Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge throughout that period, the traditional laws and customs in relation to land of their forebears. [at 129][5]
Trial of
the claim concluded prior to the passage of the 1998 amendments to the Native
Title Act 1993, but the determination was subsequent to them. While Olney J
made specific references to the
legislation,[6] he authorises his
statement of the legal principles governing the determination with reference to
Mabo (No. 2). From this citation of authority, the bracket that encloses
Olney J’s judgment is Brennan J’s metaphor of ‘the tide
of
history’.
... when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has ceased ...[7]
This passage
is quoted at the beginning of the judgment (at 66) and repeated twice
at the end (at 126 and 129). It is Olney J’s justification for finding the
claimants, in Jeannine
Purdy’s phrase, were not ‘native’ but
‘nobody’.[8]
The
metaphor of the tide of history conveys the legal meaning of the colonisation of
Australia. Colonisation is in the past: a natural
and inevitable force. The law
of native title, on the other hand, is in a present that, while absolved from
any responsibility for
that which has been washed away, acknowledges the
possibility of survival. A native title claim, Olney J says:
is not about righting the wrongs of the past, rather it has a very narrow focus directed to determining whether native title rights and interests in relation to land enjoyed by the original inhabitants of the area in question have survived to be recognised and enforced under the contemporary law of Australia. [at 21]
Again, he does not baulk at recording his irritation at
this expectation: at the fact that the applicants, in his view, wanted of
him
‘social engineering’, ‘political correctness’, even
‘righting the wrongs of past centuries’
(at 17); and, moreover, that
they subjected him to ‘frequent, and in some instances, prolonged,
outbursts of what can only
be regarded as righteous indignation ... at the
treatment, they, and their forebears, have suffered at the hands of the ...
authorities’
(at 21).
But where or how, in or after Mabo
(No. 2), does the celebrated ‘retreat from injustice’ so narrow
its focus as to lose that character?
Codification, both as the determination of a ratio decidendi of the case and in the native title legislation, is of doubtless relevance. Yet Brennan J clearly thought that native title should survive only exceptionally; more exceptionally, as it turned out than the majority of the High Court that formed itself around the Wik decision.[9] In both cases, Brennan J is keen to ensure that survival is kept distinct from revival:
A native title that has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition’.[10]
It is Brennan J’s invocation of ‘the tide of
history’ that sustains this distinction; concealing the operation of
a
norm of extinguishment which, applied to the Yorta Yorta, facilitates Olney
J’s determination that they lack ‘any real
acknowledgment of
traditional law and any real observance of traditional
customs’.[11] What is implicit
here is the benchmark of an authenticity according to which the Yorta Yorta are
found to be the product of revival,
rather than survival.
Olney J has
this dubious authority from the High Court and the incumbency of judicial office
to support the arrogation of power to
enforce this distinction between revival
and survival, but such an obnoxious power is constrained. His decision is to be
made on
the basis of the evidence, and according to law.
Olney J takes
the suspension of technicalities, legal forms and rules of evidence, expressed
in s.82(3) of the (unamended) Native Title Act, as his explicit modus
operandi. He does so in a context where this suspension is held to be
necessary because, as he says, there is an ‘absence of direct
evidence of
the indigenous occupation of the claim area in 1788’ (at 25). Having
dispensed with the anthropological evidence
— both because of its
‘speculative’ character (at 54) and the admission of the
applicants’ anthropologist
to ‘perhaps a degree of partisanship on
his part’ (at 55) — and despite the fact that ‘for
the most part the only record of events is oral tradition’ (at 24), he
finds its credibility as a record wanting:
The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it. [at 106]
What he is left with as ‘the most credible source of
information concerning the traditional laws and customs of the area’
is
the written ‘observations’ of Edward M. Curr, a pastoralist:
‘he clearly established a degree of rapport with
the local Aboriginal
people and subsequently published two valuable works dealing with his
experiences’ (at 53). ‘His
record of his own observations
should’, Olney J adds, ‘be accorded considerable weight’ (at
106).
Relying on Curr, Olney J’s judgment describes a singular
colonial narrative in which the Yorta Yorta are admitted only to evidence
their
historical demise, and so to present their lack of authenticity. His judgment
turns upon this narrative — what he calls
the ‘whole context’
of the case — from, and with reference to, which the testimony of the
Yorta Yorta themselves
is largely excluded (at 22). Olney J compiles a history
of the fragile, if not fickle, character of Aboriginal tradition according
to
which he concludes:
It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time. [at 121]
Olney J is no doubt correct to have regard ‘only
to evidence that is relevant, probative and cogent’ (at 17), but
suspension
of the law of evidence emancipates the meaning (within legal
discourse) of ‘probative’, vesting a wider discretion in
the trial
judge. The question here concerns Olney J’s exercise of that
discretion.
