Introduction and Methodology

‘NOT ONE IOTA’: THE YORTA YORTA STRUGGLE FOR LAND JUSTICE

Submitted by

Wayne Roderick Atkinson BA (Hons) La Trobe University

A thesis submitted in total fulfilment of the requirements for the degree of Doctor of Philosophy

School of Law and Legal Studies Faculty of Law and Management

La Trobe University Victoria 3086 Australia November 2000

Contents

Summary of Thesis vi Statement of Authorship vii Acknowledgements vii Abbreviations x Table of Figures x Preface ix

Thesis Context ix Thesis Aims x The Study Area x Terminology xii Structure of Thesis xiii

Chapter 1: Introduction and Methodology 1 1.1 Indigenous Equality in Land 2 1.2 Measures to Enhance Equality in Land 2 1.3 Indigenous Epistemology 4 1.3.1 Inclusion of Indigenous People 5 1.4 Holistic Approach 7 1.5 Action Based Research 8 1.6 Evidentiary Materials 8 1.6.1 Ethnographic Material and Indigenous Knowledge as Evidence 9 1.6.2 Continuity of Laws and Customs 11 1.6.3 Anthropological Issues 1 2 1.7 Conclusion 13

Chapter 2: Yorta Yorta Occupation 14 2.1 Introduction 14 2.2 Clarifying Misconceptions of Aboriginality 14 2.3 Indigenous Occupation 15 2.4 Timeline of Occupation 16 2.5 Change and Adaption Revisited 18 2.5.1 Responding to Change 19 2.6 Nature and Diversity of Yorta Yorta Land 20 2.6.1 Water 20 2.6.2 Food Sources 21 2.6.3 Living Patterns 21 2.7 Traditional Land Management Practices 22 2.7.1 Use of Fire 23 2.8 Aboriginal Sites as Evidence of Occupation 23 2.9 Material Evidence 24

2.10 Anthropological Evidence 25 2.11 Linguistic Evidence 27 2.12 Social Organisation 28 2.13 Yorta Yorta Gatherings on the Land 31 2.14 Spiritual Connections 33 2.15 Summary of Traditional Connections 35

Chapter 3: Yorta Yorta Survival 37 3.1 Introduction 37 3.2 European Invasion 37 3.3 Effects of Colonisation 39 3.4 Yorta Yorta Resistance 40 3.5 Protection 42 3.6 The Reserve System 43 3.7 Reserves in the Claim Area 44 3.8 Ration Depots on Pastoral Stations 44 3.9 Administration of Reserves 45 3.10 Co-existence in the Claim Area: A Case Study 46 3.10.1 Pastoralists Anger at Loss of Indigenous Women 49 3.10.2 Nature of Relationship 51 3.11 Maloga Mission 1874–88 51 3.12 Cummeragunja 1888–present 52 3.13 Ongoing Struggle 52 3.14 Yorta Yorta Today 53 3.15 Conclusion 54 Chapter 4: Land Justice in Victoria and New South Wales 55 4.1 Introduction 55 4.2 Victoria 56 4.3 New South Wales 60 4.3.1 Major Shortcomings of the ALRA, 1983 (NSW) 61 4.3.2 Crown Lands (Validation of Revocations) Act 1983 (NSW) 62 4.3.3 Amount of Land Returned in New South Wales 65 4.4 Yorta Yorta Local Land Council 66 4.4.1 Original Cummera Reserve Lands 1883–1900s 68 4.5 Landmark of Yorta Yorta Struggle 69 4.5.1 Cummera Walk Off 1939 70 4.5.2 Fringe Camps and Continued Connections 70 4.5.3 Post-Strike Struggle 71 4.6 Claim for Barmah/Moira Forest 1975 72 4.7 Conclusion 73 Chapter 5: The Mabo Setting 75 5.1 Introduction 75 5.2 Path to Land Justice through Legislation 76 5.3 Path to Land Justice through the Common Law 76 5.4 Legal basis before Mabo 78 5.4.1 Terra Nullius 78 5.4.2 Foundation of Native Title 79 5.5 The Struggle to Assert Land Rights at Common Law 80 5.5.1 Batman Treaty 80

5.5.2 Milirrpum v. Nabalco (1971) (The Gove Case) 81 5.6 Australian Law and other British Colonies 82 5.6.1 Significance of Milirrpum 83 5.7 The Mabo Litigation 1982–92 84 5.8 The Mabo Decision 1992 85 5.8.1 Test for Proving Native Title 86 5.8.2 Mabo and Extinguishment of Native Title 87 5.8.3 Communal Nature of Native Title 87 5.8.4 Change and Continuity 88 5.8.5 Onus of Proof 89 5.9 Assessment of Mabo 91 5.9 1 Drafting Mabo into Australian Statutory Law: The NTA, 1993 92 5.9.2 Recognition Space between Anglo-law and Native Title 92 5.10 Conclusion 93

Chapter 6: The Mediation Process 1994–95 94 6.1 Introduction 94 6.2 Past mind-sets Revisited 94 6.2.1 Anti-Land Rights Campaign 1980s 95 6.3 Preparing for Mediation 96 6.3.1 Claim Statement 98 6.4 The Mediation Process 99 6.4.1 Limitations of Tribunals 100 6.4.2 The Parties 101 6.4.3 The Process 102 6.4.4 Hearing the Multitude of Parties 103 6.5 Mediation Outcomes 104 6.6 Mediation: An 'Experimental Exercise' 104 6.7 Control over Process 106 6.8 Implications for Regional Agreements 106 6.9 The Native Title Industry 107 6.10 Perspectives on Mediation 108 Chapter 7: The Federal Court 1995–98 110 7.1 Introduction 110 7.2 The Trial 1996–98 110 7.2.1 Yorta Yorta v State of Victoria and Ors 110 7.3 Establishing Connections under Mabo 111 7.4 Contemporary v Traditional 112 7.5 Requirements of Native Title 113 7.5.1 An Identifiable Community 115 7.6 Yorta Yorta Perceptions 116 7.7 Genealogical Evidence 117 7.8 Concept of Elder 119 7.9 Organisational Structures Reflect Yorta Yorta Identity 124 7.10 Yorta Yorta Cultural Officers 126 7.11 Conclusion 129 Chapter 8: Proving Connections 130 8.1 Introduction 130

8.2 Occupation as a Matter of Traditional Law 130 8.3 Yorta Yorta Knowledge of Connections 132 8.4 Spiritual Connections 134 8.4.1 Dealing with the Dead as a Matter of Traditional Law 135 8.4.2 Origins of Laws and Customs 138 8.5 Holistic View of Land and Water 139 8.6 Dependence on Traditional Resources 140 8.7 Protection of Places as Matters of Traditional Law 142 8.7.1 Traditional Places 143 8.8 Transmission of Laws and Knowledge 145 8.9 Decisions on Land and Resources as Matters of Traditional Law 147 8.9.1 Relationship between Country and Survival 148 8.9.2 Joint Management with Land Authorities 148 8.10 Yorta Yorta Traditional Territory 149 8.10.1 Permission to Enter Country 150 8.11 Continuity of Practices and Beliefs 154 8.12 Cultural Maintenance 155 8.12.1 Keeping Knowledge and Language 156 8.12.2 Practising Art and Dance 156 8.12.3 Recognition of Totems and Species 157 8.13 Summary of Traditional Rights and Interests 157 8.14 Maintenance Requirements 158 8.15 Tide of History 159 8.16 Ability to Exercise Traditional Laws and Customs 160 8.17 The Issue of Abandonment 163 8.17.1 Means by which Connections Maintained 164 8.18 Yorta Yorta Identity 164 8.19 Continued Assertion of Rights 165 8.20 Cultural Revival and Continuity 166 8.21 Ancestral Links 169 8.22 Conclusions 172 Chapter 9: The Federal Court Decision 176 9.1 Introduction 176 9.2 Determination of Yorta Yorta Native Title Hearing 176 9.3 Errors of Law in the Judgement 176 9.4 Test for Proving Native Title 177 9.4.1 An Identifiable Community 178 9.4.2 Yorta Yorta Ancestors 183 9.4.3 Traditional Territories 187 9.5 Acknowledgment and Observance of Customs 191 10.5.1 Anglocentric Approach 193 9.6 Maintenance of Connections 195 9.6.1 Constructing Barriers 197 9.6.2 Dichotomy of Aboriginality Perpetuated 198 9.7 Use of Documentary Evidence to Justify Extinguishment 199 9.7.1 The 1881 Land Claim Petition 199 9.8 Privileging European Sources 201 9.8.1 Exclusion of Oral Knowledge 203 9.8.2 Embellishment Allegation 204

9.8.3 Yorta Yorta Authorities Ignored 204 9.9 Olney J.'s Irritation at the Proceedings 206 9.10 Continuity and Tradition Revisited 209 9.11 Conclusion 210 Chapter 10: Summary and Conclusions 212 10.1 Native Title Outcomes 1992–99 212 10.2 Reflections on Current Land Status 212 10.3 Mabo Revisited 2000 213 10.4 Structural Barriers Perpetuate Domination 214 10.5 Race Relations Outcomes 214 10.6 Who is Native Title Empowering? 215 10.7 Conclusion 2 16

Bibliography 220 Appendices 253

1 Chronology of the Yorta Yorta Struggle for Land Justice 1860–2000 253 2 Yorta Yorta Policy on Claimed Land and Waters 1996 262 3 List of Yorta Yorta Ancestors 270 4 Vital Statistics of Yorta Yorta Native Title Claim 1994–2000 281 5 Parties and Legal Counsel to the Claim 285

Summary of Thesis

This thesis is a multi-disciplinary case study of the Yorta Yorta struggle for land justice in Victoria that culminated in the Yorta Yorta Native Title Claim 1994–2000 (YYNTC). It analyses the Yorta Yorta Struggle for land justice on the basis of inherent rights, and assesses the extent to which land justice has been achieved under contemporary Australian politico-legal systems. The framework of the thesis is structured on the human rights principles of racial equality and justice before the law, which are used to critically assess the way that common law notions of property rights have been applied in Yorta Yorta v State of Victoria and Ors (Federal Court of Australia, 1998). It assesses the way the Native Title law has been administered in the Yorta Yorta case, and identifies the main impediments to land justice under existing politico-legal processes. The thesis argues that ‘Not One Iota’ of land justice has been delivered to the Yorta Yorta on the basis of prior rights. Indigenous and non-Indigenous epistemologies are used to analyse the concept of Native Title and the ‘doctrine of continuity’ exemplified by Toohey J. in Mabo (No. 2). Yorta Yorta occupation of the claim area is analysed against the themes of adaption and cultural continuity. This provides a framework for arguing that Yorta Yorta Native Title has survived. The analysis of the YYNTC is treated as a cross-cultural journey that follows the Yorta Yorta struggle from colonisation. It is a journey that involves writing from the standpoint of both a Yorta Yorta person and a scholar in Aboriginal-European race relations. This position is used to analyse the YYNTC and the Native Title process of 1994–99 and to argue that the Federal Court decision of December 1998 is based on ‘Anglocentric and frozen views’ of Aboriginality and Native Title rights. The degree of scrutiny imposed on claimants to prove rights, the disregard for Yorta Yorta knowledge, and the prevailing mindset towards reconciling the original title within the Australian politico-legal system are identified as major obstacles to land justice within the claim area. The thesis scrutinises the decision of Olney J. of December 1988. It argues that the application of the ‘tide of history’ metaphor from Mabo in the YYNTC, together with the construction of a previous claim to imply the relinquishment of pre-existing rights, have created other major barriers to land justice. It is asserted that the ‘tide of history’ has replaced terra nullius as the trope for dispossession, and that the Olney decision has important implications for other Native Title claimants south of the Tropic of Capricorn.

Statement Of Authorship

Except where reference is made in the text of the thesis, this thesis contains no material published elsewhere or extracted in whole or in part from a thesis by which 1 have qualified for or been awarded another degree or diploma. No other person's work has been used without due acknowledgment in the main text of the thesis. This thesis has not been submitted for the award of any degree or diploma in any other tertiary institution.

Acknowledgments

In conceptualising, researching and producing this thesis there are many acknowledgements that need to be made. First my immediate forebears, Uncle William Cooper, and Grandpa Thomas Shadrach James, whose words and leadership inspired me to embark on a project of this magnitude. My parents who experienced the effects of land loss and marginalisation and my brothers and sisters who all contributed in their own way to our struggle for land justice, and to upholding the pride that has been instilled in us as Yorta Yorta people. I am indebted to my people for their strength, and resilience and for the determination to fight on no matter what the barriers have been. In researching and writing the thesis I must thank my wife Cathy Guinness, for her patient support, encouragement and commitment to a project that encompasses at least two decades of our lives. Much appreciation is also extended to those who have assisted me in the process. To my supervisor Professor Margaret Thornton for her knowledge and experience in the subject matter, and for the intellectual challenges that were offered in a journey that was ultimately designed to get the best out of the process. Many thanks to other colleagues and friends who provided assistance and resources. To Rod Hagen for his knowledge on the subject area and to Arnold Bloch Leibler, Solicitors for the Yorta Yorta, for access to the evidence presented in the Yorta Yorta case. Finally I must thank the Yorta Yorta Nations Inc for entrusting me with the role of Senior Research Officer. This allowed me to gain access to important knowledge and research materials on Yorta Yorta culture and history, and provided me with an opportunity to be at the cutting edge of our struggle for land justice.

Signature: Date:

Abbreviations

AAL Aborigines Advancement League (Victoria) ABL Arnold Bloch Leibler, Solicitors for the YYNTC ABS Australian Bureau of Statistics AGPS Australian Government Publishing Service AIATSIS Australian Institute of Aboriginal and Torres Strait Islander Studies ALB Aboriginal Law Bulletin ALRNTA Aboriginal Land Rights (Northern Territory) Act, 1977 (Cwlth). ANU Australian National University, Canberra. APB Aborigines Protection Board ATSIC Aboriginal and Torres Strait Islander Commission AWB Aborigines Welfare Board CAR Council for Aboriginal Reconciliation CERD Convention on the Elimination of all Forms of Racial Discrimination DAA Department of Aboriginal Affairs DEIP Department of Employment and Industrial Relations FCAATSI Federal Council for the Advancement of Aborigines and Torres Strait Islanders HREOC Human Rights and Equal Opportunity Commission ICCPR International Covenant on Civil and Political Rights ILF Indigenous Land Fund NNTT National Native Title Tribunal NSW New South Wales NSWLRA New South Wales Aboriginal Land Rights Act, 1993 (NSW) NTA Native Title Act OUP Oxford University Press RDA Racial Discrimination Act USSC United States Supreme Court WGIP Working Group on Indigenous Peoples YYCG Yorta Yorta Clans Group YYNTC Yorta Yorta Native Title Claim YYTC Yorta Yorta Tribal Council, 1993-1989 YYNI Yorta Yorta Nations Inc, 1999-2000.

Table of Figures

1 Traditional Yorta Yorta land and waters x 2 Lands being claimed and sites visited during claim 9 3 Cadell Fault and Story of Great Flood 19 4 Sites recorded in Yorta Yorta territory 23 5 Trade routes in the Murray region 26 6 Biami the Creator 34 7 Patchwork of lands and major centres occupied 43 8 Reserves and mission stations 45 9 Aboriginal landholdings in NSW and Victoria 1999 66

Preface

Thesis Context The Yorta Yorta have fought tenaciously to hold onto their inherent rights to land and resources. Following Mabo v State of Queensland (No2) (1992) 175 CLR 1 (Mabo) and the enactment of the Native Title Act, 1993 (NTA), Indigenous hopes of gaining land justice at common law were raised. The Yorta Yorta was one of the first Indigenous communities on mainland Australia to test the strength of the Mabo decision. They lodged their claim in 1994, and were engaged in the Native Title process until August 1999. The thesis title, 'Not One Iota', was inspired by the struggle for fundamental rights championed by Yorta Yorta leaders in post-colonial Australian political discourse (Markus, 1986; Appendix 1). It was further influenced by the experience gained from the previous claim of 1984 (see Chapter 6). As senior researcher for the Yorta Yorta, 1983–99, I was involved in researching and documenting the evidence that culminated in the current YYNTC. During the Native Title process (1995-1999), I also gave substantive evidence of my family connections as one of the named applicants (see Yorta Yorta Witnesses at 268). I also assisted with the facilitation of the mediation process, 1995–96, and the Federal Court hearing of 1996-1998. This involved coordinating the on-site evidence that was heard at various locations throughout the claim area. The mobilisation of the hearing was a major task. It embraced a cavalcade of people that included the Court representatives, Yorta Yorta witnesses, and family members, community organisations, media, lawyers, government representatives and a multitude of other parties. More than 400 parties (470) opposed the claim. The expert evidence, including the key witnesses for the respondents, was heard in Melbourne. Additional evidence was heard at Echuca and Shepparton, towns in country Victoria, and a special sitting was held in Sydney for the State of New South Wales. The Yorta Yorta case generated nearly 12,000 pages of transcript. This included 6,247 pages (54%) of Yorta Yorta oral evidence. The audio-video record is of similar proportion. There were also substantial witness statements, submissions (1,000 pages), map exhibits, genealogical data, and photographic materials. It is rare indeed for such a compendious recording of first-hand views of Indigenous people to be available. The case has provided the Yorta Yorta with a significantly detailed database, much of which will be utilised in the thesis. The experience will also be considered in terms of the physical, emotional and monetary requirements that are imposed on claimants by the Native Title process.

The study reaches back in time and examines the evolving nature of Yorta Yorta culture and identity. This provides the contextual framework for analysing continued connections, and the recognition of prior Yorta Yorta rights. In analysing the Yorta Yorta struggle, I have been guided by the linkage analysis used by Mark Gumbert. Gumbert describes the land struggle as a social movement that is underpinned by 'deep-seated historical roots'. That is, no sooner has a specific event been put forward as the founding cause that the 'prior conditions' giving rise to the alleged genesis is thrown into discussion. The suggested starting point is then seen as 'but a link in a chain . . . a step in a long journey' (Gumbert, 1984:1). Such is the case with the Yorta Yorta struggle. The journey takes us back to the time that the Yorta Yorta world was created and the custodians were endowed with the rights that the Anglo-Australian legal system partially recognised in 1992. Thesis Aims The primary aim is to analyse the historic Yorta Yorta struggle for land and to assess critically the extent to which historic land justice has been delivered under the Native Title process. In fulfilling this aim I shall: 1. Identify the land and waters to which the Yorta Yorta are claiming Native Title rights (the claim area) and examine Yorta Yorta cultural connections with the area before and after colonisation. 2. Examine the historic struggle for land justice and highlight the means by which Yorta Yorta connections have been maintained. 3. Scrutinise the background to the Mabo (No. 2) decision and the procedures for gaining Native Title under the Native Title Act 1993 (Cwlth), and determine whether Native Title rights are equal to or a lesser form of title to that of other common law grantees.

4. Analyse the Native Title process and the extent to which claimants are expected to prove their connections, including the process of mediation and litigation in the YYNTC. 5. Assess the extent to which the common law recognises Yorta Yorta rights to land and waters and evaluate the Native Title process in relation to the Yorta Yorta struggle, including the Reconciliation process.

The Study Area The YYNTC includes public lands and waters that the Yorta Yorta claim are part of their ancestral lands. The original territory stretches from Jerilderie and Deniliquin

(NSW) in the north to Rushworth in the South, and from Cohuna (downstream of Echuca) in the west to Howlong near Albury in the east (see-Figure 1 below). The Yorta Yorta are often referred to as the Bangerang who are one and the same group. They are both connected to the same ancestors but for the purpose of this thesis I shall use the term Yorta Yorta. The relationship between the Yorta Yorta/Bangerang is further examined in Chapter 1 and Chapter 7.

Figure 1: Traditional Yorta Yorta land and waters

As indicated, much of the area comprises the Murray River and other major tributaries and associated lands on both sides of the rivers, most of which are classified as State park and forest lands. The total area of the original tribal lands possessed, occupied and enjoyed by the Yorta Yorta is estimated to be some 20,000 square kilometres. The claimable land under the NTA is about 2,000 square kilometres, less than 10% of the original lands. Contrary to fair and just principles for land loss, Native Title has been extinguished on the remaining Yorta Yorta lands by grants of interests (mostly freehold) by the Crown. The effects of legislative and executive action on Yorta Yorta rights to land, water and compensation require some preliminary examination.

Land and Water The Yorta Yorta view the relationship between land, water and Native Title rights as one (see Chapter 8 at 8.2). Since colonisation, the allocation of water from within the claim area has created a hierarchy of competing and conflicting interests. The regulation and control of water have dramatically altered traditional replenishment flows to the forests and wetlands. The competition between irrigation and replenishment needs, and the issue of water quality is insurmountable. A key question of the thesis will be the extent to which traditional Yorta Yorta rights have survived water regulation and control. Compensation The question of fair and just compensation for the extinguishment of Yorta Yorta Native Title is integral to land justice. Moreover, the dispossession of Indigenous people without their consent or without the provision of compensation underpins the principles of land justice and equality before the law. Demands for compensation by the Yorta Yorta have been synonymous with their demands for land (see Appendix 1). While the majority in Mabo found against compensation for extinguishment prior to the passage of the Racial Discrimination Act 1975 (Cwlth) (RDA), the legality of extinguishment is still to be contested in the courts. The Yorta Yorta Compensation Claim (YYCC) will not be heard until after the Native Title claim. These are the central issues of the YYNTC. It will be from the Yorta Yorta experience rather than the Anglo politico-legal system, that one will be able to assess whether or not Native Title has delivered the historic land justice demanded.

Terminology When referring to the Yorta Yorta, I will sometimes use the term 'Koori' which is used in the southeastern region of Australia (Victoria and New South Wales) as an expression of shared identity (Koorie Heritage Trust, 1991:1). The Koorie Heritage Trust spells Koori with an 'e' on the end; for consistency, I will use 'Koori'. When referring to Aboriginal and Torres Strait Islander peoples on a national level I will often use the term 'Indigenous'. The same term will be used for describing Indigenous groups in the global context (Fesl, 1989:1–3; Broome, 1994:43–5; Ministerial Review on State Government Services, 'Aboriginal Cultural Heritage', 1991:7; Koorie Heritage Trust, 1991).

Structure of Thesis

Chapter 1 introduces the thesis and discusses the methodology. The methodology combines academic and Indigenous discourses with participatory and applied research methods. Academic skill and experience gained from participating in the Yorta Yorta struggle are combined with Indigenous perceptions of land justice. Chapter 2 analyses the origins and foundations of Yorta Yorta society. I examine the physical and cultural connections and the means by which the Yorta Yorta have maintained their connections. A timeline of Indigenous occupation is established and the concepts of change, adaption and cultural continuity are used to examine past and present links. It is argued that these are key concepts for determining the existence of Native Title, and the manner in which traditional laws and customs adapt to accommodate changes in Indigenous land relations and subsistence patterns. Chapter 3 examines introduced changes and explores their impact on traditional land relations. I analyse the conflict over land ownership and the changes that were forced on the Yorta Yorta as a basis for viewing the 'tide of history' idea introduced by Brennan J. in Mabo. The underlying assumptions of the 'tide' idea are critically examined in the light of those events that impacted on Yorta Yorta rights. This provides the basis for examining the principles of equality and justice under Mabo and for contrasting the status of Native Title with introduced property rights. In light of Wik Peoples and Thayorre People v Queensland (1996) 141 ALR 129, I examine the nature of Yorta Yorta relations with the pastoral industry and the concept of co-existence. The role and contribution of the Yorta Yorta to the development of the pastoral industry is reviewed. The government's attempts to set aside land for the Yorta Yorta under various protection policies (1845–83) is revisited and the patchwork of lands that provided for continued connections are identified. It is argued that this history is significant for understanding the question of survival and cultural continuity.

Chapter 4 explores the main argument of the thesis, that is Indigenous land justice and equality under International human rights principles, and analyses the historic political and legal struggle for land, water and reparation. It looks at the lands granted (through administrative and statutory processes) by those States that border the traditional Yorta Yorta territories. This provides an analysis of the extent to which governments have recognised prior occupation, and an overview of the current status of Yorta Yorta land rights pre-Mabo. Chapter 5 continues to analyse the background of Native Title by examining Indigenous land rights in Australia and overseas. Parallels between the ‘tide of history’ view of Brennan J. are drawn with the opinion of Marshall C.J. of the United States Supreme

Court (U.S.S.C), in Johnson v. McIntosh (1823). I look at the mindset and rationale of terra nullius and examine those cases that were a barrier to Indigenous land justice in Australia. This is used to analyse the Mabo decision that recognised prior Indigenous occupation, and as a framework for viewing the legislative requirements for Native Title in the YYNTC. Chapter 6 evaluates the mediation process before the National Native Title Tribunal (NNTT). The Tribunal as a land dispute mechanism is evaluated and the sequential barriers to achieving Native Title through mediation are identified. This chapter also devotes significant attention to the mindset of non-Indigenous property holders and the antipathy towards the Yorta Yorta people and their struggle for land justice. Chapter 7 follows the progress of the claim through the Federal Court from 1995 to 1998. I examine the YYNTC by drawing on the evidence of Yorta Yorta occupation and continued connections. I utilise extracts of the oral testimony given by the applicants, on site and in the Court, to bring out the cultural context of the Indigenous viewpoint, and to expose the extent to which claimants have to prove connections. Chapter 8 continues the analysis of the proof requirements of native title, from the oral and documentary evidence. This provides further insight into the degree of proof imposed on claimants by the Native Title process, and the manner in which the Yorta Yorta presented their case. This section sets up the framework for assessing the Olney J decision of December 1998. In Chapter 9, I assess the Native Title process and evaluate the question of whether the Yorta Yorta have been able to gain an 'iota' of land on the basis of prior rights. (see Chapter 1 'Introduction and Methodology' for term' iota' and context in which it was used by Yorta Yorta elder William Cooper in 1939.) I examine the current claim and the Yorta Yorta Native Title process and analyse the question of land justice and equality before the law. The barriers that continue to prevent the Yorta Yorta from gaining land justice post-Mabo are identified in light of the Reconciliation process.

Chapter 10 summarises the Yorta Yorta struggle in relation to the thesis framework. It identifies the main barriers to land justice, in the YYNTC and assesses the extent to which historic justice has been delivered.

Chapter 1: Introduction and Methodology

It is over half a century since Yorta Yorta elder and statesman, William Cooper, described the nature of our struggle for justice and equality before the law. Writing on the status of Yorta Yorta land justice in 1939, he asserted: How much compensation have we had? How much of our land has been paid for? Not one iota! Again, we state that we are the original owners of the country. We have been ejected and despoiled of our god-given right and our inheritance has been forcibly taken from us (Cooper, 1939).

These questions continue to be asked. Not one iota of land or compensation has been forthcoming. In spite of inherent rights that demand nothing less than equal protection, it seems that Indigenous equality in land and compensation for the confiscation of property under Australian politico-legal institutions is ever elusive (Thornton, 1990:9; Bartlett, 1993:20; Bartlett, 2000:3). Notwithstanding the antiquity of Indigenous occupation, our current land status in southeast Australia reflects a legacy of ‘unutterable shame’ (see Chapter 4 for analysis of Koori Land Rights in Victoria and New South Wales; Mabo (No. 2), Deane and Gaudron JJ. at 104; Langton, 1999:73–4; Bennett, 1999:1–11;Yunupingu, 1998:2–3; Reynolds, 1987:1–5; Roberts, 1994:221–2; Aboriginal Deaths in Custody Royal Commission Report, 1992). The way the legacy continues to manifest itself is highlighted in the report of the Royal Commissioner into Aboriginal Deaths in Custody, Mr Elliot Johnson QC: … until I examined the files of the people who had died and the other materials which have come before the Commission and listened to Aboriginal people speaking, I had no conception of the degree of pin-pricking domination, abuse of personal power, utter paternalism, open contempt and total indifference with which so many Aboriginal people were visited on a day to day basis (in Roberts, 1994:222).

The denial of land justice is at the heart of the Indigenous struggle. Land loss has caused Indigenous Australians to remain in a state of what Beckett describes as 'internal colonialism'. The expropriation of land, the exploitation of labour and the marginalisation of Indigenous groups are manifestations of internal colonialism. It is driven by ideologies of racial superiority and the practice of systematic discrimination that serves to entrench inequality and disadvantage (Beckett, 1987:185–7; Roberts, 1994:221; Markus, 1994:1–17; Watson, 1996:1–12; Manderson, 1999:1–2; Aboriginal and Torres Strait Islander Commission (ATSIC) Report to Commission on Human Rights on Racial Discrimination in Australia, 1999).

1.1 Indigenous Equality in Land The right of equality before the law, otherwise known as 'formal equality', is a fundamental human right. It is about applying the law in a fair and impartial manner to all citizens regardless of race. Treating people the 'same way' when they are differently situated, however, produces 'inequality, not equality' (Thornton, 1990:15–16; Aboriginal and Torres Strait Islander Social Justice Commissioner, 1999; Djerrkura, 1999:6–7; Bartlett, 2000:3–4). Integral to the doctrine of formal equality is the notion of 'substantive equality', which is about achieving greater equality of result. The dominant group, through its more privileged position of class and access to wealth opportunities, becomes the benchmark of substantive equality. Special 'affirmative action' measures may be introduced to enhance the relative socio-economic position of Indigenous people. The desired goal is to increase Indigenous socio economic status to the level of equality enjoyed by mainstream society. The return of land to Indigenous Australians is an essential step towards this goal. Moreover, the return of land is a process, that Justice Woodward declared was a matter of 'simple justice' (Woodward Report on Land Rights in the Northern Territory, July 1974); see also ATSIC Report, 1999:15; Yunupingu, 1998:6; Bird, 1993:127–8; Thornton, 1990:15–16). The ideas used to justify dispossession and domination and the barriers to achieving land justice will be scrutinised. Their effect on preventing Indigenous people from gaining an equal footing in Australian society is highlighted by Professor Thornton who equates domination with state control (Thornton, 1990:10–11). Similarly, Edward Said connects domination, with western forms of authority structures and racial ideologies. It is before these structures that Said argues Indigenous people are 'expected to bend' (Said, 1995:3–4, 227; see also Markus, 1994:8–17). The extent to which these barriers continue to deny Yorta Yorta land justice in the post-Mabo era will be illuminated.

1.2 Measures to Enhance Equality in Land The Racial Discrimination Act 1975 (Cwlth) (RDA) entrenched the right of equality before the law (RDA, s.10). The RDA provides for protection of 'citizens rights from the arbitrary deprivation of property' and for 'affirmative action' principles. Affirmative action allows governments to adopt 'special measures' that are required to 'fix inequality and to ensure people from disadvantaged groups have full and equal enjoyment of their rights' (ATSIC Report, 1999:7; Libesman, 1996:11). Special measures are not deemed racially discriminatory but are designed to provide a disadvantaged group with what Thornton argues is a 'starting point for participating as equals'. They include the proviso that once the objectives are achieved they do not amount to separate rights (CERD, s1 (4); Thornton, 1990:18).

Governments have used special measures to address Aboriginal disadvantage through the provision of special services in health, housing, education and employment. Special measures are also included in the NTA, which recognised that the property rights of Indigenous people should be treated equally. Brennan J., Mason CJ. and McHugh J., Mabo (No. 2), agreed that the Court could not perpetuate a view of the common law that was unjust, did not respect all Australians as equal before the law and was out of step with international human rights norms. Furthermore, Deane, Gaudron and Toohey JJ. rejected the legal barrier of terra nullius, which they held was repugnant and inconsistent with historical reality (NTA, C2). While the RDA does not make any explicit statement about Native Title, it was Mabo v State of Queensland (No. 1) (1988) that accorded formal equality and protection of Native Title rights under the RDA. Native Title also includes substantive and procedural rights of protection and non- interference as well as compensation (Bartlett, 1993:23). Indigenous expectations are that Native Title should be equal to other titles that arise from the common law principle of prior occupation. The Aboriginal and Torres Strait Islander Social Justice Commissioner recommended that Native Title must be given equal protection (Aboriginal and Torres Strait Islander Social Justice Commissioner Report, 1995:13, 44; Dodson M., 1997). Indeed the Commissioner argues that the RDA is consistent with the common law view 'that native title is to be as sacred and securely safeguarded as fee-simple and absolute title'. Michael Mansell sees the recognition of prior rights as a basis for achieving greater Indigenous equality and autonomy in the future (Mansell, 1993:50). Indigenous elder and lore-holder David Mowaljarlai clarifies the disjunction between Anglo and Indigenous laws: 'We do not want one on top and one underneath…we want them to be equal' (Mowaljarlai, 1999:25). One of the challenges facing the courts and Judges in light of Indigenous rights must be the development of a process that enables us to enjoy the same level of equality in land title. Failure to recognise Native Title as an equal interest would perpetuate discrimination (see, for example, Yunupingu, 1998:8–9; Pearson, 1997:160; Langton, 1999:71–2; Ridgeway, 1997:63–7). The attainment of formal equality under the law is one thing, but the central issue of the thesis will be the extent to which it is translated into Indigenous land justice. Equality for Indigenous people in land however seems to be dependent on the willingness of governments, judges and other land interests to recognise Indigenous title. The question of 'reconciliation and co-existence' in land matters are relevant to this analysis (Gray, 1999:15–26; Bourke and Bourke, 1999:53–9). It is within this framework that the principles of equality and justice will be examined to determine whether they are genuinely applied in the YYNTC. The application of the

law in the Mabo era can then be assessed, and those barriers that continue to deny Indigenous land justice can be identified.

1.3 Indigenous Epistemology An Indigenous epistemological approach is a position that I am asserting as a Yorta Yorta person. There is no generic Indigenous worldview as such, but there is a diversity of opinions that are grounded in the experiences of the past and in the knowledge of the struggle for basic rights. These rights form the essence of an Indigenous based worldview that articulates itself through Indigenous voices (see Yunupingu, 1998:1–13; Dodson, P., 1999:1–21; Watson, 1999:5; Langton, 1981a: 16–22; Media Forum Report, 1994:1–2). Indigenous communities and individuals have developed their own ways of asserting rights and the means by which justice is pursued. The Yorta Yorta is no exception as much of our knowledge is grounded in the struggle of our forebears (Yunupingu, 1998:2–4; Dodson, M., 1994:2–11). My approach is not to create a binary opposition between Indigenous and non- Indigenous views, nor to rely totally on Indigenous views. The need to retain my own position that has evolved within an Indigenous cultural context and to include the views of Native Title-holders themselves is important. Here, the position of researcher transforms itself from the outside, as it has tended to in the past, to the inside through inclusive participation. The power to say who we are, to define our own identity and to articulate our own history is fundamental to our existence. The right to maintain our identity and to speak for ourselves as a distinct cultural group is expressed by Yorta Yorta elder, Sir Doug Nicholls: 'Let us enter your society on our terms, living side by side with you but remaining at all times a race of people with our own identity' (speech by Sir Doug Nicholls 1969, in Peterson and Langton, 1983:253). The right to identity and to speak for oneself is supported cross-culturally. Professor Stanner argues that unity must be achieved on Indigenous terms, not a 'willy-nilly' inclusion but one that has the imprint of an Indigenous worldview. These are admirable constructs of Indigenous aspirations (Stanner, 1969:27–8; Bourke, 1994:4). The inclusion of Indigenous perceptions in the academy is discussed in the national report on 'Universities Inclusion of Indigenous Peoples Rights and Interests' (DEETYA 1998). At the heart of the matter is the challenge to universities to recognise the legitimacy of Indigenous knowledge. The expertise of many disciplines that have traditionally constructed knowledge about Indigenous peoples is being challenged by knowledge that emanates directly from an Indigenous perspective: 'The dilemma for Indigenous peoples in establishing the legitimacy of their knowledge is that they have to verify their knowledge against these

non-Indigenous experts whose knowledge they are contesting' (DEETYA 1998:49). This dilemma was played out in the courtroom in the Yorta Yorta hearing where white lawyers argued about my credibility as a witness. They tried to distinguish knowledge I had as a Yorta Yorta man from knowledge I had gained from non-Indigenous sources such as anthropologists and historians. Given that the common source of both knowledges is substantially my Yorta Yorta ancestors, this is a formidable task. Similar issues arose in the Mabo case (Keon-Cohen 1993:185–7), and in the Hindmarsh Island case where Indigenous authorities were excluded (Bell, 1998:125–36). Even where it is possible to distinguish between Indigenous and non-Indigenous sources, the question of what weight should be given to each of these knowledge sources needs to be clarified. Some non-Indigenous academics who teach Indigenous studies have concerns about the dilemmas they face. They recognise that Indigenous people have completely different beliefs and values from their own and they are compromised by being unable to answer student questions as they attempt to represent Indigenous positions (DEETYA 1998:50). The dilemmas faced by non-Indigenous academics are inherent in the teaching of Indigenous studies that for the most part has been a non-Indigenous domain. Academic historians, Bain Attwood and Andrew Markus, recognise that 'Aboriginal people have long been spoken for and about' by others. One obvious solution to this dilemma is to have more Indigenous people teaching their culture and history and more Indigenous people running programs within the academy (Attwood and Markus, 1999:2; Anderson, 1996:59–60).

1.3.1 Inclusion of Indigenous People Speaking for Aboriginal people is a dilemma that many academics find themselves, particularly when they assume the expertise in other cultures. The concept of 'othering' and cross-cultural positioning raised by Said is relevant to Indigenous discourse (Said, 1994:10-14). It is also highlighted in the recent report 'Research of Interest to Aboriginal and Torres Strait Islander Peoples' (Australian Institute of Aboriginal and Torres Strait Islander Studies, 1999). One of the key issues confronting academic and research institutions is the inclusion of Indigenous people in the teaching of Indigenous studies. Other matters raised in the report relate to the ethics and cultural protocols required for working in Indigenous communities and the issue of Indigenous control and ownership of knowledge. Indigenous inclusion and control is further supported in the report 'Our Culture: Our Future: Indigenous Cultural and Intellectual Property Rights' (Jankes, 1999; National Board of Employment, Education and Training: Australia Research Council, 1999; Bourke and Bourke, 1999:53–64; Aboriginal Torres Strait Islander Commission: Cultural and Intellectual Property, 1992; see also Mansell, 1997:195–209; Fourmile, 1989:1–8; Bird, 1993:100–28).

Similar dilemmas have arisen in the process of establishing feminist academic perspectives. It is instructive to draw comparisons with conclusions reached by Reinharz in Feminist Methods of Social Research (1994). Several key themes are relevant. Feminism is a perspective, not a research method; feminist research involves an ongoing criticism of non-feminist scholarship; feminist research is guided by feminist theory; feminist research aims to create social change; and feminist research frequently includes the researcher as a person. To take the analogy further, I quote from the author: 'feminism is, in essence, a method – a method of strategic heresy – a method for understanding, from a marginal or boundary-dwelling perspective, one's own participation in socially constructed realities, both politically and personally, both socially and cognitively...feminism, viewed methodologically, is an emergent scientific method – one which begins with the death of the subjectivity/objectivity dichotomy and which involves questioning the very bases of socialisation and perception' (Reinharz 1994:240, 241).

Indigenous scholars share these characteristics and are actively involved in challenging the status quo of Indigenous research practices, and reclaiming the ground of representation. The Indigenous perspective is grounded in Indigenous socialisation and perception, particularly the blurring of subjectivity and objectivity. Politically, it emerged from the colonised's side of the colonial experience of dispossession, forced cultural assimilation and the marginalisation from mainstream academic discourse (in direct contrast with that of the coloniser's, whose examination of such issues through the 'traditional' disciplines often derived from the desire to use more effectively or manipulate the colonised peoples and their resources). Indigenous approaches to academic research have represented a method of writing from the margin and challenging non-Indigenous constructed realities of Indigenous identity. Many Indigenous students like myself whose socialisation has take place within this context find themselves in two worlds. As a Yorta Yorta elder I speak from a cross- cultural position by having one foot in the white academy, endeavouring to familiarise myself with its discourses, and the other in the cultural tradition of my own people. It is this position that militates against the dichotomy between the subject and object of the research that has shaped my worldview and vision of justice. By positioning myself as a Yorta Yorta person I am an active participant and facilitator in the process of social change. The two worlds are not necessarily incompatible and can be complementary. It is a cross-cultural journey that many Indigenous scholars have been endeavouring to chart. In the journeying, however, it is important for me to reaffirm my own cultural positioning as a Yorta Yorta person (Bunda, 1999:51–2; Roberts, 1997:117–24; Cummings, 1997:192–4; Langton, 1981b; 1985; Working Party of Aboriginal Historians, 1981; Langford, 1983:14–22).

1.4 Holistic Approach The principle of Indigenous people’s control of their own affairs was the focus of my Honours studies at La Trobe University in which I applied a holistic approach (Atkinson, 1995a). I argued that the dismembering of land and heritage and its classification into separate entities is a western construct that conflicts with the holistic view of Indigenous heritage and its relationship with land, identity and ownership rights (Jankes, 1999; Boer and Brown, 1993:7, 11, 15; Langford, 1983; Sullivan, 1985:139– 40; Bird, 1993:115–17; 1996:102; Yunupingu, 1997:14–15). This thesis is an extension of my interests in the broader relationship. Take away the land, it is often said, and you take away our soul and identity as a people. An holistic approach is essential to my analysis of Indigenous land relations (Council for Aboriginal Reconciliation Act 1991; Dodson, M., 1994:9; Bourke and Cox, 1994:49–51; 1995:24; Japanangka, 1983:11–14; Yunupingu, 1994:1; Getano Lui (Jnr), 1994:62; Gandarra, 1995:186; Koorie Heritage Trust, 1991:36; Yorta Yorta v State of Victoria and Ors (1995 Transcripts of statements by Monica Morgan, Darren Atkinson and Josephine Briggs: 1497, 740, 1997). Non-Indigenous writers acknowledge the 'holistic' approach (Bird, 1993:106). The following observation by Frans Hoogland, a European man who spent considerable time with Paddy Roe, an Aboriginal leader, helps to illustrate this point: We [white people] don't see the connectedness of all things. We put all the birds into a box – they are birds. We put all the rocks in a box – they are rocks. But they are one and we are a part of it. We all make up the living country' (Hoogland, 1999:21).

For Hoogland, Aboriginal perceptions of land defy categorisation, objectification and other hallmarks of European achievement. It is best not to impose 'Western categories of understanding', Professor Stanner believes, but to try to conceive of things as the 'blackfellow himself does'. The need for a holistic approach to Indigenous rights is highlighted in the recent report, 'Our Culture: Our Future: Report on the Australian Indigenous Cultural and Intellectual Property Rights', by Jankes. The Indigenous reference group for the Report stressed that 'Indigenous property rights cannot be isolated into compartments which are separate from other Indigenous rights' (Jankes, 1999:8; Bird, 1993:106; McNeil, 1989:291; Stanner, 1987:226). As we shall see, this cross-cultural difference in perception poses fundamental problems for the Anglo- Australian legal system and its ability to handle Aboriginal land struggles. The relationship between Indigenous identity and land to which Aboriginal title attaches is an inseparable one. The loss or impairment of that title in Pearson's words is 'not simply a loss of real estate, it is a loss of culture' (Pearson, 1996:219). The desire of Yorta Yorta people to be buried in their ancestral lands is a good example. To be buried

in your own land in Yorta Yorta belief is to be at home, so that your eternal spirit is free to reunite with your people. To be denied this right is to be cut off from your culture, and community, not just from your land. The right to maintain spiritual interests, to be buried in your land and to protect your heritage, are some of the Native Title rights that will be examined (see Yorta Yorta Native Title Evidence in Chapters 2 & 7–9 for explanation of burial rights under Native Title).

1.5 Action Based Research In selecting an approach that combines Indigenous perceptions of land with academic requirements, I have been guided by those research approaches developed by Indigenous education and research bodies. The concept of participatory and action oriented research is being pursued by many Indigenous students. This approach is supported by the report Research of Interest to Aboriginal and Torres Strait Islander Peoples (AIATSIS, 1999; see also Anderson, Singh, Stehbens, and Ryerson, 1998:47– 52; AIATSIS, 2000; Koori Centre, 1993). Action based and applied research approaches have emerged from experiences in which Indigenous people have been the subjects rather than the beneficiaries of the results. That is, we have gained little benefit in terms of empowerment and have been subordinate to the process. The applied research model allows Indigenous people to be active and equal participants, and at the end of the project the information remains accessible to the community. It allows Indigenous researchers to contribute knowledge and skills back to their communities and is consistent with the principle of reciprocity in Indigenous research practices. It is often referred to as 'two-way learning' (Bunda, 1999:51–2; Bourke, 1995:1–12; Watson, L. 1988; University of South Australia, Ethics in Aboriginal Research, Aboriginal Research Institute, May, 1993; Australian Anthropological Society, 'Code of Ethics for working with Indigenous people', 1984). My involvement in the Yorta Yorta struggle for land has many advantages. The combination of academic and Indigenous learning has broadened my perceptions of land matters in Australia and overseas. My role as Senior Researcher and elder with the Yorta Yorta has provided me with important skills in mediation, research, recording oral knowledge, writing submissions and preparing evidence. I bring the benefit of these skills and insights to bear in the present study.

1.6 Evidentiary Materials Most of the Yorta Yorta evidence was given in situ at various locations within the claim area on both sides of the Murray River (see locations and areas of land being claimed in Figure 2).

Figure 2: Land being claimed and sites visited during claim

Yorta Yorta witnesses spoke of their connections with the land and waters at places of cultural significance to them. The evidentiary materials will be drawn on in the thesis. This will be complemented by Yorta Yorta knowledge, which will be further illuminated by Indigenous perceptions of land justice in Australia and overseas. In establishing Yorta Yorta connections, I examine a broad range of relevant documentary materials that were bought forward in the course of claim. The extent to which the Yorta Yorta evidence has been accepted, and its relationship with the documentary records drawn from non-Indigenous sources, will form the basis of my analysis of the way the Court has dealt with the evidentiary materials. The Native Title process in terms of the duration of the claim (1995–2000), the amount of resources invested, and the degree of scrutiny that claimants were subjected to will be critically assessed. The question of who benefits most from the Native Title process will be fully examined.

1.6.1 Ethnographic Material and Indigenous Knowledge as Evidence Much of the ethnographic material of the area is derived from European observations. Prominent amongst these materials are the writings of Edward Curr, one of the first white pastoralists to make contact with the Yorta Yorta in the late 1830s. Writing many years later about his time in the area, Curr purported to describe in detail aspects of the original territory, systems of governance, laws and customs, and land owning principles. In his writings, Curr referred to the group associated with the area as the 'Bangerang'.

This is an alternative name for the Yorta Yorta, the descendants of whom form a single group that have common ancestral links and share the same communal Native Title rights and interests (Yorta Yorta Proceedings Doc., 1998:26; Hagen, 1996:42). Some reliance was also placed upon the notes and writings of the Chief Protector, George Augustus Robinson, and the passing observations of the overlanders and explorers Hawden, Bonney and Sturt. Other relevant materials include the Reports of the Crown Land Commissioners, and the various government reports and inquiries on Aboriginal land matters, including the allocation of pastoral leases and reserves. As one would expect, from an area attractive to settler interests, there is a substantial record of ethnographic, historic and oral knowledge from which to draw. The area's documentary sources complement the substantive body of oral knowledge retained by the Yorta Yorta people. The transmission of knowledge for the greater part of Yorta Yorta occupation has been by oral method. Indeed, it is the oldest method of acquiring information from which written history has its origins. Early European historians, Herodotus and Thucydides, used this technique to write about the Persian and Peloponnesian Wars. The Bible is said to have been written from oral sources (Harris, Cash, Hoover and Ward, 1975:2; Julin, Zabdyr and Meyer, 1979:1). Against this background, 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 well 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. Much of this knowledge was recorded by myself with the assistance of other Yorta Yorta people (Atkinson, D., 1978–81, oral history interview recorded at Site of old Maloga Mission, and 'personal communication with author; Atkinson, 1981a). Oral history is an important source of knowledge in Indigenous land claims. Justice Toohey regards it 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). It is the admissibility and reliability of Indigenous oral evidence in land claims that is the main concern. Its acceptance is guided by the way the rules of evidence in land

claims are applied. Native Title tribunals and the courts have flexible rules to cater for the 'cultural and customary concerns of Indigenous people' (NTA, ss.82 and 109). They are not bound by the rules of evidence, and questions of admissibility are likely to be less an issue than matters relating to reliability and weight. Other fundamental issues relating to Indigenous oral knowledge are the narrative style in which the knowledge is conveyed, and the inseparable nature of past events from current day concerns, which are inescapable realities for Indigenous people. Moreover, when there is a consistent thread running through the body of knowledge being transmitted, this must give more weight to its authority. Finally, if some oral knowledge is judged less reliable, then the effect that this may have on the overall body of oral testimony needs to be explained. Other issues relate to the criteria that the Court may use to assess oral knowledge against other evidence and the process on which credibility may be assumed in some circumstances but not in others. Drawing inferences on connections with ancestors and country from oral knowledge will be crucial analytical issues.

In using the evidentiary materials to reconstruct Indigenous occupation and land relations, one needs to recognise the standards of analysis applied in academic and legal disciplines. The need to consider the knowledge in the context in which it was written and against the prevailing cultural biases of the time is well accepted. Early European ethnographers were notorious for interpreting traditional culture through their own blinkers and have been shown to exhibit attitudes of racial superiority. As Ann Curthoys has remarked, 'Nineteenth century histories varied widely in their attitude to Aboriginal people and cultures, sometimes sympathetic, more often crudely racist, regarding them as 'savages' and 'low on the scale of humanity' (Curthoys, 1998:3) In using ethnographic data to source Indigenous connections and to assess cultural practices, one has to be particularly cautious of these inadequacies. This is not to say that the ethnographic record is of no value but that it is only one part of the larger 'jigsaw puzzle of many pieces' (Read, 1979:141), and each source should be subject to the same degree of scrutiny as Indigenous knowledge. The thesis will be guided by these standards.

1.6.2 Continuity of Laws and Customs Much of the evidence and submissions relating to Native Title concerned questions of laws and customs asserted by the Yorta Yorta and their connection with those existing at the time of sovereignty. In establishing continuity with the past, claimants have to prove that they have maintained their connections with the land and waters but there is no requirement that they be 'frozen' in time. The main issue is the 'general nature' of the connection between the people and the land. The question of abandonment, washing away or suspension of relevant customs and laws or whether those customs remain but

are practised in adapted forms will be scrutinised (Brennan J, Mabo (No.2), at 59–60, 70; Deane and Gaudron, JJ. at 110; (Mason v Tritton (1994), Kirby J, at 583; Pareroultja v Tickner (1993) at 206-209, 213; French J. in (Re Waanyi 1998), at 112; Beattie, 1964:241–224; Neate, 1993:223). There is much evidence about the continuance of traditional Yorta Yorta fishing and hunting practices and how to read and interpret such practices. One of the many issues that arose in the course of the claim involved discussion of whether such activities were in fact activities conducted pursuant to a system of rules recognised by the common law and which continue in adapted forms. Like most Indigenous groups, the Yorta Yorta have been innovative in adapting their hunting and fishing practices to include nylon lines, steel nets, outboard motors, rifles and vehicles. At first blush, it would seem foolish to suggest that such superficial changes were any more relevant to continuity than the changes which have occurred to the law and practices of western society. Nobody suggests that the Magna Carta, the Australian Constitution or the US Bill of Rights have lost their force because they are now rendered in electronic format. Farmers did not cease to be farmers when they changed from draft horses to tractors. The question to be determined by the Court is the extent to which traditional laws and customs continue to be acknowledged and observed by the Yorta Yorta. This is a recurring theme that arises throughout the analysis of the Yorta Yorta struggle (Yorta Yorta Proceedings Doc, 1998:52; Mason v Tritton (1994) at 274).

1.6.3 Anthropological Issues The writings of Curr have been interpreted by some as suggesting that rights in territory were held by local patrilineal descent groups in respect of discrete areas of land (often described as 'estates') rather than by a single 'over arching' group. There has been much debate amongst anthropologists in the course of land claims elsewhere in Australia about such issues, particularly in cases under the Aboriginal Land Rights Act 1976 (NT) (Gumbert, 1984). Many anthropologists today reject the narrow 'clan/estate' models favoured by earlier writers, or suggest that they are merely one level of a more complex picture (Hagen, 1996). Two complementary issues emerge: If there has been a change in the nature of the land owning group and in the means by which people can be members of the relevant group, can this be accommodated by the NTA? This kind of issue is likely to recur in cases where the existence and relevance of smaller groups that may once have had primary responsibilities with regard to rights in particular estates, has subsequently been replaced or succeeded by a much broader group now asserting such rights and responsibilities (McRae, Nettheim and Beacroft, 1997:240–4; Neate, 1998:262–6).

There are several other critical anthropological issues, beyond the 'narrow group/broad group' issue that recur in the thesis. For example: What is 'traditional based law and custom'? How is change to be interpreted? Moreover, how should we interpret early ethnographic material? Other questions relate to the weight that is accorded to written versus oral sources and the use of genealogical information.

1.7 Conclusion The methodology combines theoretical and empirical knowledge with conceptual themes. These are used to analyse the question of racial equality and justice and to scrutinise the extent to which prior rights have been recognised in the YYNTC. The methodology brings forth a combination of skills and knowledge that I use to reconstruct past and present cultural connections. These are complemented by participatory and applied research methods and an Indigenous epistemology. My position as a postgraduate student, my role as a claimant and my experience as a participant in the Yorta Yorta struggle for land justice (1979–2000), have afforded me a unique opportunity to revisit the questions asserted by my predecessor and Uncle, William Cooper.

Chapter 2: Yorta Yorta Occupation

2.1 Introduction This chapter analyses the prevailing misconceptions concerning Indigenous people. It examines Yorta Yorta connections with the traditional land and waters, a central tenant of common law Native Title (see Mabo (No. 2) at 179) and establishes a timeline of Yorta Yorta occupation. This provides a framework for viewing past and present connections and for analysing cross-cultural notions of property interests arising from prior occupation. The foundation chapters of this study (Chapters 2 and 3) develop the theme of 'change, adaption and continuity’, which is used to analyse the 'traditional based laws and customs' that underpin Native Title rights (see NTA s. 223 (1)). This will be the basis for analysing the importance of the physiological features of the land, a central plank of the thesis, and the way that continued connections have been treated in the YYNTC.

2.2 Clarifying Misconceptions of Aboriginality When speaking of Indigenous Australians, there is a tendency amongst the majority within dominant Australian society to distinguish between those people of the remote and the more settled regions. These binaries are also reflected in academic discourses. Those living in remote Australia are seen as 'traditional' or 'real' while those living in the more settled areas are often disparagingly referred to as 'not real' Aborigines (Gray, 1999:19–20; Langton, 1993:11–13; Council for Aboriginal Reconciliation, 1996). This distinction is based on stereotypical assumptions about Aboriginality. There are, of course, differences between Indigenous cultures in different parts of Australia today, just as there were before white occupation. The Murray Island people are in culturally significant ways 'different from Indigenous people on mainland Australia who in turn differ from each other' (Mabo (No. 2) Toohey J. at 179). But the consequence of cultural diversity is something very different from the dichotomy so frequently drawn between 'real' and 'not real'. The same type of judgment is rarely applied to other cultures in the same way. No one suggests that white Australian culture is not authentic because people no longer wear 18th Century clothes and travel by horse-driven transport, or that other cultural groups within Australia do not live the 'right' kind of culture (Gray, 1999:19–20). The mindset that constructs what is authentic and what is not reflects the fact that racial hierarchies still exist. The dominant culture still holds the power to impose value judgments on those who are seen as the 'other' (Said, 1994:10–14; Anderson, 1996:59– 60). Such perceptions operate at the unconscious level much of the time, and are

continuously reinforced by similar assumptions underlying much of the coverage of Indigenous issues by the media and the non-Indigenous education system. It is not a perception limited to overtly racist, individuals, but is common even amongst well- educated, intelligent people who may be sympathetic towards Indigenous people. Many Indigenous students, including myself, have had to deal with these misconceptions on a regular basis (Indigenous Perceptions of the Academy, 1994). The infiltration of such views into the dominant society is extremely great. Indeed it is one that continually confronts Indigenous communities such as my own. It takes immense time and commitment, not to mention the need for adequate resources, to break down such views. It is relatively recent that Professor Stanner called for Australians to transcend this mindset. He believed that Australia needed to go beyond the 'cult of forgetting' about the plight of Indigenous people and to move on with a 'better understanding' (Stanner, 1969). On reflection, it is argued that we still have a long way to travel on this path today (Gray, 1999:15–16; Harvey, 1999:17–18; Bourke and Bourke, 1999:53).

