Indigenous Law Bulletin
By Wayne Atkinson
Given the extent of our historic struggle for land justice, the full Federal Court decision on the Yorta Yorta case highlights the elusive nature of Indigenous land justice and strengthens the sense of betrayal that has been created in the post-Mabo era. Indeed, it supports the view that ‘Not One Iota’ of land has been returned on the basis of our inherent rights.
However, the positive outcome is that the Court’s decision was not unanimous. Even the majority judgement of Justices Branson and Katz recognises that ‘tradition’ is not a frozen concept but one that evolves and adapts to changing circumstances but the majority judges were not prepared to overturn the restrictive and Anglocentric approach used by Justice Olney in the Yorta Yorta case.
Chief Justice Black’s dissenting judgement is illuminating. He found that Justice Olney’s test for determining native title in the Yorta Yorta case was too restrictive, that various aspects of the evidence should have been the subject of findings by the trial judge and that the case warranted a retrial. The Chief Justice also highlighted the difficulties and dangers of making findings about the particular point in time when native title ‘expired’. The full Court’s decision on native title indicates that the question of land justice in the Yorta Yorta context is far from being resolved. Whether land justice can be achieved through protracted and adversarial native title litigation, or by a negotiated settlement is the key issue.
It is against this background that my reflections on the Yorta Yorta native title claim are presented. I speak as one of the principle claimants in the Yorta Yorta case, as a member of the Yorta Yorta Council of Elders and as a representative of my ancestral lineage of some 1200 members.
I will discuss the native title process so far and examine what I perceive to be the main barriers to land justice under existing politico-legal processes. Speaking from the position of an active participant in the native title process, I will examine the way that the ‘native title industry’ has usurped Indigenous voices and has empowered itself on the backs of Indigenous claimants. It is argued that the power dynamics of domination, racial inequality and status quo politics are barriers to native title.
Prior to Mabo, State and Commonwealth governments have refused to recognise prior Indigenous rights and to apply fair and just principles for the confiscation of property. To date, the only lands returned to the Yorta Yorta are a little over half of the original 2,965 acres of Cummeragunja lands (1,800 acres) under the Aboriginal Land Rights Act 1983 (NSW), returned in 1984. It was the original request for the Cummeragunja land that Justice Olney construed as implying the relinquishment of Yorta Yorta rights. The land was reserved specifically for Aboriginal use but the majority of it was leased to Europeans, against the wishes of Cummera residents, up until to the 1950s, so that only 1800 acres remained for the benefit of Aboriginal people.
The upshot is that in 21st Century Australia we have less land than the reserve provided at the turn of the 19th Century and that small but historically important parcel supports a growing and highly disadvantaged population of over 200 people. Compared to our original tribal lands, of some 20,000 square kilometres, (see map) it is a derisory small portion. The principle of compensation has also been accorded short shift.
Map of traditional Yorta Yorta territory
With hopes raised by the result in Mabo, the Yorta Yorta were one of the first Indigenous groups to lodge a claim under the Native Title Act 1993 (Cth) (‘the NTA’). Australia's attempts to bring its law into line with the recognition of Indigenous title in other common law jurisdictions and the High Court's rejection of those actions that justified the theft of Indigenous land, were commendable. It appeared that the barriers to native title had been dismantled and a more level playing field was set for pursuing Indigenous land justice.
While the removal of old barriers was encouraging, the construction of new ones has been disheartening. As demonstrated in the Yorta Yorta case, the NTA and its interpretation by the Courts has set the Indigenous struggle for land in the more populous regions of the country back to the pre-Mabo era. This experience suggests that the ideals of equality and justice before the law under present conditions remain ever elusive.
In establishing the ground rules for claimants to be recognised, and denying the full respect that native title deserves at common law, the High Court also constructed major barriers to achieving land justice. It secured the property interests of settler society by applying the doctrine of extinguishment and refused to uphold fair and just principles for the confiscation of Indigenous property.