In his assessment of the evidence, Olney J suggests, on more
than one occasion, that the particular oral evidence given in this case
was
weak. Acknowledging the ‘in some respects both credible and
compelling’ nature of the evidence given by ‘many
of the
applicants’ witnesses’ — ‘particularly’, Olney J
tells us, ‘the more senior members of
the applicant group’ —
he continues:
Regrettably, this was not always so. In one instance two senior members of the claimant group were caught out telling deliberate lies, albeit about a relatively minor matter, but nevertheless incidents of that nature tend to cast a shadow over the other evidence of those witnesses. [at 21]
He returns to the point towards the end of his reasons. In the context of ‘making some mention of the evidence concerning the current beliefs and practices of the group’ — despite having already found such beliefs and practices ‘genuine efforts ... to revive the lost culture of their ancestors’ (at 121) — Olney J says:
I do not regard Mr Walker as a reliable witness but rather as one prone to avoid direct answers to straightforward questions. He is one of the witnesses whose credit is called into question in relation to an incident referred to in paragraph 21. [at 127]
‘Evidence based on oral tradition’, Olney J further comments:
passed down from generation to generation does not gain in strength or credit through embellishment by the recipients of the tradition and for this reason much of the testimony of several of the more articulate younger witnesses has not assisted the applicants’ case. [at 14]
Apart from the reference here to a stereotypical inarticulacy, the inference is that the credibility of evidence based on oral tradition lies in the extent to which it passes unchanged, from generation to generation. We may just note that this,[12] as well as the reason Olney J gives for his assessment of Mr Walker’s credibility[13] so flies in the face of well-known research done on Aboriginal communication, as to be astounding. But that does not explain the absurdity of attacking the credibility of witnesses, the cogency of whose evidence Olney J has already said:
does not necessarily depend upon the credibility of the individual witnesses but must be assessed in the whole context of the case including, where it exists, evidence derived from historical records and the recorded observations of people who witnessed activities and events about which the members of the claimant group know only what has been passed down to them by their forbears. [at 22]
What then to make of Olney J’s inclusion of the above
incidents in his reasons when, on his own account, they are not reasons
at all?
The significance of the ‘lies’ resides not so much in the
exceptional instance of their telling but rather in the exceptional
instance
that those who told them were ‘caught out’. As the possibility is
raised that other lies may have been told,
the point goes to the general problem
which Olney J has with the credibility of oral testimony. His invocation of the
‘whole
context’ indicates this testimony is opposed to
‘history’. Olney J’s concern is with a truth that is here
located in the written record — as direct and impersonal — rather
than in an oral tradition according to which members
of the claimant group know
‘only’ what has been passed down to them — indirectly and
personally — by their
forebears.
What Olney J is recounting are
exemplary instances in support of his general devaluation of oral testimony. He
is not providing the
particular reasons why he has accorded less weight to the
oral evidence given by the Yorta Yorta. It is, therefore, in his prior
disregard
for the credibility of oral testimony that Olney J seems less to have judged,
than to have prejudged, this
evidence.[14]
Olney pays no
attention to the weight given to oral testimony
elsewhere.[15] Lamer CJ, for
example, in Delgamuukw, speaks exactly to Olney’s concerns.
Noting:
Many features of oral histories would count against both their admissibility and their weight as evidence of prior events in a court that took a traditional approach to the rule of evidence ...
he adds:
Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.
Following this he invokes Dickson, CJ:[16]
given that most aboriginal societies ‘did not keep written records’, the failure to do so would ‘impose an impossible burden of proof’ on aboriginal peoples and ‘render nugatory’ any rights that they have’.[17]
Despite
the common law’s assertion of a supreme jurisdiction which compromises the
crosscultural understanding required of a
just determination in a native title
claim, it is not compromised to the extent that Olney J can exercise a
discretion which rejects
the relevance of such an understanding altogether. For
on such a basis, there would be no other evidence than that of
colonialism.
