On February 14, 2003, representatives of the Yorta Yorta Aborigines of southeastern Australia announced their intention to take their long-running land and water rights case to the international realm – in particular the UN’s International Working Group on Indigenous Populations – in an attempt to secure some measure of justice.
Australia’s longest running native title case was effectively lost last December when the High Court of Australia dismissed the Yorta Yorta claim to a mere 2% (or 1,860 square kilometers) of their former traditional territories along the Murray River in northern Victoria and southern New South Wales.
Representatives of the 4000-strong Yorta Yorta people had spent the last nine years pursuing their claim – which was opposed by local governments, farmers, tourism operators, and the fishing and logging industry – and refused to accept the fateful words of the Federal Court’s Justice Olney when he declared, in 1998 (Members of the Yorta Yorta community v The State of Victoria & Ors 1998), that “the tide of history has…washed away any real acknowledgement of their traditional laws.” The Yorta Yorta appealed to the Full Court of the Federal Court in 1999, but were again unsuccessful, and in February 2001, the case moved to the High Court of Australia.
By a majority of five to two, the court upheld an earlier Federal Court decision that the forebears of the Yorta Yorta had ceased to occupy their land in accordance with traditional laws and customs in the late nineteenth century – and had not established that they had continued to acknowledge and observe those laws and customs. The ruling brought to an end a case that was before the Federal Court for more than 114 days, hearing the testimony of over 200 witnesses in over 66 locations and costing the Australian taxpayer over 20 million dollars.
The Yorta Yorta claim doesn’t end there, however. Monica Morgan, Yorta Yorta member and co-ordinator of the native title claim, said yesterday her people had run out of options under Australian law to address Aboriginal land rights. Yorta Yorta representatives will take their case to the United Nations this year. Ms. Morgan said they would also hand in a submission to the United Nations Working Group on Indigenous Populations, when a representative of the group visited Australia this year. “There's a whole raft of issues the Yorta Yorta people may need to look at because we’re just not getting them looked at in domestic law,” she said.
The Yorta Yorta case was always deemed to be a native title ‘test case’, as so many of Australia’s Aborigines have faced a similar history of oppression and dispossession. The decision was meant to clarify what sort of evidence and how much is sufficient to confirm one’s native title rights. But Justice Olney’s remarks still have not received satisfactory attention, and perhaps it is only within the international realm that its nonsensical implications will see the light of day – and then filter back down to Australian courts and ultimately to the Yorta Yorta.
Did Americans cease to be American when they stopped riding in the horse and buggy? No, of course not. And the Yorta Yorta people are also not frozen in time. The sea change in the composition, lives and lifestyles of non-Aboriginal Australians over the past 200 years has washed away any resemblance to the original settlers – but it’s not so for Aboriginal Australians, including the Yorta Yorta. They remain the people of the Murray River, and rightly question the right of a stranger population – who bear no resemblance to the original dispossessors in religion, culture or ethnicity – to decide on their right to an identity, and a land that is their own.
It was in 1993 that the High Court’s findings in relation to native title was defined in the Native Title Act as the ‘communal, group or individual rights and interests of Aborigines in relation to land or waters where:
- ‘(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognized by the common law of Australia.’
The National Native Title Tribunal was established to mediate claims for Native Title recognition. The Act prescribed that ‘Native Title Representative Bodies’ assist indigenous groups in the pursuit of their claims and interests and that, where successfully recognized, native title rights and interests be held in trust by a ‘Prescribed Body Corporate’.
Recognizing that Native Title had been extinguished over great areas of the country and that dispossession and cultural losses made it unlikely that some groups could satisfy the requirements for proof of Native Title, the government created the Indigenous Land Fund. The purpose of the fund was to enable the purchase of properties for indigenous people on the free market. To implement the initiative, the Indigenous Land Corporation was established in 1995, with the function of assisting Aboriginal people in the acquisition and management of land. The government also intended to introduce a social justice package to redress the social and economic disadvantage that continues to be experienced by indigenous people as a result of their original dispossession.