In Mabo, Justice Brennan's metaphor about the 'tide of history' was presented as an extreme case scenario of native title loss. It has been applied to the Yorta Yorta in its absolute sense and unless overturned, will have serious negative implications for other claimants.
Underpinning the events on which this ‘tide’ rests, is a history of land injustice and flagrant human rights abuses. It is a history sourced in violence and bloodshed over the ownership and control of land, acts of genocide in relation to the forced removal and attempted break-up of Indigenous families, and racist government policies aimed at subjugating and controlling Indigenous people. It is ironic in the extreme, many might say obscene, that the crimes against humanity, which constitute this ‘tide’, can be invoked by those seeking to deny Indigenous groups their rights to land.
Nearly a decade has passed since the High Court recognised the existence of native title at common law in Australia. The amount of land returned to Indigenous owners since then has been minuscule. For those Indigenous people who have been waiting for over two centuries for land justice, it is a poor reflection on Australia's legal and political institutions. The lack of favourable outcomes is experienced against a backdrop of community hostility and antipathy towards Indigenous rights.
The Federal Court’s two decisions on the Yorta Yorta case, coming at the end of years of scrutiny of the Yorta Yorta people and the subjugation of our voices to those of outsiders, have been disappointing outcomes. Much of the disappointment remains but being familiar with similar setbacks, and belonging to such a resilient group of fighters, the struggle will continue.
The native title process is emotionally and physically draining. Claimants are locked into a gruelling and often uncertain process for a significant duration. The first substantive native title cases (including Yorta Yorta) to be heard on their merits following Mabo were expected to assist other claims, at common law hearings and at mediation but their dismissal by the Court have greatly heightened Indigenous cynicism about the process as a whole.
Following Justice Olney's judgement, the fiction of terra nullius, rejected in Mabo as having ‘no place’ as a barrier to Indigenous land justice in ‘contemporary law’, has now been replaced by the 'tide' euphemism. In the Yorta Yorta case, it was used to try and wash away the underlying injustices that are at the heart of our struggle. The Olney decision is a graphic illustration of how this euphemism has been construed to justify land theft, to maintain the status quo, and to support the continued domination of Indigenous people. Indeed, Australian historian Patrick Wolfe's comment 'that to fall within native title criteria, it is necessary to fall outside history' eloquently summarises the Olney approach.
In using Anglocentric sources as a basis for reconstructing Yorta Yorta connections to the land claimed, Justice Olney displayed ignorance of accepted standards of analysis. The need to look at the body of knowledge within the context in which it was written and against the prevailing cultural biases of the time is universal practice. Early white ethnographers are notorious for interpreting traditional culture through their own blinkers and have been shown by other writers to exhibit bias. In reconstructing past and present Indigenous connections, ethnographic data is not exempt from the same standards of scrutiny as that which is applied to other sources. It is but one part of the jigsaw puzzle, of many pieces.
The privileging of European sources over the body of Indigenous knowledge is an Anglocentric approach to native title litigation. The Anglo-Australian legal system already carries an historic bias and inequality towards Indigenous people by the exclusion of their oral testimony by the courts. Justice Olney’s exclusion of Yorta Yorta knowledge can be seen as a reversion to colonial practices.
After lodging our claim, we chose in good faith to go before the National Native Title Tribunal (‘the NNTT’), which again brought us face to face with opponents of Indigenous rights. While the process provided a forum for the Yorta Yorta to speak without being subjected to the hostilities of past claims and a platform to contest existing misconceptions of land ownership, it turned out to be a failure.
The main obstacle to gaining native title through mediation proved to be the limitations imposed on the NNTT’s powers, and the prevailing antipathy towards Indigenous rights. Respondents were unwilling to recognise the Yorta Yorta as a group, let alone that their inherent rights should be accepted and given equal protection. The regional mindset that met the 1984 claim under the Aboriginal Land Rights Act 1983 (Cth) came back to revisit the Yorta Yorta, fuelled with increased intensity by the racial politics of One Nation, which emerged from the aftermath of Mabo and Wik. This mindset remains a key impediment to land justice in the Mabo era, and it is against this background that the possibility of negotiating co-existive agreements in the claim area needs to be recognised. This time it was 'backyards', 'main streets', and 'bucketloads of extinguishment' that our opponents peddled as myths of the day.