It is because Olney J maintains the
‘sympathetic‘ Curr (notwithstanding the fact that ‘even [he],
who generally
enjoyed a good relationship with the indigenous people ... had his
shepherds attacked and sheep driven off’ (at 34)) to be
the most objective
and credible source of information about the laws and customs of the Yorta Yorta
that colonialism does become the ‘whole context’ for Olney
J’s judgment. Curr, he adds, ‘at least observed an Aboriginal
society
that had not yet disintegrated’ (at 101).
This disposition
towards disintegration recurs throughout Olney J’s assertion of a context
which draws on two books written
by
Curr[18] as well as the
‘records’ kept by mission owner Daniel Matthews (at 63). Matthews,
for example, ‘records’:
These tribes in early days were probably large, numbering several hundreds; but owing to the march of civilisation, acquired estates, incursions and reprisals, they gradually became decimated until now, they are mere fragments of tribes, occupying an industrial village of about 22 residents and 1,800 acres of land that I obtained for their use in 1882 from the New South Wales Government. [at 63]
Invoking, though he offers no particular reason for its
inclusion, a similar tendency towards their acquiescence to the march of
civilisation
(the tide of history), Olney J also relays one of Curr’s
amusing ways of pretending civility:
I offered him on the spot, with the most serious face, a stick of tobacco for the fee simple of his patrimonial property which, after a short consultation with his elders, was accepted and paid. [at 111]
Elsewhere,
Olney J again anticipates his findings as he notes that by the 1880s:
The older people, born before the arrival of whites and who had survived the period of conflict immediately after white occupation, were dying out. [at 40]
All of this, then, establishes the supposed context for
the two aspects of Olney J’s determination: first, the
‘dispossession’
of the Yorta Yorta by 1881 and, second, its
continuation ‘through to the present time’.
Olney J’s determination in this first respect devolves upon his extraordinary use of a petition ‘signed in 1881 by 42 Aboriginals’.[19] The petition was rendered by the applicants as ‘evidence of one of what were said to be 12 significant attempts by the Yorta Yorta people to assert proprietary interests in their land’ (at 119). Olney J in a ‘reading’ that is a tour de force of distortion, puts it to a rather different purpose. The petition, he says:
contains a frank acknowledgment that ‘all land within (the petitioners’) tribal boundaries has been taken possession of by the government and white settlers’ and the expression, on the part of the petitioners, of their desire to change ‘our old mode of life’ in favour of ‘settling down to more orderly habits of industry’. [at 120]
Several points: there is, Olney J says, ‘no doubt that
Matthews would have played a part in [its] composition’ (at 121).
He has
apparently forgotten that he has already cited Matthews’ own claim that he
obtained what seems more than likely to have
been this land from the New South
Wales Government (at 63 — see above). Then Olney J observes that the
petitioners ‘are
described as members of the Moira and Ulupna tribes, a
description ... which suggests that the individuals concerned identified with
the two main pastoral properties in the region rather than as Bangerang or any
of the other sub-groups referred to by Curr’
(at
120).[20] He does not admit the
possibility that this identification might imply, as do all of the classical
colonial references employed in
the petition (‘natives’,
‘fellow natives in other colonies’, ‘settle down’,
‘orderly habits
of industry’, etc.), that Matthews may have played a
rather larger part in its composition than Olney J suggests.
Two
further points which go to Olney J’s own concerns: first, the apparent
petitioners include only some of the children of
those two ancestors to whom
descent has been traced to Olney J’s satisfaction (he has already found
insufficient evidence to
support descendancy through others (at 88-104));
second, the ‘admission’ contained in the petition is only that
‘our
means of subsistence [has been] rendered extremely precarious’.
In neither case does the petition fully support his conclusion
that ‘those
through whom the claimant group now seeks to establish native title ... had ...
ceased to observe those laws and
customs based on tradition’ (at 121).
Why does Olney J ignore the petition as a strategy of resistance and
maintain a ‘literal’ reading which misses the fact
that it would
inevitably have been rendered in terms that are apt to
succeed?[21]
One can only
discern that his reading takes place in a context already determined: by
Curr’s ‘observations’ as to
the readiness of the Yorta Yorta
to relinquish their land, as well as his claim as to the flimsiness of their
political organisation.
‘Amongst the Bangerang there was not, as far as
could be observed, anything resembling government’ (at 112). Thus it
makes
sense to Olney J as ‘positive evidence emanating from the Aboriginals
themselves to the same effect’ as that of
the ‘absence of evidence
of continued observance of traditional laws and customs’ (at 119).
