1. Yorta Yorta Struggle for Land Justice
Yorta Yorta v State of Victoria & Ors,
( )

2. Location of Yorta Yorta
Independent Sovereign territorial/linguistic nations from which the original, oldest and inherent rights to land come from
and are regulated under customary law
years prior occupation.

3. Land Rights Struggle

5. Mabo Decision 1992
Overruled Blackburn J. in Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 (the "Gove land rights case,") & 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.

6. Mabo gets rid of Terra Nullius (Mabo (No. 2) 1992 Brennan J
Mabo gets rid of Terra Nullius (Mabo (No. 2) 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. Attempt to decolonise mindset of racial superiority.
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).

7. 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).

8. Physical Presence on Land Sufficient: Justice Toohey
In Mabo (No2),’ it was physical presence on the land that was sufficient enough for Justice Toohey to find that Native Title existed’. Cultural factors didn’t apply. Physical occupation and presence was sufficient to give rise to a title of equal status to the imported common law notion of property rights.
'The defendants in the Murray Island case did not argue that the plaintiffs failed because their presence on the Islands was too recent; the relationship of the people to the Island was sufficient; their presence was not coincidental and random; and modification of traditional society in itself does not mean traditional title no longer exists‘ (Toohey J. at 192; Mabo (No2), 1992:5; Bartlett, 1993:5).

9. 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.

10. The Essence of Native Title
Video on Requirements of Native Title from Yorta Yorta Struggle for Land Justice Page at:

11. 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 connections, identity & inherent rights
The barriers to Land Justice-post Mabo- Yorta Yorta Case?
Key test for NT: Two Questions for the Court

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

13. 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 , para 129).

14. Yorta Yorta Struggle for Land Justice
Yorta Yorta Native Title Claim ( )

15. 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.

16. 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

17. 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).

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 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 appropriate Yorta Yorta lands, in similar fraudulent style to that of Batman in 1835-offered a stick of tobacco for the purchase of land
Curr was a temporary sojourner in Yorta Yorta lands (during the 1840s) and wrote his recollections, 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).

19. Barriers to Land Justice 21 Century Australia
Mindset of opposition to Indigenous rights, vested interests & media.
Way law was interpreted and applied in the Yorta Yorta case
Anglocentric and narrow minded interpretation of Native Title Act
All combined to pervert the course of Justice in the Yorta Yorta Case

20. Campaign for National Park & Joint Management

21. 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 years or since creation, land has been cared for as ancestral lands in a more holistic way.

22. PATHWAYS FOR FUTURE
A negotiated settlement between government & other parties, which recognises the Yorta Yorta as the traditional owners under a handback/leaseback arrangement and inalienable freehold title (see Models of Structures for Joint Management of NP’s in current BM Campaign research, 2004).

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