In the absence of an equivalent counter-campaign, these myths were allowed to manifest themselves in antipathy towards local Indigenous groups. Indigenous communities were forced into a position of having to defend their rights against the attacks of the fearful and misinformed, rather than dealing with the issue at hand. The question is whether non-Aboriginal people are willing to abide by their own law's respect for Aboriginal title.
After gaining no substantive agreements or expressions of 'co-existence’, particularly in the spirit of ‘reconciliation’, we chose to go before the Federal Court. Our reliance on the courts is based on the reality that there is no alternative to the introduced law as it stands, other than reverting to direct political action.
Our customary law, contrary to the wishes of Indigenous people, is not given equal status and can only be called on to source the nature and content of our traditional connections, even post-Mabo. We cannot call on international mechanisms until we exhaust all domestic remedies. We are locked into the process and are committed to following it through to its logical conclusion, which may mean years in the courts. Underpinning these realities are the expectations of Yorta Yorta people, who are watching closely in the hope of enjoying a better and more secure future.
Being the first contested native title case before the Federal Court, the Yorta Yorta found themselves confronting the combined might of a multitude of vested interests. The mercenary character of some lawyers, anthropologists and historians further exacerbated the battle. The knowledge and experiences appropriated from Indigenous studies and from other claims aided and abetted the attacks being made on our claim from opposing interests.
Ethical bodies associated with such professions must give serious consideration to the implications of these practices. The notion that expertise should simply be made available on a first cab off the rank basis, in the manner of commercial legal practice ignores the very nature of the knowledge on which disciplines such as anthropology and, to some extent, history depend. To obtain information from Indigenous people and then to reformulate it in the fashion most suitable to the needs of a client opposing Indigenous interests places the researcher in the position of mercenary, or spy. It brings the professions concerned into disrepute and has the potential to destroy the trust necessary if these disciplines are to continue their dialogue with Indigenous groups.
The expenditure of those opposing the Yorta Yorta claim has not been made publicly available. The Victorian (Kennett) Government alone is said to have spent four million dollars, not to mention that expended by the New South Wales government, statutory land and water authorities and private interest groups. The ability of State governments to absorb such high levels of expenditure in opposing claims without public protest inevitably leads to a massive increase in the cost and complexity of the process for all parties.
Indigenous people have been further disempowered by these litigious and protracted proceedings. They wait, patiently, impoverished, on the periphery of the native title process.
It seems that in relation to native title, the question is not so much one of the law providing justice for Indigenous people but one of how justice can be achieved against existing barriers. As witnessed in the Yorta Yorta case, the privileging of Anglo knowledge and property rights and the derogation of Indigenous entitlements are inherent obstacles.
Other obstacles relate to the shameful record of State governments in dealing with land justice, the antipathy of opposing parties and the mindset of regional Australia. These barriers are not dissimilar to those experienced in past claim processes. That is, when the foundations of the law in relation to the ownership and control of land are contested and ground appears to be gained in the struggle for justice, the system tends to close ranks. It becomes the instrument of power that is used to serve the vested interests of settler society and to maintain the status quo. Under these conditions, it is the power relations between the dominator and the controlled and notions of racial superiority that are perpetuated at the expense of land justice. Perhaps this is a sign of how deeply the psychosis of white domination and racism still runs, particularly within government and parts of regional Australia.
