BY ARUN PRADHAN
MELBOURNE — After 164 years of dispossession and colonisation, Yorta
Yorta people have entered a new chapter of their long search for justice
and land rights. On May 23, the High Court heard an appeal by the Yorta
Yorta people against a previous Federal Court ruling.
The Yorta Yorta’s claim was the first made after the Native Title Act
was passed by federal parliament in 1993. It is now the longest running
native title court case in Australia's history. The struggle of the Yorta
Yorta people, however, began long before their arguments reached the courts.
Yorta Yorta researcher and Melbourne University lecturer Wayne Atkinson
has documented his people's original occupation of what is now known as
the Murray Goulburn region, which spans the border of Victoria and New
South Wales. Despite a sustained resistance struggle, the Yorta Yorta population
was decimated by up to 85% within several years of European occupation.
Those who survived went on to play important political roles — Yorta
Yorta people helped to set up Aboriginal organisations such as the Aborigines
Progressive Association in Sydney in 1937, and the Australian Aborigines
League in Melbourne in 1932. Such initiatives were crucial steps in building
support in the broader community for citizen rights, self-determination
and land rights.
Atkinson has found evidence that Yorta Yorta people attempted to claim
back their land, and money to compensate for their dispossession, 17 times
between 1860 and 1993. In 1983, the NSW Government returned 1200 acres
to the Yorta Yorta Land Council, however this represented only 0.1% of
their original tribal lands.
After the current claim was lodged in 1994, the Yorta Yorta went through
a mediation process in the Native Title Tribunal. Almost 500 parties registered
as opponents to the claim, including NSW and Victorian state governments,
councils, loggers and even local bee keepers.
The Yorta Yorta argued that their claim was justified because they traditionally
owned the land and should have a role in managing it into the future.
Unfortunately, in the wake of the first successful Native Title case
— the 1992 Mabo decision — the corporate media and politicians ran a racist
scare campaign against indigenous land rights. This period saw the likes
of Victorian former-premier Jeff Kennett claim that suburban back-yards
would be under threat from land claims. Mediation, and fair court process,
was impossible in such a climate.
The Yorta Yorta’s claim was rejected by the tribunal and later by the
Federal Court.
Opponents of the Federal Court ruling argue that it was biased against
oral evidence and relied on pastoralists’ evidence over Aborigines’. They
also criticise the test applied to prove native title existed, which required
the Yorta Yorta to establish that they had observed traditional practices
over each generation to the present day.
Yorta Yorta lawyer Ron Castan took up this theme in the Federal Court,
arguing: “There is no image of the Aborigine standing on the hill with
a spear against the sunset that conditions the exercise of the native title
jurisdiction.” Aboriginal people, he said, could be part of a modern industralised
society and still have a connection with their land.
Rejecting both Castan's arguments and evidence of an oral tradition
linking present-day Yorta Yorta to past generations, Federal Court Justice
Olney's ruling denied the native title claim. His summary argued that,
“the tide of history has indeed washed away any real acknowledgement of
[Yorta Yorta people’s] traditional laws and any real observance of their
traditional customs.”
The Yorta Yorta’s decision to challenge this interpretation of what
is necessary to maintain native title has been controversial because a
new interpretation may allow Indigenous people who are now ineligible to
make claims, to do so.
For this reason, the state ALP government has backflipped on its previous
support for the Yorta Yorta case. Victorian Attorney-General Rob Hulls
told the May 23 Age that, “we could not agree that the Native Title
Act introduced a new legal test for establishing native title without reference
to the common law. We could not agree that tradition could be established
without a substantial continuity with the past.”
As a compromise, Victorian Premier Steve Bracks recently appointed former
royal commissioner Tony Fitzgerald as an expert mediator. While welcoming
this initiative, Monica Morgan of the Yorta Yorta remains determined to
pursue the case.
Although hopeful that the High Court will grant their claim, Yorta Yorta
people are prepared if it fails. The Barmah Millewa forest is the largest
red gum forest in the world and is the subject of a joint-management proposal
between the Yorta Yorta and environmental groups such as the Friends of
the Earth. Such initiatives demonstrate that despite some sectors wishing
otherwise, the Yorta Yorta people will not disappear or give up their inspirational
struggle.
From Green Left Weekly, May 29, 2002.
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