The need to avoid perpetuating Aboriginal misconceptions is supported by the AIATSIS. In its analysis of Research into Aboriginal and Torres Strait Islander Peoples (1999), the Institute highlights the need for research to reflect the diversity of Indigenous societies, and to avoid perpetuating the myth that most or 'real' Aborigines live in the 'Top End' of Australia (AIATSIS, 1999:13, 15–16; Foster, 1999:17; Bourke, 1994:15). Divisive notions of 'authentic' Aboriginality were used by opponents of the YYNTC to justify extinguishment arguments and to suggest that because we do not live like our ancestors, all law and custom had ceased (Yorta Yorta evidence to Federal Court Australia, 1996–98). In determining Native Title rights however, 'no distinctions of Aboriginality need be made', as the 'relevant principles are the same' (see Mabo (No. 2), Toohey J. at 179). These issues will be dealt with but there are some crucial factors that guide the analysis of Yorta Yorta occupation. These are: Aboriginal society in its proper time perspective; the notion of change in any cultural system and the existence of a living culture that continues to maintain connections with the ancestral lands (Anderson, 1995:34–37; Broome, 1994:121–4; Beckett, 1994:1–8; Bird, 1993:89; Clayton, 1988:53; Keen, 1988:68; Cowlishaw, 1988:88; Aborigines Advancement League, 1985:15–16; Langton, 1981b: 16–22; Gilbert, 1973:207).

2.3 Indigenous Occupation There is now a consistent Indigenous and academic view that sees Aboriginal perceptions of the land in terms of a social, cultural and spiritual relationship (Rose, 1997a: 43; Bourke and Cox, 1994:49–51; Dodson, M., 1994:9, 24; Yunupingu, 1994:1; Berndt, R., and Berndt, C., 1977:135–43; Stanner, 1987:34). In cross-cultural terms, the

word 'use' and its Indigenous equivalent 'relationship' have different meanings. The term 'use' or 'relationship' does not have the same meaning, for instance, to a woodchipper, a grazier, a town planner or a State Forest officer. The idea of 'use' from a western perspective is largely based on what the land is capable of producing economically and how it can be owned and controlled individually (Weberriss and Frauenfelder, 1996:3– 4). Indigenous ownership is based on communal relationships with the land in which rights are collectively shared and distributed between clans and family groups. Traditional rights to land have their origin in those traditional laws, customs and uses identified by the High Court in Mabo (No. 1, No. 2). These rights, exclusive to those in possession, were also capable of accommodating other cultural and economic interests (Mabo (No.2), Toohey J. at 146–8; Brennan J. at 43–5; Deane and Gaudron JJ. at 64). Despite the gulf between Western and Indigenous concepts of land ownership there are some parallels that can be drawn. John Locke's ideas of property rights, arising from one's labour investment in the soil' (Locke, 1983:177–80), were not unfamiliar concepts to Indigenous people (Dingle, 1988:30). They had well developed laws and practices based on using the land in accordance with economic and cultural interests. While English theories of land ownership may have been influential in 18th Century land acquisition policies, Mabo brought Australian law into line with contemporary notions of land justice. It abolished the concept of Australia as terra nullius, and rejected earlier assumptions that were used to justify the denial of Indigenous land rights. The recognition of pre-existing Yorta Yorta rights in accordance with contemporary notions of justice and equality, however is the main issue (Butt, 1996:885–886; Mabo (No.2), 1992, Brennan and Deane JJ. at 29–43; Donahue, Kauper and Martin, 1983:177–80). 2.4 Timeline of Occupation When speaking of Indigenous occupation of Australia against the background of change, adaption and continuity, we are dealing with an enormous time-span. Indigenous occupation of the southeastern region has been put at 60,000–120,000 years (Kirk, 1981:18; Singh, 1981; Thorne et al., 1999:591–612; Beattie, 1964:241–64). There are radiocarbon dates from Lake Mungo and Kow Swamp that range from 60,000 to 15,000 years ago (Thorne, & Macumber, 1972). The 60,000 year timeline comes from new inflorescence dating methods at Lake Mungo, 1999). Sites dated in the Murray Valley flood plain by Craib and Bohnomme, 1990–91 indicate that occupation and use of the claim area is at least 20,000 years before present (Craib, 1992:2; Bonhomme, 1990:7; Butler, 1973:45). Dates of vegetation core studies taken from Lake George (near Canberra) indicate that fire was used by Indigenous people for land management and food production purposes around 120,000 years ago (see 2.7.1 on Use of Fire; Singh, 1981:45–6; Jones, 1968: 24).

Archaeological evidence predating the European invasion demonstrates that change does not appear to have been rapid. The arrival of Europeans with its far reaching consequences, however, has tended to amplify the degree of change that has occurred, and the way Indigenous culture has adapted and continues to flourish has been all but overlooked (Broome, 1995:121–24; Kohen, 1995:25–34; Goston and Chong, 1994:123– 37; Flood, 1989:142; Aborigines Advancement League, 1985:1–10). Indigenous and non-Indigenous writers have challenged such omissions. Those who tended to portray Aboriginal society in a purely traditional sense, have attempted to broaden their perceptions to include the more contemporary situation (for example, Berndt, R. and Berndt, C., 1977; Elkin, 1974). Aboriginal Studies programs in schools and universities emphasise the need to teach traditional and contemporary culture (Bourke, 1994:9) Many historians recognise that Aboriginal resistance and survival was at the heart of the struggle to defend pre-existing rights to land and resources. Indeed some judges acknowledge that it was violence over land ownership that underwrote our history as a nation (Gray, 1999; Mabo (No. 2), Brennan J. at 69; Cannon, 1993; Reynolds, 1981; 1987; Broome, 1994; Howard, 1982; Christie, 1979). Indigenous voices today are more likely to be heard by others. Their use of domestic and international legal processes has allowed Indigenous views to be expressed in international fora. The Working Group on Indigenous Peoples (WGIP), has developed its own charter of Indigenous rights in solidarity with other Indigenous groups, and has gained access to the United Nations Commission for CERD. The Yorta Yorta, as will be demonstrated, have adapted to many significant changes. Indeed they retain a remarkable sense of their cultural identity and connections with the claimed land and waters, and have continued to assert rights arising from prior occupation (ATSIC, 2000a, Djerrkura, 1999:1–8;WGIP, 1997; Evatt, 1996; Bird, 1993; Fletcher, 1994). While archaeological evidence can provide important insights into prior occupation, Yorta Yorta perceptions of their connections are equally important. The Yorta Yorta trace their origins back to the time of creation, which is often conceptualised as the 'eternal Dreaming' (Coe v Commonwealth (1979) 53 AUR 403; Stanner, 1969:225–36; Reynolds, 1996:4–5). It follows that if archaeology confirms occupation, then it is axiomatic that the Indigenous ancestors were in occupation when British sovereignty was asserted. Archaeology may not be able to offer any proof of this but it cannot disprove it either. It is one of the areas where a Yorta Yorta view of the world is planted in its own cultural context and simply differs to that of archaeology (Wettenhall, 1999:6–7; Yorta Yorta Native Title Evidence, 1997–98; Weberriss and Frauenfelder, 1996:5; Stanner, 1987:25; Bowler, 1971).

Against this background, Indigenous Australians may possess the oldest living culture known to humankind (Bourke and Bourke, 1999:57–9). When measured against the timeline of Indigenous occupation, the birth of western civilisation and the creation of the common law of England are relatively recent events (Watson, 1998:2–15; Chisholm and Nettheim, 1992:10–17; Cambridge Encyclopaedia of Archaeology, 1980:21, 109). Moreover, if we translate this timeline to Indigenous title arising from prior occupation, we are dealing with a concept of land ownership that 'transcends common law notions of property or possession' (Mabo (No. 2) Deane and Guadron JJ. at 100), and is sui generis in its own right. The chain of inheritance stretches back to prior occupation and the Native Title rights flow from the Indigenous ancestors to the Native Titleholders not necessarily as givens but as inherited rights (Bartlett, 1999:421; Reynolds, 1997:14). The interface between Anglo and Indigenous notions of land ownership need to be evaluated. Anglo-Australian common law notions of property rights have been imposed on a vastly older Indigenous system. This points to the absurdity of the common law's classification of original interests as being a 'burden' on the far more recently introduced non-Indigenous system (Mabo (No.2), Brennan J. at 37, Deane and Gaudron JJ. at 69). The derogation of original rights smacks of racist value systems rather than the nature and antiquity of Indigenous title. The priorities of the Indigenous system are logically and evidently clear. An equitable contemporary system would recognise the priority of Indigenous interests and require that any subsequent titles did not interfere with them (Ridgeway, 1997: 63; Pearson, 1997:150–61;Dodson, M., 1997:39–50;Dodson, P., 1997:137–47;Cummings, 1997:Yunupingu, 1997: 1–16; Reynolds, 1996:14). In analysing Yorta Yorta occupation I will now look at the changing nature of Yorta Yorta land as a basis for examining the concept of adaption and continuity. This will be important for measuring the degree of change that has occurred before and after European contact and for examining the issue of continued connections.

2.5 Change and Adaption Revisited To understand traditional relationships with the land and the process of change and adaption there are some common determinants. As survival depends on close interaction with the environment, a high weighting is given to natural conditions. Alteration to any one aspect can cause change within the whole system. Indeed there is an implied interdependence and in order to understand the interrelationship it is first necessary to examine the physical and cultural histories and how natural resources are distributed across the landscape (Redman, 1978:7–11; Hole and Heizer, 1973:440–1; Binford, 1972:105–13).

Many of the more recent changes that impacted on traditional Yorta Yorta occupation have been associated with the waterways. One of the most significant is the 'Cadell Fault', which occurred around 25,000 years ago. This rift block was thrown up in front of the river systems that flowed westward, between Deniliquin and Echuca, forcing the existing river system to divert and flow north towards Deniliquin before turning west again at the end of the 12 metre high tilt block. A large lake formed at the southern end, near Echuca, and remained until about 9,000 years ago when a channel was cut at the southern end to allow the stream to connect with the ancient Goulburn system (Duncan, 1982:210; Coulson, 1979:134–8; Currey and Dole, 1978:69–70).

2.5.1 Responding to Change A Yorta Yorta story speaks of a 'great flood' occurring in the distant past that forced people to move from the forests up onto the sand ridges. The old people watched as the water backed up until it nearly covered the tops of the trees. They were concerned about the loss of their traditional food areas and are said to have 'walked along to a point where they decided to let her go' and with their digging sticks, they dug a drain through the sandhill. The force of the water cut its way through the more recent course of 8,000– 10,000 years ago (Coulson, 1979:134–6; Currey, 1978:14–17; Currey and Dole, 1978:70; Interview with Yorta Yorta elder, 1978).

Figure 3: Cadell Fault and Story of Great Flood

It is of greater significance that the point of release is the site of the old Maloga Mission, which was established on the edge of the sandy promontory by Daniel Matthews in 1874. Yorta Yorta elders told Matthews that the site was a 'great gathering place for as long as anyone could remember' (Cato, 1976:19). The location of the traditional meeting place and its connection with the cutting of the river course has remained an intriguing question. Whether the meeting place was there before or after the fault is yet to be confirmed. The event itself, however, is a good example of the changing and evolving nature of traditional land relations. Traditional land controlling mechanisms would have had to accommodate for change and survival. Cultural continuity was the outcome. Many other features of the claim area remain significant to the Yorta Yorta. The rivers, lakes, billabongs, sand ridges and ochre deposits are features of the area from earlier times. Given that Indigenous subsistence depended very much on utilising the resources of the suitable bodies of water and living zones, many adjustments like those described would have been common (Bowler, 1971:47; Currey and Dole, 1978:70). Traditional Yorta Yorta subsistence patterns can be gleaned from an analysis of the resources available. Studies of similar environments in the region at the Willandra Lake system (Lake Mungo) to the north, and at Kow Swamp in the west of the claim area provide insight into what the Riverine environment was capable of producing.

2.6 Nature and Diversity of Yorta Yorta Land

2.6.1 Water Change has been a central and continuing feature of the Murray Valley for most of its existence. During the last 9,000–10,000 years (Holocene), however, there have been no significant climatic fluctuations, and living conditions have been relatively stable. Studies of vegetation zones indicate that there were some marginal areas but the compensating factor for the Murray Valley region is the river systems. Like other inland regions, the water bodies have been extremely important for Indigenous subsistence (Bowler, 1971:47). The major rivers flowing into the study area trace their sources to the highlands of the southeast where they are regularly replenished by annual rainfall and snow melts. Yorta Yorta Native Title rights to the waters occupied and used by their ancestors will be examined in Chapter 5 (Butler et. al., 1973:3–5). Although stream courses have changed, the river systems are likely to have served as major focal points throughout the time the area was occupied. The range of living zones utilised by the Yorta Yorta have been identified (Penney, 1979:10–33). These are the river; the river edge with its tall river red gums; the wetlands, including swamps,

billabongs, streams and anabranches; grassy plains interspersed with patches of scrubland; and the drier mallee region (Butler et. al., 1973:5; Mulvaney, 1975:137–8).

2.6.2 Food Sources The living zones produced a variety of food sources including: fish, waterbirds, yabbies, mussels, turtles, possums, kangaroos, emus, cumbungi reeds, water lily, dandelions, angled pig face, sow thistle and lerp (Pardoe, 1988:203). These environments are described by archaeologists as 'broad based economies'. They are capable of providing a broad range and abundance of foods on a regular basis (Goodall, 1996:12). When describing the varied and abundant food supply, Yorta Yorta people often equate it with the concept of a 'smorgasbord', meaning 'it was there laid on and you didn't have to go too far to fulfil your everyday needs' (Age, 7 November 1998; Yorta Yorta Oral Evidence – Elizabeth Hoffman Transcript, 1997–98).

2.6.3 Living Patterns As the food quest was largely determined by the seasonal availability of food it is natural for groups to follow its cyclical nature. The warm months on the rivers were the most productive while the few colder months encouraged dispersal, in smaller groups, to areas away from the main water bodies (Beveridge, 1889:27; Kirk, 1981:73–5; Kneebone, 1992:228). The Yorta Yorta used these living zones to satisfy their dietary needs at different times of the year. Movement across these zones, though, was not simply for economic reasons. The seasonal arrival of food coincided with cultural activities. Many of the larger gatherings were organised in conjunction with the arrival of food and some of the ceremonies were held to perpetuate particular food species. The totemic restrictions on some foods also helped to protect certain foods from being over-exploited (Hagen, 1996:60–9). The general abundance of food reduced the time required to collect it, creating more leisure time. Anthropologist, Marshall Sahlins, describes this type of lifestyle as the 'original affluent societies' (Sahlins, 1974). Such groups typically invested about four to five hours a day in the food quest. This allowed more time for the maintenance of cultural connections with the land and waters (Curr, 1965:46; Sahlins 1974:Chapter 1). Economic historian, Tony Dingle, notes that 'two to four hours of intermittent effort' was all that was required to provide sufficient food for the day. Furthermore 'the food quest was not usually considered either arduous or unpleasant... We are looking at an economy which was enjoying a thirty to thirty-five hour week at a time when European labourers worked almost twice as long in order to sustain themselves' (Dingle, 1988:30). Elsewhere, he suggests that it is probable that in 1788 'Aborigines enjoyed a somewhat

greater life expectancy than the British who were poised to invade Australia in 1788' (ABS, 2000b; Age, 18 April 2000; Dingle, 1988:33). Looking at the impact of such changes on Yorta Yorta society one can better appreciate the desires to emulate the old ways. Many, myself included, prefer to follow aspects of our own culture rather than the undesirable elements of western culture that are making inroads into the well being of many Indigenous communities (ABS, 1999; ABS, 2000a). In recent years, Indigenous groups have chosen to return to their traditional homelands. Many Yorta Yorta have returned to Cummeragunja to reaffirm their cultural connections and many have returned to the residential centres within the claim area. This involves both a desire to get away from the undesirable aspects of mainstream life and the need to get back in touch with family and country. The movement does not suggest abandonment or severance of cultural ties but fulfilment of the need to maintain cultural connections and identity. Indeed, the ABS 1996 Survey revealed that the Yorta Yorta had maintained significant physical and cultural connections with the claim area (ABS, 1996; Coombs, 1994:24–31; McKendrick, 1999). Since the nadir of the assimilation policy days in the 1940s, the Cummeragunja population has steadily increased. Declining economic opportunities for Indigenous people over the last generation have probably also contributed to a population increase of over 200. The movement back is also connected with discrimination and marginalisation, highlighted in the Aboriginal Deaths in Custody Royal Commission Report (1992) and Bringing Them Home Report of The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997). The reports on Aboriginal Health and Welfare matters by the ABS (1997) and on Aboriginal employment (Taylor and Altman, 1997) further highlight the degree of inequality experienced by Indigenous people (McKendrick, 1999; Editorial, Age, 12 August, 1999; Coombs, 1994:24–31) The evidence of Yorta Yorta occupation exemplifies the rich and diverse nature of the claim area. The importance of the wetlands and the holistic nature of land, water, vegetation and wildlife are exemplified. The Yorta Yorta took advantage of the stability and abundance of resources and established large and semi-sedentary populations. Depopulation as a result of the European invasion (Laurandos, 1997:233–5), and population recovery will be analysed in the next chapter.

2.7 Traditional Land Management Practices Changes in traditional Yorta Yorta land management practices and technological strategies need to be highlighted (Flood, 1989:48–50). These varied from simply managing existing resources to manipulating the environment to secure more

sustainable returns. Dingle points to the Murray Valley as 'a resource-rich area where there were moves towards complex resource management' (Dingle, 1988:48). The constructing of elaborate fish trap systems is an example of how the Yorta Yorta were able to increase returns and minimise individual effort. The use of fire, as indicated, was another important tool of land management (Yorta Yorta Management Plan, 1999:19– 28; Kneebone, 1992; Craib, 1992; Bonhomme, 1990; Atkinson and Berryman, 1983; Penney, 1979:10–22).

2.7.1 Use of Fire Fire was used by the Yorta Yorta for hunting and regeneration purposes, for clearing tracks through reed beds, and as a strategy for dissuading Europeans from venturing into the land. Traditional burning is still being used in Kakadu National Park (Northern Territory), Gariwerd (Grampians), and Beechworth National Park, Victoria. The reintroduction of fire as a land management strategy is one of the rights being asserted by the Yorta Yorta (see Yorta Yorta Land Management Policy, Appendix. 2; personal communication–Koori Ranger, Barmah Forest, 21 September 1998; Young, Ross, Johnson, Kesteven, 1991:165–8; Curr, 1965:88; Hawdon, 1852:33; Sturt, 1899:138, 143). The immense value of such indigenous strategies is becoming increasingly recognised amongst non-indigenous experts and authorities responsible for land and environment management in the broad community.

2.8 Aboriginal Sites as Evidence of Occupation While the claim area has undergone rapid changes since white settlement, much of the evidence of Indigenous occupation has remained. This evidence, together with Yorta Yorta knowledge, becomes crucial for ascertaining pre-existing rights to land and resources (Redman, 1978:7–11; Binford, 1972:105–13; Hole and Heizer, 1973:440–1). Archaeological work in the claim area has been restricted to sample surveys, the reburial of skeletal remains and the analysis of cultural objects (artefacts, stone tools, etc). Most of the cultural heritage work by the Yorta Yorta has focused on site management and protection. The impact of grazing, trail bikes, and four-wheel drives on sites is a major concern (Bonhomme, 1992; Craib, 1992; Atkinson and Berryman, 1983). The more recent archaeological work conducted by Bonhomme (1992) and Craib (1997) provides a good sample of site density and distribution, though in a relatively limited area. Over 1818 sites have been recorded, most of which are located in Barmah Forest (82%) and the other 333 (18%) are in the Moira Forest of New South Wales (Craib, 1997:32; Bonhomme, 1992:67). The main sites visited during hearing of YYNTC are indicated in Figure 1. The distribution of other sites recorded are indicated in Figure 2.

Figure 4: Sites recorded in Yorta Yorta territory

While archaeology can ascertain site density in a particular area, it can also make inferences on broader site distribution, and the extent of site loss, through the deposition of flood soils over the millennia.

2.9 Material Evidence The material objects, which are expressions of traditional lifestyle and culture, do not, of course, include the many organic materials used by the Yorta Yorta. Most of the wooden spears, clubs and boomerangs, the fibre bags and nets, the shell knives, scrapers and hooks, the possum skin cloaks, the bark and grass huts and the myriad of single camp fires dotted around water margins, have not survived erosive factors such as wind, fire, flood and bacterial decomposition (Atkinson and Berryman, 1983). Archaeological research has been able to locate and date other artefacts and make inferences about their various functions and uses. The 15,000-year-old Kow Swamp excavation (Kirk, 1981:24; Mulvaney, 1975) has revealed various burial practices, together with the use of stone artefacts, shells and marsupial teeth as grave items. While burial practices have been adjusted to cater for changes in Yorta Yorta society, some traditional customs are still practised. Most Yorta Yorta prefer to be buried in the ancestral lands; some have personal belongings buried with them and many still use smoke as a cleansing process in mortuary ceremonies. Some States have recognised Indigenous people’s rights to be buried in their own land so that their spirits are free (Age, 1 November 1999; Chapters

7–8; personal observation of funeral practices at Cummeragunja, 1960s to present day). Unfortunately, this is not, at present, the situation in Victoria. A bark canoe cut from the river red gums with stone axe heads is a traditional artefact of great significance to the Yorta Yorta. Canoes were used in great numbers for travel, foraging and fishing platforms from which to spear and hook fish. They were used for transporting pastoralists and their stock across watercourses and for carrying goods to and from pastoral stations. The larger ones are believed to have been used to mount attacks on stations around the Moira wetlands during the resistance campaign. The age- old craft of extracting bark for various uses including canoes is a cultural practice that continues in adapted forms. Cultural activities like these are promoted by the Dharnya Centre and the Shepparton Aboriginal Keeping Place which are run by Yorta Yorta people (see Yorta Yorta Evidence to Federal Court, 1997, in Chapter 8, Manufacture of Cultural Implements and Artefacts; Beveridge, 1889:19, 63–5, 76–7, 85–91; Curr, 1965:84–5, 91; Stone, 1911:460–1; Brough-Smyth, 1878, Vol. I:215, Vol. II:298; Stanbridge, 1861:293). 8888 The hard evidence (sites and objects) confirms that the Yorta Yorta people have maintained an interest and connection with the land and waters from long before Europeans arrived to the present. They still speak of this connection as an inherent right. Yorta Yorta perceptions of their heritage, as will be seen in Chapters 8–9, overlap with much of the archaeological data (Atkinson, 1981a; Morgan, 1952). The Yorta Yorta assert that those Native Title rights that arise from prior occupation have continued. Archaeology as a tool for measuring past activities is able to substantiate that the land was occupied and possessed by Indigenous people. We can see that Yorta Yorta culture was not frozen in time and space but was continually adapting to cater for the circumstances of the time.

2.10 Anthropological Evidence Most of the anthropological studies have relied heavily on observations made by the first white people to have contact with Indigenous groups. While anthropology focuses more on social and cultural connections, it does overlap with archaeology. In examining social and cultural aspects anthropology, like archaeology, often makes general inferences. It draws on the cultural patterns and practices of other groups and focuses on the variations shaped by local geographic and climatic circumstances (Hagen, 1996; Maddock, 1995–98; Berndt and Berndt, 1977; Elkin, 1974). The area identified by the Yorta Yorta as their traditional lands overlays the observations made by Robinson and Curr in the 1840s, R.H Mathews in the 1890s and Tindale in 1940 and 1974. There may be some discrepancies between the area claimed

and that identified by Barwick and Clark in the 1970s and 1980s, which appear to be due to the confusion of particular sub-group identities by these later writers, rather than real or substantial territorial issues. The nature and extent of traditional Yorta Yorta\Bangerang land and waters is described in the Preface and in Figure 1 (Hagen, 1996:22; Tindale, 1974:194, 206–7; Curr, 1965:6; Barwick, 1972:15; Howitt, 1904:70– 2). The Yorta Yorta have long established social and economic relations with groups outside the claim area that existed before and after European contact. Barwick found that through trade and intermarriage, the Yorta Yorta and Kulin tribes of central and southern Victoria 'formed one population' (Barwick, 1972:15). The Yorta Yorta traded stone from the Mount William greenstone quarry near Lancefield, which was owned by the Wurundjeri (Figure 5).

Figure 5: Trade routes in the Murray Region

McBryde's studies of Mount William found that greenstone was traded extensively throughout the southeastern region (McBryde, 1976:163–76, Curr, 1965:128). In return for the stone, the Yorta Yorta traded bundles of reed spears from the Moira/Barmah

Lakes (Curr, 1965:128). The Yorta Yorta also obtained flints and axe blanks from the Ngooraialum (Goulburn River) and Pinpandoor (the Pinpandoor were the north-west horde of the Ngurelban along the Campaspe) (Le Souef, 1878:24; Tindale, 1974:207; Brough-Smyth, 1878, Vol. I: 181, 359, Vol. II: 298; Phillips, 1893:44). Further reference will be made to the ongoing nature of the relationship between the Yorta Yorta and neighbouring groups in the YYNTC. Those groups whose territories abut the Yorta Yorta lands continue to acknowledge Yorta Yorta Native Title rights and cultural protocols. (Evidence from adjoining groups given to the Federal Court, will be examined in Chapters 8–9.)

2.11 Linguistic Evidence The Yorta Yorta language survived for many years after European contact. R.H. Mathews, who claims he was the first person to report its grammatical structure in the 1890s, was amazed to discover that the Yorta Yorta held on to their language. It was distinct from neighbouring groups and was spoken throughout Yorta Yorta territory (R.H. Mathews, 11 August, 1899:167–8). The language distribution overlays the traditional territories being claimed and correlates with much of the evidence of Yorta Yorta people. Recent studies on Yorta Yorta language by Bowe, Peeler and Atkinson 1996–97 and the Yorta Yorta Clans Group 1997 complements this knowledge (Bowe, Peeler and Atkinson, 1997; see also Bowe, Yorta Yorta v The State of Victoria & Ors, Exhibit Vic A70, 1998). The impact of European settlement and the introduction of the reserve system had a major impact on Indigenous languages including the Yorta Yorta. It has never been completely lost, however, and the Yorta Yorta has been actively engaged in language restoration. Much of the vocabulary has been documented, and has since been published in the book Yorta Yorta Language Heritage, by Bowe, Peeler and Atkinson, 1997. It must be remembered, though, that all languages are in a state of change. Many traditional languages have been blended with introduced languages such as English (Fesl, 1989:1–3 Amery and Bourke, 1994:116; Reynolds, 1981:33–4). During the post- colonial period, many languages adapted and a distinct Koori creole emerged. This became the focus of linguistic studies conducted by Eades (1995), Fesl (1989) and Schmidt (1990). The creole evolved from the reserve days and became known for its distinct local variations. The Cummeragunja people can be identified by Indigenous people by the style of language they speak, as can people from other former reserves such as Lake Tyers, Wallaga Lake, Cowra, Cherbourg and so on. Elements of the language have influenced local vocabulary in the towns surrounding the former reserves. Similar to New Zealand, which has a dual system of place names derived from the Maori and English languages, Yorta Yorta language has made its contribution to

local place names. The names of towns such as Echuca (Meeting of the Waters), Moama (Burial Place), Tongala (Dhungulla=Murray River) and Kootoopna (Deep Water Hole) are derived from the local Indigenous vernacular (Bow, Peeler and Atkinson, 1997:38–9, 199; National Board of Employment Education and Training, 1996:7–8; ABS, 1994:4; Yorta Yorta Clans Group Language Project 1996; Eades, 1995; Aboriginal Deaths in Custody Royal Commission, 1991:7–12; Schmidt, 1990:37–52; Fesl, 1989:1–5). Hagen supports the proposition that the Yorta Yorta language is generally consistent with the claim area and argues that it may have extended further (Hagen, 1996:194). Traditional boundaries surrounding most of the original lands were generally diffuse, marked by points rather than 'hard lines', with intermediate or buffer areas used by both the Yorta Yorta/Bangerang and their neighbours. In response to changes in traditional territorial range and the forced removal of neighbouring groups, the Yorta Yorta have assumed a custodial role for sites located in and beyond the buffer zone. The rock wells located at Whroo near Rushworth, and the Rock Art Sites at Euroa and Beechworth on the southeastern extremities are examples of assumed custodianship in buffer zone areas (see Chapters 8–9). At the time of first settlement, specific sub-groups of the Yorta Yorta/Bangerang ancestors were identified with particular localities within the broad original lands. These sub-divisions lost their relevance as a result of changing demographic factors. Changes in YortaYorta/Bangerang social structure, customs and interests in land are consistent with situations in other parts of Australia. Aboriginal societies, as Hagen asserts, are 'dynamic entities and their customs evolve to accommodate changing circumstances, just as our own do' and indeed as those recognised by the High Court in Mabo (No. 2) (Hagen, 1996:194).

2.12 Social Organisation Throughout Indigenous Australia, kinship was the basis of social relations. All known persons were classified as kin using an extensive set of kinship terms. A man and his brothers were classified under the same term, as were women with their sisters. Being related to a person in a particular way meant not only calling them by the appropriate term, but also behaving towards them in the way that is considered correct (Berndt, and Berndt, 1977:80). For example, Blandowski describes the way a young man of the Goulburn River had to behave in the presence of his mother-in-law, whom he was not allowed to look at (Blandowski, 1858:74). The proper behaviour, then, may be avoidance, but custom may have required restraint, a speech taboo, or special duties or rights. It may have involved a joking or bantering relationship or one where mutual cooperation was expected (Berndt, and Berndt, 1977:80). This intricate social system

meant each individual could place any person they were likely to meet in a social network. It also set out the appropriate behaviour and duties members had to their kinfolk in daily activities and at tribal and intertribal Meetings (Christie, 1979:16–17). Another division of social relations that needs explaining is the 'moiety' (literally 'half'). This is an anthropological term applied to each 'half ' of a society that is divided into two parts. Societies of this type are conventionally called 'dual' societies by anthropologists (Mair, 1965:57). The basis of this division varies from group to group, and in some situations a particular group may recognise more than one type of division. Amongst Indigenous Australians, it is common to find people divided into two 'patrimoieties', in which a person is a member of the same patrimoiety of his or her father. Berndt describes the moiety as a system of classifying everyone within the tribe, in neighbouring tribes, and in fact all natural phenomena, in two distinct divisions (Berndt, and Berndt, 1977:44).

Many groups, however, also have 'matrimoieties', in which membership is transmitted through one's mother (regardless of whether the person concerned is male or female) (Sutton, 1998:41; Elkin, 1974:78,103,112). Some communities may recognise both systems simultaneously. Generally, a person cannot marry a person from the same patri or matrimoiety to which they belong, because of constraints that arise in the kinship system to prevent 'close' marriages. Despite this general rule, however, there are many examples of marriages between people belonging to the same moiety, because of deviations from the general preference for distant 'cross-cousin' marriage. It is clear from early records that such marriages were quite common in pre-contact times and are not simply a consequence of 'breakdown' of the original system (Sutton, 1998:38–9). The moieties did not determine the marriage rules, which depended on finer gradations of the kinship system, but could be used as a 'shorthand' method of determining such matters when people from distant areas came together. Throughout much of central Victoria, including Yorta Yorta territory, two 'patrimoieties' provided one of the fundamental divisions of Koori society. People belonged either to the Eaglehawk ('Bunjil' or 'Wommir') or the Crow ('Waang', 'Waa' or 'Wokir') moieties and normally married members of the 'opposite' moiety (Howitt, 1904:53, 101). The custom of marrying into the opposite moiety was observed among the Yorta Yorta. These included avoidance of marriage within the group. Children of marriages belonged to the husband's country but maintained their connections with their mother's country by the duties and customs that were placed on the husband to provide his wife's father with gifts of food (Howitt, 1904:256). Indigenous society operated not so much by the letter of the law but by the process of socialisation. A mixture of protocols, customs and education regulated social behaviour.

Children were taught two kinds of knowledge. One related to the practical skills and rules of interaction expected within the group, that was completed when boys and girls reached puberty (Curr, 1965:123). The second kind of knowledge was religious, which was shared with boys by their senior male relatives over a period of years, as boys between ten and twenty passed through various stages of self-mastery. This process of initiation and entry into the secret religious ritual life of the group established the separate role of the men in maintaining the law and the dreaming. The stages that a boy passed through are as follows. In their teenage years, boys learned the discipline of pain and silence; they learned the myths, songs and dances of their religion; the history, customs and science of the group; and their duties as men. Affiliations between tribes were strengthened through initiation ceremonies which involved large gatherings of neighbouring tribes in which each boy going through the ceremony had a guardian chosen from the brother of his wife's group (that is, those women whom he was allowed to marry according to the marriage rules). As well as this, the boy spent a term of his probation living amongst a visiting tribe, who were generally his wife's (R.H. Mathews, 1904:310, 332; Curr, 1965:117–118). Women practised a similar ceremony, which was called dhuddiwai (R.H Mathews, 1904:336). Women had the nose septum pierced, and the arms and chest ornamented with raised scars to mark their status. In differentiating between the roles of women and men, there was shared responsibility in the food quest and sometimes there was more effort in the preparation of food by women. In the ceremonial spheres, men were responsible for organising the larger gatherings while women were active participants in the gatherings themselves. A more rigid line, however, was drawn between men and women particularly in relation to 'secret sacred matters' (Howitt, 1909). Traditional roles have changed and adapted to accommodate new circumstances. An example is that women play a leading role in Indigenous affairs. Rose discusses the role of 'Women in Land Claims' in the Territory where traditional laws have been adapted to provide women with the opportunity to 'speak and show their evidence on their own terms' (Rose, 1995:48). It is also highly likely that young white men, such as Curr, had little or no access to or knowledge of secret/sacred 'women's business' when he lived in the area. Most of the key ancestors in the Yorta Yorta Claim and many of the witnesses are women. The Chairperson and the Coordinator of the Yorta Yorta Native Title Committee are women. The evolution of conventional practices in Yorta Yorta society is best exemplified in the current claim. Of the principal applicants representing the Yorta Yorta, there are four women and four men, all of whom have a say on matters concerning the land and waters and other matters concerning cultural heritage and

mortuary practices. Women and men share authority in leadership and the status of elder is bestowed on a person through learned experience and the acquisition of knowledge over time, rather than heredity bestowal (Rose, 1995:48; see also Yorta Yorta Native Title Claimants in Chapter 7; Bell, 1983:37, 179; Curr 1965:116). It was the processes of socialisation and education in tribal law that enabled Aboriginal society to function relatively free of formalised institutions of authority. While ultimate authority was vested in the elders, it was education, not government that regulated law and order. In tribal business young men and women could speak if they chose and women could interject on certain matters. The main decisions in tribal matters, however, were borne by the elders of the tribe (Curr, 1965:119). At the larger meetings, the elders or headmen of each band formed a council when decisions relating to ceremonies or the settling of disputes occurred (Christie, 1979:14). Sometimes a senior man from a neutral tribe was nominated to mediate a resolution (Beveridge, 1883:57).

The role and authority of Yorta Yorta elders in the decision-making process and in land matters has continued. The Yorta Yorta Nations Incorporated is the key organisation that represents Yorta Yorta interests in land, water and heritage matters, which is headed by a 'Council of Elders' that is drawn from representatives of the 'known ancestors' (see Chapter 9; Yorta Yorta Nations Inc, 1999–2000). The observance of traditionally based laws and customs in relation to contemporary Yorta Yorta affairs and land matters will be analysed in Chapters 8–10.

2.13 Yorta Yorta Gatherings on the Land Tribal gatherings helped to maintain links between groups and country. Groups came together at frequent periods for ceremonies, including initiation and corroborees, to arrange marriages, settle disputes, celebrate the arrival of a particular food species, and for the trading of goods (Curr, 1965:132–3; Beveridge, 1883:19–20). Meetings usually coincided with the spring and summer seasons when food was readily available and capable of supporting larger numbers (Le Souef, 1878). Special features of these meetings were corroborees and cultural activities that helped to cement inter-group relations. Large gatherings (over 500) of Yorta Yorta and neighbouring Goulburn River people were observed at various locations within the claim area (Hinkin, 1979:34–6; Curr, 1965:76; Matthews, D., 1899:5). At these gatherings, it was common practice to deal first with outstanding disputes relating to breaches of tribal law (Hinkin, 1979:28–29). The enforcement of law may have involved punishment being meted out for offences or the imposition of sanctions for what was considered to be unacceptable behaviour – 'shame job' is the common expression used in contemporary Yorta Yorta society. Hinkin observed that once

outstanding disputes were dealt with all parties returned to their own territories (Hinkin, 1979:28, 29). The Moira/Barmah Lakes, originally called the 'Moira', is another 'great stronghold for Yorta Yorta and neighbouring tribes' (Curr, 1965:76). Yorta Yorta elders told Daniel Matthews of a large open grass plain near the Moira Lakes called Algabonyah 'where a grand gathering of between 400 and 500 from all parts took place at Easter time' (Cato, 1976:29; Morgan, 1952:4; Curr, 1965:76; Matthews, D., 1899:5). These gatherings included sporting activities, in which participants would engage in wrestling matches, ball games and spear throwing contests. Ball games involving large numbers of people were recorded along the Murray. The ball was made of possum skin tightly rolled up and sewn together with possum tail sinews. Two teams were selected along moiety lines, each having a captain, and the object was to keep the ball in motion and prevent the other team from gaining control. This is not dissimilar to the game that we now call 'keepings off' (Beveridge, 1883:53). Similar ball games were recorded in the Western District of Victoria. Their main function was to strengthen moiety and section alliances amongst tribes (Dawson, 1881:85 The black cockatoo and white cockatoo moieties of the Gunditjmara people competed in large scale games (Dawson, 1881:85). Recent research suggests that these traditional ball games may well be the origins of 'Aussie Rules' football. That being the case, it is a graphic illustration of how some customary practices have not only adapted, but also made a major contribution to one of Australia's most significant cultural icons (Poulter, 1993:76–78). The evidence of Yorta Yorta occupation and use of the land indicates that the practice of traditional laws and customs continued regardless of white settlement. Yorta Yorta occupation was ever present in the 1840s and a co-existive relationship between cultural and pastoral activities was already being forged. The ancestors of the Yorta Yorta claimants were in occupation of the land and waters. There was a system of laws and customs operating that regulated social behaviour and the use of land. One of the central questions that contemporary claimants need to establish in common law Native Title is 'the fact of occupation not the occupation of a particular kind of society or way of life'. And this needs to be in accordance with the 'traditional based laws and customs not as they were practiced at colonisation, but as they are currently acknowledged and observed' (Mabo (No. 2) Toohey J. at 51, Brennan J. at 68). These issues will be further examined in the analysis of the Native Title requirements in Chapter 5.

2.14 Spiritual Connections In Aboriginal epistemology, the land and all living entities were created by the ancestral beings. The rivers, rocks, plains and sand hills are attributed to the activities of these beings. Sun, moon and stars came into being through them, and human beings together with all other living species took on their particular physical characteristics, and were shown the rules of behaviour that they should follow. All this is handed down from generation to generation through story and ritual (Bourke and Cox, 1994:49–51; Dodson, M., 1997:9; Yunupingu, 1997:1; and see Chapters 8–9 for Yorta Yorta evidence on philosophy towards land). It is unlikely that early western writers gained any detailed knowledge of the inner religious and philosophical beliefs of local Aboriginal groups. No one gained the rights of entry through the initiation process that was the prerequisite for access to rites. The transmission of secret sacred knowledge was treated ever more cautiously by the custodians themselves as they witnessed the rapid changes taking place and only passed it on to those whom they fully trusted (see Chapter 8 for evidence of Yorta Yorta connections and refusal to disclose culturally sensitive knowledge). The ancestral beings are said to have been present at the beginning of things, continue to exist, and will exist in the future. By acting in accordance with the rules laid down by these ancestors, human beings can keep in touch with them or their power and thus help to perpetuate a stable, food-producing environment and a harmonious society. In southeastern Australia, many Indigenous groups recognised the importance of a primary creative being, sometimes compared by white missionaries with 'God'. The Yorta Yorta (together with many groups in NSW, such as the Wiradjuri) called him Baiami. The Kulin called him the most powerful ancestor Bunjil, and the close similarities between the Kulin and Yorta Yorta lead us to assume that they held similar beliefs (see Chapter 2; Blows, 1975:40–1) On the NSW east coast, he was known as Yuludarra, and at the mouth of the Murray in South Australia as Ngurunderi (Bell, 1998:94), Cato partially describes the Yorta Yorta version of Baiami. One belief that has survived is about the creation of the Murray River. 'This great river, Tongala, had been created when Baiami sent his old lubra down out of the high country with her yam stick to journey across the flat and waterless plain. Baiami had sent his giant snake along to keep an eye on her. She walked for many weary miles, drawing a line in the sand with her stick, and behind her came the snake following in and out all about, making the curves of the river bed with his body. Then Baiami spoke in a voice of thunder, and lightning flashed above the high crack that was his place. Rain fell, and water came flowing down the track the old woman and the snake had made. After many moons she came to the sea, and went to sleep in a cave, while her dogs ran off and kicked up the sandhills about the river mouth' (Cato, 1976:4).

The story is integral to Yorta Yorta people's connection to their lands (see image of Biami in Figure 6; see also Yorta Yorta Evidence to Federal Court, 1996:769).

Figure 6: Biami the Creator

Aborigines believed that a person is spirit as well as body and that their spirit lives on after death and can be reincarnated. Spirit children arise from various parts of the land and are received when an infant is to be born. These spirit children come into being through the ancestors and can be released by humans through ritual. Just as there are spirit centres for human beings, there are also the same for natural species, and these centres are the focus of increase rituals. Humans can also take part in maintaining the natural course of the seasons, for example through rain making ceremonies (Mathews, R.H., 1904:222, 348–50; Elkin, 1974:222). The other important aspect of Aboriginal religion is the concept of totemism. We have seen by way of analogy that Murray tribes could have belonged to either Eaglehawk or Crow moiety. An individual or group may also have a special relationship with other 'totems' (often animals, plants or natural phenomena such as 'wind, moon', etc), which may assist him or her in life. The Aboriginal view of the world is one in which people are an integral part of nature, not sharply distinct or differing in quality from other natural species but sharing with them the same holistic life essence. Sometimes, but not

always, a person identified with a particular totem may be prohibited from eating that particular species (Berndt, and Berndt, 1977:231–8; Stanner, 1987:225–36; Rose, 1998:260–1; Elkin, 1974:220–33). One of the Yorta Yorta peoples' totems is the Emu and, in the creative period, these ancestors may have looked like a human being, but at the same time was capable of changing shape and taking the form of an emu. Thus, particular groups of people are linked with particular species through a common spiritual ancestor: in this case, the Yorta Yorta sharing the Emu totem are linked with emus, and pay them special regard. Likewise, the same relationship is held with other species such as the long necked turtle, which is regarded as a totem and is not eaten by the Yorta Yorta (see Chapter 8, 'Recognition of Totems and Species'). 2.15 Summary of Traditional Connections To summarise this section, Aboriginal people saw their world around them in a distinctive light. The landscape's features were monuments to the activities of ancestral beings and, like any religious monuments, were 'sacred sites'. Aborigines did not seek to alter these features, as to do so would bring disaster. The local group had the responsibility of caring for the land and its sacred sites, which included spirit centres. Natural species were linked to Aboriginal people through totemic relationships and were classified with people into moieties. People ensured food supplies both through supernatural increase ceremonies, and through the practical system of food taboos. Again, people's actions did not impose change on species but rather sought to perpetuate their natural cycles. Aboriginal survival then depended not on exploiting the land and herding animals but on the very opposite – keeping things going just as they had been created by the ancestral beings. Under this philosophy, there is no rigid distinction between people and other living entities; they were all part of the one system. Individuals could not alienate property rights that evolved from this relationship because they were entrusted in the community. Indigenous land relations contrast sharply with the western notion of land as a commodity. Indigenous people are 'owners' of the land in the fullest possible sense, possessing clearly defined, religiously sanctioned rights and claims to it. But on another level, the relationships transcend this, involving a complementary, holistic process in which people, land and all things natural are intimately interconnected. The land was created and endowed with its laws by the Dreamtime beings and because of its capacity to nurture and sustain life the term 'mother' is often used to describe the nature of this relationship (Pearson, 1997:24: Dodson, M., 1997:9; Yunupingu, 1997:1–3: and see Chapter 8, 'Holistic View of Land and Water').

The communal rights over land and resources and the spiritual connections are the elements of Indigenous land relations. The Native Title rights asserted in the current YYNTC trace their origins to the Indigenous ancestors that were in occupation and beyond. Permission to enter country and to use resources functioned in accordance with customary law and the concept of exclusive possession was ever present. The way in which customary laws catered for other interests in land is irreconcilable with the notion of alienating or appropriating land for individual gain (Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995; Langton, 1997:84–101; Yarmirr, 1997:80– 3). This chapter will be an important reference point for analysing Native Title issues and the extent to which claimants have to prove their connections under the NTA requirements. I will now look at the post-colonial era and examine Yorta Yorta survival and continued connections.

Chapter 3: Yorta Yorta Survival

3.1 Introduction This chapter deals with the post-colonial context and examines Yorta Yorta survival. It examines the lands set aside for Yorta Yorta use and argues that they constituted an important patchwork of linkages through which Yorta Yorta occupation continued. The history of land conflict and survival is crucial for understanding the nature of the Yorta Yorta struggle and for analysing the reasoning behind the application of the law in the YYNTC. The past, the present and the future in Indigenous and non-Indigenous epistemology are inseparable (Perkins, 2000:3; Watson, 1999:3; Yunupingu, 1998:1– 13; Dodson, M., 1994:10). The philosophy of history teaches us that the present reveals itself through the past. One is also reminded of the relationship between history and law in the post-colonial period when Justice Brennan said: 'no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice (especially equality before the law) which are aspirations of the contemporary Australian legal system'. These are the underpinning principles that will be used to demonstrate that the Yorta Yorta have withstood many tides of change and have survived as a people, with their cultural and physical connections still firmly embedded in the ancestral land and waters. In the final analysis this will be the basis for arguing, that the application of the 'tide of history' metaphor from Mabo, in the YYNTC, has constructed another barrier to land justice (see Mabo (No. 2) Brennan J. at 43, 59-60; Pitty, 1999:2; Alford, 1999:39–42).

3.2 European Invasion Colonisation of the claim area was driven by notions of racial superiority, and Anglocentric views of land ownership. This mindset played a critical role in shaping colonial policy and in underwriting the theft of Indigenous property. Prevailing ideologies of land ownership in accordance with Anglo celtic critiques of land use were used to justify dispossession. Because Indigenous people used different ways of gaining returns from the land to that of English modes of production, they were treated as not owning the land. Indigenous possessory rights, validated by divine order and sustained by 60,000 years of occupation, were put on hold for the next two centuries, by the application of terra nullius (Broome, 1995; Christie, 1979; McRae, Nettheim and Beacroft, 1997:34, 75; Bartlett, 1993:12–14; Reynolds, 1987:31–3; Jacobs, 1972:140– 1). The deception of terra nullius was a powerful incentive at colonisation, but the assumption of a vast unoccupied hinterland was inevitably confronted when settlers

came face to face with the reality of Indigenous occupation (Ah Kit, 1997:55–6; Ridgeway, 1997:65–7; Bartlett, 1993:14; Reynolds, 1987:31–3; Goodall, 1996:106; Bourke and Cox, 1994:52; Hookey, 1984:1; Pearson, 1993a; Neale, 1985:17–18). In theory, terra nullius may have held sway at colonisation; in practice, however, it attracted substantial criticism in England and in the colony of New South Wales (Select Committee Inquiry, 1837). The question of Indigenous occupation and land rights was raised in the establishment of the Port Phillip Protectorate and in the instructions of the Imperial government to the colonising commission of South Australia (Reynolds, 1987:99, 100, 105, 115; 1972:45–53; Bartlett, 1993:10–14; Bourke and Cox, 1994; Markus, 1994:36–49; 1987:48–53; Dredge, 1845:44). The falsity of terra nullius was partially recognised by the Imperial Government in the 1830s and 1840s, but the whites in the colony of New South Wales were less honest. An influential example of the ideology that drove settler interests in the taking of Indigenous land is reflected in the 17th Century writings of John Locke. Locke's view of land belonging to a common pool that could be individually owned by those who worked the land and made it productive had strong influence on British Imperial land policy. It provided a precursor to the coloniser's arguments concerning Indigenous occupation and land use. Many of the arguments used to attack Indigenous land rights today by opponents of Native Title, can be sheeted home to this mindset. The crucial point, however, is the contrast between these ideas and Indigenous views of land ownership (Locke, 1983:177–80; Reynolds, 1992:74). Parallels have been drawn between Indigenous and introduced land philosophies (see Chapter 2). The mixing of labour with the soil for productive returns in Indigenous epistemology was customary practice, but the accumulation of land as individual property to be mastered and traded was alien (Sharp, 1996:16). Within any given Indigenous community, such practices did not involve appropriating the land from the common pool for oneself. Land in Indigenous thought was inalienable and stayed in the community pool. Major differences exist however, between Indigenous society and the sort of society envisaged by Locke. Far from a simple 'common pool', Indigenous Australians possessed a highly elaborated system of land interests (Locke, 1983:177– 80). Certainly, within a particular community you could reasonably say that a common pool existed, but even then different people had different rights and interests. The assumption that Indigenous interests simply amounted to a general communal involvement was one of the fallacies used to justify the taking of Indigenous land. The idea of being able to accumulate more land and the concept of alienating something that was created by the spirit ancestors was incomprehensible (Wensing and Sheehan, 1997:4–5).

Indigenous law certainly accommodated Locke's notion of a communal pool of rights but ownership was much broader and more complex than the simple act of accumulating property based on labour. Within Indigenous society, interests in land were understood in complex religious as well as economic and political terms. Rights to land are shared between owners and visitors, other interests could be accommodated during periods of scarcity and there were long established trade relations, which allowed access to land for the exchange of resources (see discussion in Chapter 2). Locke, like many other western writers, had a hierarchical view of societies, with an earlier simple 'natural' process giving way to the complexities of regulation involved in the European nation states (Jacobs, 1972). Indigenous interests in land were different to those of Europe, but they were no simpler. Rather they had developed along different paths. Since colonisation, such ideas have remained a barrier to Indigenous land justice in Australia. It is the common law, however, that the Yorta Yorta called on following Mabo to find a way through the impasse. I will now analyse the effects of the colonial mindset on Yorta Yorta society and then examine the means by which occupation has to be legitimated (Weberriss and Frauenfelder, 1996:3–4, 11; Mabo (No. 1–2) 1988, 1992; Locke, 1983:177–80).

3.3 Effects of Colonisation The current Yorta Yorta population is estimated to be 5,000–6,000. Pre-colonial figures for the eastern half of the claim area suggest a population of approximately 2,500–3,000 (Hagen, 1996; Harris, 1995–98). The white invasion is reflected in the population estimates for the period between 1839 and 1863. The original population was reduced by 85% in the first generation of white contact and it did not stop there. The Victorian Aborigines Protection Board estimated that in the Victorian section of the claim area (1863) there were only 365 Yorta Yorta survivors. In Victoria there were only 1,920 Kooris remaining out of an estimated pre-contact population of 15,000–20,000. Introduced diseases, settlers' guns, poison, and frontier violence over land were the main causes of the population decline (Age, 12 July 1998, 'Koori Week Feature Articles': 13; Broome, 1995:31–2; Christie, 1979:78–9; Grimshaw, 1994:134–8; Reynolds, 1981:99; Barwick, 1972:15; Dingle, 1984:19–20). Historians have re-examined the extent of frontier violence and depopulation. Christie argues that between 15% and 25%, or 2,000 Aborigines, died by the rifle in Victoria alone and the figure of 20,000 has been suggested for Australia (Reynolds, 1981:99). Reynolds argues that Indigenous depopulation by the rifle in northern Australia was higher than the lives lost in all the overseas wars including Vietnam. The memory of tragic events like these underpin our history of land struggle and remain indelibly

embedded in the consciousness of Yorta Yorta people (Cannon, 1993:12–14, 104, 165; Reynolds, 1987:1; Christie, 1979:68–8; Cole, 1984:25). The extent of violence over land is a tragic reflection of race relations in the claim area. The recovery rate of 5,000–6,000 is even more amazing when considered against the extent of depopulation. Indeed, it is an admirable example of human survival and a reflection on the brutality of colonisation, not to mention the underlying values of injustice and inequality before the law. Reparation for damage to culture and for acts of genocide are integral to our struggle for land justice. These are addressed in chapters 13–14 of Bringing Them Home, Report of the HEREOC, 1997. Some individual cases for compensation are currently being heard by the Federal Court (McRae, Nettheim and Beacroft, 1997:132, 145–46; Dodson, M., 1994:10; Mabo (No. 2) 1992, Brennan J. at 62; Chronology of Claims 1861–1998, Appendix. 1). The Yorta Yorta Compensation Claim will not be heard until after the YYNTC, but the underlying causes of land justice cannot be isolated from the current YYNTC (Yorta Yorta Compensation Claim, Federal Court 1995).

3.4 Yorta Yorta Resistance The myth that Kooris passively acquiesced to the taking of their land or ceded their sovereign rights has been rejected (Cannon, 1993; Goodall, 1996; Cole, 1984; Christie, 1979; Broome, 1994; Howard, 1982; Reynolds, 1981). Violence over land was generally widespread and particularly severe in the southeastern region. Detailed accounts of Yorta Yorta resistance and the strategies used to defend their sovereign rights are well documented. They mounted attacks on homesteads, dispersed and killed stock, used fire to burn huts and push back intruders, and forced many pastoralists off their stations. Knowledge of bush terrain, wetlands and vegetation were utilised and traditional bark canoes were used to elude settlers and the police force. These tactics were clearly aimed at driving settlers out of the area and defending Indigenous territorial rights (Watson, 1996:1–12; McGrath, 1995:12–13; Kickingbird 1993:32; Bourke, 1994:52–3; Cannon, 1993:1–5; Dixon and McCorquodale, 1991:226–66; Reynolds, 1981). Yorta Yorta resistance manifested itself in different ways. In April 1838, an estimated three hundred Yorta Yorta/Bangerang attacked George Faithfull's overlanding party, in the eastern part of the claim area (near Benalla). This was believed to be a payback for breaches of tribal protocols, namely the abuse of women, from a previous expedition. Resistance was strong in the heartland around the Moira area where large numbers attacked Moira Station (in 1843) with firebrands of spears, using bark canoes to retreat into the reed beds. The use of traditional knowledge and skills to defend country from white occupation were effective resistance strategies. Indeed the evidence suggests that

at the height (1843–50) of resistance, the Yorta Yorta were gaining the upper hand (Hagen, 1996:19; Christie, 1979:63; Cannon, 1993:141–42; Christie, 1979:63). Moira Station became a refuge for local squatters. Henry Lewes reported: Mr John Clark's people driven out by natives from their station down the Murray; A part of Messr's Gwynne's herd came here from the Edward's River driven out by natives; All Mr. Green's men came here having been driven out of his station down the Murray; Messrs Gwynne's again driven from station; Mr. Will's people came here for aid' (Lewes, 1883:7–8).

