Yorta Yorta Struggle for Land Justice: A Historical Overview

Yorta Yorta Struggle for Land Justice Yorta Yorta v State of Victoria & Ors, (1994-2002)

Location of Yorta Yorta Independent Sovereign territorial/linguistic nations from which the original, oldest and inherent rights to land come from and are regulated under customary law -60000 years prior occupation.

Land Rights Struggle

Chronology of Yorta Yorta Struggle for Land Justice 1860-2002 1 2 3 4 5 6 7 8 9 10 11 12. Further Deputations for Land 1959 66. 13 Campaign to get back Land 1966. 14 Land Rights Deputation to Canberra 1972. 15 Claim for Barmah/Moira Forests 1975. 16 Fight for Return of Cummera Land 1972 83. 17 Claim for Barmah Forest 1983. 18 Yorta Yorta v State of Victoria and Ors (1994 2002). Yorta Yorta Claim for Compensation for disruption to Traditional Fishing Rights 1860. Petition to NSW Governor for Land 1881. Land Rented or Purchased in the Names of Aborigines as Dummy Selectors 1885. Attempts by Matthews to Secure Land from Victorian Authorities 1881 87. Application for Land (VBPA) to Establish a Fishing Reserve at the Barmah Lakes 1887. Petition to NSW Governor for Land 19 July 1887. Matthews' Final Attempts to get Land 1889 92. Applications for Additional Cummera Land 1890 onwards. Formation of Aboriginal Political and Land Rights Movement 1930s. Petition to King George VI for protection of Human Rights including Land Justice 1935. Efforts to get back Land 1959.

Mabo Decision 1992 Overruled Blackburn J. in Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 (the "Gove land rights case,") & abolished the legal fiction of terra nullius, which was not considered a barrier to Native Title. Recognised the existence of native title at common law in Australia. Found that Native Title survived colonisation and continued where it could be proven to exist in accordance with the traditional laws and customs of the Native Title holders.

Mabo gets rid of Terra Nullius (Mabo (No. 2) 1992 Brennan J. at 29, 40 3). Fiction of terra nullius was unjust and discriminatory. Had no place in the contemporary law of Australia Common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterising the Indigenous inhabitants of the Australian colonies as people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land Decision was a twofold rejection of terra nullius and the imported racial ideology used to prop it up. Attempt to decolonise mindset of racial superiority.

Change & Cultural Continuity 'immaterial that the laws and customs underwent some change traditional based laws and customs not frozen at colonisation. modification of traditional society in itself does not mean traditional title no longer exists existence of NT must be understood from the point of view of the members of the claimant group (Mabo (No. 2) 1992, Toohey, Brennan JJ : 29, 40 3).

Physical Presence on Land Sufficient: Justice Toohey In Mabo (No2), it was physical presence on the land that was sufficient enough for Justice Toohey to find that Native Title existed . Cultural factors didn t apply. Physical occupation and presence was sufficient to give rise to a title of equal status to the imported common law notion of property rights. 'The defendants in the Murray Island case did not argue that the plaintiffs failed because their presence on the Islands was too recent; the relationship of the people to the Island was sufficient; their presence was not coincidental and random; and modification of traditional society in itself does not mean traditional title no longer exists (Toohey J. at 192; Mabo (No2), 1992:5; Bartlett, 1993:5).

What Did Mabo Do? Removed old legal & ideological barriers that stood in the way of Indigenous land justice. Attempted to bring the law into line with human rights principles and in touch with contemporary values of justice and equality before the law.

The Essence of Native Title Video on Requirements of Native Title from Yorta Yorta Struggle for Land Justice Page at: http://waynera.wordpress.com/yort a-yorta-struggle-for-land-justice/

Key Issues Confronting Claimants post Mabo Achieving Native title under the Native Title Process The degree of scrutiny that claimants are subjected to in order to prove connections, identity & inherent rights The barriers to Land Justice-post Mabo- Yorta Yorta Case? Key test for NT: Two Questions for the Court

Yorta Yorta v State of Victoria & Ors, Trial (1996-1998) Evidence being taken by Federal Court at Site of Canoe Tree in Barmah, 1996

Key Issues of Olney J. Decision , Dec 1998 Yorta Yorta ceased to occupy the lands in accordance with the traditional based laws and customs before the end of the 19 Century (pp.66-67,para 121). The tide of history, Mabo (No 2) at 43, had washed away any real acknowledgment and observance of Yorta Yorta traditional laws and customs in relation to the claim area (pp. 70-71, para 129).

Yorta Yorta Struggle for Land Justice Yorta Yorta Native Title Claim (1994-2004)

Olneys Test for Yorta Yorta Native Title: The Frozen in time view of Indigenous people

Yorta Yorta Appeal Appeal went to Full Bench of Federal Court, Feb, 2001: 2-1. Decision appealed to High Court. Appeal dismissed by High Court, Dec 2002: 5-2

Oral Knowledge as source of evidence in Indigenous land claims. Justice Toohey regards oral knowledge as the 'source by which physical presence, meaning and use of the land is to be understood' (Mabo (No. 2) Toohey at 70). Its role in traditional land matters is recognised in the landmark Canadian case of Delgamuukw v British Columbia (1997). Chief Justice Lamer declared that the 'laws of evidence must be adapted to accommodate oral history' and acknowledged that it was from this source that anthropologists, and many others by inference, 'obtain their expert evidence' (AIATSIS Oral History Project, 1979 81; Delgamuukw v British Columbia (1993); Bartlett, 1998:17 18).

Olney Js. Treatment of Oral Knowledge in Yorta Yorta Case In establishing the test for determining Native Title, the Judge set himself on a course of enquiry that was essentially back to front. He not only took a frozen and static approach to Yorta Yorta Native Title, but sourced its origin and content in selective white interpretations. The disregard for Yorta Yorta oral knowledge (54% of the 11.600 page transcript) and the written works of various Yorta Yorta descendants reveals an Anglocentric approach to Native Title in the Yorta Yorta case. The Judge's reliance on a squatter, Edmund Curr, to elicit traditional Yorta Yorta customs, is monstrously ironic. Curr was one of the first white people to appropriate Yorta Yorta lands, in similar fraudulent style to that of Batman in 1835-offered a stick of tobacco for the purchase of land Curr was a temporary sojourner in Yorta Yorta lands (during the 1840s) and wrote his recollections, without the benefit of any notes, some 40 years later in Recollections of Squatting in Victoria, published in 1883 and The Australian Race, published in 1886 (Atkinson, W. Not One Iota, Phd Thesis, LaTrobe University, 2001:208).

Barriers to Land Justice 21 Century Australia Mindset of opposition to Indigenous rights, vested interests & media. Way law was interpreted and applied in the Yorta Yorta case Anglocentric and narrow minded interpretation of Native Title Act All combined to pervert the course of Justice in the Yorta Yorta Case

Campaign for National Park & Joint Management

JM as a Concept JM is a compromise position, to that of sole management which has been practiced by Indigenous Australians for the majority of our land management history-60000 years or since creation, land has been cared for as ancestral lands in a more holistic way.

PATHWAYS FOR FUTURE A negotiated settlement between government & other parties, which recognises the Yorta Yorta as the traditional owners under a handback/leaseback arrangement and inalienable freehold title (see Models of Structures for Joint Management of NP s in current BM Campaign research, 2004).

Keeping it for the Future Spirit of Dhungulla: Keep Her Flowin Old River Reds, Dharnya: Keep-em Growin Thank you: Dr Wayne Atkinson, Yorta Yorta Elder Senior Fellow, University of Melbourne