ANTAR-AGM 23 NOV,2002 Yorta Yorta Native Title Claim ( )

Presentation zYorta Yorta Struggle for Land Justice zNative Title Process zHigh Court Appeal zNative Title Outcomes zhttp://webraft.its.unimelb.edu.au/166010/pub/landjustice.htmhttp://webraft.its.unimelb.edu.au/166010/pub/landjustice.htm

‘Internal Colonialism’: Key Characteristics zRelations of Dominance & Subordination zAppropriation of Indigenous land and resources zExploitation and marginalisation zIdeologies of Racial Superiority zInstitutional Racism (Roberts, D. Self-determination and the Struggle for Aboriginal Equality, in Bourke, C. & Bourke, E & Edwards,W. eds, Aboriginal Australia, University of Queensland Press, St Lucia, Queensland, 1994, pp )

Key Manifestations of Internal Colonialism zSystematic discrimination, Domination & Denialism have become institutionalised throughout the structures of society. zStructural Barriers within the Native Title Process preventing Indigenous claimants from gaining due entitlements- Sequential barriers process zTide of History Euphemism used as ‘trope’ for dispossession.

Claimable Native Title Land under NTA, 1993

Chronology of YYNTC zLodgment of YYNTC Application: 21 February 1994 zMediation: September 1994-April 1995 zPreparation for Federal Court Trial: May October 1996 zFederal Court Trial before Justice Olney: October December 1998 z Date of Olney J. Judgment: 18 December 1998 z Date of Appeal to Full Bench Federal Court: August 1999 z Decision of Full Bench Appeal: 8 February 2001 z Date of Application seeking leave to appeal to High Court, 23 May 2002 zDate of High Court Appeal May 2002 zDate of High Court Decision of YYNTC 2002?

Yorta Yorta v State of Victoria & Ors, Trial ( )

Justice Olney’s Decision, Federal Court Melbourne 18 December 1998 zThe 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 zYorta 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). zThe 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 , para 129).

Decision of Full Bench Appeal: 8 February 2001 zMajority of the Full Court of the Federal Court, comprising Branson and Katz JJ, found error in the reasoning of the trial judge, but upheld his determination and dismissed the appeal. zBlack CJ (dissenting) considered that the finding of the trial judge that native title expired before the end of the 19 th century was erroneous, that the appeal should be allowed

Summary of Yorta Yorta High Appeal Grounds High Court May 2002: zJudge used the wrong test to determine whether or not YYNT survived in accordance with s.223(1) of the NTA,  R equirement of written proof of maintenance of a "traditional Aboriginal community" from 1788 to prove native title creates an impossible burden to fulfil, and a tea-towelled stereotyped image of the "real Aborigine". zJustice Olney at the trial and the Majority on appeal erred in law by privileging the written record over oral testimony. zAnglocentric notions of Aboriginality used as the ultimate test in validating the truth of Indigenous knowledge of their connections to country.

Negotiations with Victorian Government zRob Hulls announced Victoria’s desire to mediate with the Yorta Yorta on 8 February 2001 to: -work towards negotiated settlement and resolve practical issues; -recognise the special significance to Yorta Yorta of claim area; and -enable long term Yorta Yorta involvement in land management. zNegotiation principles were signed by Victoria in May. Negotiations have progressed with Justice Tony Fitzgerald acting as mediator.

NT Outcomes, (cont) A decade since Mabo decision, there have been 30 determinations that native title continues to exist 24 of those were reached through negotiation rather than litigation. There are 591 active claimant native title applications before the NNT. - almost half are in mediation.

NT Outcomes

Internal Colonialism in 21st Century Australia

Yorta Yorta Struggle Continues