Further attacks on Torrumbarry and Tongala stations caused local pastoralists to call on the para military forces (Christie, 1979:63; Curr, 1965:89–97). The troops stationed themselves at Moira in December 1843, and combined with local settlers to mount a punitive attack on the Yorta Yorta, which took place at a fishing camp near the Moira reed beds. The Yorta Yorta retreated into the reed beds for protection, where it is alleged that the troops pursued them and 'shot them like wild dogs', including children (Cannon, 1997:141–42; Select Committee Report on the Aborigines, 1845:41). Earlier historians ignored the extent to which violence underwrote white settlement in the claim area (Morris, 1970:1). The achievements of the pastoral industry are praised while the Indigenous struggle to protect territorial rights is played down. Priestly, for example, in Echuca: A Centenary History (1965) claims that Aborigines 'never presented any effective barrier to white settlement of the district'. The evidence shows that these were convenient myths that were used to propagate the notion of peaceful settlement (Reece, 1974; Reynolds, 1987; Ryan, 1981; Christie, 1979; Loos, 1982; Millis, 1992). The Select Committee Inquiry of 1836–37 and the High Court in Mabo was willing to admit that violence over land was at the heart of Australia's history (Mabo (No. 2) 1992 Brennan J. at 69; Priestly, 1965:5; Select Committee on Aborigines in British Settlements, 1836–37). Being denied land justice at colonisation is important for measuring the extent to which Indigenous rights and interests are recognised in light of Mabo. The rules may have changed but whether the law is capable of recognising past wrongs and applying justice and equality before the law in accordance with contemporary values are crucial factors (Age, 24 October 1998; McRae, Nettheim and Beacroft, 1997:36–7; Hagen, 1996; McGrath, 1995:27–8; Bourke, 1994:52–5; Chisholm and Nettheim, 1992:12–13; Neal, 1991:17–18; Aboriginal Law Reform Commission Report, 1986:19; Reynolds, 1981:72–8).

The physical struggle over land may have ended in the middle of the 19th Century but the battle for land and reparation for past wrongs was just beginning. Those measures that were introduced to provide some land for the Yorta Yorta and to protect them from

further atrocities will now be examined (Broome, 1994: 77–86; Barwick, 1972:45–68; Goodall, 1996:46; Aborigines Advancement League, 1985:22).

3.5 Protection The exposure of Britain's colonising practices was at the heart of the Protection Policy. Reports from Australia of the near extinction of the Tasmanian Aborigines, the massacres of Aborigines by whites in NSW, and atrocities elsewhere, prompted the British Select Committee Inquiry of 1836 (Christie, 1979:81–2; Rowley 1972b: 53–4). The report of 1837, condemned Britain's treatment of Indigenous people which it argued was one of genocide and the forced acquisition of Indigenous property (Report from the Select Committee, 1836–37:5–6; Chesterman and Galligan, 1997:16–17; Goodall, 1996:46, 53; Christie, 1979:81–137; Cole, 1984:27–8; Rowley, 1972b: 20, 31, 130–31; Foxcroft, 1941). The Committee conceded that Europeans entered Indigenous lands 'uninvited' and recognised that Indigenous people had an 'incontrovertible and sacred right to their own soil' and agreed that the taking of Indigenous lands had 'deprived them of the means of existence' (Report From the Select Committee, 1836–37:5–6). The report brought home the brutality of British invasion and the state of race relations in colonial Australia. Moreover, it highlighted the inseparable nature of those injustices that are still at the heart of the Indigenous struggle (Report From the Select Committee, 1836–37:5–6). The outcome of the inquiry was the establishment of the Port Phillip Protectorate that was set up under the policy of Protection (Victorian Protectorate System, 1838–49), which was aimed at providing some land and protection for Indigenous groups. The Goulburn Protectorate, established on the lower Goulburn River, has relevance to the Yorta Yorta (Chesterman and Galligan, 1997:15–16; Christie, 1979:43; Broome, 1994:69–86; Barwick, 1972:20; Select Committee Inquiry, 1836–37). The Goulburn station was used intermittently by those Yorta Yorta occupying the southern part of the claim area, but due to the lack of government support and the opposition to its existence from local squatters it was closed in 1849 (Barwick, 1972:20; Bossence 1965:47; Robinson, 'Papers', 1854; Select Committee of Inquiry into the Aboriginal Protectorate, 1849; Bossence 1965:43; Massola, 1968:4, 5). Residents of the station were left to their own means of support. They continued to camp at the traditional campsites on the edges of pastoral stations and to support themselves by hunting and fishing. Other reserve lands allocated within the claim area were important for the continuity of Yorta Yorta connections. However, the reserve system as a tool of colonisation and land restitution and as a basis for Indigenous survival had its

antecedents in other British colonies. It is argued that the reserve lands and other areas of land within the claim area became crucial linkages between the Yorta Yorta and their Native Title rights (Clark, 1950:90–102; Dredge, 1845:44; Bossence, 1965:44–56).

3.6 The Reserve System At least two centuries before Australia was colonised, reserves were used to relocate traditional Irish groups under the 'Ulster plantation scheme' in 1769. The idea of separating Indigenous people and placing them on reserves was subsequently developed in the United States. It became national policy to remove Indigenous Americans to reservations under the Indian Removal Act, of 1830 (Christie MacLeod, 1967:26–7; Personal communication with Professor Henry Dobins, Newberry Library, Chicago, 1981). There are major differences in the recognition of American Indian land rights and Indigenous Australians, but the mindset behind the reserves system was consistent. While the primary aim was to relocate Indigenous people from the traditional lands, the reserves became enclaves of Indigenous political resistance and survival. Indeed those reserves that were established within the traditional lands, as will be demonstrated in the Yorta Yorta case, were skilfully manipulated to provide for the continuity of inherent rights (Christie MacLeod, 1967:26–7; Rowley, 1972a: 183–4; Chesterman and Galligan, 1997:16–30; Jacobs, 1972:140–1; Costo and Henry, 1977:219). The patchwork of land within the claim area that enabled the Yorta Yorta to hold onto their connections will now be examined (see Figure 7).

Figure 7: Patchwork of lands and major centres occupied

3.7 Reserves in the Claim Area After the Protectorate, many attempts were made to set aside land for the Yorta Yorta. The 1849 Committee of Inquiry recommended that reserves be established along the Murray so that groups could settle on the land, adapt to farming and continue their traditional hunting and fishing activities (Barwick, 1972:45–51). The process of combining farming with traditional practices was supported by the Chief Protector George Robinson who recommended that 'Aborigines be allowed free access to Lakes, Rivers, Swamps, Lagoons, etc. and their favourite hunting grounds at the season for hunting' (Select Committee Report 1849:12–14; Goodall, 1996:Chapter 5 'Dual Occupation'). The recommendation was never adopted and other attempts to set up reserves on the Murray faced similar problems. Nonetheless, the Yorta Yorta continued to occupy and use the traditional lands and waters. They continued to gather at traditional strongholds within the claim area, to hunt and fish, and to support themselves by working for local pastoralists (Select Committee Inquiry 1859–60:22, 26, 83; Select Committee Report 1849:12–14).

3.8 Ration Depots on Pastoral Stations The encroachment of pastoral stations onto traditional Yorta Yorta lands created a relationship of interdependence. The establishment of ration depots and the appointment of pastoralists as local guardians were important linkages for the Yorta Yorta. Ration depots were located on pastoral stations throughout the claim area, and those that were located in the towns were run by local magistrates (see Figure 7). Some land was also reserved for Yorta Yorta use at Whugunya (near Corowa) in the eastern part of the claim area. From 1861–91, these became important bases for the Yorta Yorta to seek aid and to maintain connections with country. As will be shown, they also became important for the development of the pastoral economy (Select Committee Inquiry, 1859–60; Felton, 1981:174; Barwick, 1972:298).

In the absence of government-run reserves, various attempts were made to remove some of the Yorta Yorta, particularly children, to the Coranderrk reserve near Healesville in 1863. Most refused to leave their country however, and used the river to evade the Victorian government's forced removal policies of 1869–86 (Barwick, 1972:14). Not that Coranderrk was unfamiliar territory. A long established connection of trade and social relations existed between the Yorta Yorta and Kulin groups (see Chapter 2). This continued through Coranderrk, 1863–1924, and the Maloga and Cummeragunja reserves of 1874–88 to the present (see Figure 8 for location of Maloga and Cummera and other reserves/mission stations in Victoria and New South Wales; Cato, 1976:8–9; Barwick, 1972:14; Victorian Aborigines Protection Board Annual Report; 1863:9;

Christie, 1979:177; Chesterman and Galligan, 1997: 11–30; Barwick, 1969:76; 1972:45).

Figure 8: Reserves and mission stations

Before examining the Maloga and Cummeragunja lands I will analyse the legislative and administrative framework of the reserve system.

3.9 Administration of Reserves Responsibility for granting land and running reserves in the claim area rested with the respective Victorian (1860) and New South Wales (1883) administrations (Chesterman and Galligan, 1997:131; Broome, 1994:161–2). Although Yorta Yorta territories extended well into New South Wales, the Murray River was some 500 miles from Sydney, but only 150 miles from the seat of the Victorian government. The river became a significant political boundary for both administrations, each passing the buck for the responsibility of the Yorta Yorta. The Victorian Administration of 1860 played the boundary card by requesting the New South Wales Government to take responsibility and the New South Wales Government refused to provide assistance until its Protection Board was established in 1883 (Barwick, 1972:15, 40; see Chapters 7–9 for Yorta Yorta views on Murray River as a political boundary). The Victorian Protection Board was the first to introduce special restrictive laws to control Indigenous people. Statutory authority for the Victorian Board was provided under the Aborigines Protection Act 1869 (Vic). The Act gave the Board wide

discretionary powers: to control the lives and movements of Kooris; to relocate them to reserves and to remove children to reformatory schools. The origins of the Stolen Children Inquiry a century later can be traced to the Victorian Legislation (Edwards and Read, 1989:20; Barwick, 1972:14; Broome, 1994:174; Jackomos and Fowell, 1991:16, 180–3; HREOC, 1997). Further restrictive laws were enacted under the Aborigines Protection Act 1886 (Vic) and the Aborigines Act 1910 (Vic) which gave the Board powers to define who was an Aboriginal person according to biological and physical characteristics, and to exclude Kooris from those benefits that were available to other citizens. These exclusory laws were further complemented by Commonwealth laws that denied Aborigines citizenship rights enjoyed by other Australians (Rowley, 1972a: 25; Chesterman and Galligan, 1997:1–10; Peterson and Sanders, 1998:1–28; Read, 1998:169–77). The 1869 Victorian legislation was duplicated by New South Wales in 1909, giving it equivalent powers to relocate Aborigines to government-controlled reserves. From the end of the resistance to the establishment of the State Protection authorities, the Yorta Yorta continued to utilise introduced structures. They integrated the ration depots into the traditional economy, utilised the pastoral stations as a means of coexistence and supplemented pastoral activities with subsistence practices. The Moira Station, located on the edge of the Moira Forest, will be used as a case study in the relationship between pastoral leases and Native Title rights. The Moira lands are connected with the ancestors of some 1,530 Yorta Yorta people (see Chapter 9 at 9.4.2 Yorta Yorta Ancestors; Hagen, 1997–98, Exhibit: A17, A67; Chesterman and Galligan, 1997:121–56; Barwick, 1972:14; Victorian Aborigines Protection Board Annual Report, 1861:4). The Moira pastoral lease (1842–61) will be examined in light of Wik Peoples and Thayorres People v Queensland (1996) 141 ALR 129 (Wik). I will analyse the nature of the lease, and the extent to which pastoral and Indigenous interests co-existed. The case study is used to support the proposition that pastoral lands were an important part of the patchwork of lands that supported continuous Yorta Yorta connections.

3.10 Co-existence in the Claim Area: A Case Study The question of co-existence in the YYNTC was raised in November 1997, when the Federal Court visited Moira station. The Court heard evidence at a traditional ochre site that is still used by the Yorta Yorta. This evidence included Yorta Yorta connections with the Moira lands that were raised in the Crown Land Commissioner's evidence to the 1845 Select Committee Inquiry on the Aborigines. The Commissioner had commented on the 'mutual arrangement' that had been developed between the station

owner and the Indigenous residents (Minutes of Evidence taken before the Select Committee, 1845:39–40). In light of Wik, the implications were that concurrent interests seemed to have been recognised in the Moira Lease that allowed for coexistence. It was no coincidence that the High Court was then (late November 1996) preparing its verdict on Wik, which was handed down in December of that year. Before Wik, it was unclear whether or not pastoral leases granted exclusive possession and therefore extinguished Native Title or whether both interests co-existed (Tehan 1997:7; Hiley, 1997:1–4; Wik Peoples and Thayorre Peoples v Queensland (1996) 141 ALR 129; Frank Brennan, 1993:35–6; Reynolds, 1987:143–4). The question of pastoral leases was not at issue in Mabo. Deane and Gaudron JJ. found that a lease conferring exclusive possession would extinguish Native Title, while Toohey J. held that the question 'must remain unanswered in these proceedings' (Mabo (No. 2) 1992, Deane and Gaudron JJ. at 65, Toohey J. at 43, Deane J. at 35). The presumption was that if the lease reserved to Aboriginal inhabitants their traditional rights to subsistence from the land and waters, Native Title rights may continue. The extent to which they could co-exist in accordance with the reservation clauses was a matter that needed to be determined (Stephenson, 1997:104). The issue was dealt with in Wik, the majority finding that those pastoral leases granted under Queensland Land Acts of 1910 and 1962 did not confer exclusive rights of possession and did not necessarily extinguish all incidents of Native Title. While the Court ruled that both titles could co-exist on the particular leases, setting aside the question of Native Title, it held that other cases raising similar questions of law needed to be assessed on a case by case basis. The majority in Wik found that pastoral leases 'did not give exclusive rights to pastoralists' (Wik (1996) Toohey J. at 173, Gaudron J. at 206, Gummow J. at 224–6 and Kirby J. at 256). The case also revealed significant moral shortcomings in the law that could only be rectified by the acquisition of land that would allow the Wik and Thayorre Peoples to continue their traditions and customs (Flood, 1997:21; Bachelard, 1997:61–5; Hiley, 1997:1; Hunter, 1997:6–18). The issues raised in Wik added further weight to the question of Native Title and pastoral leases in the YYNTC. Being one of the largest pastoral stations in the claim area and its connections with a substantial Yorta Yorta population gave it added significance (Hagen, 1996:120). Two issues were at point: 1. Was it just a mutual arrangement between the station owner and the Yorta Yorta or was it part of the prevailing land policy, designed to protect Indigenous rights?

2. Given that there is evidence of co-existence in the Yorta Yorta oral testimony, what was the nature of the relationship? These matters will now be examined in light of Mabo and Wik. Imperial land policy dictated the nature and conditions of pastoral leases in Australia. They were adapted to accommodate Australian land topography and to protect the interests of Indigenous people occupying pastoral lands (Reynolds, 1992:14; 1993:120). Provisions were incorporated in leases to protect Indigenous rights of continued access and use of the land. As Reynolds explains, the reservation clauses were a means by which the distant Imperial authorities could preserve Aborigines from being exterminated. As indicated, the reports of Indigenous human rights abuses and the concerns raised about Indigenous land rights were of increasing concern to the Imperial and local authorities (Reynolds, 1993:119–31; G.A. Robinson Papers, Vol. 25, ML. MSS. A7035, Historic Records of Australia, 1854; Dredge, 1844).

The repeal of the Wastelands Act 1855 incorporated Aboriginal rights in Australian pastoral leases (Reynolds, 1993:128; 1992:14). This gave authority to government to legislate for the dispersal of crown lands and to recognise Aboriginal use and occupancy. Indeed, it meant that from 1855 onwards, leases were encumbered by a reservation clause that preserved Indigenous rights of access and occupation. Such reservations still exist in pastoral leases in Western Australia, South Australia and the Northern Territory. They were later removed in ways that are still not clear in Queensland and New South Wales. Reservation provisions are of critical importance, and since Mabo and Wik the courts have begun to clarify their meaning in Australian law. The President of the Native Title Tribunal, Justice French, together with the High Court (Wik) declared that reservation clauses do what the 19th Century British government officials intended them to do and that is to preserve Native Title.

Given the existence of Aboriginal interests in pastoral leaseholds, I will now re-examine the extent to which co-existence functioned at Moira Station. The critical issue is whether the coexistence that was evident at Moira Station was part of this policy (Goodall, 1996:44–6; Reynolds, 1992:14; 1993; (Wik Peoples and Thayorre Peoples v Queensland (1996) 141 ALR 129; Bartlett, 1993a: 12). The Moira leases were initially located beyond the settled districts of the Crown Land Commissioners region (the Murrumbidgee District). An initial grant of 112,000 acres was made to Henry Lewes and Charles Throsby in 1848 at an annual rent of 380 pounds or 31 pounds 8 shillings per month. Moira's grazing capabilities at the time were for 3,000 cattle and 4,000 sheep. The land was bounded on the east by the Gulpa creek – an

anabranch of the Murray – and by the Murray itself to about three miles below the junction of the Campaspe River. By 1865–66, the size of the Moira run had increased to 128,200 acres. In 1869 the lease, subject to renewal after five years, was transferred to John O'Shanassy (Government Gazette (NSW) 29 September 1848:2B1–2B2; Legislative Assembly (NSW), Votes and Proceedings 1859–60:2C1; Legislative Assembly (NSW) Crown Lands Held Under Pastoral Occupation, 4 April, 1866:2F1– 2F2). The reserve clause protecting Yorta Yorta rights appears in the 1869 lease to O'Shanassy. Under the Crown Lands Occupation Act 1861 (NSW), the lease included access rights to resources and water and 'reserved to the Aboriginal Inhabitants free access' to the land, and resources for subsistence purposes (Lease for Pastoral Purposes: Crown Lands Occupation Act 1861; Leases for Pastoral Purposes, 1869:2A1–2A2). There is unequivocal evidence that the Yorta Yorta ancestors who were living on Moira in the late 1800s had a legal right to do so, and by the very nature of the right were in occupation of the surrounds (NTA, s. 223). Coexistence at Moira and other pastoral lands was driven by the mindset of colonial policies and the reality of Yorta Yorta occupation. An iniquitous relationship evolved from the circumstances of the time and continued into the 20th Century. It is the nature of the relationship, however, that is important for establishing the continuity of Native Title rights. The origins of the pastoral industry in the claim area owes its existence to the contribution that the Yorta Yorta made through their labour, bush skills and knowledge of natural resources. It owes its existence to the contribution of Yorta Yorta women, many of whom were exploited and sexually abused by pastoral workers. Daniel Matthews' diaries indicate the value of Indigenous labour and the reactions of local pastoralists particularly when the women were enticed away from the stations to the Maloga Mission (Gumbert, 1984:20–2; Rowley, 1986:133–4; Hardy, 1966; Broome, 1994:140–1; Aborigines Protection Act 1869 (Vic) and 1886 (Vic); Aborigines Protection Act 1909 (New South Wales) and 1915 (New South Wales); Reynolds, 1981:106–87; Christie, 1979:53–80; Cannon, 1993:141; Lewes, 1883:7–8; Curr, 1965:89–97).

3.10.1 Pastoralists' Anger at Loss of Indigenous Women Matthews' diary entries for 1874 record the following exchange. 'Mr. O'S [hannassy] referred to the Blacks 1 had taken away – alluding to the girls Lizzie and Sarah he said, 'You have got two nice Gins for yourself... He had been drinking and was pale with rage – Besides you have got the Blacks down there to burn off – how many acres have they done?' Matthews replied, 'They have never done an hour's work for us, Mr. O'S, and we intend

protecting these poor girls from such men as they meet at the Stations' (cited in Cato, 1976:47).

Access to free labour and the exploitation of Aboriginal women was rampant on surrounding pastoral stations: 'Each station had its Blacks’ camp, with its quota of young girls for the use of the station hands, and sometimes the squatter's sons'. In the first years at Maloga, every young women admitted to the mission were carrying children to white fathers, though many were thirteen and fourteen years old' (Cato, 1976:33). Venereal diseases transmitted by European men caused sterility among many of the women, and the European fathers of children to Yorta Yorta women did not stay around. As one Yorta Yorta elder remarks, 'like so many of the white fathers who disappeared into the sunset the children stayed with their mothers' and were brought up within the Yorta Yorta community (Atkinson, W., 1981a: 58; Hoffman and Jackomos, 1997, personal communication; Barwick, 1972:45–7). Squatters exploited Aboriginal workers in other ways and used them as dummy selectors. Under the Crown Lands Alienation Act 1861, any person could apply for the conditional purchase of between 40 and 320 acres, for one pound per acre. While the scheme was conceived with the best intentions, the 1861 legislation, according to Lang, led to more abuse than any prior land legislation of the Colony. It created a class struggle between squatters and selectors that led to frequent bloodshed and blackmail that was euphemistically called 'dummying' and 'peacocking'. A 'dummy' was a person who selected an area, then complied with the occupant’s condition and sold it by pre- arrangement to a squatter. 'Peacocking' meant selecting the best part of the run, particularly that of prime river frontage land. Squatters did this to prevent selectors from making an effective selection and selectors did it to hold squatters to ransom by selecting the best part of a run and then offering it for sale to squatters at an outrageous price (Merlan, 1999:40–1; Lang, 1973:107–8; Morris, 1970:99). John O'Shanassy is said to have selected and paid the deposit for river frontage land in 'the name of two Aborigines, as dummy selectors'. The land was part of the original Moira lease on which John Atkinson (son of Granny Kitty) erected a bark hut for his wife and children, and cultivated some acres of wheat (Buxton, 1968:158). Under these arrangements, Aborigines were technically co-occupants, but in practice they were tenants at the will of the pastoralists. The prevailing circumstances worked to the advantaged of the pastoralists. Indigenous workers were paid in rations and tobacco in return for their labour, and the pastoral economy could supplement itself by tapping into the Indigenous subsistence economy. The surrounding Moira forest and lakes were rich in bush tucker. Being a 'great stronghold' for the Yorta Yorta, it provided a regular

and sustainable food supply (Goodall, 1996:61–8; Curr, 1965:76; Matthews, 1889:50; Morgan, 1952:4; Cannon, 1993:141–2).

3.10.2 Nature of Relationship There is unequivocal evidence of co-existence, but the relationship was really a one- way process. Equality and protection of rights were non-existent. There may have been provisions for the exercise of concurrent rights but in reality Yorta Yorta rights were subordinate to pastoral interests. In hindsight, it was a relationship of survival. The Yorta Yorta used the pastoral lands to assist in their recovery from the ravages of colonisation and the effects of terra nullius (Yu, 1994a: 21). It was a last resort strategy that was adapted to the circumstances of the time. Using whatever land was available to maintain connections and combining traditional practices with pastoral activities was indeed a clever strategy. Similar arrangements developed on other stations within the claim area. Yorta Yorta people lived and worked on the larger stations of Tongala, Perricoota, Madowla Park, Wyuna, Gunbower, Ulupna, and Toolamba. They quickly adapted to pastoral activities. Indigenous knowledge and skills were invaluable resources. Yorta Yorta ancestors were able to bolster their position as the original occupants by manipulating the available lands and resources to their favour (Merlan, 1999:40–7; Goodall, 1996:61–8; McGrath, 1995:22–6; Curr, 1965:25; Priestly, 1965; Coulson, 1979; Cato, 1976:42; Echuca Historic Society, 1997; and see Chapters 8–9 for Yorta Yorta Evidence of Survival). Co-existence, with all its inequities, functioned at various levels within the claim area. The pastoral lands are important linkages but there were other traditional lands that formed the patchwork of cultural continuity. These were the reserved lands of Maloga and Cummeragunja (Merlan, 1999:40–7; Hagen, 1996:110; Harris, 1995–98, 7:142; Cato, 1976; and see Chapters 8–10 for Genealogical Evidence).

3.11 Maloga Mission 1874–88 The Maloga Mission was established in 1874 on land selected by Daniel and William Matthews. As indicated in Chapter 2, the site was an important meeting place for Indigenous groups and the place where the river cut its most recent course, 8,000– 10,000 years ago (see Chapter 2; Cato, 1976:28; Barwick, 1972:45–7). On setting up Maloga, the Matthews brothers were quick to understand the nature of the political boundary presented by the Murray. For the Aboriginal residents of Maloga, however, the river was not a political boundary. The majority were from the local Yorta Yorta who occupied both sides of the river, and some came from neighbouring tribes from the upper and lower reaches of the Murray. Maloga was intermittently occupied by the Yorta Yorta between 1874 and 1888, many of whom continued to camp at

traditional places in the bush, along the rivers and at pastoral stations. With the creation of the NSW Protection Board in 1883, a new site of 1800 acres upstream from Maloga was reserved. This was 'Cummeragunja' ('Cummera' as it is affectionately known), a word derived from the local Yorta Yorta language meaning 'our home'. Residents of Maloga were moved to Cummera by the NSW Protection Board in 1888–89 (Hagen, 1996:112; Barwick, 1972:45–6).

3.12 Cummeragunja 1888–present Both Maloga and Cummeragunja were important places for the Yorta Yorta to regroup and to rebuild as a community. They allowed the Yorta Yorta to re-assert their inherent rights and Cummeragunja played an important role in the struggle that culminated in the YYNTC (Shepparton News, 22 September 1999; Broome, 1994; Horner, 1974; Aborigines Advancement League, 1985; Barwick, 1972:45, 65–8). From 1860 to 1999, the Yorta Yorta have made at least 18 attempts to claim land and compensation. The chronology of claims in Appendix. 1 illustrates the historic nature of the struggle. Some of these were made on behalf of the Yorta Yorta; others were made by the Aborigines Advancement League established by William Cooper in the 1930s, and some by the Yorta Yorta Clans Group 1983–99. The more favourable political climate of the 1970s provided the Yorta Yorta with the opportunity to re-assert their claims with a greater prospect of success. Formal approaches for greater control over Cummeragunja and for the return of the Barmah Forest and other areas were subsequently developed. Mabo ushered in a new era of law that increased Indigenous hopes of land justice.

3.13 Ongoing Struggle It is more than a hundred and fifty years since the Yorta Yorta fought against the white invasion of their sovereignty. Since then Yorta Yorta society has continued to adapt to social, technical, environmental and economic changes.

While the majority of these changes were forced ones, the Yorta Yorta responded in their own courageous way by utilising the limited options available. Today the Yorta Yorta remain a coherent and distinct community, emphasising their ties of kinship and regional affiliation in their dealings both with white society and with other Aboriginal groups (Barwick, 1972:16; Broome, 1994:80–4; Aboriginal and Torres Strait Islander Social Justice Commissioner Report, 1995:94–105). The resilience of Yorta Yorta survival and pride in their identity is expressed by current leaders like Monica Morgan: We know we exist, we know we have continued to exist, that no practices that have ever occurred on Indigenous people, of genocide, removal, taking

away of people, continuing denigration happening in Australia today, is ever going to take away the pride and dignity of Yorta Yorta people (Shepparton News, 22 September 1999).

3.14 Yorta Yorta Today The people who identify as Yorta Yorta/Bangerang are the descendants of the original people who occupied the lands at colonisation. The Yorta Yorta asserts that they have never relinquished their sovereign rights to territories occupied by their ancestors. Given the interference of those events described by Mabo as external factors, the Yorta Yorta have continued to live on the traditional lands and to exercise traditional rights to use resources, and continue cultural practices (Hagen, 1996:1; Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:94–6; Yorta Yorta Statement of Claim and Contentions 1994–95). Yorta Yorta connections with the claim area remain strong (Australian Bureau of Statistics: National Aboriginal and Torres Strait Islander Survey, 1996; see also Department of Conservation, Forests & Lands (Vic), 1992). Figures from the 1996 ABS survey indicate that a significant proportion of the Yorta Yorta population continue to regard the area as their traditional homelands. Other reports that correlate the legacy of land loss with current health concerns support continued Yorta Yorta connections (Alford, 1999:39–42; McKendrick, 1999). The majority of Yorta Yorta live in the townships of Echuca, Moama, Shepparton, Mooroopna, Cummeragunja, Barmah, Nathalia, Finley, Cobram, Kyabram, Wangaratta and Mathoura, and other smaller centres within the lands. Some live nearby at Albury, Wodonga, Deniliquin, Kerang, Barham and Swan Hill. Others have moved to the cities to pursue educational and economic interests, most of whom still visit the area regularly to maintain social and cultural links (ABS, 1996; Hagen, 1996:6–8; Yorta Yorta Land Management Report, 1999:10; and see Chapters 8–9). The existence of narrower sub-groupings has evolved into broader interests within the area. This is reflected in the name of the organisation set up to represent Yorta Yorta people in land and heritage matters – the Yorta Yorta Murray Goulburn Clans Inc. The events of the last one hundred and fifty years have resulted in the Yorta Yorta placing greater emphasis on their broad unity and inter-relationships and less on narrower interests. For most practical, political and administrative purposes the Yorta Yorta are one group (Yorta Yorta Murray Goulburn Rivers Clans Group Inc, 1989–1998; Hagen, 1996). The Yorta Yorta have set up organisations to service the needs of their people in housing, health, education, employment, land and heritage matters. These organisations

have provided mechanisms through which the Yorta Yorta have been able to deal with governments on both sides of the Murray. Many of the Yorta Yorta were instrumental in the fight for civil and political rights leading up to the 1967 Referendum. They established the first Aboriginal organisations in Melbourne and Sydney in the early 1930s. Some of the early leaders were active in highlighting similar injustices in other parts of Australia in the 1950s and in assisting those Victorian communities that gained some land justice in the 1970s and 1980s (Aboriginal Land Act 1970 (Vic); Aborigines Advancement League, 1985: 55–84; Horner, 1974:68–80; Barwick, 1972:16; Broome, 1994:80–4; Goodall, 1996:230–58). Yorta Yorta people predominantly run the intricate network of community-based organisations in the claim area. The Yorta Yorta Clans Group, now replaced by Yorta Yorta Nations Inc, acts as the head organisation for land, water and cultural matters. It is modelled on traditional structures in which representatives are democratically chosen from family groups to form a Council of Elders and Governing Committee.

3.15 Conclusion The chronology demonstrates that Yorta Yorta connections have never been washed away by so-called tides of history, and there has been a continuing process of political struggle. The history of occupation and race relations exposes the 'tide of history' as another euphemism that was used to cover over the underlying issues of land justice. The application of the tide idea in the YYNTC was like rubbing salt into the deep wounds that are yet to be healed. The history militates against the principles of a fair and just society, and demands that the law be brought into line with the values of justice and racial equality. The next chapter examines land justice in the broader context and focuses on the amount of traditional land that has been returned to the Yorta Yorta before Mabo.

Chapter 4: Land Justice in Victoria and New South Wales

4.1 Introduction This chapter analyses the Yorta Yorta struggle for land justice within the political process and argues that the amount of land gained from those states that border the claim area, namely Victoria and New South Wales, is a 'shame job' (term often used by Indigenous people to express outrage at something considered unjust). Indigenous land justice in Australia is contrasted with the rights gained by Indigenous people in other British colonies. This is used to critically assess the extent to which Commonwealth and State governments have delivered land justice to Kooris (Kooris used in context of New South Wales and Victoria) and to argue that the denial of land justice is deeply embedded in the Indigenous conscience. Indeed, the history of denial is the driving force behind the Yorta Yorta struggle. The analysis of land gained before Mabo will provide the context for revisiting, the questions raised by William Cooper and assessing the status of Yorta Yorta land justice in 21st Century Australian politico-legal discourse. Underpinning the thesis is the question of land rights arising from prior occupation; rights that took Australia over two hundred years to formally recognise (see Chapter 5 for analysis of Mabo). By contrast, settlements that recognised rights to land were made with Indigenous people in New Zealand, Papua New Guinea and North America. Different tribes or bands were granted perpetual tenure of specific portions of their traditional lands as compensation for the relinquishment of title. The Yorta Yorta received no land or compensation based on the concept of common law Native Title. The Yorta Yorta have never formally relinquished inherent rights that flow from prior occupation, rights by way of formal agreements (see Chapter 3), and have pursued their traditional rights within the Australian politico-legal system. Notwithstanding the barriers to land justice before Mabo, the Yorta Yorta challenged the legal and moral basis of colonisation and asserted their rights to land and compensation through legitimate political and administrative processes (Barwick, 1972:14; Harris, 1979:1; and see Yorta Yorta Evidence on Native Title rights in Chapters 7–9). After the Federal Government was given constitutional powers to enact laws for the benefit of Indigenous people in 1967, Kooris had every reason to be optimistic that the newly acquired powers would deliver land justice. The enactment of statutory land rights, however, was left largely to the States. The States' contribution to Yorta Yorta land justice, however, needs to be viewed against the rhetoric of land rights and the actual lands that have been returned (McRae, Nettheim and Beacroft, 1997:196; Boer and Brown, 1993; O'Neill and Handley, 1994:399–400, 444–5; Bird, 1993:329; Victorian Aboriginal Cultural Heritage Bill 1986 (Vic)).

4.2 Victoria While the Indigenous struggle in Victoria has its origins in the earlier campaigns of local groups, no statutory rights were granted until the 1970s (see Taungerong claim for land – 1859, in Felton, 1981; McRae, Nettheim and Beecroft, 1997:163–200; Bird, 1993: 329–30; Petersen and Langton, 1983:241, 250). Two former reserves were handed back to Aboriginal people at Lake Tyers and Framlingham under the Aboriginal Lands Act 1970 (Vic) (O'Neill and Handley, 1994:448–50; Maddock, 1983:117). The Victorian government's approach to Aboriginal Affairs prior to this was one of paternalistic overlordship. Its attitude towards Kooris is best reflected in its approach to the Commonwealth\State Conferences on Aboriginal Affairs in the 1930s. Victoria took the position of an 'onlooker', distancing itself from the plight of Koori people, by claiming that it had no problem. Victoria's contribution to Koori land justice at the time was practically non-existent, and those lands that were allocated for Aboriginal purposes (reserves) were whittled away by devious and often fraudulent processes (Gray, 1999: 20–4; Boer and Brown, 1993:29–30; McConnochie, Hollingsworth, and Petteman, 1988:109; Bourke, 1983:255; Rowley, 1972a: 25). Some land was allocated for Aboriginal reserves in Victoria before and after the Protection era. Studies of these lands indicate that there were about 254,945 acres (398 sq miles), an area equivalent to one-fifth the size of Melbourne, set aside for Koori use (Felton, 1981:176). Of this, 11,333 acres was reserved permanently. But apart from Lake Tyers and Framlingham, all the reserve lands were revoked and sold off to Europeans. Reserves were seen as a form of compensation but the loss of reserve land was seen as another act of dispossession and betrayal on the part of the government and settler society (Critchett, 1998; Broome, 1994:194; Bird, 1993:29, 329; Caldere and Goff, 1991:1–20; Felton, 1981:176; Barwick, 1972:42). Before Mabo, there was no formal land claims process in Victoria. An attempt to establish a Victorian Aboriginal Land Council, following the Woodward Inquiry into Aboriginal Land Rights in the Northern Territory (1974), was unsuccessful. The Commission arose out of the Whitlam Government's (1972–75) promises to 'legislate for Aboriginal land rights' as a national priority and as a matter of 'simple justice' (Yunupingu, 1997:6). The Woodward Commission culminated in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) (ALRNTA), which was enacted by the Fraser Government. The ALRNTA was a model that other States could adapt to their own circumstances. It provided a process for Indigenous groups to claim 'inalienable freehold title' to their traditional lands (Peterson and Sanders, 1998:18–19; Moore, 1983:242; Bourke, 1983:252–3: Peterson and Langton, 1983:3–4; Howie, 1981:28–45; Woodward Commission into Land Rights in the Northern Territory, 1974).

The unsuccessful attempt to provide a claims process for Victorian Kooris related to disagreement over the representation and control of the proposed council. Kooris wanted the council elected by the Koori community with its own autonomy, and not to be subordinate to the Department of Aboriginal Affairs – the former administrative body to ATSIC (1972–92). Koori desires for greater control were consistent with the philosophy of self-determination expounded by the Whitlam Government 1972–75. The State Department of Aboriginal Affairs' version of self-determination, however, was to appoint members to the Council and not to fund any council that was democratically elected and community controlled (Moore, 1983:247–8; Bourke, 1983: 252–4). In the absence of a statutory claims process, the only means by which Kooris could acquire land was on the open market. The Commonwealth Aboriginal Land Fund Commission 1974 was set up by the Whitlam Government to enable Kooris to purchase land (Bourke, 1983:254; Commonwealth Aboriginal Land Fund Commission, 1974). In 1977, the Commission purchased two properties for Aboriginal people. One was located at Echuca (a farm named Baroona of 128 ha), and one at New Norfolk in East Gippsland (a property of 12.7 ha). It was not until the 1980s that the Victorian government again attempted to provide some land for Koori people. The Cain Labor Government, which was committed to Koori land justice, attempted to address the shameful legacy of land loss. Under the Aboriginal Land (Aborigines Advancement League) (Watts Street, Northcote) Act 1982 (Vic), the Aborigines Advancement League received title to 1.106 hectares of land and in 1983 the Aboriginal Land Claims Bill, 1983 (Vic) was released for community discussion (Victorian Government Discussion Paper, 1984:1; Aboriginal Land Fund Commission Annual Report 1979–80). Kooris were not happy with the way the Bill was introduced, however, and raised concerns about the lack of adequate resources to conduct a 'true and honest consultation' process. The bill failed to gain endorsement from the Liberal–National party controlled Upper House and was subsequently withdrawn. Attempts to gain support from some Kooris, in order to restore credibility in the government's promises, proved to be very divisive and, as a result, the Bill was rejected (McRae, Nettheim and Beacroft, 1997:196; Coghill, 1984; Age, 29–30 June 1984; Shepparton News, 10 August 1984; Aboriginal Land Claims Bill, 1983 (Vic)). In response to the Bill's rejection, the Victorian Government requested the Federal Labor Government to use its powers under s.51 (xxvi) of the Constitution (to make laws for people of any race) and s.51 (xxxi) (to acquire property on just terms) to enact legislation for the return of land at Lake Condah and Framlingham. The Aboriginal Land (Lake Condah and Framlingham Forest Act 1987 (Cwlth) was enacted by the

Hawke Government. It also enacted the Victorian Heritage Legislation, as an attachment (PART 11A) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwlth). The preamble to the Victorian legislation acknowledged the prior ownership of the Lake Condah and Framlingham lands by the traditional owners, the Kerrup-Jmara and Kirrae Whurrong tribes, and recognised that their rights to traditional title had never been extinguished and that the land had been taken without compensation. Koori ownership of their cultural heritage was further acknowledged in the Heritage legislation. The Commonwealth, however, refused to endorse prior ownership in the preamble by adding the proviso that it did not acknowledge the same matters. The Lake Condah (53 ha) and Framlingham (1130 ha) lands, granted under inalienable freehold title, were vested in the Kerrup-Jmara Elders Aboriginal Corporation and the Kirrae-Whurrong Aboriginal Corporation (Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cwlth), s.6 (1); Nettheim, 1987:8–9; Rees, 1987:10–11, 13). I will return to the question of recognising prior rights in preambles in the analysis of the NSW statutory regime (Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cwlth)). Between 1987 and 1991 other small statutory grants were made to Victorian Kooris. Land adjacent to the Watt Street property was granted to the Aborigines Advancement League under the Aboriginal Land (Northcote Land) Act 1989 (Vic). The relevant Victorian and New South Wales legislation is included in Figure 9. The Aboriginal Land Act 1991 (Vic) transferred small areas of former reserve land that contained Aboriginal cemeteries. These lands, which contain the ancestors of Victorian Kooris, are located at Ebenezer near Dimboola, Ramhayuck near Sale, and Coranderrk near Healesville. A small area of land in Richmond, known as the 'circus site', which is of cultural importance to the Wurundjeri people was also part of these transfers (Boer and Brown, 1993:32; Aboriginal Lands Act 1991 (Vic)). In the 1990s, some land was granted to Robinvale and Healesville communities for cultural purposes. The Robinvale land of 3.789 hectares, granted under the Aboriginal Land (Manatunga Land) Act 1992 (Vic), was a former transitional housing estate that was set up by the Aborigines Welfare Board in the 1950s. The grant was conditional upon the land being used for Aboriginal cultural purposes, and allowed mining rights to continue under the Mineral Resources Development Act 1990 (Vic); the Petroleum Act 1958 (Vic); and the Extractive Industries Act 1966 (Vic) (Boer and Brown, 1993:35; O'Neill and Handley, 1994:448–50). In the same year, the Commonwealth granted the former Army School of Health property near Healesville to the Wurundjeri people. The Crown grant included title to the 35-hectare property and the attached buildings (Boer and Brown, 1993:32).

The most recent land gained by Kooris is an area of 81 hectares of the former Coranderrk reserve of 4,500 acres. The land was purchased by the Indigenous Land Fund, created by the Keating Government as part of the Native Title package to 'assist Indigenous people to acquire and manage land'. The land was purchased in January 1998 and the title is held by the Land Corporation until a suitable land holding body is established (Mirimbiak Yarmbler, Vol. 5, May 1998:7, 22; Indigenous Land Corporation, 1994). As can be seen, the amount of land returned to Victorian Kooris under statutory and non-statutory processes is minuscule. The Victorian Government's contribution to land justice between 1970–2000 is less than one percent of the traditional lands. No common law Native Title rights to land or waters have been returned since Mabo and the enactment of the Native Title Act 1993 (Cwlth). As indicated in Figure 9, the total 32.7 sq kilometres of the original 227,600 square kilometres of Indigenous land equals approximately .014 percent or one-hundredth of one percent of the original lands. When one measures the amount of land that this represents in relation to the original land and waters occupied since time immemorial, it is indeed a shame for any government to have such a legacy of land theft. The Victorian Liberal–National Party Government of 1992–99 made no policy commitments to reparation for land loss or to land justice based on traditional connections. However, it did commit huge resources (the sum of four million dollars has been suggested) to oppose the YYNTC (Age, 18 April 2000); Royal Commission into Aboriginal Deaths in Custody, 1992). In response to the Commonwealth Government's amendments to the NTA 1993, otherwise known as the 'Howard 10 Point Plan', the Victorian Coalition Government passed the Land Titles Validation and Confirmation Act 1998 (Vic). The Legislation validated those grants made during the period of the Mabo Legislation, 1993 and the date of the Wik High Court decision on 23 December 1996, without the informed consent of the original title interests (see Chapters 7–10; Native Title Amendment Act 1998 (Cwlth) (NTAA); Land Titles Validation Amendment Bill 1998 (Vic). The prevailing mindset and antipathy towards Indigenous land justice within the political process is illustrated by the amount of land returned in Victoria. It also highlights the intransigence of State and Commonwealth Governments when it comes to recognising Indigenous occupation and the application of fair and just principles for the loss of land. The continuous denial of Koori land justice exposes the extent to which the barriers to land justice are entrenched in southeastern Australia. The situation in New South Wales is much the same.

Given that the Yorta Yorta lands covered both sides of the river and Cummeragunja is within the jurisdiction of New South Wales, I will now examine what land has been returned in that state. The overview of land justice in Victoria and New South Wales will be used to assess the status of Yorta Yorta land justice before and after Mabo.

4.3 New South Wales New South Wales Aboriginal Affairs policies followed along the lines of the Victorian administration (see Aborigines Protection Act 1869 (Vic) and Aborigines Protection Act 1909 (NSW); Boer and Brown, 1993; McCorquodale, 1987: 12–14). Token gestures towards Indigenous occupation and land rights were made, as the colonial government set aside small amounts of land for the benefit of Aborigines. These were usually placed in the hands of missionary organisations and by the 1860s, some reserve lands were allocated for Indigenous purposes (Peterson, 1981:16; Rowley, 1972b: 62–3). Land could be reserved for Aborigines by the Governor in Council under the Crown Lands (Alienation) Act 1861 (NSW). By the turn of the 19th Century, approximately 133 reserves were created, which amounted to about 24,791 acres. The reserve lands were intended to encourage Indigenous occupation and farming, but many supported themselves and indeed their very survival relied on the Indigenous subsistence economy (Goodall, 1996:75–87). By 1963, there were 54 reserves remaining, reducing the amount of land to 6,200 acres. The deceptive and often fraudulent scheme of granting land to Indigenous people and then selling it off to whites seems to have been common practice in colonial Victoria and New South Wales. The control of land was vested in the Protection Board but it seems that land could be sold off or leased to whites through deals between the Protection Board and the Lands Department. This point will be returned to in the analysis of the Aboriginal Land Rights Act 1983 (NSW), but it does highlight the lack of trust that many Kooris have developed towards the State Government and its ability to deliver fair and just principles. The mistrust that is embedded in the knowledge of past betrayals perpetuates itself through present generations. It cannot be isolated from the past and as will be indicated in the YYNTC, it manifests itself in the present struggle (see Yunupinga, 1998; Dodson, P., 1999:1–21; Goodall, 1996:48; Peterson, 1981:16; Aborigines Welfare Board 1964; Reece 1974:9; Legislative Assembly (NSW) 1900, Votes and Proceedings, Vol. 111, 266). The Aborigines Protection Act 1909 (NSW) vested the control of Aboriginal reserve lands in the Aborigines Protection Board. In 1940, control was transferred to the Aborigines Welfare Board under its assimilation policies. The restrictive laws that controlled reserve life and access to services, including the removal of Aboriginal

children, remained up until the 1960s and beyond (see Aborigines Protection (Amendment) Act 1963 (NSW); Goodall, 1996:252–3, 335; Chapman and Read, 1996:210–11; Broome, 1994:168; Australian Bureau of Statistics, 1992; Edwards and Read, 1989:20; Miller, 1985:176; Read, 1982: 24). The Aborigines Act 1969 (NSW) transferred lands to the control of the Minister for Aboriginal affairs and the Aborigines (Amendment) Act 1973 (NSW) set up an Aboriginal Advisory Council and an Aboriginal Lands Trust that were subordinate to the Minister. The Minister vested the title of reserve lands in the Aboriginal Lands Trust, but the control of existing mining interests such as gold and silver remained with the Crown. The Gove case 1972 (Milirrpum v Nabalco Pty Ltd (1971)) and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) provided the impetus for States to introduce land rights legislation. A Select Committee Inquiry into Land Rights in 1977 resulted in the Keane Report, 1978 (Select Committee Inquiry, 1978). A key outcome of the report was the enactment of the Aboriginal Land Rights Act 1983 (NSW) which provided a process for Kooris to claim land. There were many shortcomings, however, in the proposed structure of the administration, the degree of control that Kooris would have, and in the nature and extent of the land that could be claimed.

4.3.1 Major Shortcomings of the ALRA 1983 (NSW) As with the Victorian legislation, there were attempts to acknowledge traditional occupation and ownership. The preamble to the Aboriginal Land Rights Act 1983 (NSW) (NSWLRA) acknowledged Aboriginal occupation, and ownership of the land. It recognised its cultural and economic importance to Kooris including the need for land, and accepted that Koori land had been progressively reduced without compensation. When an additional preambular clause was proposed to acknowledge that the land was forcibly taken without acknowledgment and without compensation, the government reneged. The legal and political implications forced the government into a retreat position and the clause was deleted. Denial of prior occupation was again revisited in the recent Republic debate. The Coalition Government and the Australian Republican Movement refused to acknowledge some fundamental truths about Australia's Indigenous history. In the absence of legally binding principles, or a document that recognises Indigenous rights, preambles need to be clarified (Age, 23 January 1999; 3 February 1999; Australian, 3 February 1999; Wilkie, 1985:27; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Department of Education Claim) (1992), Stein J. at 194; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987), Kirby J. at 157; Tweed Byron Local Aboriginal

Land Council v Minister Administering the Crown Lands (Consolidation) Act (1990) Stein J. at 190–181). While attempts to recognise the principle of prior rights in statutory preambles is praiseworthy, it must be remembered that preambles lack legal force. They can only be consulted as an aid to interpreting and/or assisting in resolving any ambiguities in the formal parts of the Act. The recent avenue for pursuing legal rights to land within the Australian politico-legal system is Mabo, which recognised that Indigenous title is a legal right that arises from prior occupation, the content of which is sourced in traditional laws and customs. The interface between Native Title and common law notions of property interests will be examined in the next chapter on 'The Mabo Setting' (McRae, Nettheim and Beacroft, 1997: 300). The other shortcomings of the Aboriginal Land Rights Act 1983 (NSW) related to the limitations that were placed on claimable lands. Lands that were of cultural and historic significance to Kooris and former reserve lands were exempted from the claims process without consulting those claimants that may have an interest. When important areas like these were taken out of the equation, Kooris had every reason to be sceptical. Moreover, the exclusion of Indigenous stakeholders from the process is another example of denial and deception on the part of governments (Wilkie, 1985:107; Select Committee Inquiry into Land Rights in New South Wales, 1978; Select Committee Inquiry (Keane Report), 1978; National Parks and Wildlife Act 1974, 1986 (NSW)).

4.3.2 Crown Lands (Validation of Revocations) Act 1983 (NSW) The Aboriginal Land Rights Act 1983 (NSW) and the Crown Lands (Validation of Revocations) Act 1983 (NSW) were introduced into Parliament on the same day. The validation legislation was aimed at countering litigation by the New South Wales Aboriginal Legal Service to the effect that, in 1913, a legal ambiguity had been created whereby reserve lands had been vested in the Protection and Welfare Boards until 1969 and not in the Lands Department. This implied that revocations of reserves that were made between 1909 and 1969 were illegal. The government got around this by enacting the Crown Lands Validation of Revocations Act 1983 (NSW), which retrospectively validated revocations for that period (Coe v Gordon (1983); Aborigines Act 1969 (NSW), s. 10A s. 5(a); Goodall, 1996:356; Chalk, 1991:52; Wilkie, 1985:48; Peterson, 1981:17–18). This was a bitter disappointment for Kooris who lost about 25,000 acres of the land that they had fought so hard to retain. To find out that the revocations were illegal and to then validate them by legal chicanery was an act of betrayal. While the Wran Government was claiming credit for handing back some 6,000 acres of remaining reserve lands, it took away important lands that held deep significance for Kooris. They

were the lands that Kooris believed were granted to them in perpetuity as recognition of their traditional ownership, and as compensation for land loss. Indeed, it was another wave of the dispossession which took place in Victoria a century earlier (Goodall, 1996:356–7; Ridgeway, 1997: 68–78; Peterson, 1981:16; Barwick, 1972:14). The Aboriginal Land Rights Act 1983 (NSW) transferred freehold title over existing reserves to local Aboriginal Land Councils and provided a claims process for some Kooris to claim areas of Crown land. Those lands previously vested in the Aboriginal Lands Trust under the Aborigines Act 1969 (NSW) were transferred to local Aboriginal land councils. In the absence of a locally constituted land council, the lands were held in trust by the Central Land Council. The nature of the vested title is not specified in the Aboriginal Land Rights Act 1983 (NSW), but given that the title held by the Aboriginal Lands Trust was freehold, and Aboriginal demands were for nothing less, all claimed lands or those gained by purchase or grant was to be accorded the same status (Goodall, 1996:356; Chapman and Read, 1996: 167–70; Peterson and Langton, 1983:16).

The structure and funding of the New South Wales land councils was driven by revenue that was drawn from the general land fund. A sunset clause allowed the Central Land Council to operate and accumulate revenue as a resource base until December 1998. The NSWLRA provided for the establishment of a three-tiered system of land councils, which consisted of local, regional and an overarching state-wide body. The role of the central body was to; transfer title to former trust lands to local Aboriginal land councils; make limited provision for claims to additional land; and provide funding based on a percentage of land tax revenues over a fifteen-year period so as to allow open-market purchases of additional land (Aboriginal Land Rights Act 1983 (NSW)). Funding of the New South Wales scheme is derived from State land tax revenue of 7.5 percent that is paid to the Central Land Council. Half of the money is used for land purchases and administration, and the other half is invested in a capital fund to allow the Council to operate on its own and to yield significant income to the land councils after the cut-off date of 1998. At the end of this period, an accumulative fund of $500 million was expected to be reached (Aboriginal Land Rights Act 1983 (NSW) s. 28; Wilkie, 1985:Chapters 1–4; McRae, Nettheim and Beacroft, 1997:194–6; Peterson, 1981:16– 27). The control over land and resources under the 1983 Act is far from complete. Actual ownership of certain minerals is vested in Aboriginal titleholders who have the right to refuse exploration and mining and to receive royalties if they consent, but the most significant mineral resources of gold, silver, coal and petroleum are exempt. The Minister has overriding control and can grant rights to explore and recover these

minerals without consultation or the informed consent of the land councils (Aboriginal Land Act, 1983 (NSW) ss. 17(IA), 41, 45, 46). While freehold title applies to former reserve lands, those purchased on the open market in the Western Division are a lesser form of title. By virtue of an amendment in 1986, the title to land successfully claimed in the Western Division is leasehold in perpetuity (as is non-Aboriginal land in the division). If the land is within an area determined by the Minister responsible for administering the Western Lands Act 1901 (NSW), as being the urban area of a city, town or village it can be freehold. The grant of any lease in perpetuity is subject to any Native Title rights and interests that were in existence prior to the transfer of the land. Such a lease may be granted without the necessity for the payment of any rent, or it may require the payment of a nominal rent. Some additional security is granted by a requirement that, notwithstanding the Western Lands Act 1901 (NSW), such a lease shall not be cancelled unless the Minister administering the Act has consulted with the Minister administering the Aboriginal Land Rights Act 1983 (NSW), s 36(9B), s 38). The legislation provides limited criteria for making claims, which do not have to be based on traditional ownership or other justification. It is sufficient that lands be 'claimable Crown lands' as defined in ss. 28–29,3 6(l) which are able to be lawfully sold or leased, and are not reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 (NSW) or the Western Lands Act 1901 (NSW). Other claims are limited to those areas that are not lawfully used or occupied and which, in the opinion of the Crown Lands Minister, are not likely to be needed as residential lands or for an essential public purpose. Since its enactment, there have been attempts to reduce the scope of claimable lands even further. In 1986 changes were made to include provisions for ministerial certificates under section 36(8), which further limit the land that may be successfully claimed. A certificate issued by a Crown Lands Minister after consultation with the Minister administering this Act, stating that 'any land the subject of a claim under this section and specified in the certificate is needed or is likely to be needed for an essential public purpose, is final. The certificate is accepted as conclusive evidence and shall neither be called into question in any proceedings nor liable to appeal or review on any grounds whatever' (s. 36 (8)). The frequent use of this power by Ministers to defeat claims, together with the limited rights of judicial review, were strongly criticised in Darkingung Local Aboriginal Land Council v Minister for Natural Resources (No 2) (1987), in which Stein J. said that the legislation 'resembles the act of giving food with one hand and taking it away with the other, before the food has reached the mouth' (p 231). There have been a number of

cases in the courts considering the validity and scope of such certificates as well as appeals generally from ministerial decisions to reject claims. The Act has been interpreted such that if the land proposal falls within the definition of 'claimable Crown land' the Court may order that title be granted (Boer and Brown, 1993:148–50). Following the introduction of the Native Title Act 1993 (Cwlth), complementary legislation was introduced by the Native Title (New South Wales) Act 1994 (NSW). This excludes from claim those lands that were subject to an application for a determination of Native Title (other than an unopposed non-claimant application) or subject to an approved determination that Native Title exists. Other amendments provide that a grant of statutory title is subject to any Native Title rights and interests. National parks, historic sites, wildlife areas, State forests and timber reserves, and other important dedicated areas, are excluded by this definition. These laws are relevant to the Yorta Yorta Native Title Claim that stretches into New South Wales.

4.3.3 Amount of Land Returned in New South Wales Given that the Aboriginal Land Rights Act has been in place since 1983, the amount of land that has been delivered to Kooris in New South Wales can be ascertained precisely. As at February 1996, 5,721 claims had been made of which 1,071 had been granted, 2,463 were refused and 1,571 awaited completion. The total land granted in NSW under the 1983 Act is estimated to be 53,631 hectares which is less than 0.06 percent of the original lands (see Figure 9 this chapter; ABS, 1997:9; Aboriginal Land Claims Unit, 1996; O'Neill, and Handley, 1994: 445–63; Aboriginal Law Bulletin, 1993:13; Boer and Brown, 1993; McRae, Nettheim and Beacroft, 1997:147–60). Figure 9 in this chapter does not include the recent transfer of the National Park at Mutawintji to the traditional owners by the New South Wales government in September 1998. The State government handed back Mutawintji National Park under a leasehold agreement similar to those arrangements negotiated at Kakadu, Uluru and Nitmulik in the Northern Territory. Under the Aboriginal Ownership Bill 1996 (NSW), the 70,000- hectare park would be managed jointly by a board including representatives from the Mutawintji people and the National Parks and Wildlife Service. The spirit of the arrangement and the concern for other interests is indicated in the comments of one of the local elders who said, 'The majority of people on the managing committee will be Aboriginal people so we will be running it, more or less, but in conjunction with National Parks and station owners. We worked through this together in negotiation in a pretty good way and I believe we can continue to do this if we respect each other's wishes'. Similar arrangements are also proposed for other parks including Mungo, but according to the NSW Premier there is 'no time frame on such measures' (Sydney Morning Herald, 7 September 1998; Age, 7 November 1998).