Whilst Olney J uses the standard legal phrase in the paragraph cited,
the meaning he assigns to that phrase is found in the previous
paragraph.
The evidence is silent concerning the continued observance [from circa 1870] ... of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr. [at 118]
To move on to the second
aspect of Olney J’s determination, namely: ‘[t]he dispossession of
the original inhabitants and
their descendants has continued through to the
present time’, his finding is that:
No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. [at 121]
For Olney J, there is no difference between ‘those
aspects of traditional lifestyle to which reference is made in ... Curr’
and occupation ‘in the sense that the original inhabitants ...
occupied’. He reads this sense in Curr and, to it —
in a final
confirmation of revivalism — he compares the evidence given by the Yorta
Yorta as to their current practices.
The Yorta Yorta regard as sacred or
significant sites such as shell middens, oven mounds and scarred trees where,
Olney J says, ‘there
is no evidence to suggest that they were of any
significance to the original inhabitants’ (at 122). Similarly, he
considers
the practices associated with the returning of remains from Melbourne
(where they were removed for scientific examination) to ‘the
appropriate
country’ as ‘not part of the traditional laws and customs handed
down from the original inhabitants’
(at 124). And, finally in this
respect, Olney J considers the ‘extensive involvement’ of the Yorta
Yorta people in activities
associated with the conservation of the timber and
water resources in the area’ and concludes: ‘these are issues of
relatively
recent origin about which the original inhabitants could have no
concern and which cannot be regarded as matters relating to the
observance of
traditional laws and customs’ (at 125).
If we ask why these matters
cannot be so regarded, Olney J’s use of a passage cited earlier from Curr
provides the answer:
If anything was left for Tuesday, it was merely that they had been unable to consume it on Monday. In this they were like beasts of the forest. Today they would feast — aye gorge — no matter about the morrow. So also they never spared a young animal with a view to its growing bigger. [at 115]
This, he compares to the evidence given:
It is said by a number of witnesses that consistent with traditional laws and customs it is their practice to take from the land and waters only such food as is necessary for immediate consumption. [at 123]
And finds:
This practice, commendable as it is, is not one which, according to Curr’s observations, was adopted by the Aboriginal people with whom he came into contact and cannot be regarded as the continuation of a traditional custom. [at 123]
We will just note Olney J’s contextual predisposition to read here a lack of continuity between ‘wastefulness’ and ‘conservation’ rather than the continuity of ‘immediate consumption’ and move on to Olney J’s reading of the demand for continuity in native title law. As is evident in his determination based on the petition, as well as his subjection of the Yorta Yorta’s present sense of occupancy to Curr’s ‘observations’ as to its original sense, it is on this reading that Olney J’s judgment hangs.
We begin by noting a formal discrepancy between Olney J’s statement of
the legal requirements of native title and his statement
of reasons for the
failure of the application. Aside from the requirement to prove descent from an
ancestor group ‘who occupied
(in the relevant sense) the claim area prior
to the assertion of sovereignty’, the claimants are, Olney J says,
required to
prove the ‘substantial’ maintenance of a
‘traditional connexion with the land since the assertion of
sovereignty’
(at 4). While, with respect to the first requirement, he
finds that (some of) the claimants are descendants of the original inhabitants,
with respect to the second, his finding is that they have not ‘occupied
the land in the relevant sense since 1788’ and
that they have not
continued to acknowledge and observe ‘the traditional laws and customs in
relation to land of their forebears’
(at 129).
Olney J has taken
the requirement of occupancy (in the relevant sense) stated as pertaining to the
time ‘prior to the assertion
of sovereignty’ and applied it to the
time ‘since 1788’. He has taken a requirement which is stated as
pertaining
to the ancestor group and applied it to the claimants. In doing so,
he has drawn on Brennan J’s formulation in Mabo (No. 2) of the
requirement to prove continuity:
Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.[22]
but to it he has added a requirement, drawn from Toohey
J’s judgment, also in Mabo (No. 2), for ‘[t]he need to
establish occupancy as an essential element in a claim to traditional
title’ (at 3). Apart from the
fact that this burden of proof does not
constitute the legal requirement as Olney J states it, it is not a defensible
reading of
authority.
If Olney J has doubled the burden of proof resting
on the applicants then he has made a clear and substantial error of law. But is
this what he has done? Or, in some excess of dismissiveness of the
applicants’ claim, has he merely repeated, in different
formulations, the
applicants’ failure to maintain the continuity undoubtedly demanded by
native title law?
