claim native title in the backyards and main streets of urbanised Australia.
This is despite the fact that its recognition in 1992 intended to further the position of Aboriginal people and reinstate integrity into the Australian political and legal system.
Only those communities who are judged to more easily fit the Anglo-Australian idea of continuity of 'tradition' might possibly get any substantial rights recognised by the native title process. This is also obvious if you actually look at how many Indigenous communities have been or are going through the native title process, how much money and energy is involved, and how few actual substantive results there have been.
Claims now have the additional major hurdle of the amended Native Title Act, which reduces even further the power of traditional owners to control and access their land. Since the NTA amendments were passed in 1998, the allure of certainty and the logic of extinguishment have hijacked common law principles. Responsibility now rests solidly on the legislature under the NTA. The hope instilled in Mabo, that the common law would further the position of Indigenous people in this country, has not eventuated.
Noel Pearson has pointed out a narrow conception of native title is now commonplace in the courts, which goes against the original intentions of those framing the original NTA. Pearson comments that the High Court has, 'taken the easy road of interpreting and developing native title under the rubric of statutory interpretation', rather than grappling with the more difficult issues of native title.
Native title has been continually wound back to strengthen other tenures, while denying protection of Indigenous proprietary rights. Further, the cost of gathering evidence for native title claims, along with payment to the entourage of lawyers and experts required to make sense of the NTA has resulted in a million dollar industry. The question that must now be answered is - who is really benefiting from native title? The Yorta Yorta Native Title Case makes clear that it is not the majority of Aboriginal people.
The Yorta Yorta and State Government Agreement
On April 30 2004, the Bracks Government announced that it had entered an historic co-operative management agreement with the Yorta Yorta people covering public land, rivers and lakes in north-central Victoria.
At last an historic agreement has been reached between the Yorta Yorta Nation and the Victorian State Government on 30 April 2004.
Attorney-General Rob Hulls said the deal was a significant advance for reconciliation that had been achieved outside the native title process and one that provided a basis for future agreements." It is an Australian first and I think it can absolutely be described as historic. This is a precedent that can be followed right around Australia."
The Victorian state budget will commit $1.4 million over the next four years to putting the deal into effect. Under the terms of the deal, an eight-member body comprising five Yorta Yorta and three government representatives will manage the designated lands and waters.
"The agreement recognises the Yorta Yorta people and the significant contribution that this community can make to land management," Mr Hulls said. The joint body will advise the Environment Minister, who will retain ultimate decision-making responsibility.
Henry Atkinson said that "the Yorta Yorta Nation is thankful for the ongoing support of Victorian National Parks Association, New South Wales National Parks Association, Australian Conservation Foundation, Environment Victoria, Friends of the Earth Melbourne, the Goulburn Valley Environment Group and strongly supported by ANTaR Victoria.
We celebrate in putting our country back on the map after it was supposed to have 'been washed away by the tides of history."
Postscript: The Yorta Yorta are in the process of taking their recent claim for Native Title to the United Nations Human Rights Commission. Henry Atkinson says he is lead to believe it will take two years to be heard.
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