Depriving the Yorta Yorta of land

On December 12, the legal system once again failed the Indigenous peoples of Australia. Since the High Court dismissed the Yorta Yorta people's appeal against a Federal Court decision that they no longer occupied their lands according to traditional laws and customs.

The Yorta Yorta people traditionally occupied a stretch of land along the Murray River in what is now the Murray-Goulburn region of the Victorian-NSW border. The Yorta Yorta people were invaded and dispossessed in the 1840s, suffering immense cultural and economic upheaval, as they were shifted into European settlements and subjected to the frontier violence that was all too common in this country's colonial history. The Yorta Yorta population was reduced by 85% within one generation of European invasion, and — like elsewhere in the colonies — it was assumed they were a "dying race".

However, the Yorta Yorta are a fighting people. For more than 160 years they have been fighting for their lands. Yorta Yorta people were amongst those who established Australia's first Aboriginal organisations in the 1930s, the Aborigines Progressive Association and the Australian Aborigines League. They worked hard to raise awareness in the community about the plight of Indigenous people, and raised the demand that Indigenous people be granted full citizenship rights, including land rights and the right to retain and practice their traditional customs.

Following the Native Title Act passed in 1993, the Yorta Yorta people became the first group to lodge a land rights claim, and their case went on to be the longest-running native title case in Australia's history. After being rejected by the Native Title Tribunal, the case was taken to the Federal Court where, on December 18, 1998, Justice Olney found that native title did not exist. Olney claimed "The tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs."

The Yorta Yorta appealed the Federal Court decision, but the appeal was also lost. On February 8, 2001, the full bench of the Federal Court handed down its decision, finding that Justice Olney was justified in claiming that the Yorta Yorta community had — over time — lost its character as a traditional Aboriginal community. The December 12, High Court finding supported this decision, dismissing the Yorta Yorta's final avenue of appeal.

This 19th century view of Indigenous culture as a quaint and static example of a "primitive race" must be incredibly offensive to the diverse Indigenous population of Australia, from those in the remote central desert regions living on their tribal lands and practising customary law and ceremony to those living in the industrialised cities, not to mention those still searching for their identity after having been removed from their families and denied their true history.

The Federal Court decision suggests that nothing less than a lifestyle and economy like that of pre-invasion days will be accepted as proof of Native Title.

The criteria that must be met by native title claimants are often near impossible, stacking the odds against Indigenous people from the very beginning. The burden of proof demands huge expenditure on research and legal advice that is borne by claimants (who are often amongst the poorest sections of this society), who then face government and big business once in court.

On top of this, is the test of continuous connection to land since occupation. The stolen generation, plus the common practice of driving people off their lands and onto reserves and settlements, makes it impossible for many Indigenous people to have their land rights recognised.

Rather than being an accessible and effective way for Indigenous people to seek justice and land rights, the Coalition's racist "Ten Point Plan for Native Title" has once again proved to be in the interests of the government and pastoral industry.

As Aboriginal and Torres Strait Islander Commission chairman Geoff Clark stated on December 12, "it is not the Yorta Yorta people who are at fault in today's judgment, it is the pressure of colonization that once again deprives Indigenous people of our birthright."

From Green Left Weekly, February 12, 2003.
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