There is at least redundancy here. But we argue that
Olney J has indeed doubled the burden of proof.
Now ‘occupancy’,
as Toohey J (in Mabo No. 2) is at pains to point out, is, in relation to
traditional indigenous societies, meaningful physical presence on the
land.[23]
[T]hat the use of the land was meaningful must be proved but it is to be understood from the point of view of the members of the society (3).[24]
It is clear, from the tense of Toohey J’s formulation, at
this point in his judgment his reference is to the time of the assertion
of
sovereignty and, as we have indicated, it is to this time that Olney J’s
requirement (not his finding) traces the demand
for proof of occupancy. If there
is any ‘relevant sense’ here, then it is only according to Toohey
J’s explicit
statement — still with reference to indigenous society
at the time of annexation: ‘Presence would be insufficient to
establish
title if it was coincidental only or truly
random’.[25]
As we
know, Olney J has relied on his sympathetic and observant pastoralist for the
best evidence of the meaningfulness of this ‘original’
occupancy. As
a matter of form, this is hermeneutically dubious — in fact it is
flagrantly ethnocentric — and it stems
from Olney J’s disregard of
the traditional oral, as well as the anthropological, evidence. As a reading of
Toohey J, it is
simply wrong, but our point here goes to substance. Olney J has
imposed on the Yorta Yorta the burden of proving their use of the
land now is
meaningful not in the same terms, but in the same sense, as it was meaningful to
their ancestors.
Olney J attaches Toohey J’s demand for
meaningfulness to indigenous society now, and he adds it to Brennan J’s
requirement
for the maintenance of a substantial connection to land.
Let
us note, though, the anticipation of this reading in Olney J’s use of
Brennan J. Olney J misses the point of Brennan J’s
formulation. The laws
and customs to be observed and acknowledged in that formulation are ‘based
on’ tradition. It is
not Brennan J’s requirement that the
substantial maintenance of a traditional connexion to land demands observance of
the same laws and customs. For Brennan J, changes in these may occur
‘in time’.[26] They are
not, or they are not simply, what Olney J fixes as the ‘traditional laws
and customs’ (at 129) of a society
bound to, rather than grounded in,
‘the conditions and practices of a pre-colonial
past’.[27] As if the substance
of those laws and customs would have to continue unchanged from generation to
generation.
Olney J’s reading of Toohey J is even more incongruous.
Toohey J, in common with the rest of the majority in Mabo (No. 2),
explicitly addresses the issue of change in indigenous societies, but he
does so with a clear acknowledgment that the kind of change
to be anticipated is
more than evolutionary and must take account of the impact of
colonisation.
There is no question that indigenous society can and will change on contact with European culture.[28]
Elsewhere, he addresses
an argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise ‘traditional’ rights and duties and have adopted European ways.[29]
The argument, he says, fails:
[M]odification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot as it were surrender its rights by modifying its way of life.[30]
The distortion in Olney J’s reading of Toohey J is revealed in his citing of this paragraph without its first and last sentences (at 3). The accent of his reading thereby falls on what is undoubtedly Toohey J’s continuity requirement: that occupancy then and now must be of a ‘traditional’ society. What, positively, this means for Toohey J is far from clear. But what is clear is that it cannot allow Olney J to attach the weight of Toohey’s qualification of ‘traditional’ society to an occupancy which is meaningful now in the same sense as it was then. This, though, is what Olney J does in his finding:
No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. [at 121]
Invoking a requirement for the substantial maintenance of a connection to land and carrying that requirement to the meaning which such a connection has for the applicants, it is this doubled sense of occupancy – ‘the relevant sense’ — which demonstrates, not redundancy, but Olney J’s imposition of a similarly doubled, and doubly onerous, burden of proof on the Yorta Yorta.
What must be taken into account, once descent from an ancestor group whose
use of the land was meaningful to them, is, on Toohey J’s
formulation, a
use of the land which is meaningful to the applicants, in terms sufficiently
related to pre-contact society and cultural
practices, as to allow their
identification as members of a traditional society. On the formulation of other
members of the Mabo (No. 2) majority, it is the maintenance of a
substantial connection through continued observance of laws and customs. On
either formulation,
a court will have to listen to evidence pertaining to the
applicants’ present relation to the claimed land, and make a decision
on
whether it satisfies the continuity requirement of native title law.