To some people, 53,631hectares is a lot of land but in reality it amounts to approximately 0.06 percent of the total land area of New South Wales, despite the fact that Aborigines make up two percent of the population. It is marginally better than Victoria but again very dismal in terms of a fair and just approach to Indigenous occupation and land justice in southeast Australia (Ridgeway, 1997:75–8; Pearson, 1997:12–14). While there have been some successes with the restoration of land to Aboriginal custodianship, Aboriginal desires to regain ownership and management over important sites have to be addressed through alternative mechanisms. Other problems identified include inadequate training for Aboriginal people expected to undertake major land research or administrative roles, and excessive emphasis on agricultural enterprises rather than recognition of the need for land for broader social and cultural purposes (Goodall, 1996:357–9).

In recent time, there have been continued attempts to obstruct the NSWALRA, making it even less workable. The Liberal–Country Party Government of 1988 made a major assault on the NSWALRA. Attempts to seize the funds allocated for land purchases were made and when this was found to be simply illegal, the government implemented a policy of dismembering those elements of the land council structure that allowed a strong Aboriginal voice. The Regional land councils were the main targets. Through amendments in 1990, these mid-level councils were stripped of all financial and political powers. The conservative government fostered an approach through the increasingly centralised NSW Aboriginal Land Council that emphasised individual ownership, land investment, and profit-making enterprises, to the exclusion of cultural or social land uses. It also altered the communal nature of Aboriginal land holding by allowing land to be sold for profit or otherwise alienated, in order to meet the demands of banks that refused to lend any development finance on land that could not be mortgaged (Goodall, 1996:357–9).

These shifts over the early 1990s have caused much concern and, in many areas, disillusionment with government-controlled land claims procedures. Yet, Aboriginal interest in land continues to be widespread and frequently expressed. With the recognition of common law Native Title by Mabo, there was increased hope that this might offer a real path towards land justice for Indigenous groups in the more populous regions (Goodall, 1996:357–9). The NSWALRA provided a legal mechanism for the Yorta Yorta to re-assert their rights for the return of the Cummeragunja reserve lands.

Figure 9: Aboriginal land holdings in New South Wales and Victoria 1999

State % of Pop % of Land Held Nature of Title Land Rights Legislation-Comm/State

Aboriginal Lands Trust was constituted in 1973 NSW 1.2 0.06 Inalienable Freehold under The Aborigines (Amendment) Act 1973 (NSW) to hold title to reserve land.

Crown Lands (Validation of Revocation) Act 1983 (NSW) (Revoked many Aboriginal Reserves)

Aboriginal Land Rights Act 1983 (NSW) Transferred 1200 acres of reserve land at Cummeragunja to Local Land Council.

VIC 0.4 0.014 Inalienable freehold Aboriginal Land Act 1970 (Lake Tyers-Framlingham) (Vic) Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cwth) Aboriginal Land Fund Commission 1974 (Cwth)

Freehold subject to Aboriginal Land Rights (Aborigines conditions that land Advancement League Watts St Northcote) be used for Act 1982 (Vic community cultural and Aboriginal Land (Northcote Land) Act 1989(Vic) burial purposes. Aboriginal Land Act 1991(Vic) (return of cemeteries at Coranderrk, Ebenezer, Ramhayuck Aboriginal Land (Manatunga Land) Act 1992 (Vic) Transfer of Land at Healesville by Commonwealth and purchase of land at Coranderrk by Indigenous Land Fund, 1998.

Sources: (Aboriginal Legal Issues by McRae, H, Nettheim, G. and Beacroft, L., The Law Book Company 1997: 147–60. Australian Bureau of Statistics Report on The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples 1997:9; Retreat from Justice by O'Neill, N. and Handley, R. The Federation Press 1994: 445–463; Boer and Brown, The Laws of Australia, 1992).

4.4 Yorta Yorta Local Land Council The Yorta Yorta people were quick to realise the potential of the Aboriginal Land Rights Act 1983 (NSW) and set up their local land council in 1983. Being conscious of the reduction of Cummera lands from the original 2,965 acres to 200 acres in the 1900s, the legislation offered some hope. The Yorta Yorta regained 1,200 acres of the reserve lands that were leased to a European in the 1930s, but the struggle to hold on to Cummera lands began much earlier (Bailey, 1988:29–31). Pressure for the leasing of Cummera land began in the 1890s and continued through the 1920s, culminating in the lease of most of the reserve lands to a white farmer in 1934.

The farmer was granted a ten-year cultivation and timber lease of 2,000 acres for an annual rent of 416 pounds and further leases of almost the entire reserve to whites were continued through the 1940s and 1950s (Barwick, 1972:43–50). The leasing of Cummera land was the source of much discontent and political agitation by the Yorta Yorta in the 1930s. The struggle for land continued and culminated in the establishment of the Cummera local lands council under the NSWLRA. On setting up the local council in 1983, the Yorta Yorta lobbied for the return of the leased lands that were held by whites (Barwick, 1972:50; For lands granted 1883–1900, see Chronology in Appendix. 2; Broome, 1994:81–82; Barwick, 1972; Goodall, 1996:185).

4.4.1 Original Cummera Reserve Lands 1883–1900s The original 1,800 acres of Cummera land were reserved in 1883 and the residents of Maloga Mission were relocated there in 1888–89. The 1,800 acres was inadequate for pastoral and agricultural development. There were only 400 acres suitable for farming, the remainder being heavily timbered and subject to regular flooding. Pressure from local settlers defeated the Board's 1885 and 1887 applications for extensions, but three additional grants were made between 1890 and 1900, of 90 acres, 510 acres, and 320 acres. Soon after 1900 an additional 254 acres was granted, giving a combined total of 2,965 acres (1,200 hectares) (Barwick, 1972:50). The land that was granted on a 'temporary basis' amounted to 6/100 of one percent of the traditional lands of some 20,000 sq km. Furthermore, the 2,965 acres was the average size of land that a white farmer used to support a family, far too small for a population of approximately 400–500 Indigenous residents. There was no security of title as the Protection Board had total control of land development and Aboriginal residents were merely tenants at will (Barwick, 1972). The insecurity of land ownership was shared by other reserve residents in New South Wales whom Goodall suggests were quick to find out that living on land they continued to regard as their own was more like living in a prison, under intense scrutiny and rigid controls. The consequences of such conditions contributed to a growing ambivalence towards these small patches of land, which were overlaid by experiences of repression and humiliation (Goodall, 1996:183). The leasing of Cummera lands to white farmers and the taking back of the individual farm blocks allocated to Yorta Yorta farmers in 1898 caused major discontentment at Cummera. As Broome argues, the irony of the farm blocks is that being forced back into a cooperative effort rewarded those Yorta Yorta people who attempted to engage in individual enterprises. The Board revoked the farm blocks because the farmers, who were the most able-bodied, were required to support the whole community rather than

engage in individual economic pursuits (Broome, 1994:81–2; Goodall, 1996:117–18; Barwick, 1972:24). The constant frustration of Aboriginal initiative and continued interference by the Board pushed the Cummera residents to the point of rebellion. With the unrest created by the Board's shady land dealings, together with the frustration of being controlled by the Board, Cummera people decided to take direct political action. They wanted to break free from the shackles of oppression under the Protection regime and to enjoy the same citizenship rights as white people. Land justice was essential to the struggle for greater equality and autonomy (Horner, 1974: 69–70; Barwick, 1972:14–15, 56–57; Broome, 1994: Chapter 9). I will now outline the instances of direct political action that emerged from Yorta Yorta frustration.

4.5 Landmark of Yorta Yorta Struggle The struggle for land justice and citizenship rights was initiated by Yorta Yorta leader William Cooper in 1935. Cooper drafted a petition and gained the signatures of some 2,000 Kooris from Victoria, New South Wales and other parts of Australia. The petition called for full Aboriginal citizenship rights, parliamentary representation by Kooris and for a more coordinated approach in Aboriginal Affairs administration with advisory panels in each State including Aboriginal members (Horner, 1974: 47; Bourke and Bourke, 1999:56–7). Cooper wrote to the NSW Premier's Department on the development of Aboriginal lands in NSW, suggesting that Cummera could be an ideal experiment for other reserves to follow. Cooper's campaign gained significant publicity and public support (Australian Aborigines League, Annual Report, 1936:6; Barwick, 1972:62). The struggle continued and in 1938 Cummera people led the first Aboriginal deputation to Canberra to advise the incumbent Prime Minister on the need for Commonwealth intervention in Aboriginal Affairs policy and administration. While the deputation gained little results at the time, it was a major step in their ability to organise and articulate their concerns to the head government (Horner, 1974:67–8, 161–3). While much attention was focused on broader political issues, there was growing unrest at Cummera over land and the management of the reserve that came to a head in 1939. In 1935 the Board had requested the Lands Department to revoke the reserve of all but 200 acres, because the land was no longer needed for Aborigines. The revocation' however' was not made immediately, but in 1939 the Lands Department leased a total of 1,535 acres to a white farmer who had used the land since 1934. The remaining 1,427 acres, including 200 acres to be retained as an Aboriginal reserve, was being farmed by other Europeans under Permissive Occupancies granted by the Lands Department and

approved by the Board. The extent of the land grants and the shady dealings between the Protection Board and the Lands Department created much insecurity amongst Cummera residents (Barwick, 1972:64).

4.5.1 Cummera Walk Off 1939 It was the culmination of these events that saw most of the Cummera people walk off the reserve in what became the historic 'Cummera Strike' of 1939. This brought unprecedented press attention and debate in the New South Wales, Victorian and Commonwealth Parliaments that resulted in a change in policy direction. The Aborigines Welfare Board replaced the New South Wales Protection Board in 1940 (Barwick, 1972:63; Jackomos, 1972:31). The 'walk off', as it is known by Yorta Yorta people, played a significant role in changing policy direction from one of protection to assimilation. The new policy was aimed at assimilating Aborigines into mainstream society, and in the transition process they were to be assisted in housing, education and employment. In reality, however, there was little if any support and those people that moved from Cummera ended up on the fringes of local towns camping on the riverbanks and rubbish dumps (McConnochie, Hollingsworth and Petteman, 1988:37–8). The appalling conditions under which Indigenous people were living at the time are highlighted in the McLean Royal Commission of 1957. McLean found that Aboriginal people on the fringes of white society were living in extreme poverty conditions (HREOC, 1997:27–8; Jackomos and Fowell, 1991:180–7; McConnochie, Hollingsworth and Petteman, 1988:85–6; McLean Royal Commission Report 1957:6–7). To overcome the crisis, McLean recommended the establishment of an Aborigines Welfare Board with an emphasis on re-housing people from the fringes and improving educational and employment opportunities. This was consistent with the assimilation approach adopted at the 1937 and 1951 Commonwealth conferences (Armitage, 1995:19–20).

4.5.2 Fringe Camps and Continued Connections The fringe camps between Mooroopna and Shepparton were former traditional camping places where Yorta Yorta ancestors had camped before moving onto reserves. Their re- occupation was an intelligent strategy that enabled families to keep together and survive as a group. Being located on the river and accessible to the bush, the land was important. Residents were able to utilise the natural resources for housing and for subsistence purposes (see Chapters 8–9 for Oral History of Fringe Camps; Council for Aboriginal Reconciliation, 1996). Indeed many of the camp residents believed that a greater degree of freedom was enjoyed on the riverbanks to that in the towns. Mrs Violet (Nugget) Harrison recalls the

fringe camps as happy times, where the community was like one family and there was a 'sense of freedom' from the harshness of township prejudice and hostility (Harrison, 1979–81). The fringe camps are important focal points in Yorta Yorta history and are part of the Native Title lands that enabled the Yorta Yorta to maintain connections (McLean Report, 1957:6–7; Chapters 8–9; HREOC, 1997:46). The movement away from Cummera at the time did not constitute disbandonment of connections with country. Some stayed at Cummera during the strike, many moved back to regroup with their families and there has been a continuing movement back. Because of the significance of Cummera and the location of Yorta Yorta people within the claim area, this became crucial for claiming traditional connections post-Mabo. The strike action also provides an important link between the historic protest movements of the 1930s and 1960s, which brought about significant changes in Aboriginal Affairs and put land justice on the front of the broader political agenda (Jackomos and Fowell, 1991: 180–4; Hagen, 1996:177).

4.5.3 Post-Srike Struggle After the strike the struggle for the return of Cummera lands continued. Letters and deputations were sent to the New South Wales authorities seeking the return of the land that their forebears had worked. The Board's response, however, was that the persistence of separate Aboriginal communities was inconsistent with the policy of assimilation and adhered to its plans for revocations and the dispersal of residents. In 1959, Cummera residents and supporters petitioned for the return of the land that was still reserved and were successful in gaining 200 acres after the lease had expired (Barwick, 1972:64). The remainder of the reserve was leased until 1964. This was despite Crown Law opinion at the time that the Board had never had authority to hand over reserves to persons who were not Aborigines and the leases had 'always been illegal' (Barwick, 1972:64).

In 1960 there were around seventy people living on the 200 acres of the Cummeragunja reserve. A delegation of leaders and supporters from the Victorian Aborigines Advancement League approached the NSW government for the return of land. Given the implications of the Crown Law opinion, the leases were revoked and some of the original lands were returned to Cummera residents in 1966. After forty-five years of complaints and seven years negotiation with the Board, the descendants of the pioneer farmers finally won permission to begin farming Cummera again. The agreement signed in 1966 made them merely 'tenants at will' and the Board could cancel their tenure on a month's notice and retain all fixed properties and assets. In 1970 the NSW Ministry of

Aboriginal Affairs granted a loan to the fifth generation descendants of the pioneers to develop their farming on the remaining land (Barwick, 1972:64). In 1972, descendants of the Yorta Yorta organised another deputation to Canberra to coincide with the 'Tent Embassy'. They protested against the McMahon Government's policy on land rights that denied recognition of Aboriginal title and traditional land rights. The Liberal–National party sought to use the very strength of Indigenous interests in land as a justification for denying Indigenous wishes. The government's response was expressed in the following terms: 'Freehold under the Australian legal system represents a holding from the Crown tantamount to exclusive ownership of the land, entailing a right to dispose of the land, as the title holder wishes. This notion, we believe, is alien to Aboriginal thought and custom' (Australian, 24 February: 1972). Indigenous interests were too strong to allow a right to sell land, therefore, in the twisted logic of political process, they could be left with no rights at all beyond that of 'tenants at will'.

4. 6 Claim for Barmah/Moira Forest 1975 After the defeat of the Federal Coalition Government in 1972, the Yorta Yorta maintained their demands for land and compensation. The Aborigines Advancement League made a claim for the Barmah/Moira Forest in 1975. The claim for the Barmah/Moira Forest was unsuccessful, but it was reasserted again in 1983 after the Victorian (Cain) Labor Government came to office with a commitment to land rights. With the promise of land rights, the Yorta Yorta organised a meeting in the Barmah Forest in April 1983 to discuss matters relating to the Victorian Land Conservation Council's Report on the Murray Valley region, and the government's land rights agenda. The meeting raised issues of traditional rights to land, water and heritage and the need to be fully consulted on future management plans. From this meeting it was agreed that the Yorta Yorta Tribal Council be formed as a representative body for matters relating to Yorta Yorta land, water, cultural heritage and compensation (Yorta Yorta Tribal Council, 1994). The emergence of the Council was a very important historical landmark for the Yorta Yorta. It marked a hundred years since their ancestors were first granted some land in response to a petition to the New South Wales Government in 1881. In 1883 the Yorta Yorta had been granted 1,800 acres of their traditional land on a temporary basis. This was part of the original Cummera lands granted in response to a petition by Daniel Matthews and the Maloga residents, most of whom were Yorta Yorta. Present day claimants trace their genealogical links (bloodline) back to these ancestors and forebears who occupied the traditional lands. Indeed the establishment of the Yorta Yorta Council

was highly symbolic. Marking a century of the land struggle, it emerged from the forest in the heartland of Yorta Yorta territory that which is underpinned by Native title rights. Yorta Yorta elders speak of these connections as inherent rights (see Chapters 8–9). The Yorta Yorta Clans Group superseded the Tribal Council in 1989, and broadened its representation to encompass other areas of traditional Yorta Yorta land and waters. The Clans Group focused on the traditional territories that were occupied on both sides of the Murray River. The Clans Group has since been replaced by the Yorta Yorta Nations Inc 1999, headed by a Council of Elders and a Governing Committee. The Yorta Yorta Nations Inc continues to focus on land, heritage and compensation matters. Following the Mabo decision, and the introduction of the NTA in 1993, the Yorta Yorta sought legal advice on their Native Title rights and lodged the current YYNTC for common law Native Title.

4.7 Conclusion As indicated, the Yorta Yorta struggle for land justice has never ceased. Despite official and unofficial attempts to repress Yorta Yorta aspirations, their struggle has been relentless. The Yorta Yorta explicitly petitioned for land as compensation for those injustices that their forebears experienced. From these requests, they expected nothing less than secure tenure but received only 'permissive occupancy' of Crown Lands controlled by the Protection Board. The history demonstrates that the YYNTC is not an aberration, but one that comes out of the knowledge of the past and one that seeks a fair and just hearing. Indeed, it challenges the ability of the common law to deliver land justice on fair and just terms. Against this background, we can see that the Victorian and New South Wales Governments' land policies in relation to the Yorta Yorta have been iniquitous. The Aboriginal Land Rights Act 1983 (NSW) offered some hope for at least the return of former reserve lands, but they amounted to no more than the average size farm block. While the farm block was intended to support no more than a nuclear family, the comparable reserve was intended to support approximately 500 Aboriginal people. The only land returned is some of the leasehold land that was leased to white people. The total amount of land held by the Yorta Yorta under inalienable freehold (1,800 acres) is little more than half the original reserve lands of the 19th Century. No statutory land rights have been gained from the Victorian government, and land is yet to be delivered by the NTA. The words of William Cooper are very relevant as the Yorta Yorta struggle enters the 21st Century. The amount of land returned to the Yorta Yorta and to Kooris in Victoria and New South Wales was trivial. 'Land justice' clearly poses no threat to white Australia's security in land and there are no 'back yards' or 'main

streets' at risk. The failure to deal with land rights in a fair and just manner provides a pitiful reflection of State and Commonwealth governments' efforts so far. It also exposes the mindset of land rights opponents and highlights the difficulties in trying to reconcile the Indigenous rights with introduced interests. Where small areas of land have been returned under State legislation, the Commonwealth refused an opportunity to acknowledge that the Aboriginal people were the traditional owners of the land, let alone an acknowledgment that their rights had never been extinguished. The Commonwealth also refused to give the Aboriginal owners control over their land thus normalising those rights that flow from prior occupation. No real Native Title rights, as articulated, were recognised, and the right to have control over developments that are incompatible with the enjoyment of Native Title were not delivered (O'Neill and Handley, 1994:448–50). Having provided a framework for viewing the Yorta Yorta struggle for land justice within the political process, the path to land justice can now be analysed within the judicial setting through Mabo.

Chapter 5: The Mabo Setting

5.1 Introduction This chapter examines the relationship between the common and statutory laws in recognising Indigenous land rights. The path to Mabo is followed from the assertion of British sovereignty to the High Court's decision in Mabo (No. 2) (1992). In analysing the Mabo decision it is argued that the procedures that were introduced for applicants to claim Native Title under the NTA have imposed severe limitations on common law Native Title rights. This provides the politico-legal framework for arguing whether barriers that were deconstructed by Mabo have been replaced, and for assessing the rhetoric and the reality of Mabo in the YYNTC.

5.2 Path to Land Justice through Legislation Towards the end of the 20th Century Indigenous land justice in Australia followed the path of statutory land rights. The Woodward Commission 1974 offered a framework for land rights legislation at the federal level. South Australia had already introduced legislation for the transfer and holding of former reserve lands in trust for Indigenous people (see Aboriginal Land Trusts Act 1966 (South Australia)). The bulk of Woodward's recommendations were accepted and implemented in the Northern Territory under the Commonwealth's Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) (ALRNTA). This allowed some Aborigines to claim unalienated Crown land on the basis of particular forms of traditional ownership, and enabled claimants to exercise some control over mining and other activities on the claimed lands (although 'National Interest' provisions can be invoked to over-rule Aboriginal views). Previous reserve lands were automatically transferred to Indigenous land trusts. The Act provides for an independent Aboriginal Land Commissioner to make determinations of claims to unalienated Crown land in the Northern Territory, normally a specifically appointed Judge of the Federal Court of Australia. Much of the jurisprudence in respect of defining traditional connections with country, including laws, customs and social groupings, has developed in the course of cases heard under the Northern Territory legislation. Many of the problems associated with legal and anthropological interpretations of traditional connections and the disjunction between Anglo laws and Indigenous title have been rigorously debated. Indeed the Land Commissioners have a wide range of experience to draw from, and the so-called experts engaged in land claims have the benefit of the Northern Territory experience to assist in interpreting traditional connections. While the legal requirements are different in some areas, there are many valuable lessons that can be drawn from the way prior rights have

been interpreted and applied as legal rights (Merlan 1994:21; Altman, Morphy and Rowse, 1999:1–10; Galligan, 1999:11–23). On the other hand, one of the great problems created by the Northern Territory experience involves getting anthropologists, lawyers and judges to unlearn things that they have begun to take for granted. The ALRNTA provides such a limited definition of 'traditional owner' (with emphasis on very narrow 'local descent groups' and 'primary spiritual affiliations') that it is impossible to apply in places like Yorta Yorta territory. It also sets up rights for some Aboriginal people at the expense of others. Finally, as we have seen with judges like Olney J. it has led to a view of 'Aboriginality' that does not recognise the different experiences of people in the more populous regions. I think the positive side has involved a more detailed understanding of the complexity of Aboriginal interests in land amongst anthropologists and some others, so that a substantial number of people now see how grossly simplistic the old 'clan/estate' model is, such as that depicted in The World of the First Australians, 1977 by R. and C. Berndt (despite the fact that the definition in the Act had this sort of model in mind). The negative side is that many lawyers and judges, having finally understood the old 'clan/estate' model, are now unable or unwilling to move beyond it and think that the only 'real' Aborigines live north of the Tropic of Capricorn. This is an important reference point for later analysis (McRae, Nettheim and Beacroft, 1997:240–2; Edmunds, 1994:27; Gumbert, 1984:71–81; Hagen, personal consultation on evidence presented in the Yorta Yorta case and Native Title matters, 1999–2000).

5.3 Path to Land Justice through the Common Law The second path to achieving land justice and the recognition of prior occupation has been through the common law. While this approach has been well recognised in other common law jurisdictions, it has been only recently applied in Australia. Various attempts have been made, the most notable of which was the Gove case, but it was not until Mabo that the common law was used with a degree of success. Mabo recognised prior rights to the occupation, possession and use of land according to traditional law and custom; a complex of rights and interests commonly known as Native Title. These common law rights were subsequently partly codified (turned into statutory rights) by the passage of the Native Title Act 1993 (Cwlth) (NTA). This Act and associated common law provide the legal framework for the YYNTC. While the Howard Government in 1998 made substantial amendments to the Act, the YYNTC was heard under the provisions of the original NTA, 1993. Most land claimed before Mabo was restricted to Aboriginal reserves and vacant Crown land. Many of the reserves that were located in remote areas remained Crown land

while most of those in the more settled regions as indicated were revoked and either leased or sold off to whites. Under the ALRNTA, claims can be made for unalienated Crown land if a particular form of traditional ownership can be shown. This legislation provides a seemingly very strong form of title, called inalienable freehold title, which cannot be bought or sold. Nevertheless, the strength of this form of title is open to question. A federal government that has control of both houses of parliament, for example, could probably simply convert the title to something lesser, or abolish it altogether by changing the Act itself (though the Racial Discrimination Act 1975 would also have implications here). At the time of passage of the ALRNTA, there was some discussion of the desirability to 'entrench' legislation with a subsequent requirement that a two-thirds majority of parliament would be necessary to overturn it. The current discussion of amendments to the ALRNTA following the Reeves Review indicate that 'inalienable freehold title' may not be 'inalienable' after all, with the suggestion of the introduction of a right for the Northern Territory government to compulsorily acquire land for public purposes etc (Reeves, 1998; McRae, Nettheim and Beacroft, 1997; Royal Commission into Aboriginal Deaths in Custody, 1991:Ch 19; Age, 4 October 2000). Most States (NT, NSW, SA, WA) had introduced legislation designed to transfer and grant land to Indigenous communities by the 1980s. In the absence of State-wide legislation, State governments have power to grant land to Indigenous people on the basis of traditional connections and as a form of compensation (see Chapter 4). While statutory laws gave some control of returned lands to Indigenous people, and some preamble recognition of prior occupation, the full control is vested in the relevant Minister on behalf of the Crown. The question of common law rights was a matter that was left to the Courts and the NTA 1993. The statutory process for gaining land and the recognition of prior rights will now be contrasted with the process through which common law Native Title has been recognised. The important distinction that needs to be drawn is that Native Title does not need to be granted by the Crown because it is a legal right that arises from prior occupation (Reeves, 1998:33–48; Pearson, 1994a: 179– 81; Royal Commission into Aboriginal Deaths in Custody, 1991:482–97; Chapter. 19: McRae, Nettheim and Beacroft, 1997:149–51). Some preliminary issues have been raised in relation to the barriers to land justice posed by the application of international and common law principles of colonisation (see Chapter 3). As a prelude to Mabo, I will now analyse the legal basis of terra nullius and its ramifications for Indigenous land justice in Australia.

5.4 Legal basis before Mabo The traditional legal view is that in 1788 Britain not only gained sovereignty but ownership of all the land. Unlike those former British colonies in North America and New Zealand, where Native Title rights were recognised from an earlier time, Australia was treated by the British as though it were uninhabited and terra nullius. The denial of Indigenous rights in Australia needs to be examined against the way 18th Century rules of colonisation were applied. Central to this analysis is the differentiation of principles that were understood to be the accepted rules of colonisation in Anglo jurisprudence (McRae, Nettheim and Beacroft, 1997:35, 75; Bartlett, 1993:9; Hookey, 1984:1–18; Bird, 1993:50).

5.4.1 Terra Nullius A crucial element of Anglo law is the principle of occupation and possession. If the land were occupied, it could be gained by conquest and cession or by treaty, as was applied in North America and New Zealand. If the land were treated as terra nullius, which implied that the land was uninhabited, the colonising power could acquire the territory by occupation and settlement. This was the claimed legal basis for the colonisation of Australia, and the means by which prior Indigenous land rights were denied. Underpinning the concept of terra nullius at international law, however, were the rules of colonisation as they applied under the common law (McRae, Nettheim and Beacroft, 1997:35, 75; Bartlett, 1993:9; Hookey, 1984:1–18). Most important was the necessity to make adjustments to accommodate local conditions, particularly in situations where the application of the law involved territories that were occupied by Indigenous people. This allowed for the importation of English law without 'abrogating pre-existing customary law' (McNeil, 1989:115–16). The extent to which Indigenous law was retained depended on the circumstances of each colony, but the question of whether a region was terra nullius or settled was irrelevant to that of Indigenous occupation. Physical presence and occupation of land was the prerequisite to ownership under international and common law rules (McNeil, 1989:115–116). Terra nullius, as Bartlett explains 'was never considered a bar to native title in Australia or elsewhere'. It was the application of the common law rules of occupation and the question of comparative Indigenous rights that remained at the heart of 19–20th Century Australian politico-legal institutions. The Crown's assertion of ownership and the acquisition of Indigenous lands without consent or the payment of compensation was constantly challenged (see Asher v Whitlock (1865); Perry v Clissold (1907); Etherington, 1999:7; Bartlett, 1993:9; Butt, 1996:2219; McNeil, 1989:298–300, 304–6; Reynolds, 1987:19–22).

The different treatment of Aboriginal and Torres Strait Islander rights is reflected in how the law was applied. From the outset, all the land was treated as the property of the Crown which empowered itself to alienate land through the enactment of the Sale of Wastelands Act 1842 (Imp) and the New South Wales Constitution Act 1855 (Imp). These Acts were used to bolster the Crown's rather shaky position, but there were other factors that contributed to undermining Indigenous possession at law. The seeds of denial had already been sewn by racial ideologies and Anglocentric perceptions of Indigenous occupation and land use (see Chapters 1–2).

5.4.2 Foundation of Native Title Cook's limited observations of the southeastern seaboard of Australia were part of the problem, but Joseph Banks' perceptions were probably more significant and influential. Banks claimed that: ' …their houses and sheds in the woods, which we failed to find, convinced us of the smallness of their parties. We saw indeed only the seacoast: what the immense tract of inland country may produce is to us totally unknown: we may have liberty to conjecture however they are totally uninhabited' (Brunton, 1998:97).

While not the basis of terra nullius, this view is an important aspect of the ideology of race that shaped subsequent thinking (P. Brunton, 1998:97). Banks, a man of substantial financial means and even greater political influence than Cook, was the main advocate for the establishment of a British colony in Australia. (Cook, was killed in 1779 in Hawaii, some nine years before the 'First Fleet' arrived at Botany Bay). In the same year that Cook died, Banks (by then President of the Royal Society) advocated the establishment of a penal colony at Botany Bay. Banks' views had huge influence with the Imperial government in the early 1800s. Cook was a mere naval captain. To use a modern analogy: Cook was the chauffeur, Banks was the bloke in the back of the stretch-limo, with the ear of kings and prime ministers.

The weight placed on these observations would have been easier to justify if they had proved to be correct. But they were not, and the extent to which Banks got it wrong would revisit those who ventured into Aboriginal land and hound those governments which continued to dwell on legal fictions into the 21st Century. Other factors that assisted in undermining Indigenous rights related to the distance between the home government and the events that took place on the ground. From 1788, the common law, as Reynolds argues, 'turned a blind eye to everything that happened in Australia and retreated further from the real world into the world of injustice as the 19th Century progressed' (Reynolds, 1987:31–32; see-also Gardiner-Garden, 1994:5; Von Savingny, 1848; Wolff, 1934; De Vattel, 1916). Australia was too far away, and the inability of

Britain to control the colonists and the Australian courts aided and abetted the usurpation of Indigenous lands. The squatters had gained too much power for British Colonial policy to have any real impact. This is brought home in the instructions to Governors on the establishment of colonies in Victoria and South Australia and the actual events that followed. It was easy for the British Government to issue instructions that recognised Indigenous rights to the soil. It was much harder to put them into practice, however, when the frontier was ruled by the gun and not by the letter of law (Havemann, 1999:13–17; Reynolds, 1987:31–2, 81–101; Christie, 1979:24–52; Hagen, personal consultation on evidence presented in the Yorta Yorta case and Native Title matters, 1999–2000; Amodu Tijani v Secretary, Southern Nigeria (1921); Re Southern Rhodesia (1919). The barriers to land justice in Australia seemed insurmountable but Indigenous people kept 'chipping away' (This analogy is often used by Kooris to describe the process of gaining justice). Indigenous rights struck deeply at the morality of Imperial and Colonial policy in not recognising Indigenous possession and in bringing the degree of land theft that took place (see Chapters 3–4). I will now analyse those events that were considered 'big chips' in the Indigenous struggle that contributed to breaking down old barriers, in order to set the stage for Mabo.

5.5 The struggle to assert Land Rights at Common Law The assertion of the Crown's ownership of Australia was first raised in the infamous Batman Treaty, 1835, and subsequently in other cases (see Cooper v Stuart (1889); R v Murrell (1836); Attorney-General v Brown (1847); Williams v Attorney General (1913) and Randwick Corp v Rutlege (1959)). It was also raised by the British Select Committee Inquiry 1836–37 which recognised that Indigenous people had an 'incontrovertible right to the soil' (1836–37), and by the chief Protector of Aborigines, George Augustus Robinson, who admitted that he was at 'a loss' when it came to 'conceiving by what tenure the country was held' (Broome, 1994:32; Reynolds, 1987:35; Christie, 1979:42).

5.5.1 Batman Treaty The Batman Treaty went directly to the principle of prior occupation. It recognised Indigenous rights to the soil fifty years after the Crown's assertion of ownership. The treaty, which remains the subject of much debate, was negotiated with the Wurundjeri supposedly in return for the cession of some 600,000 acres of tribal land. The recognition of prior land rights not only challenged the Crown's ownership but it exposed the colonial government's vulnerability. It demonstrated that some colonists were aware of the basic rules of colonisation and attempted to put them into practice.

Batman was no saint however. In Tasmania, he had been engaged as a 'rover', capturing and killing Indigenous Tasmanians in the late 1820s. For the slaughter of fifteen men and the capture of a woman and child, Governor Arthur apparently rewarded him with 2000 acres of land (Turnbull, 1974:98). The Batman Treaty demonstrated that customary law principles were operating on a highly organised level, a matter that was subsequently partially recognised in a handful of cases by settlers and by the courts in Milirrpum v. Nabalco (1971) and Mabo (No. 2) 1992. Although the original owners were in some cases willing to accommodate white interests, they were soon to learn that their attempt to reconcile their law with the introduced one was a rather futile exercise. The Crown’s refusal to recognise a treaty with Indigenous occupants was based on the need to secure its position of ownership and to shore up its justification for the acquisition of Indigenous lands without consent or the payment of compensation. The crown assumed the position of absolute owner of the land, which it treated as being unencumbered by any form of native title (Mabo (No2) 1992). Indeed it was on the basis of terra nullius and the Crown’s assertion of ownership that the matter of prior rights was being tested. The assumption that Australia was 'a tract of territory practically unoccupied without settled inhabitants' appeared to be confirmed in Cooper v Stuart (1889) and was binding on Australian courts. The decision elevated the myth of terra nullius to the status of legal doctrine. By the mid–20th century, the barriers to Indigenous land justice in Australia remained. The Crown's vulnerability, however, had already been exposed and the issue of Indigenous rights remained quietly on the legal and political agenda (McRae, Nettheim and Beacroft, 1997: 205; Bartlett, 1993:12; McNeil, 1989:120–1; Reynolds, 1987:32–3).

5.5.2 Milirrpum v. Nabalco (1971) (The Gove Case) The barrier of Cooper v Stuart (1889) remained for much of the 20th Century, but the matter was put back in the Court by the Yolngu people of North East Arnhem land in Milirrpum v. Nabalco (1971) (the Gave case). The Gove case before Blackburn J. sought to restrain mining on traditional Yolngu lands which they argued had been approved without the consent of the traditional owners (Milirrpum v. Nabalco (1971) at 167, 223, 245, 253, 272–3). Blackburn J. recognised that the Yolngu community had been governed prior to the intrusion of Anglo society by a system of law that was highly adapted to Indigenous needs, provided stability and order, and was remarkably free from the vagaries of personal whim or influence (Milirrpum (1971) 267–8). On the face of it and at the time, this was a statement of profound implications. It recognised the existence of Indigenous legal and political systems. The laws and customs acknowledged by Blackburn J. are

the content of Native Title rights that arise from Indigenous sovereignty. The recognition of an Indigenous sovereignty at settlement may allow for the evolution of a domestic form of sovereignty as that practised by Indigenous people in the United States. It may be the basis for negotiating an agreement in the form of a treaty, compact or agreement between Indigenous society and the state (Bartlett, 1993:10; Mabo (No. 2), Brennan, J. at 26; Toohey J. at 145; Worcestor v Georgia (1832) at 515). In hindsight, Blackburn J's acknowledgment of customary laws was an attempt to clarify the disjunction between the two legal systems. When it came to the question of co-existence, however, Blackburn J. quickly retreated to the Crown's position, which was held to be final and one that could not be overturned by a reconsideration of the historical evidence. If one adopts the established system of law approach that is based on factual evidence, then New South Wales would appear to have been classified as settled on the basis of 'erroneous factual assumptions' (McNeil, 1989:224).

5.6 Australian Law and other British Colonies Blackburn J, in Millirrpum, ignored the precedents that were applied in other common law jurisdictions that recognised Indigenous rights. The rules of negotiating and purchasing Indigenous land were deeply entrenched in colonial practice and in the common law itself. Precedents demonstrating how the common law applied to Indigenous rights were clearly cited in the cases from the relevant jurisdictions in New Zealand and North America, including, Campbell v Hall (1774); Johnson v McIntosh (1823); R v Symonds (1847);Calder v Attorney-General of British Columbia (1973). The concept of Native Title was defined by Marshall CJ. in early US cases, including Johnson v McIntosh (1823). It was a legal right that was based on the fundamental principle of prior possession. Indians were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession. The other elements were: 1. It did not depend on any particular land use or kind of settlement, and agriculture was never regarded as a prerequisite for Native Title, which was considered with reference to their habits and modes of life; their hunting grounds were as much their actual possession as the cleared fields of the whites; and their rights were to its exclusive enjoyment in their own way or for their own purposes. 2. It did not exist in opposition to the complete, ultimate title of the United States (or the Crown). The government had the exclusive right to extinguish Native Title. But that title had to be considered as a form of property. Indian consent should be sought and compensation paid when the Government exercised its right of pre- emption (Fletcher v Peck (1810); Johnson v McIntosh (1823); Cherokee Nation v Georgia (1831); Worcester v Georgia (1832); Mitchell v U.S. (1835)).

Marshall's judgments were important landmarks in dealing with cross-cultural interests in land, particularly the way that he applied the common law to the empirical reality of Indigenous land use and adaption. He did not simply take account of settler interests, but focused on how he could achieve a balance between competing interests. Despite the history of land loss, Marshall recognised that the realities of the present had to be accommodated. It must also be recognised that the rationale of the United States Supreme Court in Johnson v McIntosh (1823) was used to deny the right of complete sovereignty to Indigenous tribes. In the words of Marshall CJ. absolute sovereignty arose from the proposition ‘that discovery gave exclusive title to those who made it’ (Isaac, 1996:9). The common law's recognition of Indigenous land rights was followed in the New Zealand Supreme Court in R v Symonds (1847). Justice Chapman (at 387) defined Native Title as a qualified dominion that was not inconsistent with the absolute rights of the Crown and which secured to 'the indigenes all the enjoyments from the land which they had before the intrusion of the Europeans'. Chapman J. declared that Indigenous title was a right that was entitled to be respected and could not be extinguished without the free consent of the Indigenous occupants. Similarly, Canadian Indians enjoyed Native Title to their lands and the law required such title to be extinguished by treaty before settlers could move in (Foster, 1999:352-353; McRae, Nettheim and Beacroft, 1997:205–6; Reynolds, 1987:32–3). While the international law principles of discovery and settlement have different meanings for Indigenous peoples in Australia and oversees, it is clear that the common law was capable of recognising prior Indigenous rights. The major difference with Australia as Reynolds explains is that: the common law felt no need to adapt to the presence of Indigenous people - they lived out the legend of terra nullius. Central to this view was the cultural condescension and racial contempt that was immured in the legal and constitutional foundations (Reynolds, 1996:12-13). By comparison with Australia, it was the gap between the common law and the emerging body of international jurisprudence on the rights and interests of Indigenous people’s that had to be reconciled. Having explored some of the comparative issues of Indigenous land justice, in other former common law jurisdictions, I will now examine why Blackburn J. disregarded these principles in relation to the existence of native title in Australia. These anomalies were soon to be challenged (Milirrpum v Nabalco (1971)).

5.6.1 Significance of Milirrpum The Canadian Supreme Court in Calder v Attorney-General for British Colombia (1973:145) argued that some of Blackburn J's propositions were 'wholly wrong' (per Hall J, Laskin and Spence JJ, concurring, at 218) and that the common law's recognition of Native Title in a settled colony was correct law (Calder v Attorney-General for British Colombia (1973) at 145). Barwick CJ. of the Australian High Court hinted in Administration of Papua v Daera Guba (1973:397) that the Gove decision was 'due for reassessment' and 'that native title might exist at common law'. The Judges in Coe v Commonwealth (1979:403) agreed that it would be an 'arguable question if properly raised' and one that Murphy J. concluded was still to be determined in Australian law. Deane and Brennan's JJ. criticisms of Australia for not retreating from the injustices that denied Native Title, in Gerhardy v Brown (1985:532), added further weight (Mabo (No. 2), Brennan J. at 43; McNeil, 1989:122–3; Reynolds, 1987:32–3; Milirrpum v Nabalco (1971) at 242–5). Developments taking place on the political front gave added impetus to the issue of Native Title. The barriers to Indigenous land justice created by terra nullius and consolidated by the Gove case in 20th Century Australia, brought strong political resistance from Indigenous people and supporters. The continuous denial by the courts of Indigenous land justice was an opportunity to expose the way the law had reduced Indigenous people to the status of aliens in their own land. Indigenous leaders were quick to seize the opportunity arising from Blackburn's treatment of Indigenous claims and established a Tent Embassy on the lawns of the Federal Parliament in 1972 (Goodall, 1996:338–9; Jonas and Langton, 1994:33). The embassy was successful in drawing national and international attention to the plight of Indigenous people and in exposing the injustices caused by land loss. It became a symbol of the land struggle and the means by which Indigenous people could put their case to the Australian and International community. With the discontent generated by Gove, fuelled by the growing agitation of Indigenous leaders, the Tent Embassy was instrumental in putting land justice back at the front of the political agenda (ABC Radio National, Interviews with people involved in the establishment of the 'Tent Embassy' in 1972, 13 March 1999; Iorns Magallanes, 1999:246; Gary Foley, 1996; Bourke, C., Bourke, E. and Edwards, 1994:57–8; Ningla A-Na, 1989).

5.7 The Mabo Litigation 1982–92 It was not until 1982, when action was first brought in Mabo (No. 1), that the courts were again called upon to determine whether Native Title was part of the common law of Australia. The application came from a group of Torres Strait Islanders, including the late Eddie Mabo. The legal action was against the State of Queensland on behalf of the

Meriam people, requesting the Court to declare that the Meriam (Murray Island) people held Native Title to the Murray Islands in the Torres Strait and that this would give them ownership and control over their traditional lands and fishing areas (Mabo v Queensland (No 1) (1988). The Queensland Government tried to circumvent the action by introducing the Queensland Coast Islands Declaratory Act 1985 (Qld), which was designed to extinguish retrospectively any possible Native Title in the Islands and any claims to compensation from the date of annexation in 1879. In March 1988, the High Court found that the 1985 legislation was invalid and in breach of the Racial Discrimination Act 1975 (Cwlth) (RDA), because it took away property rights under Meriam law while leaving intact property rights under Queensland law (Mabo v Queensland (No. 1) (1988) at 34; RDA s. 10(1)(2)). The High Court did not decide whether the Meriam people held Native Title to the Islands, but stated that if it did exist, it could not be extinguished and was protected under constitutional laws.

Mabo (No. 1) was referred to the Supreme Court in November 1990 for determination of issues of fact and was then presented to the High Court in May 1991 for trial. As the parties prepared for the final court battle in a ten-year saga (1982–92), the two main issues on the agenda were: 1. Would the High Court overrule Blackburn J's 1971 decision in Milirrpum, and find that Native Title existed in Australia? 2. What test would the Court formulate to determine whether Native Title rights had been extinguished?

5.8 The Mabo Decision 1992 The High Court, in Mabo (No. 2), made one of its most significant decisions, overruling Milirrpum and abolishing the legal fiction of terra nullius. The Court 'upheld the plaintiff's claim to Native Title', and recognised 'the existence of native title at common law in Australia'. Native Title survived colonisation and continued where it could be proven to exist 'in accordance with the traditional laws and customs' of the Native Titleholders. The crucial question of whether or not Native Title was part of the common law of a settled territory such as Australia was derived from the case law dealing with Native Title in other common law jurisdictions. Australia was held to be no different and the matter of whether or not a region was 'terra nullius' or 'settled' was not considered a bar to Native Title. In hindsight Mabo attempted to break down old legal and ideological barriers that stood in the way of Indigenous land justice. It was these events that Deane and Gaudron JJ. condemned for being 'the darkest aspect of the history of this nation'. The retreat from past injustices appeared to be necessary steps

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towards bringing the law into line with fundamental human rights principles and in touch with contemporary values. These principles and those expressed by Brennan J. (below) become crucial for analysing the extent to which they have been applied in the YYNTC (Mabo (No. 2), Brennan J. at 41, 43, 109; Deane and Gaudron JJ. at 82–3, 109; Toohey J. 142; Dawson J. at 106; Bartlett, 1993:9; Stephenson and Ratnapala, 1993:14– 15). Brennan J. in Mabo (No. 2) confirmed the human rights principles of justice, equality and the full respect of Native Title before the law (Mabo (No. 2), at 50). Reflecting on the way the common law had denied Indigenous land justice, in Australia Brennan J. held that it took away Indigenous rights to land, deprived them of their religious, cultural and economic sustenance, and vested the land in the Crown without any right to compensation. It was these events that Brennan J. concluded ‘made the indigenous inhabitants intruders in their own homes and mendicants for a place to live’. The discriminatory and unjust nature of the law in denying Indigenous land justice and its place in contemporary society is bought home by Mabo. 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).

The legal authority in Mabo (No. 2) was drawn from the 1823 United States Supreme Court decision in Johnson v McIntosh (1823). The decision was guided by the 'actual state of things' rather than the letter of the law per se, and the need to depart from antiquated assumptions about Indigenous societies. Pragmatism seems to have won out on the day and the recognition of Indigenous title has its origins in the compromise reached in Johnson v McIntosh. Mabo did not make new law but reaffirmed old rules that went missing in 19th Century Australia (Johnson v McIntosh (1823); Bartlett, 1993:10–12; Mabo (No. 2), Brennan J. at 64). The rhetoric of Mabo and the reality of Indigenous land justice will be fully tested by Indigenous claimants. A crucial issue is 'whether Anglo-Australians are willing to abide by their own law's respect for Indigenous title' and the degree of equality that Indigenous title is given (Pearson, 1994a: 179–81). The legal status of Native Title under common law notions of property rights is still very ambiguous. Mabo certainly raised hopes, but the barriers to gaining land justice within contemporary politico-legal processes, will be analysed in the Yorta Yorta.

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5.8.1 Test for Proving Native Title The requirements of Native Title as defined in Mabo and the NTA are: 1. The existence of an identifiable community or group. The High Court emphasised the vesting of Native Title in a community and referred to a community consisting of a clan, group or society (Mabo (No. 2), Brennan J. at 43; Deane and Gaudron, JJ. at 64). 2. A traditional connection with or occupation of the land under the laws and customs of the Aboriginal group, which are regarded as the source and content of Native Title. These elements have to be determined by the factual evidence drawn from claimants (Mabo (No. 2), Brennan J. at 45 and Toohey J. at 188). 3. The maintenance of the connection with or occupation of the land. The last requirement is not fully resolved and the Yorta Yorta appeal should throw some more light on the matter, but essentially there is a need to prove a connection between the community today and the community at the time of Sovereignty. The concept of ‘change adaption and continuity’ is crucial for the analysis of the extent to which a community can change and the laws and customs can change (Yorta Yorta v State of Victoria and Ors Appeal to Federal Court (1999). I will now analyse the limitations imposed on Native Title by the doctrine of extinguishment and then examine the status that Native Title is accorded under Mabo.

5.8.2 Mabo and Extinguishment of Native Title The High Court secured the property rights of introduced interests by validating those grants that extinguished Native Title, namely grants that gave exclusive possession (Mabo (No. 2), Mason CJ. and McHugh J. at 15). The circumstances giving rise to the extinguishment of Native Title are dealt with in Mabo (No. 2) (1992); Western Australia v The Commonwealth (1995); The Wik Peoples v Queensland (1996); Fejo v Northern Territory (1998). The compensation issue was a very close decision. Deane, Toohey, and Gaudron found that extinguishment by the Crown did give rise to compensation. Brennan, Mason and McHugh found that it did not. Dawson, of course, found against Native Title altogether and it was his vote that ultimately determined the matter. Compensation did not apply to those lands that were granted in the past, except for those granted after the Racial Discrimination Act 1975 (Cwlth). This placed the rights of Indigenous people to own and inherit property at a severe disadvantage.

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5.8.3 Communal Nature of Native Title Native Title at common law can be held only by Indigenous people. It is a communal title that can be held by a group or community. It may be passed from one Aboriginal group to another under traditional laws and customs but cannot be alienated or transferred to someone outside that group. However there are some unchartered waters here. What Brennan J. says is: …unless there are pre-existing laws of a territory over which the Crown acquires sovereignty, which provide for the alienation of interests in land to strangers, the rights and interests that constitute a native title can be possessed only by the indigenous inhabitants and their descendants. Native title, though recognised by the common law, is not an institution of the common law and is not alienable by the common law. Its alienability is dependent on the laws from which it is derived. If alienation of a right or interest in land is a mere matter of the custom observed by the indigenous inhabitants, not provided for by law enforced by a sovereign power, there is no machinery which can enforce the rights of the alienee. The common law cannot enforce as a proprietary interest the rights of a putative alienee whose title is not created either under a law which was enforceable against the putative alienor at the time of the alienation and thereafter until the change of sovereignty or under the common law (at 65).

If it can be established that Indigenous society possessed laws that enabled alienation, then presumably alienation is possible. This is of importance in situations where 'secondary succession' has occurred (that is, where one Indigenous group has acquired land from another). Alienation is commonly expressed as a right of pre-emption in the Sovereign, sometimes said to flow from 'discovery' (ie. in the European sense of 'discovery' by a European State (208) (and see, for example, Johnson v. McIntosh (1823) at 592; R v. Symonds (1847) at 389–91). This is discussed by Deane and Gaudron JJ. (at 21): The effect of such a right of pre-emption in the Crown is not to preclude changes to entitlement and enjoyment within the local native system. It is to preclude alienation outside that native system otherwise than by surrender to the Crown. The existence of any rule restricting alienation outside the native system has been subjected to some scholarly questioning and criticism (209) (McNeil, 1989:221). In our view, however, the rule must be accepted as firmly established (210) (see, eg. Nireaha Tamakiv v Baker (1901) at 579; Attorney General for Quebec v Attorney General for Canada (1921) at 408, 411; Administration of Papua and New Guinea v Daera Guba (1973) at 397; Mabo (No. 2), Brennan J, Deane and Gaudron JJ, Toohey J. at 42, 66, 151).

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5.8.4 Change and Continuity Brennan J. with the support of Mason CJ. and McHugh J. recognised the changing and evolving nature of Aboriginal culture and noted the practical considerations that need to be taken into account when determining the extent to which traditional laws and customs change over time. It was 'immaterial that the laws and customs underwent some change’ since colonisation, as the ‘laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too'. But the central issue was: So long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed (Brennan, J. at 68).

This statement became one of the key principles of the NTA. Deane and Gaudron JJ. recognised the ‘fluid’ nature of the traditional laws and customs that form the basis of Native Title and emphasised that they are not: frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land (Mabo (No. 2) Deane and Gaudron JJ. at 58).

Brennan J. held that: where a clan or group has continued to acknowledge the law and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby that traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence (Mabo (No. 2) Brennan J. at 66).

Toohey J. saw change as essentially irrelevant to the question of Native Title: Modification of traditional society in itself does not mean traditional title no longer exists (see Hamlet of Baker Lake (1979) at 527–529, 584–585). Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life. In Hamlet of Baker Lake Aboriginal title was held to exist despite the fact that the Inuit had changed from a nomadic to a settled lifestyle (Mabo (No. 2) at 51).

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For Toohey J. 'traditional title is rooted in physical presence. That the use of the land was meaningful must be proved but it is to be understood from the point of view of the members of the society' (Mabo (No. 2), Toohey J. at 188). The question of cultural change as it was applied to the Murray Islands is relevant to Indigenous occupation of mainland Australia. Toohey J. (at 192) held that the claimant's case did not fail because their presence on the Islands was too recent; the relationship of the people to the Islands was sufficient; their presence was not coincidental and random; and 'modification of traditional society in itself does not mean traditional title no longer exists' (Mabo (No. 2) Toohey J. at 192; see also Bartlett, 1993:5). The analysis of the extent to which the effects of change have been qualified by the court in relation to the existence of Indigenous title, is relevant to the Yorta Yorta case (see Chapters 2–3). The extent to which change can be interpreted as washing away connections, under euphemistic phrases like the 'tide of history', will become clearer when we examine the way Mabo and the concept of change has been applied to Yorta Yorta occupation of the claim area. As indicated, and as will be further demonstrated, the Yorta Yorta withstood many tides of changes.

5.8.5 Onus of Proof The expectations imposed by Mabo to prove Native Title are unjust. By comparison, with the requirements of common law property holders, under the Torrens System, a title is sufficient to establish that the title holder is in occupation. Unless someone else can show a better title, that title is indefeasible. Native Title criteria impose unreasonable and unrealistic expectations. Indigenous claimants have to prove that their title exists whereas the law sanctions introduced titles. Claimants have the responsibility of making out a prima facia case that Native title exists. Once the case is made out, it would seem, that the burden should shift to those opposing the claim. This concept of reverse ownership of proof is resisted in the Anglo-Australian legal system where the burden invariably resides with the initiator of the civil action. There are instances however in discrimination jurisprudence, where shifting the onus of proof to the respondent has been permitted to attain just ends (Thornton, 2000; Reynolds, 1988:7-9). The burden of proof is a barrier that claimants have to overcome, not to mention other barriers that may arise in the way that the principles of Mabo are applied (see Brennan J. in (Mabo (No. 2), at 9–60; Deane and Gaudron JJ. at 82–3; Langton, 1999:71–2; Mabo (No. 2), Brennan J. at 30, 40–1, Deane and Gaudron JJ. at 82–3, Toohey J. at 142; Case of Tanistry (1608); Re Southern Rhodesia (1919)).

In contrasting the rhetoric of Mabo with the realities of Native Title, there are many shortcomings. Indigenous title seems to be treated as a tag-on interest that can be

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extinguished by inconsistent grants without consent or the application of fair and just principles. The extent to which Indigenous rights have been compromised to accommodate the interests of introduced titles and the criteria imposed on claimants in order to gain Native Title are other factors that need to be assessed. The expectations imposed on claimants by the Native Title process, particularly in light of changed social relations and urbanisation, has come under much criticism from Indigenous people. Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson, argues that the expectations are unjustified particularly when one concedes that the land under customary law is unquestionably Indigenous land. Dodson challenges the Native Title criteria, and the extent to which claimants have to prove continued physical connections, and argues that spiritual connections are equally important. He cites the case of an elderly blind Aboriginal women that had been forcibly removed some fifty years earlier. In spite of physical dislocation she retained important knowledge of her affinity with the country in which she was born and could still articulate the laws, customs, and features of the land (see Havemann, 1999:125; Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:38). The imposition of continued physical connections, is also at odds with the NTA, 1993 in which there is no express mention of the need for physical presence (NTA, 1993 s. 223). Some State governments pushed for requirements of physical connection and the Commonwealth government initially agreed but changed its mind in the face of strong opposition from Indigenous groups and from within the government itself (see Gregory, 1995). Canadian authorities argue that continued physical connections are subjective and emotional and are not part of the Aboriginal belief system. Other North American jurisdictions suggest that proof of a continuing spiritual relationship with the land are just as important, but perhaps not sufficient on their own to prove the required link (Steele J, Attorney-General (Ontario) v Bear Island Foundation (1985); United States v Santa Fe Pacific Railroad Co (1941); Tinglit and Haida Indians of Alaska v US (1959); Sac and Fox Tribe of Indians of Oklahoma v US (1967). In contrasting the rhetoric of Mabo with the realities of Native Title, there are many shortcomings. Indigenous title seems to be treated as a tag-on interest that can be extinguished by inconsistent grants without consent or the application of fair and just principles. The extent to which Indigenous rights have been compromised to accommodate the interests of introduced titles and the criteria imposed on claimants in order to gain Native Title are other factors that need to be assessed.

