Land Rights & Indigenous Australia Law Race &Indigenous People Dr Wayne Atkinson Senior Lecturer & Fellow Political Science University of Melbourne

Lecture Format The Land Rights Struggle Land Rights & Native Title Yorta Yorta case study (1994-2002) Treatment of Oral Evidence

Land Rights Struggle

History of Land Rights Struggle before Mabo, 1992 1770-1800’s: Land Struggle at the heart of conflict and violence over ownership & control of land and resources 1930’s: Indigenous leaders challenge the basis of terra nullius and assert rights to land (Acheron venture Victoria, 1859). Yirrkala (Yolngu) petition for land rights (NT) 1963. Freedom rides of 1965. Gurindji wage dispute and land claim (NT)1966 1970’s: Tent Embassy, put Land Justice, on the National political agenda.

Tent Embassy 1972 Political protest against the McMahon Government's policies which denied recognition of Aboriginal title and traditional land rights.

Woodward Commission 1974 Set up by Whitlam Government when it came to office in 1972 Woodward Commission offered a national framework for land rights legislation Woodward's recommendations implemented in the Northern Territory under the Commonwealths Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) (ALRNTA)

Symbolic Return of Gurindji, Land NT-1975. Prime Minister Gough Whitlam pours a handful of soil through the fingers of Gurindji elder Vincent Lingiari, at the hand back of 3,238 sq- kms of land in August 1975. Gurindji struggle symbolised in song: ‘From Little Things Big Things Grow’ by Paul Kelly & Kevin Camody (Photo: Merv Bishop)

Nature & Content of Land Rights In a LR claim Indigenous Australians seek a grant of title to land from the Commonwealth, State or Territory governments. Grant may recognise traditional Indigenous interests in land, and protect those interests by giving indigenous people legal ownership of that land- mostly in form of ‘inalienable freehold title’. In order to be accepted, LR claims must meet a set of conditions-Crown retains certain interests in land, mining and access.

Eddie, Koiki, Mabo:1936-1992

Key questions of Mabo Would the High Court overrule Blackburn J’s 1971 decision in Milirrpum, and find that Native Title existed in Australia? What test would the Court formulate to determine the existence of Native Title rights? What barriers would Native Title Holders have to overcome to achieve Native Title rights

Mabo Decision 1992 Overruled Blackburn J. & 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 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. Judged by any civilised standard, such a law is unjust and the theory that the indigenous inhabitants of a settled colony had no proprietary interest in the land depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. It is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination. The fiction of terra nullius by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country (Mabo (No. 2) Brennan J. at 29, 40–3).

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).

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.

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 identity & inherent rights The barriers to Land Justice-post Mabo- Yorta Yorta Case

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

The Yorta Yorta Case: Concepts of law and Evidence

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

Barmah-Millewa Forest Wetlands, Yorta Yorta Territory

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

Justice Olney’s Decision, Federal Court Melbourne 18 December 1998 The Court determines that native title does not exist in relation to the areas of land and waters identified in Schedule D to Native Title Determination Application VN94/1 accepted by the NT Registrar on 26 May 1994 (19 Seconds)

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).

Olney’s Test for Yorta Yorta Native Title: ‘The Frozen in time view of Indigenous people’ Similar to the current case of Andrew Bolt and the Herald Sun in which Ron Merkel described Bolt as ''a man living in a mindset frozen in history'', whose articles had ''taken us back to that [1930s] view of Aboriginality''- Age, 30 March, 2011.

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

Barriers to Land Justice 21 Century Australia Mindset of opposition to Indigenous rights Way law is being interpreted and applied in the Yorta Yorta case Anglocentric and narrow minded interpretation of Native Title Act

Yorta Yorta Oral Knowledge The transmission of knowledge for the greater part of Yorta Yorta occupation has been by oral tradition. It is the oldest method of acquiring information from which written history has evolved. Early European historians, used this technique to write history like the Persian and Peloponnesian Wars-Herodotus father of history used oral source materials. Much of the Bible is said to have been written from oral sources (Harris, Cash, Hoover and Ward, 1975:2; Julin, Zabdyr and Meyer, 1979:1). Written history is a relatively recent adaption in Yorta Yorta society. It was introduced during the days of the reserve system (1876–1967) and while the Yorta Yorta adapted to the written word they retain a rich repository of oral knowledge. A concern for retaining oral knowledge culminated in the establishment of oral history projects in the late 1970s. The oral testimony presented in the claim complements the rich repository of Yorta Yorta oral knowledge.

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 misappropriate Yorta Yorta lands, in similar fraudulent style to that of Batman in 1835. Curr was a temporary sojourner in Yorta Yorta lands (during the 1840s) and wrote his recollections, apparently 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).

VEAC: Study of Red Gums along the Murray: What it delivers for Traditional Owners

‘National Parks’: ‘Joint Management & Co-Management’ What is it ? How does it work? and how can it be used to enhance local Indigenous control & empowerment?

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.

Joint Management Models Jointly Managed NP are now well established in the NT: Uluru-Kata Tjuta, 1985, Nitmiluk NP, Katherine Gorge,2000 and elsewhere in Aust- Boodaree (ACT) Mootawindigie (NSW). There is no generic model or blueprint for successful JM. They are not set in concrete but are evolving processes that can be adapted for the improvement of future management plans. Each agreement needs to be negotiated and be responsible to the needs and aspirations of each local community (Lawrence, 1996-97).

Way Forward from Here: Announcement of Victorian Governments ‘Native Title Settlement Agreement Framework’ VNTSF. Came out of package recommended by the Victorian Native Title Steering Committee chaired by Professor Mick Dodson. Provides and alternative path to land justice for Traditional Owners in direct negotiation with the Victorian Government. Yorta Yorta Nations in process of negotiating with Victorian Government for Agreements on National Park Management.

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