This is just what Olney J does not do, or rather, what he can be said to
have done but on the basis that his continuity requirement
doubles to exclude
any change. As stated in his reasons for judgment, and before what he
nevertheless considers an ‘appropriate
... mention’ of the evidence
concerning the current practices of the claimants (at 121), Olney J has found
— largely
on the basis of the petition — that the culture of the
applicants was ‘lost’ by 1881. Having already determined
their lack
of survival, he has heard the applicants’ evidence of their present
relation to land solely as evidence of practices
of revival (at
121).
Since the requirement of continuity contained in Toohey J’s
judgment at least admits of the possibility of a resistance that
takes place, as
it were, in between survival and revival, it is, as we have argued, at least
incongruous that Olney J takes him on
the matter of proof of native title as a
complement to Brennan J’s norm of extinguishment.
The requirement
of Toohey J’s point of principle in the relevant passages, consistent with
other majority judgments in Mabo (No. 2), was to read out of the common
law the evaluation of indigenous society against a ‘scale of social
organisation’ notched
according to degrees of ‘civilisation’,
as sanctioned by British and Australian
authorities.[31] The evaluation that
indigenous societies lay at the bottom of such a scale was premised on the claim
these societies were essentially
unchanging. It was, as we have indicated, a
claim all of the majority judgments in Mabo (No. 2) rejected. While not
authorised by the majority judgments in Mabo (No. 2), Olney J’s
reading nevertheless owes something of its possibility to the norm of
extinguishment which they contain and according
to which some requirement for
continuity is enforced. So is native title law being twisted here or is it
working the cruel twist
of declaring the claimants to be not native but nobody?
Encased in the metaphor of the tide of history, a decent answer to this
question may be hard for an ethnocentric judiciary to find.
In that case —
which is to say, if the law cannot or will not reduce its indecency — we
wish the Yorta Yorta well and
encourage support for their occupation of part, at
least, of their lands.[32]
The decision has been appealed to the Full Bench of the Federal
Court.
References
[1] 1606 FCA (18 December 1998).
References in the text are to paragraph numbers of Olney J’s
judgment.
[2] Mabo and Others v The
State of Queensland [1992] HCA 23; (1992) 107 ALR 1, Brennan J, at
26.
[3] The land claimed was vacant
and reserved Crown lands, state forest and park, various kinds of reserve,
Aboriginal freehold land and
a mine located on a 42,000 acre ‘grazing
occupation permit’ (Yorta Yorta, above ref. 1, at para.10). Waters
within a wider claim area included the Murray, Ovens, Goulburn and Edward
Rivers.
[4] A
‘convenience’ that might be thought to say more than should be said
about those having stakes in the native title
industry.
[5] ‘The relevant
sense’ of occupation which Olney J invokes here, with reference to Toohey
J’s judgment in Mabo (No. 2), is considered
later.
[6] The new s.225 which sets
out the requirements for a determination of native title was held to be
applicable, but the old s.82 with its mandatory requirement that the Court take
account of the cultural and customary concerns of Aboriginal peoples was held
to
govern the Court’s approach (at 15 and
16).
[7] Mabo (No. 2), above
ref. 2, at 43.
[8] Purdy, Jeannine,
‘Native or Nobody’, 1997, unpublished
paper.
[9] Wik Peoples v State of
Queensland and Others (1996) 141 ALR
129.
[10] Brennan J, in Mabo
(No. 2) above, ref. 2, at
43.
[11] Brennan J, in Mabo
(No. 2) above, ref. 2, at
43.
[12] For example:
‘[T]he Aboriginal historical tradition is less focused on establishing
objective truth and assumes that the teller
of the story is ... a part of the
event being described’, in Delgamuukw v British Columbia (1997) 3.
SCR, per Lamer CJ, at para. 85, citing Report of the Royal Commission on
Aboriginal Peoples (1996), Vol. 1, (Looking Forward, Looking Back),
at p.33.
[13] See, for example,
Report on Queensland Criminal Justice Commission: ‘Aboriginal Witnesses in
Queensland’s Criminal Courts’,
Brisbane, Govt Printer, June 1996, in
(1996) 1 Australian Indigenous Law Reporter 651, at 653; and Eades, D.,
‘Communicating with Aboriginal Clients’, Law Society Journal,
June 1993, 41.
[14] Olney
J’s position on the credibility of oral testimony here is different from
that in his earlier decision, in Mary Yarmirr & Ors v The Northern
Territory of Australia & Ors (1998) 771 FCA (6 July 1998). See, for
example, paras 57 and 64 of that
decision.