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5.9 Assessment of Mabo Indigenous groups that have managed to hold on to their links through more favourable circumstances may be hopeful, while those most affected by invasion and government policies have reason to be doubtful. Criteria that favour those who may be able to establish ongoing connections over those whose links were affected by extraneous factors seem likely to produce divisive outcomes. It is ironic that Mabo could create a situation of the 'haves' and the 'have nots', in land, and that 'correcting' past injustices may well recreate the same conditions of alienation and marginalisation (Indigenous Land Fund, NTA, s. 2010, 1993; Mabo, Brennan J. at 60, 105). The only recourse for the most disadvantaged is a cap-in-hand approach to the Indigenous Land Fund. Some groups may be eligible for assistance to purchase land for cultural purposes and to buy land on the open market, but the funds available are never likely to produce real justice for those who have suffered most (Indigenous Land Fund, NTA, s201 (1)(2), 1993). Indigenous leaders challenge the Mabo rhetoric. Noel Pearson of the Cape York Aboriginal Land Council questions the application of fair and just principles for extinguishment and the degree of equality given to Native Title. Michael Mansell of the Tasmanian Aboriginal Centre attacks the limitations imposed on Native Title and criticises the decision for not going far enough. Mansell argues that the meagre form of rights offered by Mabo perpetuates the dichotomy of domination and subordination outlined. Indeed Mansell's conclusions that 'Mabo gave an inch and took a mile', are consistent with those of William Cooper 50 years earlier. These conclusions may epitomise the Native Title process to this point (Pearson, 1994c: 179–81; Mansell, 1992:6). The Yorta Yorta are equally concerned about the benefits that might flow from Mabo. Given our history of land restitution (see Chapter 4), we had every reason to be cautious about whether or not Mabo and the NTA would deliver. Not to imply that the Yorta Yorta were ever doubtful about the strength of their claims, but if Mabo, could create a more level playing field on which Indigenous interests could be adjudicated we took the position that there was nothing to lose. With these thoughts in mind, we prepared ourselves for the long haul that the Murray Islanders had come through.

5.9.1 Drafting Mabo into Australian Statutory Law: The NTA, 1993 The reality of an Indigenous title arising from prior occupation presented problems in how it should be given equality and protection before the law. Within the non- Indigenous community, there was much antipathy towards the decision and its implications, particularly for those titles issued after the enactment of the RDA 1975. Other concerns related to the need to provide certainty for resource development and other interests, that may have been subject to Native Title (Batchelord, 1997:14–15;

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Butt, 1996:92–9). An option that may prove to be the most appropriate in terms of results and cost effectiveness was to initiate a similar action to that of Mabo in the High Court or to use the common law itself to resolve Native Title claims on a case-by-case basis. In response to these concerns, the Keating Government passed the NTA, 1993, which came into force on 1 January 1994, the main objectives being:

♦ to provide for the recognition and protection of Native Title, ♦ to establish ways in which future dealings affecting Native Title may proceed and set standards for those dealings,

♦ to establish mechanisms for determining claims, and ♦ to permit the validation of prior land Acts that might otherwise be invalidated because of the existence of Native Title (NTA, s. 3). The NTA defines Native Title as the rights and interests that Indigenous people have in land or waters in accordance with their traditional laws and customs, which may include hunting, gathering or fishing NTA, s. 223). The Act specifically states that Native Title must be recognised in Australian common law, at that point restricting it to the definition provided in Mabo rather than the common law requirement, which simply states that physical presence is sufficient (McNeil, 1989).

5.9.2 Recognition Space between Anglo law and Native Title In drafting the Mabo principles into Australian law, there was the question of the 'recognition space' between the two systems of law (Pearson, 1997:150–61). It was anticipated that a synthesis between Native Title and the Anglo-Australian law would develop within the Native Title process (McRrae, Nettheim and Beacroft, 1997:242; Pearson, 1997:179–81).

5.10 Conclusions In light of Mabo, one needs to return to the imperatives of cultural continuity and cultural diversity and land justice within Australia (see Chapters 1–2). The interpretation of Native Title rights in the more populous regions are some of the challenges facing the courts. Accepting that Indigenous title has survived two centuries of domination by the Anglo-legal system, one would assume that the time is ripe for the delivery of Indigenous land justice. Indeed the courts are now in a position to review their treatment of Indigenous property rights, within the contemporary legal framework and make amends for past mistakes (McRae, Nettheim and Beacroft, 1997:256; Edmunds, 1994:27–8; Goote and Rowse, 1994:181). It is not a question of creating new law, but one of using the existing legal framework to legitimise the due entitlements of Indigenous people that arise from prior occupation.

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Reconciling the interests of Anglo property holders with Indigenous interests is the general task that faces the courts and the Reconciliation process. The degree of scrutiny that claimants are subjected to in order to prove Native Title rights, and the compromises that they are expected to make in the process are questions that will be brought out in the analysis of the YYNTC (McRae, Nettheim and Beacroft, 1997:240– 4; Mansell, 1992:6). The next chapter will analyse the YYNTC 1994, with specific regard to the Mediation process that took place before the National Native Title Tribunal (NNTT) 1994–95.

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Chapter 6: The Mediation Process 1994–95

6.1 Introduction This chapter describes and analyses the Yorta Yorta mediation process under the provisions of the NTA s. 107, which established the National Native Title Tribunal (NNTT). It argues that while the mediation process provided a forum for the Yorta Yorta to assert rights to land and resources, it proved to be a failure in mediating agreements. It highlights some of the barriers to land justice at mediation, and identifies the key obstacles to Yorta Yorta land justice within the claim area, as a prelude to the Federal Court decision of December 1998. Yorta Yorta attempts to negotiate their way through the minefield of interests (over 470), in the YYNTC is contrasted with the experience of previous claims (Appendix. 4). The earlier1984 claim is referred to in order to highlight the barriers to land rights, and to expose the underlying mindset that affects Indigenous groups within regional Australia. The 1984 claim provides the context for analysing the relative power position of the Yorta Yorta in the mediation process of the YYNTC. It is used to argue that the antipathy towards Indigenous rights continues to be a major obstacle preventing the Yorta Yorta from gaining racial equality and land justice within the claim area, despite the development of innovative procedures that dispensed with the formal requirements of a legal hearing.

6.2 Past Mindsets Revisited The mindset which benefited from Native Title lands through past acts of dispossession and which had previously refused to acknowledge prior Indigenous rights was still deeply entrenched. The experience of the 1984 claim was still fresh in our minds, the opposition to which was driven through the local media by corporate and vested interest groups. Local government, farmers, councillors, the National Party, and the League of Rights, combined to undermine the Federal and Victorian governments' land rights proposals and the Yorta Yorta claim 1984 (Australian National Opinion Polls Report, 1984; McRae, Nettheim and Beacroft, 1997:196–200). In regional newspapers, headed by the Numurkah Leader, racist comments and articles abounded once the 1984 claim became known, and before it was formally lodged. In one news item, under the provocative heading 'Land War', a senior local councillor equated Yorta Yorta inheritance with the 'purity of his cattle'. Another councillor and schoolteacher from nearby Nathalia expressed his belief in his racial superiority over the Yorta Yorta by saying that 'Aborigines were a conquered race' whose 'rights depended on the humanness of the conqueror' (Numurkah Leader, 17 August 1983; 16 November

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1993). The extremist League of Rights, which has had a stronghold in rural Australia for many years, supported these views. The League painted a sinister image of land rights being a 'threat to Australia's sovereignty inspired by Communist manipulations' (League of Rights 1983–1985). Yorta Yorta elders responded. Speaking on our struggle, Frances Mathyssen said that 'nothing will ever stop us! It's our life we are talking about'. Margaret Wirripunda (Chairperson of the Yorta Yorta Tribal Council) explained our position, which was recorded in the Sun Herald under the heading 'A Nation Fights for Its Heritage'. 'The Yorta Yorta people have [been instrumental] in the land rights fight that had continued since the land was taken' (Sun Herald, 5 May 1994).

6.2.1 Anti- Land Rights Campaign 1980s In preparing the 1984 Claim, I was witness to the hostility that was generated. The extent to which local attitudes were allowed to manifest themselves on the Yorta Yorta is evidenced from a public meeting in Nathalia (Land Rights Meeting, Nathalia, 1984). The meeting was organised by local councillors, farmers and politicians to discuss the land rights proposals of the Victorian Labor Government. Some 700 people, mostly from the local area and from within the traditional Yorta Yorta territories, attended. The meeting was chaired by the person who described Aborigines as a 'conquered race'. Speakers representing the issue of land rights were all non-Indigenous. The National Party spoke for local land interests and the Minister responsible for Aboriginal Affairs, Dr Ken Coghill, represented the Labor Party. Dr Coghill was part of the newly elected Labor Government that was under pressure to get some scores on the board in Aboriginal Affairs and particularly in relation to the Government's shameful record of land justice (see Chapter 4). The Land Claims Bill 1993 (Vic) was the essential legislation that needed to be passed and which required the support of the Liberal/National-dominated Legislative Council. Following the introduction, the speakers presented their views and the forum was opened for general discussion. The National Party speaker used negative stereotypical images of Indigenous society to inflame the meeting and to stir up old prejudices. He began by mounting an attack on Aboriginal people at Lake Tyers whom he claimed were 'behind in their rent'. He then attacked Aborigines generally for claiming land, which, he argued, they were not entitled to, and used government definitions of Aboriginality to create division and discord in the meeting. Local farmers were quick to roll out old sinister images that the Yorta Yorta had heard for so long. The land was going to be 'locked up' and made inaccessible to others and the return of land to Indigenous groups implied the land was not going to be looked after. When Yorta Yorta attendants in the audience tried to partake in the debate, they faced the hostility that had already been inflamed. The

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Nathalia meeting demonstrates the climate of the land rights debate in the 1980s and the degree of anti-Aboriginal sentiment that had been created through misinformation (Shepparton News, 10 August 1994; Age 29–30 June 1984). This was the most hostile meeting that I have ever attended and one in which Yorta Yorta identity and inheritance was put up against the wall. On reflection, it is the first time that I ever felt like an alien in my own land. It exposed a mindset that was driven by race politics and the underlying fear and insecurity that emanated from theft of Indigenous land. It brought home the barriers that our ancestors were up against when they challenged Anglo systems of justice and equality before the law. Notions of racial superiority in contemporary circumstances have become institutionalised. This racism has be championed by extremist groups like the League of Rights which has attacked Indigenous rights and undermined those policies aimed at addressing land injustice and inequality (League of Rights, Aborigines Land Rights Campaign Publication, 1984; Numurkah Leader, 17 August 1983; 16 November 1983; Sun Herald, 5 May 1984; Atkinson and Bailey, 1984). Any apprehensions that the Yorta Yorta may have had before agreeing to partake in mediation were based on prior experience particularly that which surrounded the 1984 claim. Without adequate empowerment and the support of a counter public awareness campaign, our position is best exemplified by Yorta Yorta elder, Elizabeth Hoffman, who explains: 'we were fighting from our old position of nowhere'. The relative power position of claimants and the extent to which the Yorta Yorta have to justify their very being as a people is relevant to the Mediation process (Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:94–105; ATSIC Report, 1999:129–30; Horrigan and Young, 1997:39).

6.3 Preparing for Mediation Before choosing meditation under the NTA there are some basic processes that need to be followed (French, 1997:33–4; MacDonald, 1997:74–5). An application has to be lodged with the National Native Title Registrar, and if accepted the Registrar must give notice to all persons who may have an interest in the area subject to the claim (NTA ss. 62, 63). Respondents are required to notify the Tribunal that they want to become a party to the application. The Native Title Registrar accepted the Yorta Yorta application in May 1994 and the date for the commencement of the mediation process was set for September 1994 (Alford, 1999:68–9; Glanz, 1999:24–7). The Yorta Yorta chose mediation on the advice of their legal counsel in preference to the Courts, although the option of going straight to the High Court following the success of Mabo was an option. To have the matter heard on its legal merits before the High

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Court rather than attempting to negotiate through a minefield of prejudice, ignorance and entrenched interests was a tempting alternative. There was optimism that the new procedures under the NTA offered a positive way forward. After all, the procedures were untried at this stage and the Yorta Yorta case was to be the first. In preparation, the Yorta Yorta formed its own mediation committees to represent their interests in the traditional land and waters. The committees consisted of Yorta Yorta members who were experienced in cattle, forestry, water, recreation and cultural heritage. A policy document was drafted as a guideline for the future management and control of the claimed lands and waters. The proposed management structure was similar to joint management arrangements being practised in other parts of Australia, such as Kakadu, Uluru and Nitmulik in the Northern Territory (Correspondence between Arnold Bloch Leibler and Yorta Yorta, 1995–99, in author's possession; 10 October 1994:3; Policy Document on Yorta Yorta Claimed Lands and Waters, 1994, in Appendix. 2).

6.3.1 Claim Statement The Yorta Yorta felt it was necessary to present a 'Claim Statement' for the attention of the media, which outlined the history of the struggle for land and water. Being aware of the pitfalls of media misrepresentation, the Yorta Yorta adopted some rigid procedures. These were aimed at minimising misrepresentation and maximising the accuracy of information. Representation is a crucial issue in the coverage of Indigenous issues by the media which often portrays distorted images of Aboriginality and Indigenous issues, including land justice (Conning, 2000:2–4). The Yorta Yorta developed a statement of protocols to be observed in the mediation process. Meetings were to be confidential and only between relevant parties. They were to be held without prejudice and could not be used by other parties should the claim proceed to the Federal Court. Most importantly, the meetings were to be held on the land in question and parties with interests in the land were obliged to provide a copy of the relevant document of their interests when requested. Other protocols concerned the need for both parties to draw up a list of questions detailing the respective concerns of each party prior to the meeting, and their position towards the recognition of Yorta Yorta Native Title at the outset. The right to hold conferences without legal representatives and to ascertain whether parties were willing to continue discussions with a view to reaching agreement in the future were included (Yorta Yorta Native Title Claim Statement, 1994; Yorta Yorta Mediation Document, September 1994). The preparation of the mediation materials is an indication of the level of efficiency that the Yorta Yorta has attained in the land claims process. We learned from our forebears that the power of the pen and the ability to articulate our concerns in the written and

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spoken word were important tools. Indeed, many of us believed that we were capable of representing our interests, with the assistance of outside interests if required.

6.4 The Mediation Process The mediation process ran for nine months – September 1994 until May 1995. This time was spent in numerous meetings with various parties in the townships of Shepparton, Mathoura, Wangaratta, Corowa and Echuca. The distance travelled throughout the claim area of some 20,000 square kilometres was a huge burden. Some distances were more than two-and-a-half hours drive and sometimes longer for those travelling from outer Melbourne. It was apparent from the outset that with limited resources to get people to the mediation meetings, to feed and accommodate them, and report to the community, the process would impose a major drain on the community (Neate, 1997:243–6). Added to these was the proof requirement that falls heavily on Indigenous applicants. The non-Indigenous parties who have usually been the prime beneficiaries of Indigenous land and resources are not required to prove their identity. Nor are they required to prove their connections or consent to the occupation and use of land that is underwritten by Native Title interests (see Chapter 3; Alford, 1999:69–71; Harvey, 1999:21–8). Yorta Yorta elder Margaret Wirripunda expressed her indignation about the unjust weight of proof placed on claimants. She questioned 'why others are not made to prove by what authority they are on our land'. Other impediments to equality before the law for claimants relate to the power imbalance between claimants and parties and the NNTT (Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:94– 103). The inequality imposed on the Yorta Yorta by the Native Title process is examined by the Aboriginal and Torres Strait Islander Social Justice Commissioner. This inequality could be rectified by the allocation of adequate time and resources for claimants and the whole thing could be resolved by whites being more willing to 'achieve reconciliation and not simply continuing to profit from the historical and economic oppression of Aboriginal people'. These ideals of mediation, however, are hampered by the NNTT's lack of judicial powers. As the Commissioner noted: According to the structure of the system and the perceptions of the non- Indigenous participants, the claimants come to the table without recognised rights. Whereas all the other parties have rights that are already sanctioned by law. The claimants are told they should provide evidence of the plausibility of their claim to be taken seriously by the other parties to the mediation. Claimants feel the injustice of this situation very keenly. Contrary to the perception of the non-Indigenous parties, the claimants will often believe that they are the only people at the table justified to speak about or for the land' (Dodson, M., 1996:8–11).

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The Tribunal hearings exposed the hurdles that Indigenous claimants are up against and the inadequacies that have restricted the mediation process.

6.4.1 Limitations of Tribunals The NNTT's powers are not 'exclusive', and like other tribunals they are alternative modes of dispute resolution that rely on reaching negotiated agreements between parties (see North Ganalanja Aboriginal Corporation v Queensland (1995), Jenkinson J. at 565–74; NTA s. 71; Thornton, 1989:733). Tribunal powers are further limited by Brandy v Human Rights and Equal Opportunity Commission (1995), a case that found the judicial powers of tribunals, characterised as administrative bodies, were limited under ss. 71 and 72 of the Constitution. This restriction is exacerbated by Native Title determinations at mediation being subject to the 'overruling rights' of State or Territory Ministers in accordance with NTA s. 42(1). In the Yorta Yorta case, the Victorian and New South Wales governments took the position from the outset that Native Title did not exist (Horrigan and Young, 1997:35; MacDonald, 1997:74; French, 1997:41–2). The restrictions imposed on Native Title are perhaps the reason why there has been such a dismal success rate of agreements being reached at mediation. Of the 745 claims lodged between 1994–98, the Tribunal accepted 495, but only two mediated agreements were reached. The low success rate is partly because of the NNTT's lack of judicial powers and the unwillingness of parties to recognise the existence of Native Title. The first successful agreement, Crescent Head (Dhungutti) Agreement, was made between the State of NSW, Mary Lou Buck (Dunghutti People) and the NSW Land Council in October 1996. The total area subject to the determination was 12.5 hectares. The second successful agreement (the Hopevale Agreement, Cape York, Queensland, December 1997) involved 110,000 hectares, making the total amount of Native Title land gained by Indigenous people on mainland Australia approximately 110,013 hectares. Such a record is hardly encouraging (NNTT in Australian Indigenous Law Reporter, 1999:117–42; National Native Title Tribunal, 1998, ; Age, 10 October 1996). The NNTT offers some positive incentives. The provision of a more flexible style not totally bound by legal conventions, and one that takes account of the cultural concerns of Indigenous people are worthy innovations. Sensitising the legal system to Indigenous concerns is an interesting innovation in the administration of Native Title. When measured against the Yorta Yorta experience, however, it will be useful to examine whether or not these provisions proved to be of value (see NTA s. 109(1)(2)(3)). The Tribunal's control over the disclosure of evidence under NTA s. 155 and the manner in which meditations took place did at least create a less hostile environment. A greater awareness of the Racial Discrimination Act, 1975 (Cwlth) and its powers to protect

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groups from racial vilification were another factor that assisted the Tribunal's sense of control over the process. The downside, however, was the degree of scrutiny that claimants were subjected to in order to justify their existence and to prove connections, not to mention the amount of energy and resources required to deal with the number of introduced interests. The number and interests of the various parties, many of which are compatible with Native Title, attracts critical analysis.

6.4.2 The Parties The lands and waters claimed by the Yorta Yorta lie in the heartland of a populous region of northern Victorian and southern New South Wales. The claim was contested by a large and powerful array of non-Indigenous vested interests. The 470 registered interests in the claim gives an indication of the formidable task that confronted the NNTT and the Yorta Yorta. Indeed the formidable number of parties, that the Yorta Yorta had to deal with, was an unprecedented experiment in the power dynamics of mediation (see Parties to the Claim in Appendix. 5; Alford, 1999a: 68; Finlayson, 1997a: 8–9; Atkinson, W., 1999). The number of parties also exposed other deficiencies in the NNTT. Because the definition of a party is ambiguous, it allows limited interests like short-term licence and permit holders to become parties. This significantly increased the number of parties in mediation (and subsequent court) proceedings and overloaded the system. Whether intentional or not it means that much of the mediation time is absorbed in allowing due process to the multitude of interests. The entourage of lawyers, bureaucrats, academics and other experts was an additional weight confronting the Yorta Yorta. They placed enormous strain and pressure on the claimants' time, energy and resources. Members of the Yorta Yorta Mediation Committee were drawn from those who were available to attend the scheduled meetings during the day, which restricted attendance to those who could afford time away from paid employment. This meant that the load fell on aged pensioners, students and on those whose employment was related to land and heritage management, namely Cultural Officers, Site Officers, and Land Council employees. Claimants therefore confront a multitude of obstacles and opposing forces before and during the mediation process. The other factor that needs to be examined is the industry that has emerged from the Native Title process: the ‘Native Title Industry’ employing a multitude of people. Regrettably, the process marginalised those people on whose interests the industry owes its very existence. Native Titleholders felt that their inherent rights had been usurped by members of the industry who arrogated to themselves the right to articulate what these interest rights were. Yorta Yorta members were confined to the status of the 'other' by the industry members who represented the voices of the dominant. That is, the dominant

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could be heard while the voices of others could not within the discourses of law and power. The concept of 'othering' (Said, 1995) is used to describe the way the industry has assumed the power, expertise and resources in Native Title matters over and above the key stakeholders (Atkinson, W., 1999:5–6). This matter will be returned to in my reflections on the mediation process.

6.4.3 The Process The NNTT opened the mediation conferences in the Shepparton Town Hall in September 1995. The mediation was presided over by Justice Grey. Being a new mechanism for dealing with land claims it involved a steep learning curve for all parties, including the Judge. This was most obvious at the opening where considerable reliance was placed on directions from the parties and lawyers. The Tribunal opening was one of great expectations. Mabo still occupied the central stage and was being acted out on the home front. The Town Hall was packed with local people: those who had come to explain their interest in the land, and those who had come to test Mabo images that had taken on new and often sinister dimensions. The Yorta Yorta and our lawyers sat along tables at right angles to the Judge's bench. Opposite us were men and women we would be up against for the next five years but whom we would never really get to know. These were the lawyers representing the non- Yorta Yorta parties. There were two long rows of them, mostly men dressed in suits. They fitted the stereotypical image that lawyers seem to attract even without the wigs. At the beginning there was a fair degree of interaction between the key players but this was to change with increased polarising intensity as the level of scrutiny was applied to us over the ensuing period (Atkinson, 1995b). After an introduction to the proceedings by Justice Grey, the barrister (now QC) for the Yorta Yorta, Brian Keon-Cohen, rose to open the Yorta Yorta case. He was followed by a small group of Yorta Yorta representatives and I was the first of these. For a moment in history the Yorta Yorta were given an opportunity, space, time, a silent audience, a respectful Judge – to say who they are and what they wanted, to define in their own words their identity and their aspirations for their land and community. The Yorta Yorta presentations went to the heart of what it is to be Yorta Yorta. They raised the big issues about land care and management and spoke of the degrading treatment of the waterways, and the loss of plant and animal life. Some of the elders spoke of the land, and of the ancient forests looking tired and in need of a rest. They needed to recover from the onslaught and degradation of introduced land practices. In hindsight, it felt as though the tide of history was at last turning in our favour. It felt as though we were on the edge of a new start (Atkinson, W., 1995b).

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The Yorta Yorta spoke with the same air of conviction and compassion that their ancestors had before them: pride, dignity, diplomacy, forbearance and passion for the land. To most of the audience this was a new story, an unknown aspect of the Aboriginal community beside whom they had lived for generations without ever really knowing them. It challenged their sense of reality. Are these people making up this story? Why have we not heard it before? We went to school with them but who are these people to be suddenly making demands that threaten our livelihood, our enjoyment of life? These thoughts would be echoed repeatedly by witnesses opposing the claim in the course of the legal proceedings (Atkinson, W., 1995b). When the Yorta Yorta finished speaking, the Judge turned to the opposite tables and invited them to speak. Then it was the turn of the local people to explain their positions. These were the cattlemen, the water users, the timber millers, the politicians, the recreational fishermen, and the beekeepers. We braced ourselves. What racism and prejudice would we have to face this time? Would any show or spirit of Reconciliation shine through in respect of the justice of our claim? Had they really heard our heartfelt statement about the land and did it make any difference to their entrenched positions? (Atkinson, W., 1995b).

6.4.4 Hearing the Multitude of Parties Hearing the number (over 400) of parties went on for nearly three days. They lined up, in front of the microphone, each one waiting for their turn to speak. Many of the racist stereotypes emerged again as parties expressed concerns about the land being locked up, the effects of Native Title on local wildlife, and their fears about Yorta Yorta involvement in land and water management. These issues dominated the mediation sessions and distracted from the main issue of the original land title and its recognition within the introduced land scheme. At the end of the first day, the enormous challenge we had taken on came home to us. It was patently obvious that the locals wanted to maintain the status quo. It would not be easy to reach an agreement. On the other hand, at least we had the opportunity to put our case and we were acquiring confidence in our ability to do this. The struggle seemed to be gaining momentum and there was absolutely no turning back. Between September 1994 and April 1995, there were about twenty mediation conferences. The aim of the conferences was to bring all parties to the table to discuss the issue of Native Title and to negotiate a resolution that Native Title exists. In attempting to reach agreements with parties, the Yorta Yorta bent over backwards. They had reluctantly conceded those lands that were under exclusive possession, and were only claiming a small percentage (less than 10 percent) of the original lands (see Preface). The conciliatory approach adopted by the Yorta Yorta is difficult to reconcile

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when one revisits past experiences. The Yorta Yorta took the position that persistence would inevitably lead to justice and, in the spirit of Reconciliation, some good must shine through at the end of day. The idea of having a legal mechanism in place to at least hear the entitlements being sought was the added incentive (NTA s. 74). The process continued as we attempted to negotiate with parties but no substantive agreements were achieved. Most of the time was absorbed dispelling misconceptions about Native Title rather than addressing the reality of its existence. As there was no sign of any meeting point or inkling of a way to bridge the gulf, the application was referred to the Federal Court in May 1995 under s. 74 of the NTA (NTA ss. 62, 63, 74; Mirimbiak Yarmbler, 1998:18).

6.5 Mediation Outcomes The main barrier to agreement at mediation was the entrenched position of the opposing parties. Most were not even prepared to recognise the Yorta Yorta as a cultural group, let alone acknowledge that their Native Title rights still exist. While the mediation process created a more amicable environment in which the Yorta Yorta felt free to express their views openly and without the hostility as indicated in the past, the irony is that it seemed to have produced the reverse effect. When the Yorta Yorta documented and presented their policies on the traditional land and waters, the vested interest groups dug their heels in deeper. This resulted in a stalemate, which subverted the process left no legal option but to hand the matter over to the Federal Court (see Appendix. 2). The process was not helped by deficiencies in the Tribunal's statutory powers. Because the definition of a party requires something more specific than a public interest, the system became bogged down with procedural matters in identifying the characteristics of 'a party'. Most of the opposing interests were capable of co-existing with Native Title. Because they decided to follow the negative position of State Governments and the advice of lawyers who took the view that Native Title was extinguished, they closed ranks with other parties. This meant that the possibility of negotiating agreements with those interests that may have been compatible with Native Title was not given the opportunity. When the system closes ranks and locks itself around the status quo, it becomes impossible to mediate agreements. The Yorta Yorta experience may assist other Native Title claimants to decide whether mediation is worth pursuing. Although it is an early case, the signs are not particularly favourable (Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:94–105; Horrigan and Young, 1997:39).

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6.6 Mediation: An 'Experimental Exercise' A key question arising from this experience is the issue of empowerment under the Native Title process. Are the Native Titleholders being adequately empowered to pursue their grievances over land justice or has the industry usurped this right and empowered itself under the Native Title process? Alternatively, is it ultimately a procedural smokescreen which merely legitimised the Anglo-legal requirement that justice must be seen to be done? In light of the extent to which the industry has prospered, these have remained contentious issues for both Indigenous and non-Indigenous people (Horrigan and Young, 1997:46–7; Dodson, M., 1996:8–11). The Yorta Yorta being one of the first to go before the newly formed NNTT, often felt as if they were guinea pigs in an 'experimental exercise'. The NNTT needed to legitimise itself as a newly created land dispute mechanism in Australia. The Yorta Yorta made a major contribution to its foundation, but its ability to deliver Native Title, as an alternative to common law litigation, is still to be seen. It is true that the NNTT is a relatively new structure within Australia. Similar processes operating in other jurisdictions are worthy of mention. In Canada, comprehensive regional settlements have been achieved after decades of negotiation and work (Crary, 1999). Indigenous people took time to imagine, formulate and debate options. Community decision-making processes were developed which allowed for participation adapted to Indigenous needs. The United States established the Indian Claims Commission in 1946 to deal with land matters. In New Zealand, the Labour Government in 1975 established the Waitangi Tribunal that was set up to deal with land claims and to investigate and recommend redress for breaches of the Waitingi Treaty (Walker, 1999:116–18; Djerrkura, 1999:4; Mabo Papers, Department of the Parliamentary Library, 1994:77–83; Boast, 1993:223–44). Significantly, overseas tribunals have had considerable experience in Native Title matters and include Indigenous representatives on the Tribunal bench. By contrast, white legal professionals have largely dominated the NNTT in Australia. As earlier noted, the Native Title industry has delivered little to its Indigenous clients, but has become a successful career path for many non-Indigenous people.

6.7 Control over Process It was obvious to the Yorta Yorta that a loggerhead situation would be hard to avoid. When the substantive issues were bought out in the open, familiar tensions and hostilities arose. Old prejudices such as 'We've never seen an Aborigine around here' re- emerged. Ironically, some of these came from tourist operators who often used Yorta Yorta heritage to promote tourism. Yorta Yorta Cultural Officer, Neville Atkinson,

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responded to these prejudices by saying that 'we are still not at the stage where we can say who we are and not be insulted' (Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:100). While the Tribunal has some control over 'evidence and the content of any documents produced', it could not control media and politicians' misuse of reports of confidential mediation sessions. Prominent among these was the McPherson-owned network of regional newspapers, including the Shepparton News. Its proprietor was a party to the claim and an opponent of Native Title. In one article in the Shepparton News entitled 'Native title Fears', the local press beat up the fear by presenting ludicrous and biased accounts of the mediation sessions, and reported inaccurate descriptions of the claimants' policy document. Someone from within the mediation meetings leaked the document to the media. The misconceptions inevitably rebounded on the Aboriginal community who had to counter the tide of regional racism that such reports promoted (Shepparton News, 29 September 1994:1; Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:100; NTA, s. 155). In the background, both prior to and throughout these extended legal proceedings, regional conservative politicians regularly challenged the validity of the Yorta Yorta's heritage in regional newspapers. A climate of fear and racial hostility was again fostered. Dairy, timber, tourist and recreational interests were portrayed as under attack. Forests and rivers would be taken over. Aborigines might even claim the 'main street' or Mr and Ms Average's back yards, and their children's school grounds, according to the more extreme voices (Finlayson, 1997b; Shepparton News, 1997–98; Victorian Government Hansard, 12 November 1998:10–25). This antagonistic climate may not have influenced the due processes of the law. But it certainly had seismic effects in the region. Among these was a rising tide of racism directed at Aborigines. As this rose the chances of negotiation and mediation faded. The potential of a consensus-based regional agreement between Indigenous and non- Indigenous land users was successfully stonewalled (Finlayson, 1997b). The Tribunal's powers to 'direct the disclosure of evidence' under section 155 proved to be ineffective. The Tribunal can request that evidence be treated as confidential, but it has no power to prevent any party from making public statements about what is said in mediation. The Tribunal's inability to prevent damaging public statements was seen as a flaw in the Act that caused damage to claimants and the mediation process. The Aboriginal and Torres Strait Islander Social Justice Commissioner addressed this matter in his 1995 report: Ignorance produces and fuels hostility and racism which is expressed in the local media, in mediation sessions and which is felt in the daily lives of Native Title claimants. Racist hostility undermines claimants' negotiating positions and wears down their stamina. It further dis-empowers claimants in

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dealing with non-claimant parties. Lack of understanding of Native Title and NTA processes also directly slows down mediation meetings because, instead of using meetings to discuss ways of accommodating each other's interests, parties need to take time to get a basic education in the legal principles and their consequences (Aboriginal and Torres Strait Islander Social Justice Commissioner Report, 1995:121).

These criticisms are further supported by Justice Robert French. In stepping down as inaugural Judge of the Native Title Tribunal, French J. urged State and Federal governments, as well as schools, to take a greater role in educating the public about Native Title, so that mediation could provide an effective method of resolution.

6.8 Implications for Regional Agreements The Yorta Yorta experience is a case study in trying to steer a course through a minefield of regional biases and bigotry fuelled by a rural conservative elite. Because of these powerful opposing interests damaging the prospects of mediation leading to a regional agreement, the Commissioner urged governments to take a more constructive role. Public education and awareness programs in Aboriginal history and culture were recommended. This 'would not eliminate all racism and ignorance but it might make a dent' the Commissioner noted. He also recommended 'that the Native title Act be amended to render punishable breaches of confidentiality harmful to the mediation process' (Aboriginal and Torres Strait Islander Social Justice Commissioner Report, 1995:121; Aboriginal Law Bulletin, 1996:8–11; Alford, 1999a: 75–83). The Yorta Yorta were very wary of the situation in southeastern Australia, and the approach of State governments toward land justice (see Chapter 4) The claim was always likely to raise the ire of the New South Wales and Victorian Governments because it does not conform to the stereotype that Native Title claims will only affect 'remote' Australia. Contrary to this perception, while the Yorta Yorta claim is in an intensive non-Indigenous farming district, the Yorta Yorta have maintained their connections with the claim area, which is recognised in the Crown land management reports (see Chapters 2–4). If the claim ultimately succeeds it will hopefully obliterate this dichotomy and the underlying myth that only Indigenous groups from the north of Australia have the requisite connection with their traditional land (Gray, 1999:19–20; Department of Conservation Forests and Land, 1992:39; Department of Conservation Forests and Land, 1993:96; Forest Commission of New South Wales, 1985:64–5; McRae, Nettheim and Beacroft, 1997:253; Libesman, 1996:2; McNeil, 1996:220; Age, 14 February 1994).

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6.9 The Native Title Industry The Yorta Yorta have acquired an efficient level of expertise in the land struggle and are capable of representing themselves. There are limitations placed on what can be achieved, however, when our capabilities and interests are usurped and represented by others. In estimating the costs of a case of this magnitude, the following approximations give some indication of exactly whom the Native Title process is empowering. The funding for the YYNTC was mostly absorbed in legal and administrative costs. The $4,000,000 provided by the Victorian Kennett Government would have gone mostly into the coffers of lawyers and other experts engaged by the State to oppose the YYNTC. Daily costs for QCs average around $3000 to $5000. Barrister’s get about $800–$1500, followed by solicitors at about $500–550. Researchers cost around $350 to $1000 per day for providing research materials and Court reporters, who are responsible for recording and transcription maybe $1500 or more per day. The Judge gets about $1000 and the Court staff get about $500. Other associated costs for accommodation, transport, food and incidentals are additional. Calculated on a daily basis and projecting these figures over the duration (1994–98), the costs involved in a case of this magnitude at mediation and in the courts may have been as high as $50,000–60,000 per day. In computing these figures over the duration and extent of the claim, including the hearings and mediation process, we are looking at a multi million-dollar enterprise. Exploiting the key human source within this Native Title industry, namely the Native Titleholders, has generated the enterprise. Most of the resources empowered and enriched what has become a 'burgeoning Native Title industry'. Native Titleholders, on whose interests the industry owed its very existence, were the least likely to benefit and, unless called on to give advice or evidence, were represented by others. The concept of 'othering' is very applicable to the Native Title process. If anyone had a chance to visit the Mediation and Court proceedings, they would have seen the stark reality of the claimants' position. They sat at the back of the court patiently waiting and hoping that justice would prevail, while their rights and interests were spirited away by the industry (Atkinson, 1999:5–8). The task of organising the community and attending the meditations fell on the shoulders of individuals, some of whom had to pay out of their own pockets to get to meetings and to attend the mediation conferences. Because of their commitment to the claim, many of the Yorta Yorta worked on a voluntary basis. This anomaly was bought home in the Social Justice Commissioner's Report which highlighted some of the discrepancies in land claim funding and the need for claimants to be adequately

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resourced (Aboriginal and Torres Strait Islander Social Justice Commissioner Report, 1995:100–1). Lack of financial support leads to difficulties in preparing for mediation. Where there are inadequate resources people are ill-prepared for the ensuing battles. Many Yorta Yorta felt disadvantaged by the lack of information, background briefings and adequate discussion prior to the case. They also felt excluded. Some of the claimants felt the issues that arose and caused tension during the mediation could have been quickly resolved through proper explanation and discussion. Because the group was under pressure to produce policy positions and deal with the large number of parties, these issues were not given the opportunity to be fully discussed. As a result, both the claimants and the families they represented felt under pressure and under-informed about the many difficult substantive and procedural issues involved in the Yorta Yorta case (Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:100). 6.10 Perspectives on Mediation With the expectations raised by Mabo and the possibility of gaining Native Title through mediation, as an alternative to the adversarial court system, it was a great disappointment that mediation was a failure in the Yorta Yorta case. Familiar racial prejudices revisited us as we tried to find a way through the impasse. A more pragmatic approach in which governments need to put aside legal issues and think more about solutions that could accommodate Indigenous and non-Indigenous aspirations is called for (Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995:100; Dodson, M., 1996:8–11). To date, this has not happened. The Yorta Yorta mediation process brought home the Kennett Government's approach to Native Title. Victorian government representatives attended, albeit more concerned about legal technical reasons related to the mediation process rather than to throw their weight behind the Indigenous peoples' claims. Considering the Victorian government's extremely poor track record in addressing prior Indigenous rights (Chapter 4), an opportunity to redress past land injustices was again lost (Victorian government Hansard, 1998:775). The NSW government withdrew from the mediation in the early stages, taking the position that Native Title was extinguished over the whole of the claim area. This posture demonstrated that where an extinguishing event can be alleged, the NSW Government was not interested in listening to the Yorta Yorta people's evidence of their history in their own homelands. Yorta Yorta Barrister Bryan Keon-Cohen was equally critical of achieving 'nothing at the end' of so much effort and goodwill on the part of the claimants. He commented after the failure of mediation that:

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This could also happen to you in the court, but if you go through the mediation process and get nothing, you then have to get back up, regroup and start to prepare your claim for trial. At least if you lose in the court, you know that it is the end of that process and Aboriginal people will still have to start thinking about the ways that they will assert their rights politically or whatever. In our case, the mediation was nine months of negotiation that achieved nothing. It was a clear negative in our capacity to sustain the effort to prove our claim in Court (Keon-Cohen, quoted in Aboriginal and Torres Strait Islander Social Justice Commissioner Report, 1995:100).

Looking back, the Court would have been the better option rather than being used as 'guinea pigs' to prop up the newly formed Tribunal. Ultimately the international legal and political arena may prove more helpful than the domestic scene has been. The United Nations began to express increased concern in 1999 about the intolerable position of Australian Aborigines regarding land rights to date (United Nations Committee, position on the Native Title Act, 1999). With the benefit of hindsight, the decision of the Yorta Yorta to enter mediation against so many obstacles proved to be a mistake. Wittingly or otherwise, the mediation process and the accompanying publicity campaign by opponents of the claim entrenched the same 'mindset' that the Yorta Yorta had fought against for so long. Mediation enriched many non-indigenous stakeholders, including lawyers, in the burgeoning 'Native Title industry'. By contrast, the protracted and painful mediation process further impoverished and drained the Yorta Yorta. Acting in good faith and with some residual hopes of Reconciliation over land ownership in southeastern Australia, the Yorta Yorta entered the mediation game/process. Their hopes bore no fruit. They had entered as unequal, historically and economically. They were then subject to a groundswell of regional racism, similar to that experienced in the past. The opposing parties with their media, political associates and legal authority, assisted by the rise of One Nation, were able to cultivate and build on prevailing prejudices and stereotypes. This mindset seems to have become entrenched during the mediation process. The NNTT success rate reflects the power dynamics involved in mediation. That is, the official dominant voice of the state shapes the outcome of mediation and the appearance of consultation serves to mask and legitimise dominant power relations and to maintain the status quo (see Thornton, 1989:760–1). This point will be revisited in the analysis of the YYNTC decision. After mediation, the opponents of Native Title further manipulated the political tide. The next chapter will follow the Yorta Yorta claim as it proceeded from the NNTT to the Federal Court hearing, 1996–98.

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Chapter 7: The Federal Court 1995–98

7.1 Introduction This chapter deals with the Yorta Yorta application for a determination of Native Title at common law. The Federal Court hearing, 1996–98, will be examined in relation to the requirements of Native Title under the Native Title Act 1993, s. 225 (NTA). The chapter sets the context for examining the proof requirements of native title, and for assessing the extent to which the evidence of Yorta Yorta occupation and connections has been acknowledged in Yorta Yorta v State of Victoria and Ors (1995–98). The case analysis will draw on the transcript of evidence, including knowledge from Yorta Yorta witnesses. This knowledge is used to argue that the evidence of Yorta Yorta connections presented to the Federal Court justifies the existence of Yorta Yorta Native Title, and demands equality before the law in accordance with the Anglo-jurisprudence of Indigenous title. Indeed, it supports Toohey J's submission 'that if made out, it would amount to a fee simple' (Mabo (No. 2) Toohey J. at 139). The inclusion of extracts from the oral testimony in the proof sections may produce some overlap between the three requirements of Native Title, otherwise known as the identity, connections and maintenance requirements. This reflects the interrelated and often ambiguous scope of the Native Title requirements, the holistic nature of Indigenous knowledge, and the opportunity of the questions being asked. Where duplication and repetitions may occur, I have been careful to avoid interfering with the Yorta Yorta style of expression.

7.2 The Trial 1996–98 The trial commenced in October 1996 and concluded in May 1998. Evidence was heard at various locations within the claim area, including Melbourne and Sydney. Subsequent to the Native Title Amendment Act 1998 (Cwlth), parties were invited to make further written submissions concerning the effect of the amendments on the case, for which the Court was reconvened in the first week of November 1998. The recalling of the Court to hear submissions on the proposed changes had important implications. The perception of claimants, including myself, was that the case had already been decided. The unexpected handing down of the decision less than a month later gives support to this view (Yorta Yorta Native Title Committee, November 1998).

7.2.1 Yorta Yorta v State of Victoria and Ors At the first directions hearing in May 1995, the applicants were described as 'The members of the Yorta Yorta Aboriginal Community' and the respondents as 'The State of Victoria and Others'. The claimant group is described as comprising descendants of

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the original inhabitants of the 'claim area'. For the purpose of NTA s. 225, the Yorta Yorta sought a determination that Native Title exists in relation to the lands and waters claimed, and that they be held by the members of the Yorta Yorta community. The claimed rights to land and waters confer possession, occupation, use and enjoyment as against the whole world on the Yorta Yorta to the exclusion of all others. The rights and interests that are considered to be of importance are:

♦ Ownership and Possession: The right to possession, occupation, use and enjoyment of the land and waters claimed to the exclusion of all others. This right and interest, like other rights and interests, is a consequence of the Native Title right and interest of ownership.

♦ Access and Occupation: The right and interest to have access to the land and waters, and to occupy, use and enjoy them.

♦ Management and Control: The right and interest to make decisions concerning the use made of the land and waters, and the activities permitted on the land and waters. These include: 'The right to participate fully in determinations concerning land and water management or development programs which impact upon the natural resources and natural environment of their lands', and: 'The right to prevent actions which may damage their lands, the natural resources of the lands and the natural environment of the lands. The right to protect places and areas of importance in and on the claimed lands and waters' (Exhibit A17, page 199, 1996).

♦ Usufructuary: The right to use and enjoy the land and waters claimed and the natural resources from the land and waters are expressed as the 'right to make use of the natural resources of the claimed areas' (Exhibit A17, p. 199, 1996).

7.3 Establishing Connections under Mabo The NTA does not constitute a complete code in itself, it has to be supplemented by the common law. It is the common law as defined in Mabo that sets the standards for establishing connections with the land in accordance with the facts drawn from the claimants. The Yorta Yorta asserts that the claimed land and waters 'have always been theirs' (Exhibit A17, Chapter 11, 1997). Yorta Yorta witnesses emphasised the importance of being the prior owners of the land and waters claimed, as the Indigenous occupants of the area, and of being recognised as such. In accordance with traditional law, those neighbouring groups of the Wamba Wamba, Wiradjuri and Kulin acknowledge that the land and waters belong to the Yorta Yorta (Exhibit A17, Chapter 11, 1997). Yorta Yorta occupation has been accepted and acted upon by various departments and representatives of the Commonwealth, the States of Victoria and New South Wales, and by others, in dealing with Yorta Yorta people as the traditional

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owners of the original lands (Chapters 4 and 6). This is further supported through Yorta Yorta representation and control of local and regional organisations within the claim area, including the ATSIC Tambuka Regional Council. It is also confirmed in the Aboriginal and Torres Strait Islander Heritage Preservation Act 1984, Part 11A Schedule, which recognises the Yorta Yorta Clans Inc as the owners of their heritage (Chapters 3–6; Hagen 1996:43; ABS, 1996; ; Department of Conservation and Natural Resources, 1992; Aborigines Land Rights Act, 1983 (NSW); Yota Yota [sic] Local Land Council Cummeragunja). The Yorta Yorta continues to exercise their Native Title rights in the claimed land and waters and its natural resources (Chapters 2–4). Yorta Yorta witnesses at trial declared that they continue to utilise the various traditional resources within the claim area. They continue to exercise inherent rights over the waters of the rivers and associated lakes, swamps, lagoons and streams and to use certain minerals and natural resources found in or below the claimed land and waters (Chapter 3; Exhibit A17, 1997).

7.4 Contemporary v Traditional Yorta Yorta Native Title rights are 'territorially based' and the laws and customs that underpin Native Title, rest upon a 'nexus' between people and territory (Hagen at Transcript 6387–8). This nexus has received endorsement from State and Federal government agencies that recognise Yorta Yorta/Bangerang incorporated bodies as the appropriate structures for dealing with matters such as cultural heritage protection, reburial work, and water and environmental management (Chapters 2–4, 6). Consultation and consent on Yorta Yorta land matters is an important process and transgressions usually bring existing protocols into play. The matter, whatever it may concern, invariably ends up being brought to attention by the Yorta Yorta. The evidence confirms the existence of an identifiable and structured community who are descendants of the Indigenous occupants and who by inheritance see themselves as owners and custodians of country (Hagen, 1996:191–2). The Yorta Yorta assert that the original Native Title rights were possessed by the ancestors of the Yorta Yorta/Bangerang people at colonisation, or were implicit in their broad rights to ownership and control of the lands in question. These rights have never been given up, although they have in some cases been prevented from being exercised to the fullest extent by extraneous factors (Chapters 2–3, 5). At various times over the last 150 years, the Yorta Yorta asserted these rights through physical and political resistance, thereby indicating their protection of inherent interests (Chapter 3). These rights were further asserted by demanding equal enjoyment of human rights; by unilateral actions such as the continued resistance to official pressures; by the simple processes of continued physical occupation and use of the resources, and

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through formal claim procedures from 1860–2000 (Exhibit A17: 1997; Appendix. 1; Chapters 3–4). The variety of primary Native Title rights and interests being claimed by the Yorta Yorta are dependent on the following principles contained in the NTA:

♦ that the claimants are an identifiable community who have continued to occupy, use and enjoy the land in accordance with traditional based laws and customs.

♦ that the land has not been validly granted to someone else in a way that is inconsistent with continuing Native Title rights. It should be noted that not all acts which impact on the enjoyment of Native Title rights necessarily extinguish Native Title. The creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters is an 'act' for the purposes of section 227 by virtue of NTA s. 226(2)(c). The difference between the existence of Native Title rights and interests and the enjoyment and exercise of them is set out in NTA s. 227. This distinguishes between acts that may extinguish Native Title rights and interests, and acts inconsistent with either the existence of Native Title rights and interests, or with the enjoyment or exercise of Native Title rights and interests. It contemplates acts that may not extinguish Native Title rights and interests or be inconsistent with the existence of Native Title rights and interests, but may be wholly or partly inconsistent with the enjoyment of Native Title rights and interests. The High Court in Mabo and Wik similarly distinguished between the existence of Native Title and its enjoyment for the purposes of analysing the extinguishment issue.

7.5 Requirements of Native Title I will now examine the proof requirement of identity and will examine the connections and maintenance requirements in Chapters 8–9. The traditional laws and customs referred to in NTA s. 223(1) give rise to the Native Title rights and interests that are held by the Yorta Yorta. A consequence of the focus of the NTA is that the possession or otherwise of traditional laws and customs unrelated to land and waters is not strictly relevant to the issues to be considered by the Court. While the possession of traditional laws and customs concerning matters such as social organisation, kinship, language, or cultural traditions and ritual practices may assist the Court in concluding in some general way that the Yorta Yorta community possess traditional laws and customs, and may in some instances bear upon land relations, the task of the Court is to identify laws and customs related to land and waters. The traditional laws and customs which the Court is required to consider do not have to be the same laws and customs as those observed by the Indigenous people of an area prior to 1788 (Chapter 5). Section 223(1) is concerned with the laws and customs of the

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claimants. To be recognised by the common law, such laws and customs have to be 'traditionally based laws and customs, as currently acknowledged and observed'. Chapters 2 and 5 analysed the changing and evolving nature of traditional Yorta Yorta laws and customs over time and as acknowledged by the High Court in Mabo. The 'doctrine of continuity' is further elaborated in the line of authority represented by: Re Southern Rhodesia (1919); Amodu Tijani (1921); Guerin v R (1984); Delgamuukw v British Columbia (1991) and in Mabo (No. 2) by Brennan J. at 61 and Toohey J. at 183). The issue of change, adaption and continuity of traditional based laws and customs was frequently blurred in the course of the hearing. Respondents maintained, for example, that contemporary Indigenous views concerning the importance of the protection of the environment were not based on tradition because Curr, one of the first white pastoralists who spent only a short term in the area (1841–51), observed a practice of leaving excess fish to languish on the bank of the river. The inference drawn from Curr's interpretations of fishing practices was that because such a practice is no longer observed and is somehow indicative of a lack of traditional laws and customs relating to land or waters (Transcript 4357). This approach of the Court is simplistic and reflects poorly on the degree of sophistication displayed in the processes of the common law. It fails to recognise that 'tradition' does not preclude change. The inadequacy of inferences, drawn from white interpretations tainted by the prevailing cultural biases of the time, has been dealt with (see critique of ethnographic sources in Chapter 2). Ethnographers of the time were observing a culture that was in a state of dramatic change. A population decline of 85 percent within the first generation of contact was the context of Curr's observations (Chapter 3). Added to this is the lack of reliability of Curr's knowledge which was not written down until forty years after his observations (1883–86), further compounded by the absence of any records, diaries or notes that could be used to cross-check for inaccuracies. Against this analysis, it is argued that the ethnographic record, including that of Curr, should be subjected to the same degree of scrutiny that is applied to other sources of knowledge, including Indigenous knowledge (Chapter 1). Traditional laws and customs encompass the rules or principles of proper conduct, and the practices of the Yorta Yorta community, as handed down to them from their ancestors. Hagen distinguishes between 'traditional laws as a broad structure encompassing all of those things that go towards the maintenance of order in any society; and laws which can be thought of as more explicit rules relating to or supporting that broad body of law, and customs which are essentially procedures of proper activity or of rules which lack sanctions' (Yorta Yorta Transcript of Evidence 6386–88). Hagen comments:

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We are speaking fundamentally about law and customs based on oral understandings rather than formal written prescription; that we are dealing with a system which has been passed on in some way orally rather than encoded and formalised. Traditional laws and customs generally seen as having perhaps greater flexibility than written codified systems of law and custom for that very reason, that they are open to some greater degree of change with time as a result of the means of their passing on. There is an anthropological tradition of distinguishing between custom and law on the basis of the applicability of sanctions in the case of laws, as opposed to customs. But it is a tradition which is perhaps on the wane, and many people would recognise that many laws do not have negative sanctions, at least, directly attached to them (Transcript 6386–88).

The evidence called by the applicants established that the Yorta Yorta is a community of Aboriginal people who currently acknowledge and observe traditionally based laws and customs. The nature and character of these laws and customs and the rights and interests possessed under them in accordance with Mabo must be ascertained as a 'matter of fact'. Furthermore, they must be determined by reference to the 'Aboriginal people' or 'community' claiming Native Title (Mabo, Brennan, J. at 42, Deane and Gaudron, JJ. at 64, 87–8; Toohey J. at 146–7). I will now address the identity question. The oral testimony will be drawn on to assess the way that the evidence has been treated in the determination, and to support the proposition that the extent of proof placed on Indigenous claimants under the NTA to prove title, produces inequality and not equality before the law.

7.5.1 An Identifiable Community In Mabo, the High Court held that Native Title was vested in a community consisting of a clan, group or society. Brennan CJ, together with Deane, and Gaudron JJ. refer to 'an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs' (Mabo, 1992:43, 64). Brennan J. further added that: …so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed (Mabo (No. 2), 1993:61).

The Yorta Yorta community comprises a body of people who are the descendants of a common group of known ancestors who were located within the original lands at the time of European contact, or soon thereafter (Mabo (No. 2) Brennan J. at 70; Mason v Tritton (1994) Priestly J. at 598; NTA, s, 223(1); 225(b)(1)). There is no doubt that the Yorta Yorta people constitute the required Native Title definition of a community in

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their own perceptions and in the eyes of other Indigenous communities in Australia and overseas (Chapters 2–4). A number of Yorta Yorta ancestors have been identified by reference to the oral traditions of the living Yorta Yorta people, the anthropological research of Tindale (1937–38), Barwick (1969–72) and Hagen (1996–97), and the certificates of births, deaths, and marriages collected by genealogist, Ms Harris (1995–98). Most of the members of the community identify themselves as Yorta Yorta. Some identify as Bangerang, which is an alternative expression for Yorta Yorta and with whom the same ancestors are connected. All regard themselves as related to each other, as being kin or 'one family', which is verified by the oral evidence and substantiated by the genealogical research. As indicated, and as will be confirmed from the oral knowledge, there is extensive evidence of the processes and the means by which social cohesion between the members of this broad kinship group have been maintained.

7.6 Yorta Yorta Perceptions The majority of Aboriginal witnesses received their Yorta Yorta identity and the knowledge of it from their forebears through their parents and grandparents. It is testimony to the powerful quality of the identification that has persisted despite the references to Bangerang in the available historical texts. While there are those who identify as Bangerang there is general agreement that they are all descendants of common ancestors and are one of the same community. Some witnesses referred to 'blood lines'. Monica Morgan states that bloodlines are confirmed 'through family connections'. She thinks of those Yorta Yorta people 'away from Yorta Yorta country, as Yorta Yorta, because their blood tie has not been broken' (Exhibit A8, pp. 1–17). Members of the community 'are identified by one another as members of that community living under its laws and customs' (to adopt the words of Brennan J. at 61). The principles of membership of the Yorta Yorta community are both acknowledged and observed. The principle is that of descent from a Yorta Yorta ancestor. It is the principle referred to by each of the claimants and witnesses. Membership by adoption into a Yorta Yorta family was acknowledged as a possible means of membership. In any event, adoption is a form of socially acknowledged descent in that the adopted person is regarded for all purposes as the child, the descendant, of the adopting parent, or in cultural terms 'those who grew them up'. Membership, in the words of Brennan J. Mason, CJ. and McHugh J., can include 'mutual recognition of a particular person's membership by the elders or other persons enjoying traditional authority among those people' (Mabo (No. 2) at 70).

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Yorta Yorta people prefer not to make distinctions between siblings and adopted members or step-siblings, and they regard each other as single interrelated family groupings. My own experience of growing up in a Yorta Yorta family was presented at the hearing. I saw the import of such terminology as Anglocentric constructs. My eldest brother and sister have a different father but we don't recognise those matters. We regard each other as brothers and sisters, as a family group, and have grown up to relate to each other in that way (Transcript 1351–5).