How we can move beyond our 'state of internal colonialism' or advance to a ‘better understanding’, are important questions that confront the Reconciliation process. This is not to deny that these are ideals that Indigenous and non-Indigenous Australians are endeavouring to achieve, but as demonstrated in the Yorta Yorta case, there is still a lot of healing to be done before real, genuine and effective Reconciliation can be achieved. Removing the structural barriers to native title and rectifying past injustices are necessary steps towards the process of healing, but they remain matters of unresolved business. The first task of Reconciliation surely must be a fair and just settlement of land for Indigenous people, as a basis for achieving substantive equality and autonomy. The Yorta Yorta experience signifies the intransigent refusal to recognise past wrongs and prior rights, and the need to repair past injustices.
Similar issues were raised by the United Nations Committees on the Elimination of Racial Discrimination, March 1999, and Economic Social and Cultural Rights, August 2000. The Committees judged the Australian government harshly for passing amendments to the NTA that discriminate against Aboriginal people. The amendments undermine human rights principles. They also contradict the need to avoid past mistakes that were held to be discriminatory and unjust. While the Australian government continues to ignore the findings, the reality is that the matter will stay on the United Nations agenda.
Finally, the appropriation of land and resources without consent and without the provision of compensation continues to deny Indigenous people their legal entitlements. The common law provides equality before the law for settler interests but then treats Indigenous title as an inferior form of land ownership. The rhetoric of 'full respect' and equality supposedly given to native title in Mabo is not mirrored in the way it is being applied in the administration of the NTA. As demonstrated in the Yorta Yorta case, the attainment of these principles is dependent on the extent to which a settler society is prepared to concede its dominance in favour of fairness and equality before the law.
Native title, in theory, seems able to accomplish fairness and justice. In practice however, there are major flaws in the criteria being used to translate Indigenous law and knowledge into the Anglo-Australian legal system because of pre-existing norms and values. The NTA cannot be interpreted without reference to the existing context and interpretive tradition.
Unless the barriers to land justice in the Yorta Yorta case are removed, the rhetoric of Mabo and the principles of law on which we pinned our hopes will remain elusive. With ‘Not One Iota’ of land justice forthcoming, the words of Yorta Yorta elder and leader, William Cooper, revisit us in 21st Century Australia:
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.
One can be assured that Uncle William’s words will continue to be the driving force of the Yorta Yorta struggle.
Wayne Atkinson is a member of the Yorta Yorta and principle claimant in the Yorta Yorta case.
 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) FCA 45 (Unreported, Black CJ, Branson and Katz JJ, 8 February 2001). See Andrew Reilly, ‘History Always Repeats: Yorta Yorta v State of Victoria and Ors’ this issue XX.
Yorta Yorta Aboriginal Community v The State of Victoria & Ors  1606 FCA (Unreported, Olney J, 18 December 1998).
 Ibid, para 196.
 See, eg The Age, Melbourne, 10 October 1996.
 See above, n 1 & n 2.
 Mabo v Queensland (No. 2)  HCA 23; (1992) 175 CLR 1, 29 & 40–3 (Brennan J).
 Tony Birch, ‘Black Armbands and White Veils: John Howard's Moral Amnesia' (1997) 25 Melbourne Historical Journal 9.
 K Alford, 'Washed Away on a Tide of White History', Guardian Weekly 21 March 1999, 42-4. See also G Gray, 'The Past Is Never Finished' in L. Manderson (ed), Reconciliation: Voices from the Academy, Annual Symposium (1999) 19.
 Peter Read, 'Oral History Interviewing' in D Barwick, M Mace & T Stannage, Handbook for Aboriginal and Islander History (1979) 141.
 MF Christie, Aborigines in Colonial Victoria 1835–36 (1979) 115-116.
 Victorian Government, Hansard, 12 November 1998, 10–25.
 See, eg The Age, Melbourne, 8 March 2000; Riverine Herald, Shepparton, 28 April 2000.
 See above n 6, 29 & 40–3 (per Brennan J); <www.atsic.gov.au>; The Age, Melbourne, 30 April 1999 and 3 September 2000.
 William Cooper, Yorta Yorta, (1939).