[15] Again in Mary
Yarmirr, above, ref.14, Olney J makes the general observation that
‘the law in Australia is readily capable of understanding without
reference to external authority’ (at para
85).
[16] In Simon v The
Queen (1985) 2 SCR 387, at
408.
[17] Delgamuukw,
above, ref. 12, at paras
86-87.
[18] Recollections of
Squatting in Victoria and The Australian Race: its origin, languages, customs,
place of landing in Australia, and
the routes by which it spread itself over
that continent. These, it should be noted, were published in 1883 and 1886
respectively
— some 40 or so years after the observations which they
apparently record.
[19] lt is
worth citing this petition in full (at 119):
‘To His Excellency Lord
Augustus Loftus, G.C.B., Governor of the colony of New South Wales — The
humble petition of the
undersigned Aboriginal natives, residents on the Murray
River in the colony of New South Wales, members of the Moira and Ulupna tribes,
respectfully showeth:
1. That all the land within our tribal boundaries has
been taken possession of by the Government and white settlers; our hunting
grounds
are used for sheep pasturage and the game reduced and in many places
exterminated, rendering our means of subsistence extremely precarious,
and often
reducing us and our wives and children to beggary.
2. We, the men of our
several tribes, are desirous of honestly maintaining our young and infirm, who
are in many cases the subjects
of extreme want and semi-starvation, and we
believe we could, in a few years support ourselves by our own industry, were a
sufficient
area of land granted to us to us to cultivate and raise stock.
3.
We have been under training for some years and feel that our old mode of life is
not in keeping with the instructions we have received
and we are earnestly
desirous of settling down to more orderly habits of industry, that we may form
homes for our families.
We more confidently ask this favour of a grant of
land as our fellow natives in other colonies have proved capable of supporting
themselves,
where suitable land has been reserved for them.
We hopefully
appeal to your Excellency, as we recognise in you, The Protector specially
appointed by Her Gracious Majesty the Queen
‘to promote religion and
education among the Aboriginal natives of the colony’, and to protect us
in our persons and
in the free enjoyment of our possessions, and to take such
measures as may be necessary for our advancement in civilization.
And your
petitioners, as in duty bound will ever
pray.’
[20] Citing Rod
Hagan, the applicants’ anthropologist, Olney J points out: ‘The name
“Yorta Yorta” is preferred
by most of the descendants of the
original Aboriginal occupiers of the area today, although some prefer to use the
word ‘Bangerang’.
The two names refer to descendants of one and the
same group (at 50).
[21] With
reference to the United States, James Clifford has noted that ‘when
Indians wrote — petitions, deeds, letters of
complaint — it was to
address white authorities and legal structures. Their voices were adapted to an
imposed context’,
‘Identity in Mashpee’, in his The
Predicament of Culture, Harvard University Press, 1988,
p.340.
[22] Mabo (No. 2),
above, ref.2, at 43.
[23]
Recalling the conclusion which Olney J draws from his discussion of the petition
— ‘that by 1881 those through whom the
claimant group now seeks to
establish native title were no longer in possession’ (at 121) —
Toohey J, in Mabo (No. 2), above, ref. 2, at 147, adds that
‘presence on land need not amount to possession at common law in order to
amount to occupancy’.
[24]
Toohey J, in Mabo (No. 2), above, ref. 2, at
147.
[25] Toohey J, in Mabo
(No. 2), above, ref. 2, at
146-7.
[26] Brennan J, in Mabo
(No. 2), above, ref.2, at
44.
[27] Sutton, Peter,
‘Atomism versus Collectivism: The Problem of Group Definition in Native
Title Cases’, in Anthropology in the Native Title Era, J. Fingleton
and J. Finlayson (eds), Australian Institute of Aboriginal and Torres Strait
Islander Studies, 1995, p.9.
[28]
Toohey J, in Mabo (N.o 2), above, ref. 2, at
150.
[29] Toohey J, in Mabo
(No 2), above, ref. 2, at
150.
[30] Toohey J, in Mabo
(No 2), above, ref. 2, at
150.
[31] Toohey J, in Mabo
(No 2) above, ref. 2, at
144.
[32] Rintoul, Stuart,
‘A frustrated people retreat into the forest’, The Weekend
Australian, 14-15 November 1998, p.11.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/1999/1.html