7.7 Genealogical Evidence In establishing genealogical connections with country, each of the fifty-five Yorta Yorta witnesses produced a written genealogy and gave evidence of their ancestors and extended family. This was one of the first questions that witnesses were required to address. For example, Melva Johnson (Transcript 1146–77) is a sixty-three year old woman who is the coordinator of the Aboriginal Health Program in Echuca. She claims Yorta Yorta lineage because she is a descendant on her mother's side from Elizabeth Walker and Bagot Morgan. On her father's side she is Wamba Wamba. She grew up at Cummeragunja, on the river flats, and in the triangle of Mooroopna, Echuca and Barmah. The formative influence in her sense of being Yorta Yorta came from her grandmother, Lydia Charles, in her stories, what she taught by example, and her pride (Transcript 1156). What Mrs Johnson learnt, as a member of the Yorta Yorta community, was knowing who she was, being proud of who she was, and knowing the importance of the extended family (Transcript 1158). Des Morgan (Transcript 1177–1227), at the time of giving evidence, was forty-one years of age. He grew up on the riverbank opposite Cummeragunja. His Yorta Yorta identity comes from his parents who are Yorta Yorta. '1 believe that my heritage follows the same lines' (Transcript 1181). His father Des Morgan senior was a major influence in his life. He too stressed the importance of extended family, although not comfortable with the term as 'extended family is a white fella's term to me because we're just straight out family and there's no extension at all' (Transcript 1184). In his statement he said: My father Des Morgan was the grandson of Bagot Morgan, and the great grandson of Elizabeth Atkinson (Kitty's daughter). He had a strong sense of where he came from, a sense of himself as a Yorta Yorta man from his region. He always said: 'We're Yorta Yorta' (Exhibit A8, pp. 64–5).

It was this sense of being and pride that made his father 'stand up for himself and his people'. His father would not take racist comments without responding. Des' sister, Denise Morgan Bulled, speaks of her land as 'part of my heritage'. Denise says that heritage provides for her: 'an identity of who 1 am, and existence – the land

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did provide for my ancestors, and it still provides, not only in a physical way but in a spiritual way too' (Transcript 2047). Similarly, Doris Atkinson said: I grew up with the sense that I belonged to a tribe. My Grandmother Bella Cooper spoke of being Yorta Yorta. I did not question it. I have been Yorta Yorta all along. I was not so conscious of it as a child, or I took it for granted. People spoke of coming from Maloga, or coming from Cummeragunja, and being part of a tribe (Exhibit A8 pp. 202–3).

Josephine Briggs asserts: I am a Yorta Yorta person because my father Ken Briggs is Yorta Yorta, and my Grandparents William Briggs and Sophie Peters are Yorta Yorta. William Briggs is the son of Minnie Atkinson. She was the daughter of Aaron Atkinson, the son of Kitty (Exhibit A8, pp. 136–137).

Her father Ken Briggs, a key witness on genealogical connections, was able to clarify individual and family lineages with precise detail. I will come back to Mr Briggs' knowledge in the analysis of the determination. Elsie Bailey, born in 1927 (Transcript 2282), was quite clear that her mother had spoken of both her land and her people as Yorta Yorta: Mr Wright (State of Victoria): Can I ask you to think carefully back to when you were a child. When the old people talked about the land, I would suggest to you that they referred to it as our land or our country rather than as Yorta Yorta country. Is that a fair comment?

Elsie Bailey: Well, my mother always suggested that it was our land and Yorta Yorta' (Transcript 5520).

Elsie's daughter Sandra was asked what aspects of Yorta Yorta culture have remained strong. She replied: …we know – we still live on Yorta Yorta land and we know who we are. We know how we are related and we know our connection with that land, with the Yorta Yorta land (Transcript 5455).

Evidence of this kind from senior witnesses of the traditions passed on to them as children by their parents and grandparents contradicted the proposition advanced by Professor Maddock that the origins of such beliefs lie in what he has called 'the land rights era' – a period which he suggested began in the 1960s (Transcript 5886). In many cases, the events and discussions that the witnesses were referring to had occurred between the 1920s and 1950s. From a Yorta Yorta perspective, of course, there has not been a 'Land Rights Era' in colonial and post-colonial times. (Perhaps this entire period could properly be called the 'Land Wrongs Era'). Despite a century and a half of

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struggle to have interests recognised, the Yorta Yorta have been returned a minute fraction of their original lands. The period since 1960 has not been characterised by any improvement in this situation (Chapter 4).

7.8 Concept of Elder The Yorta Yorta community is not only a community based upon the traditional principle of descent, but it also has a traditionally based authority structure. Central to this authority structure are the elders of the community. The members, as in a more conventional organisation, do not elect them. Rather, they are senior men and women in the community regarded by the other members of the community as being the custodians of their heritage, and as having a special authority among them. In more recent years, organisations such as the Yorta Yorta Murray and Goulburn Rivers Clans Group Inc, Njernda Aboriginal Corporation, Rumbulara Aboriginal Cooperative Ltd and the Yota Yota (local abbreviation of Yorta Yorta without the 'r') Local Aboriginal Land Council have been formed, and cultural officers such as Des Morgan, Neville Atkinson, Ella Anselmi and Gary Nelson have been appointed pursuant to cultural heritage protection legislation. These cultural officers and organisations are part of the structures that enable decisions to be made by, or on behalf of, the Yorta Yorta community. They are rightly regarded as being traditionally based. They operate in an area regarded as the traditional area of the Yorta Yorta people. They work to protect the traditional physical and intellectual heritage of the Yorta Yorta people, and to advance their interests, particularly in relation to the control of their traditional area. They operate by reference to their elders to whom they look for wisdom, guidance and decisions. Many witnesses speak of learning about Yorta Yorta matters and the land, and living and working with Grandparents, Uncles, Aunts and Parents: the 'old people'. A number of witnesses gave evidence to this effect: Colin Walker: My Grandfather Herbie Walker and my Grandmother Florence Walker reared me... from when 1 was eight years old ... When I was working in the forest in the 1950's... old people like Watson Atkinson and Aaron Briggs were in the forest all of the time. 1 camped with these men. Every night they sat around the campfire talking, they were telling you things all the time, those old men. It is a big thing to be an elder in the community because your decisions have to be direct, spot on. You have to use a bit of common sense, and you have to be alert all of the time. The main responsibility as an elder is the protection of the forest, and the burial sites. That is my specialty (Exhibit A8 pp. 4–7).

The evidence of continued occupation in the face of change and the importance of elders as the custodians of traditional based knowledge is conveyed by other witnesses.

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Margaret Wirripunda: As 1 grew up there were recognised elders among the Yorta Yorta people. They were the heads of the families. I remember the old men and the women too. They gathered for meetings, both at Cummeragunja and at The (River) Bend. That was how decisions were made, by people talking together. I was told that was how they made the decision to walk off (Cummera in 1939). I remember my uncles all talking together as a family. I remember overhearing them. It was how decisions were made. Although my father and mother were not living at the mission, they were there a lot and were involved in what was happening (Exhibit A8 pp. 158–9).

Hilda Stewart: In November 1988, we returned to Cummeragunja to live. We were sick of city life. I wanted my son to grow up at Cummeragunja and to know his family, his cultural heritage and his land. Growing up at Cummeragunja, I always knew who I was and where I came from. That was the beauty of Cummeragunja. Dad and Mum had always told us that we are Yorta Yorta. We grew up hearing people talk about it in everyday conversation. All around were our uncles, aunties, and cousins. From our earliest childhood, Dad took us to places in the bush. We went to (several places named). These are the places that 1 grew up knowing as the traditional country of the Yorta Yorta people. Growing up 1 heard about my great-great-great-grandfather Edward Walker and my great-great-grandfather Herbert Walker. I knew my grandfather Fred Walker. I want my son to understand about his ancestors, and about his country and his culture (Exhibit A8 pp. 24–5).

Monica Morgan: I was taught about Yorta Yorta traditions and customs by my uncles and aunties. They were the elders. They are the ones who taught me about bush foods, hunting, fishing and food gathering (Exhibit A8 pp. 52–3).

The process of continuing food-collecting practices has been carried on by current generations. Monica Morgan continues: We spend time teaching our children about Yorta Yorta traditions and customs. We travel a lot over our country camping... We have spent time teaching them how and when to hunt and fish and gather bush tucker (Exhibit A8 pp. 52–3).

Margaret Wirripunda: Colin [Walker] is recognised as our guardian of our sites and special places. He has the status of elder, and lawman. He is a very significant man for the Yorta Yorta people. We have a group of elders, both men and women, representing the families (Exhibit A8 pp. 161–2).

Roderick Briggs: I think of myself as Yorta Yorta because it is what I was born. To decide whether some one is Yorta Yorta you would have to ask the elders. They are the ones with the knowledge of the people who lived around here. You are supposed to listen to what your elders tell you. That is the number one rule. You learn a lot about your own culture and the way that the people lived off

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the land. You learn that from the truly old elders, they are the law-makers (Exhibit A8 pp. 176–80).

Leon Atkinson: Throughout our lives we've been asked to and told to respect the views and decisions of our elders and if those decisions are asked and are requested then we have to, by rights, agree with what those elders have said, especially if they've been recognised as elders of their community (Transcript 3812).

Ella Anselmi: When 1 was growing up the Yorta Yorta elders included my grandparents, Bert (Cooper) and Bella (Anabella Howard) and Sophie (Peters) (Exhibit A8 pp. 211–12).

Garry Nelson names his grandmother Priscilla McCrae, his father Keith Nelson, and his Aunty Ruby Atkinson as 'the Yorta Yorta elders for me' (Exhibit A8 pp. 230–1). He continues: There were other Yorta Yorta elders who taught me a lot. We used to come to the Lakes and 1 would hear them – Aunty Ruby, Uncle Geoff Atkinson, Uncle Aaron Briggs. And there were people living in Mooroopna. There was constant discussion about Yorta Yorta culture (Exhibit A8 pp. 236–7).

There was considerable evidence on the role of elders. The relevance of the evidence is principally directed to the existence of an identifiable community. It may be summarised as follows: Elders have both formal and informal roles within the community. The witnesses' use of the term 'elders' often depended on both context and the identity of the speaker. At times the term was used to refer to any senior adult. Young people are taught to 'respect their elders' from an early age, and are not expected to differentiate between them. People of an intermediate age (perhaps 35 to 50) are likely to take more responsibility for family and are expected to support people of their own age group who may be political allies or close relations. The term 'elders' is also used in a more specific fashion when the context requires. People speak of the elders of a specific residential community, of a particular organisation, or of the elders of the general Yorta Yorta community for a particular purpose. In this sense, the term 'elders' is generally used to refer to those who have a more specific senior role related to the particular area of life under discussion. Elders thus can be seen as 'role models' for younger people, and as people with a prominent role in the decision-making processes of the community. While the role is not formalised, they may be called upon in a range of cultural, social and political situations. Shane Walker was cross-examined on this topic. After identifying the dichotomy between 'elders' as simply older people and 'elders' as community leaders, he stated:

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'Well, to me they have leadership qualities, that's why they're an elder, they could negotiate with people and keep the peace' (Transcript 5593–4). Kevin Whyman succinctly expressed a similar view, in response to a question from Mr Neal (Barrister for Recreational Users): Mr Neal: Could you give me your understanding of the concept of an elder?

Kevin Whyman: Well, an elder is a possessor of the knowledge in the laws and traditions of Yorta Yorta people' (Transcript 5022).

Monica Morgan, when speaking of Yorta Yorta asking other communities about camping on their land, and how everyone should behave when entering Yorta Yorta land, says: I just learnt these laws from observing the elders. It is not always a spoken thing...when you are taken out as a young person into the bush or fishing with elders will just say – listen, be quiet – and they will point to things (Exhibit A8 pp. 60–61).

The views of elders are sought on matters of importance: Darren Atkinson, in discussing the performance of Yorta Yorta dance groups, says: With the elders; we consult with the elders. A lot of consultation was done with the elders prior to actually performing the four dances, so any future steps that the group are going to take would definitely be taken with the elders' okay, go-ahead, you know.

Mr Howie (Barrister for Claimants): And which elders do you particularly refer to?

Darren Atkinson: The elders of the Yorta Yorta people (Transcript 2547).

Monica Morgan indicated under cross-examination, the importance of the elders in dealing with contemporary land and water use issues. Monica Morgan: They were discussing different engineering acts within the forest and that entailed de-snagging, de-silting, changing courses of water and those type of things. So, no, I didn't believe that I had the authority at that time to say, 'yes'.

Mr Hiley (Barrister for NSW Government) Indeed. In any event, you indicated that you would go back to the elders and discuss it with them?

Monica Morgan: Mm, which I did'.

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Mr Hiley: And have you responded?

Monica Morgan: Yes, we did respond. We responded and said that those engineering works that did not – there was a few criteria's. One was not to damage sites, Aboriginal sites. The other one was, we were concerned about the habitat of the fish and so some of the desilting and some of the major projects that would mean changing flows of water and those type of things weren't agreed to. Things that added to safety of regulators, like drop bridges and, you know, when they cut off the water, there was safety mechanisms. Where there was works, to try and look after the natural drying of the lakes so the irrigation waters couldn't go in there; we agreed with those (Transcript 3873).

Margaret Wirripanda spoke of the decision-making role of the elders: The elders – Yorta Yorta elders are the heads of the families, and they are the ones who over the years have made decisions on behalf. They got together in groups, meetings, and they made decisions on behalf of the family groups altogether. If there were any elders who were unable to attend those meetings, they would send along their – you know, one family member who would speak on behalf of family (Transcript 5768).

The interplay between the role of elders and the role of organisations with formal responsibilities concerning heritage protection under relevant state legislation can be complex. Monica Morgan provides a good example of the integration of traditional elements such as the elders, with needs imposed by the activities of the broader Australian society by saying in reference to Victoria that: The legislation in Victoria is confined to organisations which – the organisations themselves are representatives of the community and the majority of the community are Yorta Yorta. When we look at the whole Yorta Yorta area, we want to look at the protection as a whole because Yorta Yorta isn't isolated pockets of land. It's a whole and what happens in one particular area is important as what happens in another area. And by now strengthening the voice of our elders and bringing together more as a way to look over the whole Yorta Yorta area, it is very important that the elders have a voice on the protection. It is very important that we don't confine our elders to legislation that doesn't take into account their understanding of our lands because they are the people that have directly got the knowledge from their ancestors. And so it is important to me as a young person that I listen to the stories, the understanding of the country, the waters, the lands, to pass down to us because then we make the judgments on what they say (Transcript, 1497–1498).

Mr Howie: As I understand what you're describing, you're saying that in the various areas, there are constituted bodies, such as the ones we've seen at Rumbulara and Njernda here. Those bodies have their own governing committees, boards of directors?

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Monica Morgan: Yes, they do.

Mr Howie: Is there a hierarchy, some kind of status? Where do the elders fit into this system, above, below, level?

Monica Morgan: Above…They're our guidance and they're our–they give us the knowledge about the areas that we're speaking about. They give us an understanding about the integrity that we should maintain as we're making our decisions as Yorta Yorta people because as you can understand, it is very difficult for us. It's a very highly developed area for non-Aboriginal people in the Yorta Yorta area and to be able to understand the changes that have occurred and how the adaptation of our people has happened, we are further adapting. And so what we are doing is getting the feedback from our elders who have got the feedback from their elders about what the adaptations were. But how to maintain the part of us that is Yorta Yorta that doesn't adapt to the degree that we lose the integrity of who we are (Transcript 1497–8).

The importance of elders in the community is not a new concept. Various senior witnesses indicated that similar processes had been in place throughout their lives: Alfred Turner: Because they were old. And most of them were, when 1 was a child. Most of the elders were elderly people.

Mr Howie: What was the responsibility that elders had?

Alfred Turner: Their responsibility was to educate the young ones, talk to you, and to generally give out information on their past, that type of thing. They made most of the decisions in my time (Transcript 246).

The elders provide a thread of continuity linking contemporary land related decision making to traditional custom and law. By placing value on their knowledge and by incorporating their views into decision-making, the Yorta Yorta community today actively seeks to maintain the connection with their past.

7.9 Organisational Structures Reflect Yorta Yorta Identity Contemporary organisations, often formed in response to legislative or government policy requirements, confirm the existence of the identified Yorta Yorta community. There has been much evidence about the many Yorta Yorta organisations existing, historically and today evidence of which was adduced to the Court. These cover a range of Aboriginal heritage, social, cultural, land, health, housing and other issues of concern to the community. As with many other indigenous communities in Australia,

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longstanding government policy and legislation has encouraged the Yorta Yorta to establish organisations – often statutory corporations – to assist in pursuing community programs, receiving public monies, facilitating accountability, and so on. An example is the Aboriginal Land Rights Act 1983 (NSW), under which the local Yota Yota Local Aboriginal Land Council 'was created' (Monica Morgan, Exhibit A8 p. 5520). Several organisations help to sustain, and provide an effective base for the exercise of traditional authority structures, or concentrate on protection of the claimed areas and of Yorta Yorta culture. The community today thus manages its internal affairs and external relations through a structure of formal and informal decision-making processes. On a formal level, the Yorta Yorta Murray Goulburn Rivers Clans Group, provides an umbrella body with membership drawn from throughout the Yorta Yorta area. It assists in the coordination of the activities of other, more localised or specialised, groups and plays a prominent role in dealing with external political issues. I was asked to summarise the role of the Yorta Yorta Clans Group:

The Yorta Yorta Clans Group embraces other organisations within the claim area, Rumbulara, Echuca, Mooroopna, including the Njernda and the Shepparton Aboriginal Keeping Place, which is a part of the Dharnya Centre. Those organisations in the claim area are represented through the Clans Group (Transcript 1708). Regional groups, such as the Njernda Centre in Echuca, the Keeping Place in Shepparton and the Rumbulara Co-operative in Mooroopna, focus on narrower regions within the Yorta Yorta area, pursuing a variety of cultural heritage and social welfare functions. Their membership is drawn from the local indigenous community. As discussed, these organisations have gained recognition from State and Federal governments, as bodies representing indigenous interests in the area for which they are responsible. The Cultural Officer Program is another way in which the community, through organisations supported by the government, is able to coordinate and direct a large part of its concern to protect and maintain its cultural heritage. Alfred Turner, an elder of the community today, when asked about the value of cultural officers, indicated his support for the manner in which the interrelationship between elders and cultural officers occurs: Alfred Turner: I think it's great work. Yes. 1 think it's something that should have happened a long time ago.

Mr Howie: They're carrying out their duties as part of their job, under the Commonwealth Act, do you see as being under some other obligation too?

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Alfred Turner: I think they come under an obligation from their tribal elders. It's something that is handed down to them. It's not just a job to them. It's something more than that.

Mr Howie: When they do that work, do they do it off their own initiative, or do they consult with other people?

Alfred Turner: They consult with other people.

Mr Howie: Who do they consult with?

Alfred Turner: Mainly elders. People that know a bit more than they do. They ask all the time, different questions (Transcript 245).

The oral evidence confirms that Yorta Yorta identity is deeply embedded in the land and carries with it a responsibility to look after the land, to protect the sites and to respect the most senior members of the community. It bears with it a strong sense of community and of belonging to family and place. The responsibility of protection and care for land falls on the shoulders of Yorta Yorta people and is carried out by the cultural officers.

7.10 Yorta Yorta Cultural Officers Cultural officers operate on behalf of the identified Yorta Yorta community, by coordinating and directing the management, maintenance and protection of its cultural heritage. They play a significant role in the protection of sites of cultural, historic and spiritual importance to the Yorta Yorta, and also in the ongoing education in traditional matters of the younger members of the community. Cultural officers are selected, in part, because of their strong interests in such matters. The role of cultural officers provides a clear example of the manner in which traditional structures and processes are melded into contemporary aspirations. The position itself – in fact the very concept of employment – is a post-white occupation phenomenon, but it is used to serve the processes of maintenance of traditional law, custom and knowledge in the contemporary world. This is a part of the process that continues to bind the Yorta Yorta community together as a distinct community. Through such contemporary mechanisms, the Yorta Yorta seek to maintain their traditions, knowledge and customs. Neville Atkinson is one of the cultural officers who provides a valuable insight into the role and motivations of cultural officers:

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I was doing that before I was ever paid to do it. The reason why 1 got the job here as cultural officer is I was well versed in Yorta Yorta culture. Yorta Yorta knowledge because it's a Yorta Yorta Organisation, Rumbulara. 1 was in my land so my prime role was to pass on our Yorta Yorta knowledge, culture. Not in a generalised sense but in a distinct sense the Yorta Yorta knowledge. Even to other Aboriginal groups that live within our community. When I teach them I don't teach them in a generalised sense, I teach them about Yorta Yorta culture'.

Mr Howie: Leaving aside your job for the moment, that maintenance of Yorta Yorta culture, is that something that you do and were doing just because you're interested in it or did you have some sense of obligation about it?

Neville Atkinson: As I said, it wasn't because of my job. 1 was doing it, before that. When 1 was growing up I was doing it. 1 pass it onto my kids. I pass it onto younger ones, younger cousins. I have a yarn with kids. It wasn't because of the job. If anything my prior knowledge and my prior passing on, it helped me in my job, to do my job.

Mr Howie: You go on in that para to say: 'I also go out to record sites and protect them under the Heritage Act. Why do you do that?

Neville Atkinson: Because it's my land. They're my sites. No-one else has got the right to do it. Only Yorta Yorta people have got that right and responsibility. It's my responsibility. We don't employ … another Aboriginal person from somewhere else to protect these sites. A Yorta Yorta person was employed to protect our sites because it's the responsibility for Yorta Yorta people to do it. The only thing that was made a little bit better is that I'm getting a wage to do it. We'd been, myself and other Yorta Yorta people, reporting the sites to Aboriginal Affairs (AAV) and other authorities like that who are or were responsible in the capacity of administrators of this particular region, Department of Conservation and Natural Resources (DCNR) or the State government. I'd be reporting those sites to those people and they'd be recording them. Later on in years, when there was some employed positions through AAV, that Yorta Yorta people were employed in those positions and some people, myself and Gary Nelson, were employed to go and do that, to record those or follow up on information that we knew of, and information of our sites and other Yorta Yorta people knew of. We'd go out and record them instead of having someone from outside coming in and doing it. We'd look after it ourselves and report back and give the reports back to AAV or whoever. So they become known as archaeological sites too (Transcript 732).

It was submitted that the Yorta Yorta community operates on the basis of shared values and in accordance with principles of appropriate behaviour. The respect accorded to elders, the maintenance of family connections, the curtailing of one's actions upon the

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environment, the protection of cultural heritage including burial sites– these are examples of appropriate behaviour that is manifest in the Yorta Yorta community. It is difficult to discuss this in a comprehensive way. Partly it can be discerned in the opportunity that the Court had over a period of some months to observe the witnesses called by the applicants in a variety of situations including the more formal seated evidence at a number of places, evidence given at sites on the land, and cross- examination. The values of the community that emerged are a strong sense of shared history and experience, including periods of hardship; a strong sense of extended family connections; a respect for elders, in this case meaning both the elderly and those regarded as having particular authority; and a passion to preserve and protect Yorta Yorta heritage including land and waters. These values are expressed in the way in which members of the community behave. They are reflected in the evidence of the applicants' witnesses.

7.11 Conclusion In light of the evidence presented thus far there can be no doubt that the Yorta Yorta has an intense sense of common history, of shared knowledge, sourced from their identified ancestors and beyond to time immemorial. The community sees this large body of cultural knowledge as something that is identifiable as Yorta Yorta, and which is distinct from bodies of knowledge held by other communities. It is against this background that continued connections can be elaborated upon.

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Chapter 8: Proving Connections

8.1 Introduction This chapter continues the analysis of the proof requirements that are imposed on Native Title holders by the Native Title process. Attention will also be paid to the common law that underpins the NTA, 1993. The chapter examines the evidence of occupation and continued connections, which it argues is sufficient to establish that Yorta Yorta Native Title exists at common law (Mabo (No. 2) Brennan J. at 43, Deane and Gaudron JJ. at 83). The proof section will be the basis for scrutinising the Federal Court decision of December 1998 and for analysing the extent to which equality and justice have been delivered in the YYNTC. It will be argued that the Yorta Yorta are one group within Australia which have fulfilled the legal requirements of Native Title. The fundamental position of the Yorta Yorta is that it is not necessary to prove a continuous process of connection every step of the way from 1788 to the present, but to demonstrate that the contemporary connection has evolved from the original one. A crucial element of the 'connection' issue is the fundamental question posed by Brennan J. (Mabo (No. 2), at 56, and see Chapter 7.3 for discussion of this) and all else flows from it, at least in terms of the common law issue. For example, proving maintenance of law and custom is simply one way of proving continued connection. Another way of proving connections, following Toohey J, is to prove continuing physical occupation. In light of Mabo (No. 2) and international case materials it seems that these are the essential elements and all that needs to be proved is that the connection with the land still exists today.

8.2 Occupation as a Matter of Traditional Law The evidence indicates that the Yorta Yorta people have continued to occupy and use the land and water on the basis that it is theirs in accordance with their traditional laws. Dr Rose (anthropologist for Yorta Yorta) observed: 'The combination of law and sentiment has kept many people in their country for long periods, or drawn them back after periods of absence'. It is the traditional law which decrees they are the owners of the land and waters that gives Yorta Yorta people a fundamental reason to consider the land and waters claimed as 'home' (Exhibit A28 pp. 4–5). This is true of the contemporary Yorta Yorta and of the earlier generations. Colin Walker, who continues to fish and hunt in the waters and land, recounts his travels as a child with his grandfather Herbert Walker: Mr Howie: And when you went – did you make that journey with your grandfather? Colin Walker:

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Many a times.

Mr Howie: By what means?

Colin Walker: Oh, horse and cart, and boat – then he'd sail but you can't get right to Moira, but you'd go up to Algabonyah and across to the lakes and into all the lake system, gathering eggs, whatever.

Mr Howie: And what would he do when you got to a burial ground?

Colin Walker: Oh, he'd just tell you all about them and that to be very careful and not to disturb. We weren't even allowed to pick up a handful of dirt off there and throw over there, you know, that had to be left in contact.

Mr Howie: Yes, all right. And did he tell you about travelling with his father or grandfather before you?

Colin Walker: Yes, he always camped, he always used to talk about – because your grandfather is a very important man in our life and so was your grandmother. So really when you go back to that, it was your grandparents being the elders, that's where the respect come from (Transcript 1595).

Near Algabonyah (Site near Moira Lakes), Colin Walker spoke again about similar issues: Mr Howie: Did your grandfather tell you of his own recollections of where it was that people were camped in this area?

Colin Walker: They'd camp down on the river system where the wetlands were, and [when] the water come up, they'd move out onto the higher ground. As the floods went back, they went back with it.

Mr Howie: What did your grandfather tell you of his memories of people here in his earlier times?

Colin Walker: That they camped all through here, he used to say. His grandfather camped with his grandfather – Edward Walker (Transcript 2316).

Osley Patten spoke of camping on the Murray and Ovens Rivers between Howlong and Yarrawonga as a right, his exercising of which helped to keep Yorta Yorta traditions alive (Transcript 3080):

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Mr Howie: Those place where you camp and fish, Ollie, in traditional terms, whose country is that?

Osley Patten: I've always known it as Yorta Yorta.

Mr Howie: Who have you known that from?

Osley Patten: My people, from my fathers and uncles, my mother, as I was growing up.

Mr Howie: In camping and fishing in that way and taking the resin from the grass trees here, have you regarded yourself as having a right to do those things?

Osley Patten: I believe so. It's something that's been happening for the last 40,000 years or more and we in my mind it's still keeping the tradition alive. All I want to do is keep our tradition alive.

Mr Howie: You say you regard yourself as having that right. Where does that right come from?

Osley Patten: From my people, from the owners of this land.

Activities such as hunting, fishing, gathering, and camping occur as a natural part of Yorta Yorta life, and are not easily separable from the general habitation of the claimed areas. Other resources are also used; ochre is quarried for use in dance and decoration and bush timber is used in artefact manufacture and, until recently, was of critical importance for shelter and cooking in the semi-permanent residential camps at places such as the Mooroopna Flats and Barmah.

It is obvious that the Yorta Yorta have a strong sense of what their rights are in relation to the claimed land and waters. As we have seen, many continue to exercise those rights regardless of the imposed systems of regulation and control. Their knowledge comes primarily from traditional laws and customs and from the process of adaption and continuity.

8.3 Yorta Yorta Knowledge of Connections The nature and strength of the relationship between the Yorta Yorta people and the land was described in the previous chapter and exemplified by Elsie Bailey’s response to a question by Mr Wright (QC for State of Victoria) regarding how the 'old people' spoke of the land. Elsie replied with the authority bestowed upon her as a Yorta Yorta elder

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that it was 'our land and Yorta Yorta' (Transcript 5520). Irene Thomas also exemplifies this, saying: 'We are the living descendants of our ancestors. We're still here. This is still our country. We never gave our land away' (Transcript 2276). Other Yorta Yorta witnesses reflect on their identity as Yorta Yorta and the distinct qualities that they have inherited: Neville Atkinson: Yes. Always been strong people. Always been great leaders. Always remain in our land. Never left it. And always remain with a strong feeling for land. We've always maintained that we'd never give up what is ours. We got to get our recognised ownership back, of our land. We already recognise it in our laws but white man's laws have got to recognise it too (Transcript 718, 758, 3055).

Ella Anselmi: It is my right to go to these places at any time it is a traditional right. I do not need to ask anybody to go there. I do not need a licence to fish or to eat traditional food. We never had one in the past. The right comes from the fact that it is our land in the first place. It comes from our law (Transcript 769).

Paul Briggs: We look at the country and we see it as belonging to us and us belonging to it. My father and I and my family were constantly a part of the forest and a part of Cummera. We say that, although we've been, in a legal sense, removed from it, we have never physically or spiritual or emotionally been removed from the land or the forest. We have maintained that connection and the rights that go with that are still there (Transcript 906).

Kevin Whyman: Now, of course, the people mightn't be thousands of years old, but what we pass down to each other is, a constant. Our people had to adapt.... the Cadell Fault, where the river changed course, well our people had to adapt to that. Our people had to adapt to seasons. So, I believe that we've got the total rights and we're trying to prove them rights in this court. It's always been our rights (Transcript 2590).

Monica Morgan: My world is my people around me, the Yorta Yorta people. But our whole existence of who we are and what gives us our place and our meaning on our own country is within ourselves. And we give each other the strength to be able to continue to say this is our country. This is who we are. I believe that it has had to [change], to be able to survive colonisation. I believe that our people have taken direct control of themselves and assessed the situation that we're living in, and made changes to be able to adapt to what is happening in our environment and to be able to survive as a people.

Mr Keon-Cohen: And have some things remained the same?

Monica Morgan:

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Always remains the same as who we are as a people, our bloodlines, our connection to each other and our knowledge that we are still standing on our own country (Transcript 1287).

Ken Briggs and Des Morgan, among others, made similar statements about traditional connections with their country and their attempts to keep the connections going (Transcripts pp 321-2 and 1222 respectively).

8.4 Spiritual Connections Yorta Yorta people believe that they have received their traditional land and waters as part of the lawful order that operates between land and people. Their traditional belief is that the origin of the land, waters and the people, and the traditional laws that determines the relationship between them, is spiritual. It is spoken of in terms of the tradition of Biami, or in terms of the Great Spirit, or God. Such discourse is an expression of traditional law. It posits an ordered universe in which people are related to place not by whim or chance, but by law. Des Morgan explains: Yes, I believe the stories that are told by my people on the creation of the Murray.

Mr Keon-Cohen: What are they?

Desmond Morgan: That the Murray, the whole land was created by Biami, and that Biami sent his wife from the mountains to the sea and as she walked she dragged her yam stick and behind her followed a snake which created the path of the river, and then she sent down the rains and all the water from the rain followed the path of the river, giving life to the land, creating the trees.

Mr Keon-Cohen: Is it important for you to recall to hold that knowledge?

Desmond Morgan: Yes, it is (Transcript 1200).

Monica Morgan was told of Biami by her mother, Elizabeth Hoffman: We believe that we were placed here, that we come from this country and we have obligations to look after it and to be a part of it (Transcript 1279).

Mr Howie: When you say you were placed here, what do you mean by that?

Monica Morgan:

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Well, we believe that, we were placed here. Biami gave us the water that made the land flourish for us, but we believe that we come from this land itself, that this is where we're created from (Transcript 3260).

Margaret Wirripunda explains the fusion of the Biami creation story with the Christian faith in the minds of Yorta Yorta witnesses, who adhere to that faith. She speaks of her Grandmother Theresa Clements' views. 'Nanny Theresa', her mother's mother, was Yorta Yorta. She and her descendants came from the Ulupna Clan of the Yorta Yorta. Mrs Wirripunda says: My grandmother always told me to respect the land. She said it is like respecting yourself, and your spirit, because our spirit comes out of the land. It comes from the greatest spirit of all – 'Biami'. The white man's name for him is 'God'. My grandmother's interpretation of Biami was the greatest spirit, who made everything. She felt comfortable talking about the one great spirit. She explained that the white man called him God, but that our name was Biami. She told us the story of the old woman dragging her digging stick behind her, followed by the rainbow serpent sent by Biami, making the river, and of the dingo pups running around and kicking up the hills. She spoke of there having been a big flood, and an earthquake (Exhibit A8, pp. 154–5, 157–8).

Yorta Yorta witnesses consistently show that the source of their connection is expressed through a spiritual essence that connects them with the land and waters.

8.4.1 Dealing with the Dead as a Matter of Traditional Law The Yorta Yorta people have maintained a belief that the spirits of their deceased ancestors continue to inhabit the land. As a consequence they stress the importance of ensuring that the human remains of Yorta Yorta people are buried in their country in accordance with lawful practice. They do this for the remains of those recently deceased, and for the remains returned to them after lengthy periods in museums and which they understand to be the remains of their ancestors. The principle of traditional law is that such people are to be buried in Yorta Yorta country where their spirits will be at rest. Traditional customs include the practice of smoking those who handle the remains, and choosing responsible people to undertake the task. Des Morgan, responding to questions on the nature and locations of reburials at Kow Swamp in 1990 said: I wouldn't like to say too much but they were buried in a place where they are safe and where their spirits will rest.

Mr Keon-Cohen: Was it important for you to achieve that result?

Des Morgan:

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Yes, it was important for me. The important thing to me was that my ancestors rested in peace, not in pieces in a steel cabinet in vault or below the ground in a big, grey, steel, cold cement building somewhere.

Mr Keon-Cohen: This whole area, Des, the Kow Swamp area is of particular significance to you?

Des Morgan: Yes, it is. I take a lot of care of it because of the state that it is now with the water and that. We have continued negotiations going on with Goulburn- Murray Water from Kerang trying to get them to even out the levels of the lake so that erosion don't occur. It's not a natural lake site so whenever they raise the level of the water, it just eats the topsoils away and uncovers our burials (Transcript 1487).

Other witnesses who have knowledge of traditional laws are aware that their identity and their connections are inextricably linked with the ancestral land and waters, and what this means in terms of their responsibilities as Yorta Yorta descendants. Monica Morgan: There is a very strong obligation to protect burial sites because they are a direct link to our ancestors. There is a very strong obligation to bring back our peoples' remains to make the spirits rest of our people.

We're very spiritually minded in relation to our people that have gone before us. Our people have a lot of tradition in relation to cleansing of your spirit, of being able to release your spirit, of being able to come back as one with the country. And that relates to being buried on your own country. We believe there's a lot of unease because many of our people's remains are within museums, aren't placed properly on their own country. That now has come a responsibility to bring our people's remains back (Transcript pp. 1277–9).

Neville Atkinson: Well, I should have a right as a Yorta Yorta man to be buried in my land. Same as my ancestors did have the same right. I still have that same right and – I'd hope that it would happen. I'd like to be buried back out in a traditional place like where the sandhills are.

Mr Howie: What were you taught about the burial practices of your people?

Neville Atkinson: Well, Pop said that when you're buried there, like in a sandhill, say... the spirit of that person is there. They remember that person so that's why.

Mr Howie: When you say you should have that right, you should have it according to what?

Neville Atkinson:

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To our laws, the Yorta Yorta laws. That's why I should have it. It's my right to be buried in my own land wherever I want to be.

Mr Howie: What's your belief as to the effect of being buried in your own land as far as you or your spirit is concerned?

Neville Atkinson: Well. I'll be at peace then because I'll still be in my land. I'll still have contact with my people. Just because you die, doesn't mean you're finished and that's it. You're still there. You're still a part of how it is now.

Mr Howie: Corresponding to that, if you were not buried in your land, but you were buried in some other place, some strange place, what's your belief as to the effect of that?

Neville Atkinson: I think that I'd be lonely and lost. Wouldn't feel right (Transcript 743).

Neville indicates that while burials in recent times have been undertaken in official cemeteries, he would prefer to be buried in other parts of Yorta Yorta land, if the law permitted.

Shane Walker identifies some of the burial places within Yorta Yorta lands at Cummeragunja and Buck's Sandhill and speaks of the strong desire of Yorta Yorta people to be 'buried on their land and with their family and old people': Here at Cummeragunja is where I grew up and this is where I will be laid to rest. This is part of my belief and respect for the land. Everything in the land has a purpose. You should not kill something unless you need it. It is all a pattern. It is all one. And we are in there too. We are part of the pattern and life of the land (Exhibit A8, p. 32, para. 21). (Postscript: Shane Walker died not long after he gave evidence at Echuca in 1997, having expressed a wish to be layed to rest at Cummera.) The right to be buried in Yorta Yorta country is manifested in various ways. Firstly, great efforts are made to ensure that those who die in distant places are returned to Yorta Yorta lands for burial, generally at Cummeragunja cemetery. Others wish to be buried in surrounding towns within traditional Yorta Yorta country, at Mooroopna, Shepparton, Barmah, Echuca or Wangaratta. Yorta Yorta witnesses explain their desire for this in various ways, the most prominent being reunion with ancestors and relatives, and to return home to one's country. Many indicate that they wish to ensure that the deceased are re-united with their relatives. Thus Melva Johnson, discussing the reasons for bringing her deceased sister 'home to Cummera' for burial, indicated that she did so because:

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I wanted to bring her home to bury her with my mother and my grandparents, and all her aunties and uncles (Transcript 1166, 1167).

George Nelson expressed a desire to be buried at any place in Yorta Yorta territory because it's another form of home. Like, I've always lived in Yorta Yorta territory, except for a couple of brief periods [away].

In Yorta Yorta territory he would be with 'the spirits of our elders' who were all throughout Yorta Yorta land (Transcript 1327, 1328).

8.4.2 Origins of Laws and Customs Different witnesses were asked about the origins of the traditional based laws and customs that govern Yorta Yorta land relations. Some spoke of how these continued to be observed in their obligations to look after country. Neville Atkinson: They come from the ancestors and the land. Both one and the same. We got to keep on with that, can't let it go.

Mr Howie: Do those laws state who belongs to, this land?

Neville Atkinson: Yes, Yorta Yorta people.

Mr Howie: Do they state who the land belongs to?

Neville Atkinson: Yes. The land belongs to all Yorta Yorta people, be they Bangerang mob or whatever family group within our – Ulupna mob, all Yorta Yorta people.

Mr Howie: Do those laws give Yorta Yorta people or Bangerang people, an interest in this land?

Neville Atkinson: Yes. That's where our interest comes from. It's from those laws. They were given to us by Biami. As I said, the land, all the laws evolved from the ancestors and our creators in the land.

Mr Howie: What is the interest that Yorta Yorta people have in the land?

Neville Atkinson: Without it, our interest is one and the same, us and the land, we're both the same. So we can't be detached from it. We're nothing without it.

Mr Howie:

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What happens if you're without the land, if the land is taken from you and you don't have access to it?

Neville Atkinson: That's like taking away something from us that's essential for us to have as our whole being and makeup.

Mr Howie: Is it an interest just in the dirt?

Neville Atkinson: No. It's water, trees, animals, plants, us, all that one (Transcript 3052).

8.5 Holistic View of Land and Water The holistic nature of Indigenous perceptions of the land and its features was examined in Chapter 1. Many witnesses expressed the view of being one with the land, and of owning it and being owned by it. Ken Briggs and Neville Atkinson speak of the responsibilities that are part of this relationship: Neville speaks of it being 'our water', and the 'obligations to look after it' include: …making sure that it is used in a manner – not being used and abused. That we got a say over the waters and like we should do for all our area. That's our water, that's our land. We should have a say of it. (Transcript 1077).

Ken Briggs said: We'd like to have a say in water. Our water was free. It's not today. It's being sold out and sold on us (330).

Mr Howie: Do you consider that you have – that you're entitled to have a say, the Yorta Yorta people, in respect of water?

Kenneth Briggs: Yes. In our area and through here – indicating the waterways of the Goulburn and Murray Rivers within the claim area. Mr Howie: Why do you have that right here, on the Goulburn and the Murray?

Kenneth Briggs: It's Yorta Yorta area and Yorta Yorta people.

Colin Walker: I think the forest is like a human body. The Murray River is the spine, and the Barmah and Moira Lakes are the kidneys on both sides. That is how the old people used to look at it. They would say – 'this is our life'. It is a living thing. We are the land, and we are mother earth. We fit in like that. It is important that I teach the young children the respect for the forest, the trees, the water,

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the streams, the lagoons, the water ways, as it is a part of us, and we are a part of them (Exhibit A8 pp. 10-12).

Like many other witnesses, Shane Walker explained the [inseparable] nature of the land and its connection with places and other aspects. Shane Walker: For me it is a sign of respect to my ancestors and to the bush to look after it and maintain it. I feel that my generation of Yorta Yorta people are the guardians of the forest. We have to care for and respect the important places. We know this is our land. We own the forest and the forest owns us. It makes me sad to see all the cattle going through the forest. They do not belong here. They push the native animals back into the farmlands. We are forced to fence our sacred sites to protect them. Shell middens on Moira Lakes and Barmah Lakes have had to be fenced. Burial grounds and mounds, and the bush hearths and ovens have had to be fenced. The scarred trees that had been used for canoes, and shields and coolamons have to be protected (Exhibit A8, pp. 31-32).

We can see from this evidence that there is an underlying philosophy of knowledge, which is driven by traditional based laws and customs. Yorta Yorta people are using this knowledge as a means of reasserting what they see as their traditional rights.

8.6 Dependence on Traditional Resources There are many other aspects of Yorta Yorta connections that are expressed through what we now regard as cultural heritage aspects, such as knowledge of medicinal plants and the use of natural resources. Many Yorta Yorta witnesses spoke of continuing to utilise the natural resources as inherent rights. These include an effusion of 'old man weed', collected from the original lands for medicinal use (Transcript 2049, 3124) and emu fat, also used for medication (Transcript 1762). During their lives, Yorta Yorta people have been dependent for survival upon the results of their hunting and fishing. As Kevin Atkinson states: That was very much part of our way life, I guess, because we depended a lot on the fish that we caught to survive and rabbits and other game that was around, ducks, kangaroos.

Possums, and other fauna were a significant source of protein for some Yorta Yorta people born in the 1940s and 50s (Transcript 1721). Ella Anselmi remembers her childhood growing up on the riverbank: And we were so hungry we couldn't sleep. So we put some flour up the tree, well actually, I did it, because my grandfather taught me how to do that. And put a trap down the bottom of the tree and I would get out of bed, put a bag over the possum's head, and kill it myself. And we soaked that possum

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overnight and then we ate it the next morning and for dinner and for tea. And that's what I remember about the flats here.

Plenty of possums, I mean we were eating possum till it was nearly coming out my ears (Transcript pp. 688–99, 744).

Roderick Briggs on stating his Yorta Yorta identity is asked by Mr Howie what that entitles him to do (Transcript pp. 889–90). Roderick Briggs replies: Fish, hunt, use the waters, land.

Mr Howie: And where do those rights come from?

Roderick Briggs: Passed down from my ancestors, the traditional owners of the land.

Henry Atkinson expresses similar views by saying: If the land is my land, well, I have every right to fish and hunt whatever I like.

Mr Howie: Have you always regarded yourself as having that right?

Henry Atkinson: I always regarded myself as having that right. Tell you the truth, I've never, ever held a fishing license and I don't intend holding a fishing license to fish or hunt in my own country. I understand the rules and firearms, which I don't believe in anyway. But as far as fishing rights go, I'll fish whenever I like (Transcript 2212).

Des Morgan is asked by Mr Keon-Cohen where his father’s rights to hunt and fish came from: Desmond Morgan: I believe they were handed to him from his father, and, my mother's people were known as fishermen and I believe that, we're Yorta Yorta people and mainly people of the river and we traditionally use the resources of the river as a right.

Mr Keon-Cohen: Now, do you pass on this knowledge, these rights?

Desmond Morgan: Yes, I tell my children that it's their right; this is their land; they have the right to use the fruits of it, produce from it and, I take them with me when I exercise these rights. I teach them what I've been taught (Transcript 1187–9).

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This evidence supports the view that Yorta Yorta survival depended very much on utilising traditional knowledge of natural resources and that this has continued. In many cases it has continued and often co-existed with white settlement (see Chapter 3).

8.7 Protection of Places as Matters of Traditional Law The Yorta Yorta people acknowledge as matters of traditional law an obligation to protect the places on their land that manifest the activities of their ancestors. They have been told of the significance and location of many places by their parents and grandparents. The sites are the tangible physical and cultural record of Yorta Yorta occupation long before the arrival of Europeans (Chapter 2). The fact that the people who cut the trees or discarded the shells may not have regarded where they did so as being of any greater significance than any other part of their county in no way diminishes the significance attached to such places by contemporary people. They regard themselves as being under a traditionally based obligation to protect such places. Des Morgan explained how the significance of places, and the obligation to look after them, was inculcated into him by his father: My dad used to show me burial sites and point out scarred trees, what they were used for, how they were made, things like that...He just told me that they were burial sites and that they should be looked after and protected, and he always used to tell me, be careful who you told about them in case someone should take it into their head to destroy them.

Mr Keon-Cohen: And did he indicate why they were of such importance, to be protected?

Des Morgan: Well, I think it was because…they're our ancestors, and you've got to have respect for the dead… for your ancestors there. I mean they give you life and they give you your values and your rights and your traditions (Transcript pp. 1191-1192).

Expanding on the significance to him of those places Des Morgan said: Yes, I see a lot of things when I look at a midden. I see, a piece of my people's history that tells me where they camped; also I look at the environment around it which tells me why they camped there – the billabongs, the food sources around those billabongs, the club rush, the kabungi. You see scars on the trees next to them. Sometimes there's scars there that tell you that there's a burial within the midden...it's important to me because that's where my people camped; that's a reminder to everyone that this is our country; that our people made use of this country and that wasn't a deserted land. They may not have constructed 40-storey buildings; they may

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not have ripped out every tree in the place to make room for themselves, but they did make use of it and they were here (Transcript pp. 1195–7).

Speaking of the obligation that he was under to protect such places he said: 'I feel a very strong obligation, otherwise I wouldn't be doing this job'. Des Morgan is speaking of his work as a cultural officer employed by the Njernda Centre in Echuca (Transcript 1197). Yorta Yorta organisations have played a significant role in the protection of sites from Kow Swamp in the west, to Mount Pilot in the east, to Whroo and the Garden Range in the south, and to Deniliquin in the north. These same organisations also participate in the general decisions regarding management of country. Funding through various grant processes is actively sought for the protection of sites and burial grounds including fencing projects. Yorta Yorta people also demand involvement in site clearance projects undertaken by archaeologists in association with infrastructure development projects. The Yorta Yorta directly lobby government and use other legal and political means when the normal protective processes prove insufficient.

8.7.1 Traditional Places Two witnesses, Ken Briggs and Neville Atkinson, spoke of a ceremonial place. Neville Atkinson had been told of the place by Uncle Ken Briggs. Ken Briggs was shown the place and told of it by older men. He was told that it was a secret place, and that he should not speak to others about what he was shown. Although traditional ceremonies are no longer performed, Ken Briggs clearly regards himself as bound by the prohibition on disclosure imposed upon him by the elders. This prohibition has the strength of law. Such was the strength of it, neither the probing of counsel nor the advice of the Court as to what may assist the applicants' case could overcome the unwillingness of Ken Briggs to breach the prohibition imposed. He perceived that to do so would risk grave harm of a non-natural kind not so much to himself, but to members of his family (Transcript pp. 4979–82). Other witnesses were reluctant to disclose information of important places that were told to them in fear of breaching the sacred trust under which the knowledge was given. Wayne Atkinson refused to reveal knowledge of sites passed on to him by elders in respect of breaching the confidentiality entrusted in him as a Yorta Yorta man (Transcript 5444). His right to withhold information of this nature was regarded by the trial Judge as a lack of 'trust' in his adjudication of the case (Transcript 5444). The manner in which matters of confidentiality, respect for culturally sensitive knowledge, and Yorta Yorta oral knowledge was treated at trial will be analysed in the final chapter.

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Monica Morgan detailed the relationship between rights, obligations to protect places and country in general, learning those obligations from older generations, passing those obligations on to the next generation, how that happens, and the effect of declining health of Yorta Yorta country on Yorta Yorta people: Mr Keon-Cohen: When you think of Yorta Yorta country, do you enjoy any rights in that country?

Monica Morgan: Yes, I enjoy all the rights of my ancestors.

Mr Keon-Cohen: What rights are they?

Monica Morgan: I think those obligations are part of traditional laws, customary laws that we have in regards to using the country for survival. We have a responsibility to care for those places of our ancestors, our creation. I think we have a right to be able to have economic gain from our country and economics is not in terms of money but it's in terms of to able to fish and gather our plant foods, to be able to go into areas and to feel safe and secure in knowledge that where we go is our country.

Mr Keon-Cohen: Do you have a right to live there?

Monica Morgan: Yes, we have a right to live there, if we choose.

Mr Keon-Cohen: Where do these rights come from?

Monica Morgan: They're inherent in me from my ancestors.

Mr Keon-Cohen: And when you pass away, where will they go?

Monica Morgan: They will go to my children.

Mr Keon-Cohen: How does that happen? How do they receive it? Under the Mabo requirements?

Monica Morgan: They receive it because they have my blood.

Mr Keon-Cohen:

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All right. You spoke of respect and obligations. How do these obligations manifest themselves today in the Yorta Yorta community?

Monica Morgan: To protect burial sites because they are our direct link to our ancestors..to ensure, I think, that the land is looked after...to pass down to our children customs and traditions of our people.

Mr Keon-Cohen: Do you observe the forest today? Do you have any comment on its health or otherwise?

Monica Morgan: The ability may have become easier for us to protect sites because there has been various legislation that had not been there previously. But, we were given the ability to be able to protect the site itself, but not the environment around the site. We've got instances where the creeks or billabongs in which midden sites or burial sites may be, but you look at the environment around, and it makes us very sad that the environment around doesn't reflect the history of why that midden was there. Why our people lived there and what was available in regards to plant foods, or bird life, or animals. We also reflect on the condition of the river. We believe the river has declined in its condition a lot. That's of concern to us (Transcript pp. 1277–8).

The obligations of caring for country and the protection of sites indicate practices by contemporary Yorta Yorta people that are driven by concerns for country. Combining old methods of land management with introduced laws and legislation to protect Yorta Yorta heritage demonstrates an intelligent adaptation, as well as an assertion of their rights to be actively involved in land and water management.

8.8 Transmission of Laws and Knowledge Educating the young about cultural matters was seen as an important part of the responsibility of elders and the passing on of the surviving traditional laws and customs. Richard ('Dicky Lee') Atkinson (since deceased) sees educating the young about caring for Yorta Yorta country as critical: Well, we try and do that, every chance we get. If we're working around with young people and they look like they destroyed something that we don't want destroyed or we'd like to be kept looked after, we would tell them about it, and tell them the reason why. (Transcript 1798).

Today, Colin Walker brings young Yorta Yorta people to camp in the same area. Mr Howie: Do the young people and the children living at Cummeragunja and at Shepparton and Echuca and those places know about this area?

Colin Walker:

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Yes, all the little ones. We've had schools and we've brought them up and camped down on the river, cultural camps, and we have brought them up and showed them around and told them stories about this and the ochre mine and all that (Transcript 2317).

Neville Atkinson emphasised the importance of the transmission of traditional laws and knowledge to their children as being of fundamental importance. Mr Howie: Do you tell them about rules or practices with regard to the land?

Neville Atkinson: Well, I pass on that attitude. Like I said, that's our laws. You got no choice in the matter. They have to respect the land. They have to look after the animals. Our role is to care for and look after our lands and our animals. So that's the law, our law (Transcript 740).

The sense of obligation that Yorta Yorta people have regarding involvement in the decision-making that affects their country, and their sense of the right to do so, are inseparable. Neville Atkinson spoke of how the responsibilities and rights in respect of the land and waters of the Yorta Yorta have passed to the contemporary generation from their ancestors, and cannot be ignored. Mr Howie: This connection that you have with this land, does it give you rights in the land, or interests?

Neville Atkinson: All that. That is why I've got the rights to the land. All those things. The holistic thing of being Yorta Yorta. That's what gives me the right, being born who I am. It's birthright. It's part of my responsibility and that's why my interests are in the land because of all those things.

Mr Howie: What sort of rights do you say you have in the land?

Neville Atkinson: Rights to protect, rights to say what happens to everything in it. Rights to be a part of decision-making processes and to have that power of final say. Nothing happens without the Yorta Yorta knowing about it. Those sort of things. If we're recognised under you fellow's laws to be given that power of protection then the wider community would be much better off. We wouldn't see things used and abused for personal gain like the forest and the waters, animals and everything is.

Mr Howie: You say that's a responsibility you have. Why is that your responsibility?

Neville Atkinson:

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Because that is what my ancestors' responsibility was. I've got to continue that responsibility on. They gave me that responsibility, they passed it onto me so I got to do the same too.

Mr Howie: Can you just set that responsibility to one side and ignore it?

Neville Atkinson: No. Otherwise I'd be a joke (Transcript 730).

8.9 Decisions on Land and Resources as Matters of Traditional Law Other Indigenous groups acknowledge the Yorta Yorta fiduciary relationship to the land and waters. The observation of appropriate protocols on land, heritage and water matters have been discussed in Chapter 7 (see also this chapter at 8.10.1). The Yorta Yorta believe that they have both an obligation to care for their country and a right to play a substantial role in decision-making processes relating to the protection of the environment and wildlife species and the preservation of the land and waters. Gary Nelson states: Almost from birth Yorta Yorta people are taught to be concerned about their land. It is more like the motherland owned us than us owning the land. He speaks of going to significant places in the forest to protect them as an obligation of traditional law and custom (Exhibit A8 pp. 240–1, 242–3). Geraldine Briggs states: We have a special feeling for the earth. It is something that belongs to us. You must not destroy it. We see a lot of trees being destroyed, and that really upsets me (Exhibit A8 pp. 260–1).

Colin Walker, states that 'the main responsibility as an elder is the protection of the forest, and the burial sites'. He recalls, in relation to sites recorded at Algabonyah plain, how his grandfather taught him not to camp in this area...not destroy it, or dig it up, that if I did I would get sick; that it would be disturbing the spirits of the old people'...I follow that tradition. Yorta Yorta people have the responsibility to make sure that our land is protected. I have spent much of my life fighting to protect these places.

He continues: It is also our responsibility to care for the land. A lot of damage has been done to our land...the Forest must be respected. You should not camp and leave a mess...We are all supposed to be responsible people for mother earth (Exhibit A8 pp. 4–5, 8–9, 18–19).

The Yorta Yorta concern for the preservation of their traditional land and resources is something learned from a very young age. It is internalised as a forceful belief and is

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fundamental to the Yorta Yorta view of existence. These general practices have been consistently maintained in the face of the disruptions that have taken place.

8.9.1 Relationship between Country and Survival Many Yorta Yorta witnesses express concerns for land and the continuity of traditional practices. Some speak of the declining nature of country, and survival, and the importance of traditional based practices and beliefs in current land management practices. Monica Morgan expresses her views on the declining nature of traditional Yorta Yorta land and water. Monica Morgan: I believe we are part of the country and I remember hearing that people are talking about how all things interrelate. Since creation, those animals, those birds, all those creatures that have been put on this country, are of an equal importance to us and with their decline, I believe that it can equate to decline of our own people and it becomes a sickness (Transcript pp. 1277–8).

8.9.2 Joint Management with Land Authorities Yorta Yorta people have a sophisticated understanding of land and water management issues, and have attempted to develop a partnership with government agencies. A draft policy document on future joint management was presented to the Court (see Chapter 6 on Mediation; Appendix. 2). Paul Briggs discusses some of the appropriate structural arrangements that are required in the region: Paul Briggs: I would hope to see that there is a combination of the cultural values of the Yorta Yorta intertwined with some of the technological experience that non- Aboriginal people have developed, but that the economic pursuits and the technological pursuits don't over-ride the cultural values of the land (Transcript 909).

Asked about the role of the Yorta Yorta in future management strategies, he said: I would like to see that mainstream management structures showed the respect that enabled this land to be managed effectively for the 80,000-odd years of Yorta Yorta people's existence. I would hope to see that the respect of that type of land management, the principles of land management that enable that to happen, were incorporated and led the management of the river systems and of the land use (Transcript 909).

Monica Morgan outlined a coherent picture of the interplay of Yorta Yorta rights and obligations with contemporary management structures and the integrated manner in which the Yorta Yorta view heritage and land management issues (see Transcripts pp. 730–1, 3259–60). Mr Howie:

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Do you accept that there's a distinction between matters of cultural heritage their obligations on the one hand and matters of protection of the land and the environment on the other?

Monica Morgan: No, I don't believe there should be a distinction. It's been made – we've had to operate in those areas because the legislation or the structures have been narrowing us into those areas.

Mr Howie: Why do you think there is no distinction?

Monica Morgan: The reason for our existence is because of the whole land and cultural heritage sites are just a physical mark of our existence on the country, but the land itself sustained us.

Mr Howie: And do you regard the Yorta Yorta people as having rights or obligations to the whole land?

Monica Morgan: We have obligations as the people from this country. We believe that we were placed here, that we come from this country and we have obligations to look after it.

Monica goes on to say that: Our people have used whatever methods, whatever legislation have been available to protect our cultural heritage and environmental heritage. And since we have come together much stronger under the Native Title, we've acted as a support for the protection of sites such as Kow Swamp (Transcript 1494–5).

Again, this evidence is consistent with the view that the Yorta Yorta has been willing to adapt to statutory processes concerning land and heritage matters, while also asserting their rights as traditional owners to control the processes of heritage restitution.

8.10 Yorta Yorta Traditional Territory Yorta Yorta territorial rights and decisions about land and heritage matters are underpinned by customary law principles. As discussed in Chapter 7, the practice of Yorta Yorta people informing their neighbours of their presence when they go to their territory; dropping in on them; consulting with them, and asking permission to hunt or fish, is a consequence of customary law practices and their continued observance. The community is defined principally by reference to descent from the original known ancestors. The ancestors are often recalled, and genealogical connections are known in great depth. Likewise, kinship relationships are widely known. Support for kin is widely

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practised, and those elements are seen as a continuation of the community life of the ancestors. Numerous witnesses articulated their understanding of contemporary boundaries of Yorta Yorta land and their belief that Yorta Yorta country is 'theirs', and is occupied by no other Aboriginal group. Witnesses were clear that no group other than the Yorta Yorta (including the Bangerang) identifies with the land and waters claimed. Elizabeth Hoffman emphasised such matters in her witness statement: Uncle Ridley, Uncle Percy, and dad's brother Uncle Ron Morgan used to tell me that the Forest was their home. No matter where they lived at any one time, it was referred to as 'home'. It had spiritual significance. We always referred to it as our land. We always knew that it was part of us, and we were part of it. We did not see it as belonging to anyone else. We knew Aboriginal people from other places, such as Gippsland. They were friends or family and welcome, but we always knew they came from somewhere else (Exhibit A8 pp. 39–40).

The continued observance of traditionally based laws and customs regarding territorial boundaries is another example of continuity in Yorta Yorta practices.

8.10.1 Permission to Enter Country The Anglo-Australian common law notion of the 'right to exclude' as one of the criteria of a proprietary interest are regarded by Yorta Yorta witnesses as matters of traditional law. The tradition of gaining permission to enter country is still practised by many Yorta Yorta people. Ella Anselmi expresses what was passed on by her forebears. My grandfather told me that when he visited the country of another Aboriginal group he would seek their permission to be there. He would sit down with them, and share billy tea and damper, and it would be all right. They would give 'permission' for him to be on their land. When other Aboriginal people came onto his land they did the same thing (Exhibit A8 pp. 214–15).

Roderick Briggs also confirmed he was taught to ask permission before going into another area and doing things there (Transcript 5568–9). Colin Walker gave evidence about earlier practices in asking for permission to enter another group's country, saying that you couldn't just go into anyone else's territory or boundary or areas and hunt and fish unless you went to them and consulted with them. Like, if a Wiradjuri mob came and they was near the road over there, they might sit there for a day or two days before the Yorta Yorta people would let them into the area.

Discussing permission in the contemporary context, he acknowledged the necessity for adaptation of traditional procedures:

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So we can't go back to our traditional law really now, but we'd like to keep some of our traditional laws where we got Aboriginal communities together, so that means you can't hunt people off...Well, you could consult with them, I suppose, that would be the way, or talk to them. If they come in from other areas, really they should consult with the elders in the community (Transcript 1583–4).

Wally Cooper also discussed the situation today: Yes, there are specific and very stringent and strict laws of when you walk and talk to somebody else. Even today like when people come here, Uncle Albert Mullet for instance came from the Kurnai people (Gippsland) and he came down here to do some teaching. He was engaged by the Education Department to come here; he immediately come and spoke with myself and said 'Wally, I'm working in the district, can I come here and talk traditional heritage?' and then he said 'Oh no, would you be able to come and talk with me on the traditional heritage? I'll talk on my people and you talk on your people' and that's when he came to me first to ask permission (Transcript 2941).

Irene Thomas expressed similar views about the situation both today and in the time of her grandmother. The obligations are reciprocal in nature: Mr Keon-Cohen: Did she talk to you about how they conduct themselves entering Bangerang Yorta Yorta territory?

Irene Thomas: She told me that you had to be asked or invited. There is protocol with Aboriginal people and you have to respect one another's land when you go into it, and respect each other.

Mr Keon-Cohen: Do you do that today?

Irene Thomas: Yes, I do.

Mr Keon-Cohen: How do you do that?

Irene Thomas: By respecting every area that I go to, because I know Australia is made up of many tribes and many different nationality of other people that's come into the areas. But we have to have respect for each other (Transcript 2278).

Kevin Whyman too explains how this process works in the contemporary situation when he visits areas with which he has no direct familial association (Transcript 2596): Kevin Whyman:

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It's like going [to] another country. They may be next door to us, but it's not my father's country, it's not my mother's country, so – a complete set of rules would have to follow. I'd have to ask permission if I was going to go and do a bit of fishing or hunting in there. Under traditional law, there is a permission type of negotiation that's [required]. If I'd go into another country, say Wiradjuri people, I'd go to someone I knew, but if I didn't know anybody and there was a community of Aboriginal people there and there was a community Organisation, I'd go and sit there (Transcript 2595).

While permission was, and is, required when broad group boundaries are crossed, the situation with respect to narrow group boundaries is different. Frances Mathyssen explains: They spoke similar language, but there is a lot of words that are different, and yet they speak the same language.

Mr Keon-Cohen: And do you perceive those various tribal groups that you have spoken of as a single entity when you think of land?

Frances Mathyssen: Yes.

Mr Keon-Cohen: And is that the case, even though you have mentioned this morning, some boundaries around various family group areas?

Frances Mathyssen: Yes.

Mr Keon-Cohen: How does that work?

Frances Mathyssen: Well they all came from the one area and then they spread out, and had their boundaries, but they still belonged under the one entity.

Mr Keon-Cohen: All right. Were those boundaries that you have spoken of this morning, were they in any way different, or were they the same as say the boundary between the Yorta Yorta or Ulupna nation, and the Wiradjuri to the north?

Frances Mathyssen: Yes.

Mr Keon-Cohen: How were they different, that is to say the family boundaries of the Ulupna nation, or the Yorta Yorta nation, and the boundary with the Wiradjuri people?

Frances Mathyssen:

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They were different, and they still are.

Mr Keon-Cohen: Who were different?

Frances Mathyssen: Everybody, the Wiradjuri boundaries and the Yorta Yorta and the Wamba Wamba, they all knew where their boundaries were.

Mr Keon-Cohen All right, and was that a different type of a boundary to the boundary that you have referred to as between the various dialect groups?

Frances Mathyssen: Yes.

Mr Keon-Cohen: How were they different?

Frances Mathyssen: They had to get permission to enter those other boundaries, whereas with the family boundaries, they referred to each other as brother, or uncle.

Mr Keon-Cohen: All right.

Frances Mathyssen: And they were welcomed across those boundaries as family (Transcript 4539–40).

In some cases, permission may be implicit in the extension of an ongoing invitation to pursue certain types of activity, as the following interchange indicates. Mr Wright: Right. What about up around Swan Hill? Do you ask anyone for permission there, or is it just implicit?

Gary Nelson: No, it's just an invitation to go fishing with them, and I accept it as an invitation.

Mr Wright: And what, is there a reciprocal invitation for them to come and fish in Yorta Yorta country?

Gary Nelson: Yes. They always come down and speak to us and what we're doing and where's a good place to fish and can we go up there and have a look at some of the sites and vice versa, yes.

Mr Wright:

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So you, talking about Swan Hill just as an example, you can go up fish there whenever you like.

Gary Nelson: Yes.

Mr Wright: And the people up there, that is the Aboriginal people up there, can come and fish here whenever they like.

Gary Nelson: Yes.

Mr Wright: And nobody any longer needs to specifically ask for anyone's permission?

Gary Nelson: A lot of people that actually come into the Yorta Yorta country, and I always respect the other communities' cultures, always go and speak to them at the co-ops so always let them know that I'm in the area.

Mr Wright: Yes (Transcript 4143).

The cultural protocols relating to access and use of county demonstrate both the continued observance of traditional based laws and customs and how customary law observances have been adapted to meet contemporary circumstances.

8.11 Continuity of Practices and Beliefs Contemporary Yorta Yorta people continue practices and beliefs derived from their ancestors. Examples of such beliefs associated with land and waters include a wariness about the Bunyip in the river, the sense of supernatural or non-natural beings in the land, the awareness of signs in the natural world, and the use of timber to make artefacts such as traditional weapons and tools (see Chapter 2 for discussion of Material Culture). These practices and beliefs affect the way in which Yorta Yorta people behave in relation to the land and waters and are taught to Yorta Yorta young people in culture camps. That they are regarded seriously by adult Yorta Yorta was made plain during some memorable moments of the hearing, such as when Des Morgan was asked why he told his children about what to do if chased by a hairy bekka (mythical, small hairy creature part animal and human that lurks in bush). He replied: 'Well, if they're ever chased by a bekka, they're going to have to know what to do, eh' (Transcript 1198). Another was the affront felt by Henry Atkinson at what he perceived as scoffing by counsel at his account of the bunyip (a creature that lives in the deep holes in the river that was used as a social control measure) (Transcript 2195–6). The bunyip was

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commonly referred to in connection with a specific location near a deep hole on the bend of the Murray at Barmah, where children were discouraged from swimming (Transcript 345, 770, 1199, 1254, 1574, 1757, 1873, 2195, 2557, 5015, 5422, 5453, 5454). These practices and beliefs give Yorta Yorta people a connection with the land and waters claimed. Other non-natural beings mentioned in evidence included the Goon Dog and the Mookie Man, sinister like characters that lurked in the bush. These were similar social control mechanisms used to discourage children from wandering away from the camp (Transcript 346, 771, 770, 952, 1198, 1757, 2196, 2536, 5453, 5454,2557 1757, 21; 2557, 5015, 5454, 5458, 5608). A number of witnesses also spoke of signs presaging events such as death, illness and other events. The willy wagtail, the mook mook (or night owl), the plover and the curlew are identified as signs of impending bad news. The wagtail (flying in a particular fashion) is specifically linked with death (Transcript 4267). Signs can also be something simply out of its usual place (Transcript 190). Kenneth Briggs: Well, there's quite a few things. Now, if we're going through the bush and we see some particular animal.

Mr Howie: Pointing over to the bush near us, yes.

Kenneth Briggs: And he's out of bounds to where he should be, it's a warning sign, usually that some of our people are dying. We have a warning sign and things like that. The behaviours of particular species also provides some forewarning of change in climate (Transcript pp. 1577–8, 1345).

Rochelle Patten: Another thing my mother told me was about the floods and how we knew when the river was going to rise. The duck weed would float down if there was a big flood coming. The tree frogs would go mad and the turtles leave the water three days before a storm. And spider webs floating in the air might bring a storm, a storm was coming. Birds warned us if people were around and coming (Transcript 1345).

Many of traditional Yorta Yorta beliefs have been recorded through local oral history projects (see Chapter 1). This demonstrates a concerted effort to preserve traditional based knowledge so that it can be passed on to future generations.

8.12 Cultural Maintenance Aspects of material culture are continued in adapted forms. The manufacture of material objects, the continued practice of culture in the form of art and dance, and the

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preservation of oral knowledge are some of the mediums through which Yorta Yorta people keep their culture going. Lesley Briggs spoke of making boomerangs in the manner shown to him by his father (Transcript 1100). Neville Atkinson Jnr was shown how to make boomerangs and spears by his grandfather (Transcript 1117). Darren Atkinson was shown how to make boomerangs, spears, coolamons, woomeras and reed spears by his grandfather Les Briggs Snr (Transcript 1123). He also makes nulla nullas (Transcript 1127). Darren Atkinson has taught his ten-year-old how to make boomerangs and other bush skills (Transcript 2540). Les Briggs Snr also taught the same skills to other men, such as Paul Briggs, Les Briggs junior, Don Murray, Wesley Murray and Jimmy Murray (Transcript 879).

8.12.1 Keeping Knowledge and Language Other practices include the preservation and recovery of the knowledge of Yorta Yorta language. On 5 November 1996 in the Court hearing a choir of Yorta Yorta women, including Geraldine Briggs, Faye Carter, Zeeta Thompson and Margaret Wirrpunda sang, in language, a song entitled 'When Moses struck the Waters' (Transcript 844). The song was adapted to the Yorta Yorta language from the days of the Maloga Mission where a synthesis between traditional and introduced beliefs evolved. It is no coincidence that this much-cherished song is a song of liberation. Other practices include the observance of the prohibition on eating certain species such as the long neck turtle or emu (said by some witnesses to be totems), and celebration by traditional dance. These practices confirm for the Yorta Yorta people that they still have a traditional order, which they continue to acknowledge and observe and which maintains a distinctive identity from the broader community and their Indigenous neighbours.

8.12.2 Practising Art and Dance Dance and artistic expression generally continue to be of importance in the lives of contemporary Yorta Yorta people as a means of maintaining cultural interests and celebrating the contemporary community's connections with their ancestors and the land. Evidence of this was demonstrated through Darren Atkinson who learned some dances from his grandfather, Les Briggs senior (Transcript 2516, 2517), and now runs a youth dance group (Transcript 2537) involving up to fifteen performers. This group performs dances taught to him by Les Briggs Senior (Transcript 2542) and uses decorations made of emu feathers, string and sinews (Transcript 2543). The dancers wear designs of ochre which Darren obtains from the ochre mine on the boundary of Moira Station (Transcript 2545). Wally Cooper also performs traditional dances, one of which he performed for the Court at Ryan's Lookout in the Warby Ranges on the

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afternoon of 10 December 1996 (see Transcript 3064). The dance, which he performed for the Court with his son, Sonny Cooper, was taught to him by his father, Robert 'Bluegum' Cooper and his uncles (Transcript 3069, 2913).

8.12.3 Recognition of Totems and Species The species most commonly identified as a totem was the long necked turtle, spoken of by many witnesses as a totem for the Yorta Yorta people as a whole (Transcript 236, 1346, 1597, 2051, 4268,4790, 5524, 2927). Specific species were sometimes identified with more localised groups. The emu was spoken of widely, particularly in association with people from the Ulupna area (Transcripts 855, 4219, 4268, 4792, 5701). Others, however, suggested it had a wider significance (Transcript 5226). The curlew was also associated with a particular family group (Transcript 2261). Other species included the emu, the koala bear, the Murray cod, the black snake, the duck, the hawk, the curlew, the crow and the kookaburra (Transcripts 4551, 5225, 5071, 5072, 2927). A number of witnesses identified 'totems' as having significance for them, usually in connection with food prohibitions and as something sacred (see Transcripts 3635, 4268, 4790, 5487, 5522, 5224, 2927, 5569). Symbols such as the long necked turtle and the emu are sometimes used as icons in contemporary situations (see Transcript 627, 4268).

8.13 Summary of Traditional Rights and Interests Yorta Yorta witnesses identified the rights and interests that are possessed under traditional laws acknowledged and traditional customs observed as being: The right to continue hunting and fishing practices; for your own needs, family needs.

The right to visit places where your ancestors camped, to camp there, and to pass on that knowledge to following generations.

The right to protect your own cultural heritage in terms of those sites that are there in the forest.

The right to preserve and to protect that heritage, not only for current generations but also for future generations.

The right to be buried in your own tribal lands.

The right to exclude people who may be having a detrimental or destructive effect on those cultural heritage aspects or those campsites where your ancestors camped.

While some of those rights exist, there are difficulties in trying to exercise them to the fullest extent, particularly in regard to protection of sites, land and heritage generally.

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The above evidence that was before the Court demonstrates continued connections with country. It demonstrates 'real acknowledgment of traditional law and real observance of traditional customs' as expressed in Mabo (No. 2) by Brennan J. at 43, Deane and Gaudron JJ. at 83, and the 'doctrine of continuity' exemplified by Toohey J. at 143. It negates the view that Yorta Yorta connections have been 'abandoned' or 'washed away' by the 'tide of history' and that these are more recent revivals for 'contemporary recognition'. The next section analyses the evidence on maintenance requirements.

8.14 Maintenance Requirements The adapted system of custom and tradition manifested by the Yorta Yorta and exemplified in the thesis provides compelling evidence of Yorta Yorta occupation and connections with the claim area. The rights conveyed and recognised by neighbouring Indigenous groups are possessed under those traditional laws and customs acknowledged and observed by the Yorta Yorta (Mabo (No. 2) at 61 and NTA s. 223). Anthropologists called by the Yorta Yorta, Rod Hagen and Dr Deborah Rose, provided substantial support for the view, based on the transmission of traditional based knowledge and contemporary observances, that the Yorta Yorta have maintained a continuous connection with their lands (Exhibit A17, A67, A28). Mr Hagen summarised many of the issues involved under re-examination by Mr Howie, following cross-examination by barrister Mr Tony Neal. Mr Howie: He (Mr Tony Neal) put to you two further matters relating to knowledge: the first one was that as part of the system there was a structured means of the transmission of knowledge to which you replied that there would be some structures and some more informal processes among contemporary Yorta Yorta people who have a structured means of the transmission of knowledge.

Roderick Hagen: We have again structured and unstructured approaches to the transmission of knowledge. We have processes such as the cultural camp processes and so forth on the one hand and, on the other, we have extensive informal transmission of knowledge from parent to child, or grandparent to child.

Mr Howie: And I think he said that there was a passing down of information to ensure a continuity of practices that were correct for the country to which you agreed that would have been a component of that time. Do we have that component today?

Roderick Hagen: Yes, there certainly is a clear view amongst the Yorta Yorta that the transmission of information from or of knowledge, and of appropriate behaviour of the right way to act is important, partly because it is important

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for the Yorta Yorta people to care properly and to exercise responsibility for their lands.

Mr Howie: The right way to act in what sense?

Roderick Hagen: In terms of the impact of one's actions upon the environment in terms of maintaining the places such as spiritual sites and the sort of connection between land and such as burial sites, the connection I suppose that they in some senses manifest between land and person living and dead and so forth (Transcript 6770).

The emphasis on the structural means by which knowledge is transmitted seems to distract from the general thread of the evidence. This exemplifies argument used by opponents of the claim to complicate the process with abstract notions of knowledge transmission and cultural continuity. Similar concepts, like the 'tide of history', were taken from Mabo (No. 2) and distorted to support extinguishment arguments.

8.15 Tide of History Brennan J. introduced the 'tide of history' (Mabo (No.2), at 55, 84 and 124) to describe historic events or circumstances that impacted on surviving laws and customs. The Yorta Yorta rejected the notion that Native Title can be lost through the 'tide of history' euphemism or that extinguishment may have occurred through voluntary cession or other processes. They also argued that the question of ceding prior rights in return for agreements or the payment of compensation has never take place (Chapters 3–4, 7: see also Mabo (No. 2), Brennan J. at 59–60). Mabo (No. 2) establishes extreme case scenarios under which Native Title may not exist. The abandonment, or the extinction on the death of the last member of the group, are one set of circumstances presented by Brennan J (at 60, 70), but the 'tide of history' notion is less than clear. Brennan J. says: Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native title rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional laws and any real observance of traditional customs, the foundation of native title has disappeared (Mabo (No. 2), Brennan J. at 59–60).

The meanings of the phrases 'any real acknowledgment of traditional law and any real observance of traditional customs' and 'so far as practicable' need to be defined.

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The focus on the linguistic meaning of the ‘tide of history’ highlights the context in which it was made and the ambiguities that it presents. ‘Any real acknowledgment’ would seem to suggest a very limited level of 'real acknowledgment' or 'real observance'. 'Real', implies 'true', 'occurring as fact', 'genuine', as opposed to 'ostensible, nominal, imaginary, counterfeit' (Macquarie Dictionary). What could be more 'real' than a hundred and fifty years of struggle for land, protest, and survival in the face of such overwhelming odds? (Chapters 3–4; Appendix. 1). What could be more 'real' than lifetimes spent living on one’s traditional lands and depending for survival itself on the resources that they provided? (Chapters 3–4). This notion of the ‘real’ contrasted with that of Marshall CJ, in the United States cases of the early Nineteenth Century (see Ch.5.6). A group may be impeded in practising its rights, laws and customs but this does not stop its members from continuing to exercise them. From the claimants’ perspective, the Yorta Yorta Community’s clear sense of the land and waters as traditionally belonging to them; their strenuous attempts to cling to country; their continuity of occupation; their continued assertion of obligations towards the land and waters, despite external policies which sought to suppress them through assimilation and integration; and their continued use of and dependence on traditional resources provided powerful support for the view that they continued to acknowledge their laws and observe customs.

8.16 Ability to Exercise Traditional Laws and Customs Brennan’s 'tide of history', would seem to apply only in those situations where law and custom have no genuine significance for the community. This is clearly not the case with the Yorta Yorta. As to Brennan J.’s dictum about inability to revive lost title (Mabo (No. 2), 1993:60), the Yorta Yorta submitted that such a situation is not the same as an inability to exercise one’s laws and customs over an area for a period of time. This may not amount to 'abandonment' or 'disappearance', especially when the community continues to hold rights and interests possessed under traditional laws acknowledged and traditional customs observed. In the words of Deane and Gaudron JJ. (Mabo (No. 2), 110) and in the arguments presented, ‘changes in traditional law or custom of a particular tribe or group do not diminish or extinguish the relationship with the land and do not extinguish native title’ (Mabo (No. 2), Chapter 5, 7–8). Toohey J. provides an even stronger endorsement of the significance of occupation alone. ‘It is presence amounting to occupancy which is the foundation of the title, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence' (Mabo (No. 2), Toohey J. at 188).

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According to Toohey J., change in the nature of the society is irrelevant. Occupation is fundamental to establishing, and continuing, a communal proprietary Native Title. Indeed the majority in Mabo (No. 2) recognised the inevitability of change (Chapter 5). Following Toohey’s position on the paramountcy of occupation, there was never a time since white occupation when there have not been Yorta Yorta people living on their traditional lands (Chapters 3–4, 7–8). Neither they, nor their ancestors, individually and as a community, abandoned the observance of traditional laws and customs. Nor have they, by inactivity, lack of concern, inadvertence, or passively forgetting, come to a position where they have, actually or effectively, abandoned their relevant observances and acknowledgments providing connections to Yorta Yorta country (Chapters 7–8). There was strong evidence concerning continued links by the Yorta Yorta as an identified community. As Dr Rose stated in her initial report: Yorta Yorta/Bangerang social life has been and is today oriented toward the core value of continuity. At issue is the knowledge of the past, present and future of land based law of existence articulated through identification of Yorta Yorta/Bangerang people and Yorta Yorta/Bangerang country (Exhibit A28, 8).

Evidence from Yorta Yorta witnesses concerning the use of the land and waters, and the resources they provide, demonstrated a strong connection to country. The enduring nature of this connection is also evident in the belief that the spirits of their deceased ancestors inhabit the land and waters, and in the obligation to protect the land and places within it which are imbued with those spirits. Protecting such places and dealing with the dead are seen as matters of traditional law. Roderick Hagen summarised the connection to country and the existence of traditional law relating to burial of the dead. I think we have seen this expressed in various ways in the course of the hearing. We have seen people stressing the fundamental importance of being brought back to their traditional areas for burial purposes, particularly to Cummeragunja where many are buried, but also a discussion of other places such as Mooroopna and so forth. The return of skeletal materials lodged in museums and the return of contemporary people who may die, on the basis that it provides an opportunity for their spirits to rest and the return of their spirits to the land from which they came. This is clearly an important fundamental belief of the community, a custom which people go to great lengths to honour on many occasions with recently deceased people being brought back quite great distances and with great amounts of activity exercised in seeking to retain.

Mr Howie: And a custom, which connects people to the land?

Roderick Hagen:

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Yes, I think very directly commits people to the land and is evidence of that connection to the land as well as providing a connection to that land.

Mr Hagen also pointed to the importance of cultural heritage sites and other places, which bore the signs of the activity of Yorta Yorta ancestors. He indicated that the relationship, which the Yorta Yorta possessed to such sites, was fundamentally different to that of other members of the Australian community (Transcript 6421–2). Mr Howie: In the course of the hearing, we have seen many an example of an oven mound and a scarred tree and places of archaeological importance and we have heard evidence about the sense of responsibility that Yorta Yorta and Bangerang people have to those places; is that evidence an indication of traditional law or traditional custom?

Roderick Hagen: People see the maintenance of such places as being fundamental to the survival of their law and custom and they see it as mandatory that they do those things which are necessary to achieve the protection of those places. They exert very substantial efforts in this direction through the engagement of cultural officers and so forth. But these efforts go well beyond simply people who are employed to undertake these activities. For instance, in the course of my field work there, [we] visited Buck's sandhill at a time when there were problems there with people, one of whom was engaged to undertake these activities in the course of her employment, but with others who simply came along because they saw it as necessary to do to fulfil their traditional obligations (Transcript 6421–2).

Mr Howie: That is traditional obligations in the same sense as obligations that arise from traditional law or traditional customs?

Roderick Hagen: Yes, very much so. I would say that the maintenance of and respect for important places is places which provide, I used the word 'icon' before, and these are icons, I suppose, which the Yorta Yorta use to identify their traditional interests but beyond that they are places which in many cases they see as invested with the spirits of their ancestors which provide a direct connection to lives prior to white occupation, which they see the protection of as fundamental to the well-being of their community and thus they see the protection of these places as matters of law (Transcript 6421–3).

The Yorta Yorta have repeatedly asserted their connection to the lands and water since contact and have actively sought responsibility for their country, to protect it for future generations (Appendices. 1–2). Darren Atkinson, when asked about the importance of this, expressed his connections to the Murray River, and his country in general: Past, present, future. It’s very important to my people. It’s survival. Our ancestors are the river. The strands, the currents, they’re our people. We

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know that. We were taught that. That was something that was spoke about very, very strongly. It provides our implements, the banks. It provides our survival, the boomerangs, as I said, the nulla-nullas. They’re all collected off the banks of the rivers and the creek systems that come from the Murray River. So having the Murray in a poor state which it is, to me, is very, very upsetting and sad. So the river is very, very important to me, as a Yorta Yorta person, because it’s past, present, future.

Mr Howie: When you say our people are the currents and the streams and whatever else you said so well. What do you quite mean by that?

Darren Atkinson: Our ancestors are the land. The land that was handed – which is ours since Dreamtime. All the stories, all our traditional stories, which we were lucky enough to have documented, not by our people, but by the people that came through and surveyed us. In a way, that was lucky for us. All them stories are connected to the river, such as the water rat story. The Murray cod story. These aren’t just stories about animals. They are stories about survival, about life, about life provider, the Murray which belongs to us (Transcript 2761).

This and much other evidence demonstrated the validity of Yorta Yorta connection to their country, in accordance with the Mabo (No. 2) requirements.

8.17 The Issue of Abandonment The fundamental issue comes back to the question: Are the laws and customs of the community today based on those of 1788? If the Court accepts that the claimant group and its ancestors, both in 1788 and today, observe traditional customs and laws then it is submitted, ipso facto, that no abandonment or disappearance can have occurred, and Native Title remains in existence unless it has been extinguished by legal Crown grants in return for fair and just compensation. The accommodation of change, as previously argued, has been an ongoing process for the Yorta Yorta. The evidence of the claimants through the elders takes us back directly, through personal experience, to the 1920s and 1930s. They speak cogently and effectively of the activities and beliefs of parents and grandparents. In many cases, these parents and grandparents were themselves living at the time of Maloga and Cummeragunja in the 19th Century. These same witnesses speak of learning of the Yorta Yorta laws, customs, rights and interests that they acknowledge, observe and assert today, from these same parents and grandparents. The writing of contemporaries such as Thomas James, Ronald Morgan, Theresa Clements and Daniel Matthews, and the oral evidence and reports of the various expert witnesses, clearly establish that the Yorta Yorta had not abandoned or lost their connections to land, laws and customs at or prior to that time. Many of the ancestors were born prior to white occupation of the original lands. Evidence from the

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contemporary claimants shows that traditional connections have continued and that the links between the people of today and their country and those of pre-contact times have been maintained. This evidence is summarised in the following chronology of events.

8.17.1 Means by which Connections Maintained – An assertion of exclusive rights to land and water at the outset of invasion. – A resistance to the appropriation of land and resources. – A continued occupation of the land through exploitation of the pastoral industry. – A clinging to country through the occupation of Maloga 1876–88 and continued occupation of Cummeragunja 1889–99. – A re-assertion and reaffirmation of traditional culture. – A refusal to disappear as an entity. – A tenacious and continuing assertion of rights to the land and waters now being claimed. These events, often played out at the administrative and political levels, illustrate an ongoing connection to the original lands, not an abandonment of traditional law and custom. The tenacity with which the Yorta Yorta have sought to maintain their interests has been analysed in the previous chapters and demonstrated in the Chronology of Claims in Appendix. 1. Further support for the continuity of Yorta Yorta connections is provided by Barwick's studies of the 1960s and 1970s and in the more recent writings of Heather Goodall (Invasion to Embassy, 1996). The most compelling evidence, however, is that of the Yorta Yorta people themselves. They retain a diverse source of oral knowledge passed on by their forebears who occupied and used the land and waters. The body of oral knowledge and the writings of Yorta Yorta people are as valid as other sources of Yorta Yorta history and culture. The unbroken chain of Yorta Yorta attempts to have their interests recognised is evident in their history of battles with officialdom. The Yorta Yorta community actively sought, and continues to seek, to maintain its association with its traditional lands and waters, despite official and unofficial policies and practices used to repress such aspirations (Appendices 1–2). Beyond the documentary records, the testimony of the Yorta Yorta paints a vivid picture of their struggle to remain in occupation of the traditional lands.

8.18 Yorta Yorta Identity Numerous attempts were made by the Yorta Yorta to obtain formal control over at least some of their traditional lands from the time of Maloga to the present. These are extensively documented (Appendix. 1). The irrepressible pride the Yorta Yorta have in

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their identity and connections with the past is conveyed through the oral testimony. Josephine Briggs spoke of how contemporary Yorta Yorta people show this in their ongoing attempts to obtain justice, and the manner in which it helps bind the community together: Mr Howie: What do you mean by the Yorta Yorta community?

Josephine Briggs: The people who've come from this land here. We're a people who know our connections to each other, our relationships and where we fit in that community, that large community, and we've got a strong history of fighting for our rights, or recognition of our rights. They were probably the pioneers in standing up for their rights, in an organised way, petitioning the New South Wales Government in the late 1800s and you know they were asking for their land then and people who were involved in the Day of Mourning Committee were the Cummera people as working with William Ferguson, and they took, you know, action on – in walking off Cummeragunja in the 1930s. They were the first people to take strike action in that way. And any political that there was started sorry, let's see – with the Aboriginal Organisation and even with the Federal Council of Aboriginal and Torres Strait Islander people [FCAATSI] who were Yorta Yorta were on those things, so if you sort of look at the path of things, Yorta Yorta people have been involved in that movement (Transcript 813).

8.19 Continued Assertion of Rights The Yorta Yorta have continued to say that through traditional law the claimed land is Yorta Yorta land and waters and that they have a right to use it, and a responsibility to look after it (see Ken Briggs Transcript 330, 1077; Colin Walker Exhibit A8 pp. 10–12; Roderick Briggs Transcript 889–90; Des Morgan Transcript 1487; Neville Atkinson Transcript 730; Darren Atkinson Transcript 2761). The Yorta Yorta have demonstrated that if, in Curr’s day, the land was looked after by ceremonial ritual, and by firestick farming, it is appropriate in the 21st Century for Yorta Yorta people, knowledgeable about matters of environmental science, not to disregard that knowledge, but to use it in fulfilment of their obligation to look after the land (Policies on Future Land and Water Issues in Appendix 2). The environmental circumstances confronting the Yorta Yorta today, after 150 years of white occupation of their lands and use of their waters, are very different from those which they faced at the time of Curr. The 1860 concerns about the state of their fishery, however, indicate that the Yorta Yorta have been aware of such changes from an early date. Similarly, in using their lands and waters they are also entitled to apply the knowledge they have acquired from the environmental sciences and other academic disciplines. Recently, many Yorta Yorta people have pursued their right to higher education, as

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members of the Australian community, and many have gained a higher level of education than their forebears. The maximum level of western education available to Yorta Yorta people in the days of the Protection Boards (1883–1942) equalled that of an 8-year-old white child. The maximum level of education NSW regulations allowed at Cummeragunja was Grade 3. (1938–40 NSW Public Service Board Inquiry, 17).

8.20 Cultural Revival and Continuity The tradition passed to today’s Yorta Yorta by their ancestors includes the knowledge of the location of their tribal lands and waters, the duty they have to care for those lands and waters, and the right use them. The manner in which parties opposing the claim relied on academic interpretations of Anglocentric sources to determine the existence of traditional Yorta Yorta laws and customs is highlighted in Mr Hughston's questions of anthropologist for the State of New South Wales, Professor Maddock. Maddock saw the process of undertaking anthropological research in the context of the claim as essentially a documentary task, comparing in a simple fashion the views of early writers with later ones when assessing continuity of law and custom: Mr Hughston: Now if I could ask you a little bit about traditional laws and customs. Firstly, just on a general issue. What methodology is available to an anthropologist to investigate and assess whether what may be presented today as the traditional laws and customs of a particular group are in fact continuous with the past albeit perhaps in a modified form?

Kenneth Maddock: Well obviously you have got to go back to the earliest reasonably comprehensive ethnographic reports which in this case really means going back to Curr. You then have to see whether he does make statements about laws and customs regardless of whether he uses those actual terms but whether the material he gives shows what we might call laws and customs and I think methodologically one would see his work therefore as a baseline simply because it's the earliest comprehensive account we have and we can extract laws and customs from him. I suppose ideally one would enumerate these laws and customs creating what Mr Hagan has spoken of as a tick list if you like. And one would then go through later literature to see whether there was evidence given for the continued existence of those laws and customs and I suppose he could give a tick or cross things out as you went along (Transcript 7297).

When asked if there is anything in Curr that reveals an Aboriginal law about protecting archaeological sites such as middens and mounds or burial grounds or scarred trees, Professor Maddock cannot remember (Transcript 7299): Mr Hughston:

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And do you find any evidence in Curr or any of the other ethnographic sources to which you have gone for the existence prior to, say, the 1970s of an Aboriginal law, Aboriginal concern in this region with locating or protecting archaeological sites such as middens or mounds or burial grounds or trees from which a coolamon or a canoe may have been cut?

Kenneth Maddock: I certainly can't recall anything in Curr showing concern about such things and for the most part one would perhaps be surprised to find him doing so. I can't remember what he might have said about burial places. I would expect there to have been some concern about them regardless of whether Curr mentions it.

This method of analysis misses the essential point. The physical evidence is about the long presence of Aboriginal people in the area and the cultural significance of those sites to Yorta Yorta people today. Whether or not they were treated in a particular way in Curr’s time, or before Curr’s time, we do not know. People then may not have been aware of the extent of disruption that was to occur. Furthermore, relying on the writings of Curr, the then 20-year-old manager of his father's sheep stations, as a baseline for 'law and custom' seems highly questionable, particularly when one considers that Curr penned his manuscript 40 years after the events he recounts, and that the primary document he wrote relating to the Yorta Yorta (Recollections of Squatting in Victoria) reads more like a rollicking good tale of the Antipodes than a scholarly treatise. The Yorta Yorta people today are well aware of the impact of white settlement in the 19th Century and clearly recognise the need to maintain identity and heritage, which provides a direct link with their ancestral past, for future generations. This was made clear in Rod Hagen’s evidence about contemporary Yorta Yorta peoples’ sense of the importance of particular places, and places that should be treated differently. Roderick Hagen: There is an iconography of the country built up around places of historical or perceived spiritual importance today amongst the Yorta Yorta people in terms of the sites, which a white observer might call archaeological sites. These are not simply archaeological sites from the perspective of Yorta Yorta people. In fact, their fundamental importance is as sites, which have attached to them the activities of their ancestors, which provide them with reminders of the activities of their ancestors. Some of these places are seen as being spiritually imbued, especially where burials are concerned and so forth, and in many ways this is very much analogous to the sort of process that one sees in places where the original mythology is perhaps more clearly in place.

Roderick Hagen explains the relationship of myth and history in Aboriginal perceptions in terms of a commonality of process – in Indigenous treatments of history and related products and Indigenous interpretations of myth. In some ways, myth is seen as history and history is seen as myth and the two inter-relate to each other (Transcript 6768–9).

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By contrasting the two anthropologists’ methodologies, one can see the broad and narrow approach being used to interpret Native Title rights. It also exposes some of the ethical issues surrounding Maddock's methodology which privileges the ethnographic record over the Indigenous evidence, including the writings of Yorta Yorta people themselves. As will be shown, this approach is retrograde and one that has broader ramifications for the relationship between the discipline of Anthropology and Indigenous communities. The features in the landscape are evidence of the occupation of the land and the use of the land and waters by Yorta Yorta ancestors since time immemorial. Thus any cultural group that holds strongly to such views may conclude that it was their territory as a matter of traditional law. Hagen argues that such beliefs are entirely consistent with traditional law and Yorta Yorta peoples' desires to protect the evidence that remains of their ancestors’ possession. This is reinforced by our ancestors being buried in the land, and we were taught by our parents, grandparents and elders to respect those places, and to be conscious of the presence of the ancestors in the land. That is why I still camp in the places where my ancestors camped, so as to feel at one with them and the land. Professor Maddock asserts that many of the processes described by Curr would appear to have disappeared or virtually disappeared: Mr Hughston: What about any of the perhaps individual laws or customs that Curr may have described? Have any of those, in your opinion, survived in any form whatsoever to the present day?

Kenneth Maddock: I think for the most part they have not. And where one might see the possibility that a law or custom has carried on it would seem to do so only in attenuated form. So we have what might be regarded as attenuated vestiges. It is also possible that there is a revival, a conscious or self-conscious revival of elements of Aboriginal law or custom and without a closer historical and anthropological knowledge of the relevant community it would, of course, be difficult to say whether we are dealing here with what I have called a vestige or whether we are dealing with a revival (Transcript 7298–9).

In other situations (as with his views on the significance of burial sites and middens), Professor Maddock maintained that fundamental contemporary Yorta Yorta laws had no counterpart at the time of white occupation. For example, he doubts that there would have been a tradition of responsibility for country. Professor Maddock states: That’s a very modern way of putting things. In my opinion, they would have spoken about such things as control of areas, differential access to areas. They would have been able if asked to enumerate occasions or give examples of occasions on which you might move between areas, for example, to visit

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another group’s territory in order to take part in an initiation ceremony or some other sort of inter-tribal or inter-clan gathering (Transcript 7308).

8.21 Ancestral Linkages The applicants' case was that Yorta Yorta people, under the pressure of demographic loss and dispossession, drew upon their traditional links of a common ancestry, language, kinship and inter-tribal relationships of trade and ceremony, and the sense of distinctiveness from other broad groups such as the Kulin, rather than focusing on narrower interests. In those circumstances, they would not be speaking of the smaller localised areas, but of the broader area with which the broad group was associated. This was not a break in tradition, but an emphasis on the tradition of the bonds between the sub-groups, on the matters that united them, so that the people and traditions survive. Professor Maddock accepted that the Biami creation story has survived. There are, he says, 'two conflicting hypotheses' to explain this: One, that we have here the survival or persistence of a religious tradition in which Biami was central. The other is that we have had, through the movement of ideas in Aboriginal society through the generations, we have had people building up a picture of Aboriginal belief and folklore through other sources such as published sources or education (Transcript 7310).

The Yorta Yorta submitted that according to Daniel Matthews (1899) the Aboriginal people of the Upper Murray 'have a knowledge of a Great Spirit, called Bai-Mai, whose names and attributes they fear and reverence' (Hagen, Exhibit A67). Thomas James made similar observations in the late 19th century (1897). The belief that the land and the natural world had a spiritual origin, and that it was the work of a creative being called Biami or Great Spirit (Hagen, Exhibit A67) is consistent with those records. Many contemporary Yorta Yorta people expressed a similar belief in the course of their evidence. They attributed knowledge of a Great Spirit to their parents and grandparents’ teachings. Many Yorta Yorta people of today had parents or grandparents living at the time of Daniel Matthews and Thomas James. While it was not suggested to them that their knowledge came from a written account, it would not matter if they had. There is no reason why contemporary Aboriginal people should not receive such knowledge of their people from written accounts. However transmitted, it is still traditional knowledge, particularly if the source is reliable. Therefore, in the context of a Native Title claim, Professor Maddock’s hypotheses are consistent with Yorta Yorta accounts. Professor Maddock also discussed evidence drawn from the works of the late Dr Dianne Barwick, whom he says spoke of: the sub-cultures that emerged among Aboriginal people in Victoria as a result of their historical experience, de-population, dispossession, aggregation on

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missions or other centres, movement for one reason or another...it’s a problematic question what part traditional laws and traditional customs play in the nature of that sub-culture (Transcript 7331, 7327).

The Yorta Yorta emphasised that Dr Barwick’s research was carried out primarily with Aboriginal people in Melbourne (see the matters put to Dr Brunton (1995–98) at Transcript 8040–56). Her 1969 thesis is entitled 'A Little More Than Kin: Regional Affiliation and Group Identity among Aboriginal Migrants in Melbourne', and her focus was on the regional affiliations she found among the people of Melbourne – not prior relationships with the land and Native Title rights and interests. However, in her 1972 article, she did address these, writing of the Yorta Yorta and Bangerang occupying the Lower Goulburn and both shores of the Murray extending into NSW (Exhibit A67). Professor Maddock had no problem with saying: …that there is a distinctive subculture among Aborigines or some Aborigines in long settled parts of Australia. What I’ve been concerned with...was whether this Aboriginal subculture could be regarded as observing the customs and as governed by the laws of the kind...reported in...the base line ethnography' (Transcript 7345).

Here, the Applicants submitted, 'subculture' must mean a culture separate from, and different from, the general culture. Here was recognition by Professor Maddock that the Yorta Yorta had a different culture. In order for him to assess properly the question that he had raised for himself, he would have had to identify and articulate what laws and customs are implicit in what was observed by Curr and Matthews. It would have been also necessary to identify accurately what laws and customs are implied, or expressed, among the descendants of those people. The analyses would have required a consideration as to whether today’s laws and customs are traditional. Were 'differences' changes that had been made to earlier laws and customs, or laws and customs that were completely new and lacking association with, or development from, the old laws and customs connecting the Yorta Yorta to country? Had the knowledge of them been passed down to today’s generation from their ancestors? Brennan's requirement was that 'the general nature of the connection between Indigenous people and the land' should remain – not that the current system should be identical to that originally in place (per Brennan J. in Mabo (No. 2)). Maddock made no real attempt to examine such matters. Professor Maddock had carried out no fieldwork with the Yorta Yorta people, in Victoria or in southern NSW (Transcript 7381). His opinions concerning a decay of traditional laws and customs were based almost entirely on a reading of the literature (Transcript 7383–4). In the Applicant's submission, this made it impossible for him to adequately answer the relevant questions.

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Professor Maddock maintained that in the land rights era there had been 'attempts at revival of tradition', and 'intensification and efflorescence' of tradition (Transcript 7492). He said that 'revival' does not mean 'the production of something that is altogether new'. Rather it involved a 'spectrum from bringing back forms of behaviour which had for all practical purposes been discontinued, to attaching a significance, a new significance or an expanded significance, to activities which may have been carrying on throughout' (Transcript 7493). Professor Maddock spoke of 'religious revivals', meaning they are revival of what is there (Transcript 7493). Darren Atkinson expressed the Yorta Yorta view on revival: You must understand, the invasion, our Elders were made to hide all these spots. We weren’t allowed to speak about these places so we are only just swinging on cotton. Thin cotton. But we still got hold of it. That’s what I like about it (Transcript 1127).

In cross-examination, the following exchange took place with Mr Neal: Mr Neal: You said before when the young kids were screaming to have some culture and you were fighting to re-establish it and you just haven’t got the go ahead, from whom would you get the go ahead?

Darren Atkinson: From our elders but our elders can’t say a thing. Do you understand what I am saying? Because of the position they’re in today. You would be quite surprised of how many elders know of places like this but are too afraid to speak up about places like this because of the years and years of put down. They’re frightened to talk of places like this. All this is kept secret and under cover, frightened we’re going to lose it to more promises, more broken promises. If we can get – if our elders can be satisfied to be able to make decisions for our youth without broken promises, well then, we can build our culture. Our Yorta Yorta people can be strong again.

Mr Neal: Do you understand why your elders today have reservations about giving the go ahead?

Darren Atkinson: I fully understand it. It’s the years and years of put down and torment that has caused our elders to be in the position they are today.

Mr Neal: These are things that you have discussed with them?

Darren Atkinson: Yes. Of course. I talk to my elders regularly. They’re all as I said, maybe if we get the swing in our favour, maybe we’re on the right track. Then maybe the elders can set programs to re-establish our cultural side of life.

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Mr Neal: But at the moment, you say the elders, the people in control of this community are waiting to give you the go ahead to re-establish your culture?

Darren Atkinson: Don’t get me wrong there, because the elders, their culture comes first, but to pull as one, to be as one, we need to have the same thing in common which is our land and we haven’t got that. So, as soon as that is swinging in our favour, I’d say places like this will pop up where you won’t expect (Transcript 1128–9).

On another occasion, Mr Hughston asked Darren Atkinson about Yorta Yorta dance. Mr Hughston: And what you are doing and what Uncle Wally is doing is trying to revive something that, in fact, finished off?

Darren Atkinson: No, its never died, never ever. We have only had a blanket thrown on it, that's all. The blanket's just been thrown on our culture, you know, and finally the blanket's fading away.

Mr Hughston: Okay.

Darren Atkinson: But, you know, that's the sort of the best I can answer that, mate. There's no revival in it whatsoever. It’s always been there. Its always been there, its just that we have never ever had the chance to be able to perform and pass our traditional dance and song down, mate (Transcript 4861–2).

In cross-examination, Professor Maddock was asked about the 'blanket' analogy and said: 'I think in fact it would be a good figure of speech' (page 7518). The Yorta Yorta position on Maddock's views about 'revival' and the proof requirements will now be summarised in relation to the evidence of Yorta Yorta occupation and connections.

8.22 Conclusions The previous chapters were based on the hearing of the YYNTC for a determination of Native Title. Firstly, there will have been periods when the acknowledgment and observance by Yorta Yorta people of their traditional laws and customs would have been less obvious, even suppressed. History shows that there have been wintry periods, when the dominant society has not acknowledged the traditional laws and customs of the Yorta Yorta people, and has actively forbidden or discouraged traditional practices. It has made the lives of people hard. But because a tree experiences winter, without blossom and without leaves, it does not cease to be a living tree. Because enthusiasm for religious observance diminishes or is hidden in the face of hostility, it does not mean

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that belief is dead. Although Professor Maddock acknowledges this, he dismisses the evidence of the Yorta Yorta witnesses because it is his view that their culture has died out, and that whatever they might present today could only be invention. Secondly, a reading of available literature alone cannot make a credible assessment of whether the observance of traditions has been lost or diminished. Much of the literature relied upon by Professor Maddock and Dr Brunton is of a very general character, dealing with Aboriginal people in southern Australia, or worse, it specifically relates to other parts of southeastern Australia. Much of it came from a period in the 1950s and 1960s when assimilation was both official policy and academic orthodoxy. Dr Barwick primarily conducted research into Aboriginal people living in Melbourne, and other sources Professor Maddock relied upon relate to communities in remote parts of NSW. Adherence to particular traditions by a particular group of people requires cognisance of particularity rather than generality. A reliable assessment of the evidence cannot be made on the basis of generalised observations about a large area, or on the basis of research carried out among people in a different place and context. A proper assessment of the degree of adherence to tradition requires first and foremost an examination of what the particular people say about their traditions and adherence to them. In accordance with anthropological practice, Maddock is on very shaky ground. He did not visit the Yorta Yorta or conduct any research with the group about which he is making judgments (Transcript 7381), nor did he interview Yorta Yorta people. He was not present when any of the Yorta Yorta witnesses were giving evidence and had not even read the first 3,100 pages of the Transcript of evidence they gave to the Court (Transcript 7324). He does not know to what extent Yorta Yorta people observed traditional practices before what he calls 'the land rights era', or during it, or after it. Professor Maddock takes a view of Yorta Yorta culture from the outside. He uses his expertise to support extinguishment arguments because the Yorta Yorta does not conform to his version of anthropological constructs. The fact that the Yorta Yorta made continuing attempts to claim land indicates the continuing reality of traditions, whether revived or intensified or not. Suggestions of 'land rights era' revivalism are clearly extremely superficial and inappropriate in such circumstances and betray a lack of knowledge of the historical events, which must necessarily form a part of any analysis of social change (Hagen, personal consultation on evidence presented in the Yorta Yorta case and Native Title matters, 1999–2000). Professor Maddock, in his initial report, (Exhibit NSW 3.1 pp 3–4) remarks that: As for theorists and comparativists, it goes without saying that their cogitations will be sterile unless conducted with close reference to ethnography.

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In the Yorta Yorta submission, this is precisely the defect most apparent in his own evidence. The reliability of ethnographic data in reconstructing Indigenous relationships with the land has been critiqued. The usual standards of academic scrutiny are missing in Maddock's analysis of Yorta Yorta connections and, as will be shown, in the Court's analysis. It also highlights some of the practices being employed by anthropologists that have succumbed to the trappings of the burgeoning Native Title industry. This issue will be revisited in the Summary and Conclusions chapter. The focus of the evidence has been on whether the impact of European occupation and beyond has been such as to extinguish laws, customs, and connections with country, rights, and interests. It is submitted that the 'tide of history' has not been nearly as strong as the under-current of Yorta Yorta resistance and continued observance of customs and acknowledgment of laws and that this is the inevitable conclusion that must be drawn from the evidence. The analysis of the proof requirements illustrates that the Yorta Yorta continue to acknowledge laws and observe customs which have their basis in their ancestors’ traditional connection with the land. If any community has been able to hold onto their identity and their connections with the land and waters as a group, the Yorta Yorta have clearly done so. The evidence confirms that: – They are descendants of the inhabitants of the claimed lands and waters at the time of first white occupation. – They possess laws and customs derived from those of these ancestors providing a connection to the land and waters. – They have continued to occupy their traditional lands. – They have maintained an ongoing connection with the lands and waters. From the evidence it is clear that the 'tide of history' has not washed away the laws and customs of the Yorta Yorta, nor have they been left behind or abandoned. There has been change. The practices and policies of respective State governments and of the general non-Indigenous occupation of much of the original lands have impinged substantially on the life of the community over the last 150 years. That is not denied. The Yorta Yorta have also been exposed to influences and ideas that were not a part of their world at the time when their lands were not occupied by others. As the archaeological evidence illustrates, the physical and cultural environment in which the Yorta Yorta exist today has changed substantially from the days prior to white occupation. Laws and customs have had to accommodate change and adapt accordingly. But the crucial question is that change in itself does not constitute abandonment or loss of laws and customs (Chapters 2–4).

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To 'abandon' is defined by the Macquarie Dictionary as 'to leave completely and finally; forsake utterly; desert', or 'to give up all concern in'. Any reasonable examination of the lives of the Yorta Yorta today, and of the history of their struggle in the face of immense hardship and pressure to assimilate, can only lead to a conclusion that, far from ‘abandoning’ their laws and customs and their underlying connection with the land, they have fought hard and long to hold close to them something which they deeply cherish. They have also been at the very forefront of Indigenous groups seeking to have their traditional interests recognised. It has been through this process that the Yorta Yorta remain a distinct community, with their own internal processes, laws, beliefs, customs and traditions. They remain a group distinct from the pervasive society of non- Indigenous people surrounding them, and from other Indigenous groups who do not possess fundamental ties to the original lands through a combination of descent and tradition that is the basis of the Yorta Yorta identity. This would seem sufficient to establish under Anglo jurisprudence that Yorta Yorta Native Title has survived and should be accorded the human rights principles of justice and equality before the law. This analysis of the Native Title requirements exposes the inequitable burden of proof imposed on the Yorta Yorta by the Native Title process and the hurdles that claimants have to overcome. The chapter is an important basis for examining the YYNTC and for identifying the key impediments to Indigenous land justice following Mabo (No. 2).

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Chapter 9: The Olney J. Decision

9.1 Introduction This chapter deals with the Yorta Yorta struggle (YYNTC) that culminated in the Federal Court trial of 1996–98 and decision of the Olney J. of December 1998. The decision will be scrutinised in relation to the way the evidence of Yorta Yorta occupation and connections has been treated. The analysis of the decision will focus on the way the administration of justice and equality before the law has been applied in the Yorta Yorta case. The requirements of proving continuous connection has been dealt with by the courts in other Native Title claims, and the position taken by Olney J. can be contrasted with those taken by Lee J. in the Mirriuwung-Gajerrong (1998) and North J. in the Karajarri (2000) cases.

9.2 Determination of Yorta Yorta Native Title Hearing The 18th of December 1998 will remain a significant date for the Yorta Yorta. It was the day the trial Judge took just nineteen seconds to announce: 'that native title does not exist' in relation to the areas of land and waters being claimed. In his analysis of the factual evidence, Justice Olney concluded that: The Yorta Yorta did not occupy the land in the relevant sense since 1788, and that their ancestors ceased to occupy their traditional lands in accordance with their traditional laws and customs before the end of the 19th century, that the tide of history (metaphor from Mabo (No. 2) Brennan J. at 43), had washed away any real acknowledgment and observance of Yorta Yorta traditional laws and customs and that native title in relation to the claimed area had disappeared and was not capable of revival (para. 129).

To end up with such a harsh judgement at the completion of what has been a long and gruelling battle was a bitter pill. We expected that our historic struggle would bring some measure of justice. The judgement had the opposite effect. Justice Brennan's 'tide of history’ (metaphor from Mabo) was construed to deny our traditional rights within the claimed lands, rights that have always been self-evident to the Yorta Yorta, and other Indigenous groups.

9.3 Errors of Law in the Judgement Olney J. chose to elicit our traditional laws and customs from the writings of two Europeans, Edmund Curr and Daniel Matthews. Curr was one of the first pastoral intruders into traditional Yorta Yorta lands, and Matthews was a missionary who established the Maloga Mission for Yorta Yorta and neighbouring groups from 1874 to 1888 (see Chapters 3-4). Olney J. relied almost exclusively on Curr's and Matthews'

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writings to infer that Yorta Yorta connections with the ancestral lands had been washed away before the end of the 19th Century. Olney J.'s selection of this period to try to cut off Yorta Yorta entitlements represents an arbitrary and Anglocentric approach to Native Title. The return of some land (1800 acres in 1883) to repair the injustices of land loss and to provide a means of survival for our people, has been construed to imply the relinquishment of Yorta Yorta rights to land and resources (para. 129). Olney J. then uses the 'tide of history' idea to rationalise his judgement and to try and erase surviving Yorta Yorta Native Title rights. This approach seems to be driven by 19th Century assimilationist discourse, rather than the principles of common law Native Title. That is, the Judge attempts to normalise those traditional connections that the Yorta Yorta strove to maintain, by treating them as general mainstream activities. Olney J.'s approach has not only denied land justice to the Yorta Yorta, but has broader ramifications for Aboriginal claimants in the more populous regions of Australia (paras. 106, 118, 122–9, 106).

The decision will now be analysed from the position of one who is both an Indigenous claimant and a scholar in land justice matters.

9.4 Test for Proving Native Title Olney J. argues that a claim to Native Title involves a number of distinct avenues of inquiry. First it is necessary to prove that the members of the claimant group (whether it be a clan, a community or otherwise) are descendants of the indigenous people who occupied (in the relevant sense) the claimant area prior to the assertion of Crown sovereignty (para. 4).

In setting the test for proving connections, Olney J. then places emphasis on individual connections rather than group continuity (paras. 51–2). First, the Yorta Yorta are required to establish that: one or more of the named ancestors was a descendant of an indigenous inhabitant who occupied the claim area at or prior to 1788 and second, that one or more of the claimant group is a descendant of such an ancestor (para. 51).

Earlier in his judgement, Olney J. cites Mason CJ. McHugh J. and Brennan J. on the origins and content of Native Title, and then quotes Toohey J. in support of the proposition that 'so long as occupancy by a traditional society is established now and at the time of annexation, traditional rights exist'. The emphasis on group rather than individual connections is supported by Deane and Gaudron JJ. (at 86) who refer to the requirement that there be an 'identified community' (rarely an individual) in occupation at colonisation with an established entitlement to the land under the local law or custom

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(Mabo (No. 2) 1992:31). This requirement is not dissimilar to the position in the Delgamuukw (1991) and Mirriuwung-Gajerrong (1998) cases. Justice Lee discusses the nature of the founding community and its relationship to the contemporary claimants in some detail. He says: It is implicit in the reasons of Deane, Gaudron JJ. that the claimant for native title is capable of being identified as 'a tribe or other group' (at 110) and, similarly, in the reasons of Toohey J. which refer to communal native title being vested in an Aboriginal group (at 178–9).

Brennan J. (at 61) states that communal Native Title survives so long as Indigenous people remain as an 'identifiable community' living under traditionally based laws and customs. Neither Deane, Gaudron JJ. nor Toohey J. refers to a requirement of 'biological descent'. This will become clearer when we examine the test that Olney J. extrapolates in the Yorta Yorta and other cases.

9.4.1 An Identifiable Community Defining a community of Indigenous people connected to land by traditional laws and customs by reference to 'biological descent' involves a broad understanding of descent, not the application of a narrow and exclusive test. If there were no evidence that the community claiming Native Title had some ancestral connection with the Indigenous community in occupation of the land at the time of sovereignty the task of showing substantial maintenance of connection with the land would be difficult to satisfy. Some evidence of ancestry would be necessary not only to identify and define the group entitled to Native Title but also to show acknowledgment and observance of the traditional laws and customs of the community that possessed Native Title, thereby showing that connection with the land had been substantially maintained (Mirriuwung- Gajerrong (1998) at 30, 41). This has been supported by McEachern CJ.of the British Columbia Supreme Court, in Delgamuukw v British Columbia (1991) 79 DLR (4th) 185 at 282 and approved by Macfarlane J. in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 506): In a communal claim of this kind I do not consider it necessary for the plaintiffs to prove the connection of each member of the group to distant ancestors who used the lands in question before the assertion of sovereignty. It is enough for this phase of the case...for the plaintiffs to prove, as they have, that a reasonable number of their ancestors were probably present in and near the villages of the territory for a long, long time.

Of course, as made clear by the Supreme Court of Canada in Delgamuukw per Lamer CJ (at 253–254) 'a long long time' is not a requirement that occupation be shown since

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time immemorial; it need be no earlier than the assertion of sovereignty by the Crown. For Olney J., the inference of Yorta Yorta occupation in 1788 is compelling: …whether or not the Indigenous people who were found in occupation of the claim in the 1830s and 1840s, and about whom there are available records, were the descendants of those who occupied the area at the time sovereignty was asserted, is a matter to be addressed later. It is the descendants of the people who occupied the area in 1788, and whose traditional laws and customs in relation to the land became, at the time of sovereignty, a burden on the radical title acquired by the Crown who are entitled, in appropriate circumstances, to recognition as the native titleholders (para. 25).

Olney J. then proceeds to restrict the inquiry into connections with country to the 'available records' and ignores the volumes of genealogical evidence provided by senior Yorta Yorta witnesses. Many of the applicants gave oral testimony concerning, for example, the group affiliations of their ancestors, something about which the written records are generally silent. Yorta Yorta elder Ken Briggs and others gave evidence of genealogical connections and were called on to clarify family relationships, which was done with precise detail. Surely this was of direct relevance though Olney J. subsequently ignores it completely (see Ken Briggs, exhibit A8. t.321–322, 1345, 4979– 4982, 5657, 5679, 5681–5683 and Yorta Yorta Evidence in Chapter 7). Olney J.’s 'individualised' approach to proving descent is at odds with the principles of Mabo. Contemporary Yorta Yorta people, in his view, had to establish a direct connection to named individuals present before white occupation or ideally at the time of sovereignty. According to the High Court, however, it is the continuity of the community that is the fundamental issue. Evidence of individual descent from individuals alive at that time can obviously help to establish this, but is not essential. As Lee J. remarks in Mirriuwong-Gajerrong (1998): Defining a community of Indigenous people connected to land by traditional laws and customs by reference to biological descent involves a broad understanding of descent, not the application of a narrow and exclusive test. If there were no evidence that the community claiming native title had some ancestral connection with the Indigenous community in occupation of the land at the time of sovereignty the task of showing substantial maintenance of connection with the land would be difficult to satisfy.

For Lee J. as for the Canadian authorities that he cites, the important thing is establishing a connection in general terms between then and now. For Olney J., a much narrower, more confining test is necessary. Interestingly, in Croker Island (para. 88) Olney J. seemed quite happy with connections simply drawn back to residents in the area in the 1880s. Apparently, Olney J. sets a higher standard of proof for the Yorta Yorta than judges have adopted in other cases and, indeed, a higher standard than he

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required himself in either the Croker Island or Alice Springs Native Title claims (Croker Island Appeal (1999) Beaumont, von Doussa and Merkel JJ; Levy, 2000:21–2) The test applied by Olney J. seriously overstates the level of necessary proof. In other cases it has been sufficient to establish that a person to whom one traces ancestry in the early days of settlement is simply a member of the group which is traditionally identified with the area and which, it can be reasonably assumed, was the community in occupation at the time of sovereignty. There is no requirement to make the connection to an individual present in 1788. By applying such a test, Olney J. required more proof of Yorta Yorta connections than of those groups in more remote areas, even despite the obvious difficulties imposed when settlement occurred several generations earlier. This matter becomes particularly obvious when one examines his subsequent treatment of the issue in the case. Olney J. uses a combination of geographical and genealogical issues to establish 'proof from the half century from 1788 to the advent of European settlement' which he agrees 'may well be satisfied by inference.' But he then adds that: …the mere presence of one or more persons at a particular place at a particular time in history goes nowhere to providing either the traditional rights and interests of the descendants of such person or persons in relation to land and waters, or the geographical limits of the land and waters in relation to which it is said native title rights and interests are enjoyed (para. 52).

It may not be sufficient in itself, but it does not 'go nowhere'. When coupled with other information such as, for example, evidence from either historical or Indigenous knowledge that the person concerned was a member of the group specifically identified with that particular area of land or waters, it may well be sufficient to enable the inference to be drawn. Again, the comments of Lee J. and the Canadian authorities are relevant. In addition, there is Kirby J. in Mason v Tritton (1994) who observed that in light of the impact of colonisation and the inadequacies of the genealogical record of the time it would be next to impossible to prove genealogical connections back to the time before 1788 and it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to Native Title. Kirby J. held that: The common law, being the creation of reason, typically rejects unrealistic and unreasonable principles. If, therefore, in this case the only problem for the appellant had been that of extending the proved use of land by his aboriginal forebears from the 1880's back to the time before 1788, I would have been willing to draw the inference asked. In more traditional aboriginal communities the inference will be quite easily drawn. But, even in this case, it would seem to be common sense to draw it (Mason v Tritton (1994)

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Olney J.'s requirements in the Yorta Yorta case amount to the application of unrealistic and unreasonable principles. Olney J. then cloaks his proposition with the need to verify the known ancestors through the ethnographic record by saying that: One of the major problems with the presentation of the applicants' case is the need to connect the 'known ancestors' with the people whose traditional laws and customs at and before the time of European contact entitled them to the rights of ownership, possession, occupation and use now claimed by their descendants. The problem is highlighted by the fact that neither Curr's writing nor Robinson's journals identify any individual Aboriginal with whom either made contact in the 1840's who can be connected with any of the named ancestors (para. 56).

Again, we see Olney J.'s stress on individual identification and the Judge’s privileging of European records over and above the substantial genealogical knowledge articulated by Yorta Yorta people. The task would, in fact, be made impossible by the use of Indigenous names by Curr and Robinson and 'christian' names by Matthews and other later European officials. Thus Olney J. applies another 'unrealistic and unreasonable’ requirement to the Yorta Yorta. There was extensive evidence before the Court which provides information about the groups to which many of these early people belonged. Ms Harris, a genealogist retained by the State of Victoria, provided the Court with a substantial body of material obtained from official records of births, deaths and marriages which Olney J. agreed was both invaluable to the Court and supportive of many aspects of the applicants' case (para. 37). In almost all respects, it corroborated the oral testimony of the applicants' witnesses concerning their genealogical relationships with early residents of Maloga and Cummeragunja (para. 58) and the extensive genealogical evidence presented by Mr Hagen. Taken together, these resources provide a great deal of information about Yorta Yorta ancestors from the early white occupation period. Olney J. chose to ignore most of it, limiting himself to the birth certificate materials and limited aspects of materials recorded by Daniel and Janet Matthews appearing in the Appendices of Mr Maloga. Most seriously, he ignored the Indigenous oral evidence on such matters and even much of the documentary material including the writings of Thomas James, Ronald Morgan, Theresa Clements and myself. One is again reminded of the more pragmatic approach of Justice Lee in Mirriuwung- Gajerrong where he held that 'unless there is evidence to the contrary, it may be inferred that when European settlement of the claim area began some sixty years after sovereignty was asserted, the Aboriginal inhabitants then in occupation of that area were connected to the land of the claim area and with the Aboriginal people who occupied the claim area at sovereignty. As far as the requirement

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of descent is concerned, it is sufficient to show that an inference may be drawn that known ancestors were connected with the community in occupation at the time of sovereignty and with members of the present community. These ancestors were parents and grandparents of present claimants (Miriuwung-Gajerrong (1998) at 41, 58).

In tracing the connections and locations of the Yorta Yorta ancestors, Olney J. held that the 'ancestors identified did not have any special standing in relation to any particular locality within the claim area’ (para. 63). It is unclear what Olney J. means by 'special standing' here. If he meant it in the specific legal sense then he departs by a great distance from the view of the High Court in Onus v Alcoa, where, on the basis of far less evidence, members of the contemporary Gundij-Mara community were found to have standing in respect of the Portland Aluminium Smelter site (Onus v Alcoa Of Australia Ltd. (1981) at 27). Furthermore, the handing back of cultural materials to the Tasmanian Land Council in Roy Sainty and TALC v Allen & Murray & LaTrobe University (1995) implies standing in relation to Indigenous Cultural and Intellectual Property Rights (Jankes, 1999:84–85; Harris, 1996:28–32). In light of the evidence it would seem that Olney J.’s emphasis on standing in the Yorta Yorta case is unrealistic. Olney J. says: …one of the difficulties encountered in interpreting the records, particularly those of Maloga, is that many of the descriptions of the places of origin of the people named and of their "tribal" affiliation are either ambiguous or lack any meaning' (para. 65).

It is inevitable that information of this type will be imprecise. Non-Indigenous writers had a very poor understanding of matters in the 1880s. Nevertheless, Olney J. seriously understates the value and depth of the evidence before him. The Maloga records, for example, include lists that identify specific ancestors with a located 'tribe' within the original lands. The lists certainly lack sophistication in an ethnographic sense, but they are not devoid of meaning. When one considers the sentiments expressed by Kirby in Mason v Tritton they are worthy of far greater weight than Olney J. gives them. Both Mason v Tritton and the Canadian cases highlight the problem that Indigenous groups face given the absence of adequate documentary materials. In a slight twist, Olney J. fails to make proper use of those documentary materials that do exist in support of the applicants' claim. On the other hand elsewhere, as we have seen, he places great stress on questionable materials of Curr and Matthews, which he sees as antagonistic to the Yorta Yorta case. Olney J. maintains that he should 'deal with each named ancestor on the basis of the totality of the evidence'. This might at first seem like a reasonable approach but it is not what he subsequently does. Instead, as will be shown, he ignores all Indigenous

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evidence on these matters and the substantial amounts of white documentary material as well (para. 71).

9.4.2 Yorta Yorta Ancestors In his analysis of the known Yorta Yorta ancestors Olney J. makes the following comments: The purpose of the following comments is to ascertain from the evidence the extent to which the known ancestors provide the necessary link between the present claimant group and the original inhabitants of the claim area. The applicant's case requires that I draw an inference that all or some of the known ancestors were descended from an Aboriginal person who occupied (in the sense described by Toohey J. in Mabo (No. 2) at p 188) the claim area or a part of it, at the time that the British Crown claimed sovereignty over the colony of NSW. It is clear from an analysis of the evidence that a number of them must be eliminated from the outset (para. 88).

Olney J’s phrasing again places excessive emphasis on individual rather than community interests. It is sufficient to establish that an ancestor is a descendant of a group that occupied the claim area. There is no need to produce further evidence refining this to enable the drawing of an inference to a particular Aboriginal person at the time of sovereignty. If it is clear that members of the contemporary community are descendants of the community in occupation at time of colonisation, or of narrower groupings within the broader overarching Yorta Yorta Bangerang territories, then that should be sufficient to establish Native Title connections. There was a great deal of evidence in front of the Judge concerning the relationship of ancestors to particular areas. Little of it is referred to in his judgement. Olney J. does go on to mention specific identification of Kitty and Edward Walker with particular localities within the claim area. Material from Daniel Matthews' diaries and mission reports, relied on heavily by Olney J. in other parts of his judgement, is disregarded when it comes to the question of ancestral identification with land. Other documentary materials, some of it tendered by opponents of the claim, also contained relevant information. For example, Olney J., when dealing with one of the Yorta Yorta ancestors, Tommy McCrae, maintains that 'In the absence of any evidence as to his parents, it is not possible to draw any inference that would connect him with an original inhabitant of the claim area’ (para. 97), but 1885 correspondence tendered by the State of Victoria identifies Tommy McCrae and his wife and two children and Kate Bragny as ' belonging to Wahgunyah and Wangaratta' (see Figures 1 & 2). Similarly, Olney J. goes on to say that the: claim by those who trace their link of descent back to either Alfred or Bagot Morgan is dependent upon establishing the status of their mother…no

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evidence upon which an inference can be drawn that she was descended etc. Alfred's place of birth remains a mystery (para. 89).

Bagot Morgan however is identified by numerous contemporary witnesses (some of whom knew him personally) as a Yorta Yorta man. His own son, writing around 1950, says of him that 'Most of his childhood days he spent with his mother's native tribe roaming the wild. This tribe is known as the Yorta Yorta' (para. 89). This statement surely constitutes knowledge of his mother contrary to an explicit statement by Olney J. (para. 89). Bagot's mother is also identified by name as 'Kitty' in the 3rd Maloga Report (cited by Harris in Ex Vic 3.6.1, Appendix. 21.3), at the time of her death in 1878. Her husband is identified as 'Micky'. 'Mickey and Kitty' are also referred to on page 21 of the 2nd Maloga report (again cited in Vic 3.6.1 Appendix. 21.3). Micky is elsewhere identified as a 'King' (Cato, 1976:78; Matthews Diary 6th September 1876) and, on his death in 1879, as 'one of the fathers of the Moira tribe' (Vic 3.6.1, Appendix. 21.6). Bagot was born in the claim area in the 1850s and died there in 1934 according to certificate evidence. Matthews, in Mr Maloga, in evidence, identifies him as being 'of the Kailetheban tribe’ (one of the Bangerang sub-groups) (photo in Mr Maloga). Treseder (in Harris, sup report) identifies him as from Moira Lakes in the 1850s. Again, regardless of any ambiguities about his mother (none of which suggest that she came from anywhere outside the claim area), this should be sufficient to draw the inference that Bagot Morgan was a Yorta Yorta man descended from the people of the area at the time of sovereignty. There is no evidence to the contrary and a substantial quantity indicating his association. Olney J., by seeking to deal with the evidence concerning his mother (some of which he has overlooked) rather than Bagot, ignores a great deal of relevant information. Again of course, if one is forced to look at the mother, one could use the information about Bagot himself to draw inferences about her – if he was Yorta Yorta from the claim area, as the evidence indicates, then she must have been too.

Further to those remarks at para 74 and 87 above, this is a good example of the problems caused by Olney J.’s individualisation of the process. By focusing on the mother or mothers of these ancestors, whose identity is uncertain, Olney J. ignores other important information about the men themselves (para. 88–90). Alfred Morgan is specifically referred to as Yorta Yorta by R.H Mathews (writing around 1900). He was born around 1850 on the evidence presented by Olney J. in para 74, ten years after first settlement and long before Daniel Matthews brought people from more remote areas to Maloga. He appears to be #82 on the Maloga lists for 1884 (Hagen, Exhibit A67, Appendix. 5.26), where he is identified as 'Moira Tribe'. His marriage and death certificates indicate that he was born within the claim area at

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Wharparilla (near Echuca). Various contemporary Yorta Yorta witnesses also identify him as Yorta Yorta. There is no contrary evidence. There is no suggestion that he came from outside of the claim area. This should be enough in itself. It is more than reasonable, under such circumstances, to make the inference that he was descended from those occupying the area at the time of Sovereignty. We know enough about Alfred himself for the inference to be easily and sensibly drawn. The information about Alfred is sufficient to draw inferences about his mother – if Alfred was Yorta Yorta and his father was white – then his mother must also have been Yorta Yorta. Olney J. adds that: those who trace their descent through either or both of George Charles and his wife Jenny McCulloch are faced with a similar difficulty as that encountered by the Morgan descendants. Both George and Jenny had non- Aboriginal fathers...no evidence from which any relevant inference can be drawn to establish a connection between either mother and the indigenous inhabitants of the claim area as at 1788 (p. 89).

Again, Olney J. looks to the mother about whom little is directly known rather than the person identified by witnesses as an ancestor about whom more is known. George Charles, on the certificate evidence and the Treseder report (in Harris sup report), was clearly born in the 'original lands' at Wyuna. He is identified as being of the 'Echuca' Tribe in the Maloga lists (Exhibit A67, Appendix. 5.26). Harris (Appendix. 17.3) suggests a birth date of 1858 or 1859 at Wyuna within the original lands. The evidence is less extensive than in the case of some other ancestors but in the absence of any conflicting materials, how extensive does the evidence have to be? Again, if Kirby J.'s precepts from Mason v Tritton were followed, the evidence would seem sufficient. In relation to Jenny Charles, Olney J. claims that 'all that is known of Jenny's mother is that she gave birth to Jenny at Benalla (in the claim area) in the late 1850s or 60s' (p. 90). Again, she is known by contemporary Yorta Yorta people to have been a Yorta Yorta woman and there is no evidence to the contrary. Olney J. also suggests that 'Nothing is known of Margaret Nelson's antecedents except that she was born to the south of the claim area in the early 1860s' (para. 90). Again, contrary to Olney J’s suggestion, there is very significant material concerning Margaret's antecedents contained in the Tindale genealogies (Appendix to Harris first report, Ex 3.6, sheets c12). Margaret Nelson is identified on sheet c12 of Tindale's genealogies (in evidence) as one of Tindale's informants (age 77 or 78 in June 1938, suggesting a birth date around 1860). Margaret's mother was 'Mary Jane', from 'Station on the little river near Keywar

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(i.e. Kiewa-RH) Vict. Mr Mitchell's Stn.’ Tindale has also added the following annotation after her mother's name, obviously documenting a comment from Margaret herself – 'My people have land as far as Wangaratta'. Thus, Margaret identified 'her people' very clearly in the eastern part of the current claim area some 60 years ago, long before there could be any suggestion of self-interest associated with the outcome of the claim. Margaret's grandmother (bear in mind Margaret herself was born circa 1860) is identified by Tindale (1937–39) as Maryann and her grandfather as King Billy (both of solely Aboriginal descent). Roderick Hagen: The descendants of Granny Mag Nelson, in fact, also make their claim as Yorta Yorta people by other means. But I think it is interesting that in this case we have a person who is identified by Tindale quite clearly with the eastern parts of this claim area and who apparently was a quite significant figure in the community generally, also as an antecedent of many of the applicants, in fact. There is another interesting connection in Robinson's material concerning Granny Mag Nelson, Margaret Nelson, in that Robinson, on 11 May 1840, when at Mount Battery in the course of one his trips into the claim area, identifies a woman by the name of Mary-Ann, who he calls a Waaringulum. Mary-Ann, in fact, is the grandmother's name of Granny Mag Nelson. But there is a coincidence not only of name but also of location and, I would suspect, approximate ages between Mary-Ann, on 11 May 1840 at Mount Battery Station, just to the south-east of the claim area (see Hagen, trans (t.) 6269).

All of this material was put before the Court but Olney J.’s comment is simply that 'Nothing is known' of Margaret Nelson's antecedents! This is another example of how Olney J. privileges written evidence over Yorta Yorta knowledge. That is, if there is insufficient evidence in the written sources to support occupation, Yorta Yorta knowledge is treated as less reliable and is disregarded. Olney J. places stress on the fact that the father of another ancestor, Louisa Frost, was a white person. He then goes on to say that She was born at Mathoura (within the claim area) in about 1855. There is no evidence to connect her mother Topsy with the claim area apart from the fact that she would have been present at Mathoura when Louisa was born. This is insufficient to justify drawing any inference relating her back to the Indigenous inhabitants of the area in 1788 (para. 91).

Again, the applicants relied on details about Louisa for information about her mother, Topsy: – Identified as 'Moira Tribe' in Maloga lists (Ex A67, App 5.26 – 9th Report). – Mother of Florence Atkinson (first child born at Maloga). – Identified by contemporary claimants as Yorta Yorta (see for example t. 5767).

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– Shown, on her death certificate (Vic 1597 for 1893) as having been born 'On the River Murray near Barmah New South Wales'. She is shown as having died at the age of 35 in 1893 (in Vic certs) giving a birth date in the late 1850s. – Shown by the government official Treseder as born at Mathoura and aged 35 in 1891. There is a substantial amount of evidence that identifies Louisa as a Yorta Yorta woman from the claim area, and little or nothing contradicting it. Similar issues arise with the other ancestors rejected by Olney J. In each case there was strong evidence identifying them with our traditional lands and with the Yorta Yorta community in the middle of last century. Despite his early comment (at para. 22) that the depth of Yorta Yorta knowledge 'was most impressive, and for the most part (with only minor exceptions) proved to be accurate', Olney J. makes no reference to relevant Indigenous evidence. A substantial portion of the oral testimony of the senior members of the claimant group was directed towards establishing their genealogical links with earlier generations. The accuracy placed on the genealogical evidence is one thing but its disregard in the reconstruction of Yorta Yorta connections exposes major failures in the Olney J. criteria. Furthermore, the perpetuation of the generally disapproved of stock breeder language of ‘full blood, half caste’ (at paras 73, 74, 77, 82, 84, 98, 100, 101, 102), without any form of qualification or explanation, does Olney J. no credit and suggests a lack of understanding of, and respect for, Indigenous people.

9.4.3 Traditional Territories Olney J. suggests that the evidence on tribal boundaries is lacking in 'authoritative answers' and attempts his own reconstruction from the primary evidence by applying 'normal process of analysis and reasoning'. The Judge notes that the 'boundaries on the claim area as shown on the claim map is not reflected in any historic or other records' (para. 63). It would be remarkable if there was a single document that accurately identified Yorta Yorta boundaries in their entirety. No one had undertaken a specific study of Yorta Yorta territorial interests prior to the claim. Apart from Curr's 1883 partial reconstruction (discussed below) only general descriptions of territorial interests (such as Tindale's Australia wide study and Ian Clark's Victorian surveys, 1988) were available. The same is true of most of mainland Australia. It is rare indeed to find a 'mapping' of traditional boundaries of Indigenous territories by academics that stands up to serious scrutiny in the course of land claim proceedings. It is not correct, however, to say that boundaries are 'not reflected in any historical or other records'. Taken together, the various available source materials provide a good general confirmation of the lands claimed.

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The southeastern, southwestern, and northwestern boundaries of the claim closely approximate those identified by Tindale (1974) in both his map and the text as Yorta Yorta and Pangerang territory). This accounts for approximately two-thirds of the boundary perimeter of the claim, from near Deniliquin in the north, to Kow Swamp in the west, to near Murchison in the south, and to the foothills of the ranges east of Wangaratta in the east (see Figure 2). Curr's own 1883 map, on which Olney J. places substantial weight, shows the broad 'Bangerang' territory as the western and northern part of the claim area. Curr provides no information about the eastern part of the claim area. Descriptions from other 19th Century sources of Brough-Smyth, 1878 Parker, 1876 and Robinson, 1843 (in Clark, 1988) are also in general accord with substantial sections of the claim area, though precise boundaries are rarely shown or mentioned. The writings of Thomas James, 1897 and Ronald Morgan 1952, to whom I shall return, provide information about the location of the Yorta Yorta and neighbouring groups. These and the Yorta Yorta witnesses’ evidence on territorial range and approximations of boundaries were disregarded (see Colin Walker, exhibit A8.1 paras 1–5, 8–9, 17–21, 34 and 38–45, t.1412–1414, 1427–1430, 1562–1578, 1595, 2316–2317; Neville Atkinson Snr t.568–570, 919–926; Ella Anselmi exhibit A8.21 paras 2, 22, 24–30, t.583–588, 688–689, 747–751, 1862–1863; Richard Atkinson t.1774–1796; Osley Patten t.3079–3080; Des Morgan exhibit A8.6 paras 8, 10–13, t.1179–1192, 1196–1202, 3282–3285). On the basis of perceived differences between locations of local groups identified in Daniel Matthews and Curr, Olney J. concluded (para. 63) that there was 'considerable movement of Aboriginal people away from the country they had occupied at colonisation' a fact which he says 'highlights the difficulty of trying to reconstruct tribal boundaries one or two centuries after the relevant date'.

Olney J.'s speculation that a discrepancy in descriptions of the location of two Yorta Yorta sub-groups by Matthews and Curr was indicative of a 'considerable movement of people' is not capable of withstanding even modest scrutiny. The context of the material in which Matthews and Curr provide their descriptions needs to be taken into account. Matthews may have simply agglomerated the groups in a fashion suitable for the audience at the South Australian Geographical Society in 1899 where he presented the paper concerned. Curr's description appears in his Recollections of Squatting in Victoria, published in 1883 several decades after he left the area. This is not an academic treatise, but a squatter's memories of his youth.

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In neither case did anything hang on the accuracy or otherwise of their descriptions. Curr's slightly later map appears in a very broad ranging description of groups in Australia, based largely on correspondence with pastoralists, police officers and public officials in various parts of the continent. All the locations of which both writers speak fall clearly within the claim area and within all descriptions of the broad Yorta Yorta/Bangerang territory. As indicated, neither Matthews nor Curr were trained ethnographers. It is simply not intellectually defensible to regard these narrow sub-group boundaries, as provided by either author, as authoritative. The actual distance of Olney J.'s 'considerable movement', if it had actually occurred, is, to say the least, trivial. It is worth revisiting the descriptions that Olney J. cites to justify his view here (at 63). By the time Daniel Matthews established Maloga mission in 1874 and commenced keeping records of those who came and went to and from the mission, the effect of European settlement in the area had had a devastating effect on the Aboriginal population. In a paper entitled 'Native Tribes of the Upper Murray' which Matthews wrote in 1899 he said: In the early part of 1864, when residing at Echuca, Victoria, I was brought into contact with a considerable number of natives of the Bendigo, Terrick Terrick, Loddon, Mount Hope, Gunnawarra and other tribes of Victoria, as well as the remnant of two large tribes in New South Wales – the Walithica and Calthaba, who occupied the territory between Moama and Deniliquin, extending eastward to the Moira Lakes and Edward's River. These tribes in early days were probably large, numbering several hundreds; but owing to the march of civilisation, acquired estates, incursions and reprisals, they gradually became decimated until now, they are mere fragments of tribes, occupying an industrial village of about 200 residents and 1,800 acres of land that I obtained for their use in 1882 from the New South Wales Government (Exhibit Vic 44).

Matthews' reference to 'the Walithica and Calthaba' is significant. According to Curr (Recollections, p. 232): Adjoining the Bangerang there were two tribes that numbered about fifty individuals each, and spoke the Bangerang language, with some slight difference in, I believe half-a-dozen words only. They called themselves respectively Wollithiga (or occasionally Wollithigan) and Kailtheban, and had no doubt seceded from the Bangerang at a comparatively recent epoch; indeed the Bangerang occasionally spoke of their neighbours in a hesitating sort of way as Bangerang Blacks. The country occupied by the Wollithiga was at and about the junctions of the Goulburn and Campaspe rivers with the Murray. The country of the Kailtheban was principally on the south side of the Goulburn, extending from Tongala to Toolamba, at which point they came in contact with the Ngooraialum tribe that they called Ooraialum.

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The junction of the Campaspe with the Murray (from Curr's description of the Wollithica) is about three miles downstream from Moama (from Matthews description of the combined group) by river, much less than that as the crow flies. Essentially, Matthews locates the groups collectively on the north side of the Murray; Curr locates them primarily (though not exclusively) on the south side along much of the same stretch of river. It should also be noted that the two groups identified here by Olney J. are 'narrow groups' – the equivalent of 'clans' within the broader Yorta Yorta/Bangerang group. Many of the individuals concerned would have been members of both (by virtue of associations derived from both sets of grandparents) increasing the chances of confusion amongst contemporary white writers. The groups, the Calthaba/Kailethban and the Wollithiga/Walithica, were not 'tribes'. They were narrow local groups, analogous to clans or bands, a fact agreed upon by all experts called by both sides in the case with the exception of Maddock, who saw them as some poorly specified form of intermediate group. They were groups of the type specifically rejected by Lee J. in Miriuwung-Gajerrong and even in the Gove case as the relevant level of organisation when Native Title and land issues are being discussed. Perhaps Olney J. is trying to revisit his earlier battles with the High Court over the primacy of clans. It is for reasons such as this that Olney J.'s view of the discussion of the 'labelling' of groups as 'sterile argument' (para. 59) is wrong. Without coming to terms with this issue, his findings must be defective. Effectively, he sidesteps the argument altogether in para. 59, but then uncritically adopts one side of the narrow 'clan' based focus as the basis of his reasoning (at 62). In 1887, Curr provided a map of his perception of the internal boundaries of the Bangerang in his more scholarly work, The Australian Race. On this map Moama (and an extensive area north of the Murray towards Deniliquin) clearly falls within Curr's identification of the 'Wollithica' sub-group territory. For the Wollithica, it would seem that no movement whatsoever is needed to bring Matthews' and Curr's views into line with each other. For the Kailetheban (Matthews' 'Calthaba') the discrepancy involves simply the crossing of the Murray, a distance of perhaps 100 metres! Given the extensive evidence of river crossing, the absence of the river as a boundary, the intermingling of people within these various 'narrow' groups, Olney J. made a great deal out of very little here. Other early writers also place the 'Wollithiga' in various other locations in the area. Brough-Smyth, for example, locates them west of the Campaspe/Murray junction. The simple answer is probably that the sub-group locations referred to are far from accurate.

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Finally, Curr himself lived south of the Murray, while Matthews lived on the NSW side, and the different locations may simply reflect their own personal focus. Olney J.'s attempt to make so much of the discrepancy which he incorrectly perceives between Matthews and Curr on this matter, ignoring a host of other relevant material, highlights the problems which can occur when judges attempt to undertake analysis of complex issues in areas beyond their area of expertise. No experienced historian or social scientist would be likely to repeat the errors that Olney J. made. His failure to understand the context of the documents with which he was dealing here, and his inability to deal properly with the issues of narrow and broad group associations, resulted in the attachment of great weight to a trivial or non-existent 'discrepancy'.

9.5 Acknowledgment and Observance of Customs The second test used by Olney J. is that the nature and content of the traditional laws acknowledged, and the traditional customs observed by the Indigenous people in relation to their traditional land must be established (para. 4).

It is apparent from the context, and his dealings with the matter elsewhere, that he is speaking of the laws and customs of the community at the time of sovereignty. This seems to be completely at odds with Toohey's observations, quoted earlier, and with Mirriuwung-Gajerrong, where Lee J. argues that: It is not a requirement of native title that it be shown that the indigenous community had rules for defining and transmitting the rights of community members in respect of land. Native title follows from the occupation and use of land by an organised society that has a particular relationship with the land. It does not depend on proof of the existence of specific rules that govern the relationships of community members with that land (Mabo (No 2) Brennan J. at 62–63; Toohey J. at 188–191). The existence of laws or customs that determined how the land was controlled or utilised may be assumed from proof that a functioning society occupied the land (Mabo (No. 2) Toohey J. at 187).

Establishing the full nature of laws and customs at the time of sovereignty is probably an impossible task to fulfil with any reliability in any part of Australia, especially if, as Olney J. seems to require, documentary sources are to be favoured over Indigenous knowledge. Indigenous communities at that time left no written records and much of the documentary material produced by white intruders were recorded through their own cultural blinkers. In many cases (as with the Yorta Yorta) such materials were not produced until many decades after the initial British claim to sovereignty. The claim to sovereignty in fact pre-stayed the first arrival of Europeans by many decades throughought the continent.

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Olney J. again applies 'unreasonable and unrealistic' expectations in the Yorta Yorta case. The different approach by Olney J. is of substantial importance, particularly given the manner in which he subsequently makes use of this 'principle' in his judgement. The traditional laws and customs that the Judge relied on were not those being practised at sovereignty but were those mentioned by a young white squatter who worked in the area some fifty years later. These laws and customs related to: social organisation, family relationships, and other practices, namely, tooth removal, ornamental scarring, conflict resolution, punishment, warfare, subservience of women to men, use of food and burial methods. Rather than looking at the underlying principles of law and custom, in examining such matters, Olney J. draws on narrow aspects of human behaviour mentioned by Curr. Thus in looking at traditional burial practices, he quotes Curr's description of a burial, identifying the minutiae of the process such as the use of emu feathers and the sitting position for burial. The implication is that unless such practices follow these details today, then Native Title has somehow been abandoned (para. 116). He ignores completely a host of evidence from both Yorta Yorta applicants and expert witnesses concerning more general issues of relevant traditional principle (such as the need for the dead to be buried in Yorta Yorta territory) (see-Chapters 2, 7–9 for elaborate detail on these matters drawn from both oral and documentary sources). In many cases, too, the matters raised by Olney J. when he cites Curr are typical of general 19th Century stereotypes about the life of the 'savage'. Thus he mentions Curr's discussion of Yorta Yorta man as 'despotic in his own mia-mia or hut'; and the animal- like profligate – 'If anything was left for Tuesday, it was merely that they had been unable to consume it on Monday. In this they were like the beasts of the forest'. Such phrases would tell any person with even basic training in history or the social sciences to be very wary of the source document. Yet, Olney J. puts forward these same samples of a 19th Century squatter's observations as the essence of Yorta Yorta law and custom. Indeed, it would seem the Yorta Yorta today must adopt such practices if we are to have any hope of succeeding. In comparing Curr's interpretation of some practices observed at colonisation with contemporary practices, the Judge found that because they differ from those described by Curr, Native Title does not exist. The Judge used the 'tide of history' metaphor to deal a fatal blow to those traditional connections that the Yorta Yorta had maintained. Olney J. declared that Yorta Yorta connections were washed away before the turn of the 19th Century, specifically in 1881 by reason of the petition (paras. 53, 108, 117–118; Appendix. 1).

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9.5.1 Anglocentric Approach 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 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 (see Chapter 5). He 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. Justice Olney speaks of Curr as a person who 'clearly established a degree of rapport with the local Aboriginal people' (para. 53) and whose 'record of his own observations should be accorded considerable weight' (para. 106). What evidence Olney J. uses to establish Curr's rapport with local Yorta Yorta is not presented, and any reasonable investigation of the facts of Curr's life militates against this proposition. Indeed, Olney J.'s reliance on Curr's writings of traditional based Yorta Yorta laws and customs is called into question. Curr’s reliability as an authoritative source has been dealt with. In light of the weight he is given by Olney J., however, it is useful to further examine some of Curr's inner prejudices towards the people on whom he is judged such an authority. Giving evidence to the Royal Commission on Aborigines in Victoria in 1877 (some six years before he wrote his recollections), Curr is called on to give evidence on the establishment of Aboriginal reserves in the Murray region. Curr's view towards Aborigines, which he held from the ‘beginning’, is that he would treat them as children, as they are nothing better. When asked how he would deal with the difficulties associated with removing those who were unwilling to go to a reserve Curr replied: I do not think there would be too much practical trouble in it. I daresay there might be an instance; but I have gone on the idea from the beginning that those natives are children, and in anything I have recommended I have inferred that they would be treated as children, made to go to those places and kept there, and if I am asked my advice, I recommend that this should be done: that the blacks should, when necessary be coerced just as we coerce children and lunatics who cannot take care of themselves (Minutes of Evidence from the 1877 Royal Commission on the Aborigines of Victoria: 78).

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These are disturbing insights into the mindset of a person whose observations are used to undermine Yorta Yorta Native Title rights. Olney J.’s literal acceptance of Curr against this background (which was in evidence before him in the 1877 Royal Commission report), and the privileging of white sources over the factual evidence led by the claimants, calls for his approach to be brought under serious scrutiny. No person with any real understanding of Yorta Yorta laws and customs could simultaneously hold the view that Yorta Yorta men and women were the equivalent of children and lunatics. Curr either suited his words to his immediate political and economic purposes or knew very little of the people whose lands he had taken. In determining the existence of original rights, Olney J. recites Curr's alleged purchase of land from Indigenous occupants for a 'stick of tobacco'. In accepting such narrow and simplistic interpretations of Indigenous land tenure systems, Olney J. falls into the same trap as Curr, by belittling those Indigenous people who were in possession, and failing to deal with their prior rights in a fair and just manner. Curr's observations are used to distort the meaning of land to Yorta Yorta people, similarly to the way the Batman Treaty was used to devalue Wurundjeri people's attempts to accommodate white interests within the traditional lands (Chapter 5). The concept of alienating land and resources for material goods offered by whites distracts from the question of possession at law (NTA s. 223). The alleged exchange of land rights for trivial material goods reinforces the stereotype that Indigenous people were not capable of placing the same value in land ownership as Europeans and ignores the communal and inalienable nature of Indigenous title. In reality, it is extremely unlikely that either party understood the nature of any bargain being struck (if Curr's account was actually based on a real event, and he was not simply inventing a typical 19th Century stereotypical scene to keep his readers entertained). Curr admitted that he did not understand the Yorta Yorta language, or have much interest in their affairs at this time in his life: neither did it occur to us to take up aboriginal languages, or grapple with the traditions of the ancient and singular race with which we had been brought in contact, or we might have found pleasant and unfailing occupation at once in a rich field for inquiry (Curr, 1965:126).

Yet this is the man on whose views Olney J. placed complete reliance for eliciting traditional based laws and customs. The selective use of white sources to justify extinguishment arguments and the application of frozen and antiquated notions of Indigenous society is inconsistent with the requirements of Native Title. Moreover it smacks of racism and has the effect of legitimising the status quo.

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9.6 Maintenance of Connections The third test used by Olney J. states that it must be demonstrated that traditional connection with the land of the ancestors of the claimant group has been substantially maintained since sovereignty was asserted (para. 4–5).

Using this principle together with the previous one, Olney J. effectively sets up a process whereby the claimants must prove the situation as it was in 1788 and establish that their laws and customs have always remained much as they were at that time. Interestingly, this does not seem to be something that the same Judge required in either of his judgements relating to Northern Australia at Hayes (Alice Springs) v Northern Territory (1999) and Yarmirr (The Croker Island Appeals) (1999). Brennan J. and others provide further guidance about the necessary level of continuity. Brennan J. qualifies the observance of customs by adding that it is only required 'so far as practicable'. He also differentiates between situations where people have been 'physically separated from their traditional land and have lost their connection with it' and those where they have not. The issue has also been examined extensively in other cases and Olney J.'s ultimate interpretation of the meaning of this appears to be the most restrictive. Again, Lee J.’s views seem to be at odds with Olney J.’s judgement, and far more learnedly argued: Native title that has not been extinguished by action of the Crown, or by extinction of the society that possessed it, will continue where connection with the land is substantially maintained by a community which acknowledges and observes, as far as practicable, laws and customs based on the traditional practices of its predecessors (Ben Ward & Ors, on behalf of Mirriuwung-Gajerrong People (1998)).

Lee notes that this principle, proposed by Brennan in Mabo was endorsed by Lamer CJ. in Delgamuukw (at 257–8) who accepted that there is no need to establish 'an unbroken chain of continuity' (R v Van der Peet at para. 65) between present and prior occupation: The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonisers to recognise Aboriginal title. To impose the requirement of continuity too strictly would risk 'undermining the very purposes of s. 35(1) of the Canadian Constitution by perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonisers who failed to respect aboriginal rights to land' (Lamer CJ. in Delgamuukw at 257–8). Mabo set down the requirement that there must be 'substantial maintenance of the connection', which is equally applicable to proof of title in Canada. Mabo also recognised that such activities or practices may be a modern form of exercise of those

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laws and customs (Mabo (No. 2) Deane, Gaudron JJ. at 110; per Toohey J. at 192; R v Van der Peet per Lamer CJ. at 553). Much discussion has focused on the fact that occupation will have changed between the time of sovereignty and the present. The fact that the nature of occupation has changed does not, in the view of authorities other than Olney J., preclude a claim for Native Title as long as a substantial connection between the people and the land is maintained. I have examined the concept of continuity and change, which culminated in the analysis of Yorta Yorta occupation and connections in the Mabo sections of Chapters 7–9. In these chapters, Yorta Yorta connections with the claimed land and waters were substantiated in accordance with Mabo and the NTA. They focused on the central question of a Native Title enquiry, which is not whether the traditional practices observed today are in the same form as before as if frozen in time. Indigenous title shares the capacity of the common law to evolve and incorporate, as circumstances require. As Toohey J. emphasised, Indigenous society does not surrender Native Title by modifying its way of life (Mabo (No. 2) per Toohey J at 192). The Aboriginal laws, customs and traditional practices on which Native Title is based have always been dynamic, not static. The most remarkable feature of Olney J.'s judgement is that he fails to include or discuss this evidence. Even on the assumption that detailed evidence of laws and customs of the original ancestors is required, Olney J. repeatedly applies (in paras 4, 25 and 117) an entirely new principle concerning Native Title. To him, it is the laws and customs of the community in existence at sovereignty that constitutes the burden on the Crown’s radical title. This cannot be correct. All other decisions indicate that it is the ‘native title’, not the laws and customs, which burden the Crown (eg Mabo (No. 2) Brennan J. at 37 and Deane and Gaudron JJ. at 69, derived from several decisions of the Privy Council eg Amodu Tijani v Secretary, Southern Nigeria (1921) at 403). For others, Native Title persists though laws and customs change. For Olney J., it is only the original laws and customs that burden the crown. Olney J. allows for little or no change if a community is to enjoy Native Title, because from his point of view it is those original laws and customs that constitute the burden on the Crown’s title. Any change amounts to at least a partial loss of title. This position is consistent with the Judge’s understanding of the frozen, exclusive and extremely narrow view of Native Title. The paragraph 117 test is a repeat of the principle outlined in paragraph 25 of his judgment where he says: 'It is the descendants of the people who occupied the area in 1788, and whose traditional laws and customs in relation to the land became, at the time of sovereignty, a burden on the radical title'.

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Olney J. espouses a related test in the last sentence of paragraph 118 and the second sentence of paragraph 129. That is, it is the same traditional laws and customs of those occupying the land at the acquisition of sovereignty that must be exercised by their descendants. One might be forgiven for thinking that, in Olney J.'s view, to succeed before him the applicants should be dressed in tribal regalia performing the same cultural practices as those interpreted by a white pastoralist one hundred and fifty years ago!

9.6.1 Constructing Barriers Olney J.'s approach fits neatly into the general framework established at the outset of this thesis. Whereas Mabo found that Native Title has survived British sovereignty, the sequential barriers that have been put in front of Native Title have become a major impediment. Olney J.'s attempts to construct the same barriers in the Yorta Yorta case is graphically illustrated in the test he uses for measuring the extent to which Native Title has survived. Olney J. states that: the claimed rights and interests must be rights and interests recognised by the common law of Australia...it is not until each of these elements has been proved that it will be possible to determine whether the laws acknowledged and the customs observed by a contemporary clan, group or community should be afforded the protection of Australian law (para. 4–5).

Olney J.'s test and his underlying reasoning support the sequential hurdles approach. If you fall at any one then it is unnecessary to move on to the next component. This not only saves a lot of deliberation time but the hurdles he proposes are so baldly stated, and so uninformed, that they would probably pose an insuperable barrier to anyone seeking to mount a Native Title claim anywhere in Australia. Establishing biological descent and cultural continuity from sovereignty for any Indigenous person in the more remote parts of Australia would ostensibly also prove to be impossible, particularly when we see the manner in which Olney J. treats the specifics of the Yorta Yorta case later in his judgement. Olney J., as we shall see, overcomes this hurdle by posing quite different tests for those in more remote areas. Lee's discussion of these issues is far more informative and far more in accord with the spirit of both Mabo and the Canadian cases. The difference between Olney J.'s approach in Yorta Yorta and that which he took in the Hayes (Alice Springs) Native Title claim is worthy of comment. The test that he posed in Alice Springs was quite different to that of the Yorta Yorta, which brings out the assumption of the authentic Aboriginal identity, which is the sub-text to Olney J.’s judgement. In Hayes (Alice Springs) he says:

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The resolution of an application for a determination of native title will initially require the Court to inquire into and make findings concerning:

– the identity of the claimant group and its relationship with the indigenous inhabitants of the land in question.

– the geographical location to the traditional lands of the claimant group.

– the nature of the traditional laws and customs of the claimant group in relation to their traditional land.

In the event that the claimant group establishes the existence of traditional rights and interests in relation to the claimed land, it will then be necessary to consider the extent, if any, to which those rights and interests are recognised by the common law (Hayes v Northern Territory (1999) at para. 10).

This is a much simpler and less prescriptive formula than that which Olney J. imposed on the Yorta Yorta. It revisits the question of whether Olney J., in his application of the law, differentiates between Indigenous people of the more remote parts of Australia and those of us that have endured the full brunt of white occupation for much longer. The Yorta Yorta, it would seem, not only have had to carry the weight of a more onerous and longer form of colonialism, but also have to meet a far more difficult standard of proof to that required in the more remote regions. Furthermore, when Olney J. begins to apply the principles that he enumerates, he ignores the applicants' evidence that would meet his criteria. There is a marked absence of any discussion of the legal aspects of the issue of social change, despite the fact that he is dealing with the first case to be heard concerning the longer settled parts of Australia, despite the fact that very extensive arguments, based on legal precedent, were put to him concerning such matters, and despite the fact that specific evidence relating to such issues was also presented by expert witnesses on both sides. In assessing these complex issues, Olney J. disregards the extensive Indigenous and expert evidence, and chooses instead to follow his own naive reading of the reminiscences of one 19th Century pastoralist and a 19th Century missionary.

9.6.2 Dichotomy of Aboriginality Perpetuated As indicated, in the literature of Identity politics in Chapters 1–2, Indigenous people in southeastern Australia commonly experience the identity-denying scepticism of ill- informed, and often ill-educated, members of the white community, who tend to think of 'real' Aboriginal people as only those who come from the remote areas of Australia. It is alarming in the extreme when similar views seem to have intruded into the very heart of the Native Title process (see Chapter 2 for discussion on the concept of Aboriginality in which I was extra cautious to avoid perpetuating misconceptions). It would seem that

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Olney J.'s perceptions of Aboriginality, shaped by his experience in the Northern Territory has been imported into the Yorta Yorta context. The difference between his Northern Territory judgements and the Yorta Yorta is very telling. It makes one realise that in the former cases he is assuming that the questions of biological descent and cultural continuity are already resolved, whereas in the latter he obviously has doubts in advance about these issues. It is almost as if he proceeds on the presumption that the Yorta Yorta claim is fraudulent and the claimants are guilty until proven innocent.

9.7 Use of Documentary Evidence to Justify Extinguishment

9.7.1 The 1881 Land Claim Petition After using white persons' documentary evidence to source traditional Yorta Yorta laws and customs and the 'tide of history' euphemism to wash away the underlying violence and conflict over land, Olney J. then applies the final blow to Yorta Yorta Native Title. The Judge isolates a previous claim from the Yorta Yorta struggle for land, and uses this to support his finding that 'there was no evidence that the same practices were exercised after 1851'. Olney J. at paragraphs 119–20 refers to a claim lodged in 1881 by forty-two Aboriginal people resident at the Maloga Mission (see Appendix. 1, Chronology of Past Claims, No 2.4: Further Attempts by Matthews to Secure Land from Victorian Authorities 1881–1887). The claim requested from the Governor of New South Wales a grant of land to 'cultivate and raise stock to settle down to more orderly habits of industry. The petition also stated the petitioner's desire to change 'our old mode of life' (para. 120). The petitioners included some of the children of those ancestors found to be 'indigenous inhabitants' for the purposes of the present application. Olney J. uses this claim to conclude that: It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of the tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued to the present time (para. 121).

This particular attempt at land justice by the Yorta Yorta needs to be viewed in its original context. The 1881 claim was inspired in part by the southern neighbours of the Yorta Yorta, the Taungerong and Wurundjeri, who were successful in gaining some land to settle on in the 1860s. This was an adaptive strategy aimed at utilising the land for the dual purpose of farming and for maintaining traditional connections with the ancestral lands and resources (see Chapters 3–4). Indeed, it was an attempt to carve out a niche within an economy that economist Dr Alford says 'denied Indigenous people the

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means of existence' (Alford, 1999:40). It is no coincidence that one of the principal petitioners was the son of Wurundjeri headman, William Barak, who was involved in the neighbouring land struggle. It is ironic that the only Yorta Yorta land gained from the century of claims was the original 1800 acres of reserve land that was returned as a result of the Matthew’s petition. The land was part of the reserve lands being set aside for the benefit of Indigenous occupants at the time, which became Cummeragunja. But when considered against the inherent rights that the Yorta Yorta continued to assert into the 20th Century, it could only be seen as a small down-payment for large-scale land theft and the non-recognition of inherent rights (see Appendix. 1). It goes to the heart of those matters that William Cooper asserted, quoted at the outset of the thesis (Chapter 1). When one considers the way the petition has been construed to support the Judge’s rationale of Native Title loss, it seems that the Anglo-legal system has offered our people two choices: survival with no Native Title rights, or extinction (Barwick, 1972:47–8; Case, 1999: 18–19; Cato, 1976:280).

The wording of the petition upon which Olney J. placed great stress was clearly provided by Daniel Matthews, written in a style of language that would persuade the authorities of the time. Indeed, a style of language that Indigenous people have come to master over the years. Using language as a means to achieve ends, however, does not imply relinquishment of inherent rights (see Pearson, Dodson, Mansell, Langton, Yunupingu and Yu in Yunupingu, 1997; Watson, 1999). Matthews' diaries indicate that he wrote the petition in Sydney without the input from Yorta Yorta people: 'May 25th ...To Mr. Palmer's office preparing the petition from our men at Maloga for land...' and, 'After dinner to Mr. Palmer's office preparing petition from blacks and plan of land etc’ (Matthews, D., 25 May 1881 and 17 June 1881). It is also clear that most Yorta Yorta people, living in various parts of their traditional territories, were not signatories to the petition. Indeed, neither of the Yorta Yorta ancestors accepted by Olney J. as having a legitimate connection with the area signed it, though both were living at Maloga at the time (see Kitty Atkinson/Cooper and Edward Walker, at para. 104). Under these circumstances, it is clear that Olney. J placed disproportionate weight on this document, using it to deny Yorta Yorta rights. When one considers the immense quantity and quality of other material presented in the course of the claim, ignored totally in Olney J's decision, his interpretation of the petition gives rise to serious misgivings about his administration of the law in the Yorta Yorta case.

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9.8 Privileging European Sources Let us look briefly again at some of the material that Olney J. chose to ignore and the issue of privileging European written sources over and above Yorta Yorta knowledge (outlined in Chapters 7–9 and above). There was abundant evidence to the effect that the Yorta Yorta had not been dispersed since the time of colonial contact in the mid-1800s. They maintained a cohesive community, with a common history centred upon Maloga Mission, Cummeragunja and the surrounding areas. They and their ancestors, for example, maintained a continuing association with the waters of the Goulburn River and the Murray River, and the surrounding lands and waters, including but not limited to the land and waters of the Barmah Forest and Lake, the Moira Forest and Lake, and forest areas around Echuca, Shepparton and Mooroopna where they had fished, hunted, camped, and worked on surrounding pastoral stations, and do so until this day (see Figure 7). Olney J. ignores all of this. He made no mention of the continued maintenance of connections with country, explained at sites and places where Yorta Yorta forbears camped, utilising resources for artefacts and medicinal purposes and other cultural activities. He made no mention of the letters written by William Cooper, Shadrach James and others on behalf of Yorta Yorta people requesting land justice in the 1880s, including claims to the land as belonging to the Yorta Yorta by divine right, and no mention of the continued maintenance of connections with country through activities such as fishing and hunting. Yorta Yorta witnesses gave extensive accounts of Cummeragunja history from the 1920s to the present but Olney J. does not refer to the evidence, instead providing a bare bones institutional history devoid of all detail about the actual lifestyle, aspirations and cultural values of people during this period. For him, it is all irrelevant because the petition (written by Matthew's and signed by some Yorta Yorta men) is sufficient to destroy Yorta Yorta claims in their entirety when it indicates that petitioner's desire to ‘change our old mode of life’ (para.121). It is almost impossible to believe that Olney J. is sufficiently naive to accept that this single dubious sentence counts for more than a hundred and fifty years of Yorta Yorta struggle. Olney J. also chose to ignore completely the evidence that was presented to him concerning Yorta Yorta residence at other places within the eastern section of the original tribal lands at Moodamere, Ulupna, and Wangaratta. The evidence that went to the heart of the proof requirements by the following witnesses was disregarded in favour of Anglo sources (see Wayne Atkinson, exhibit A8.10 paras 1–33; Kevin Atkinson Snr, t.1721–1730, 2328–2333, 2354–2356, 3670–3671; Paul Briggs t.892– 894, 900–909; Colin Walker, exhibit A8.1 paras 1–5, 8–9, 17–21, 34 and 38–45,

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t.1412–1414, 1427–1430, 1562–1578, 1595, 2316–2317; Neville Atkinson Snr t.568– 570, 919–926; Ella Anselmi exhibit A8.21 paras 2, 22, 24–30, t.583–588, 688–689, 747–751, 1862–1863; Richard Atkinson t.1774–1796; Osley Patten t.3079–3080; Des Morgan exhibit A8.6 paras 8, 10–13, t.1179–1192, 1196–1202, 3282–3285; Gary Nelson exhibit A8.23 paras 1–8, t.588–592; and Rochelle Patten exhibit A8.31 pages 1– 8 and 14, t.652–666, 1329–1334). Every detail that the Yorta Yorta used to demonstrate their ongoing connections has been stripped from the Judge's summary. Justice Olney’s approach is completely at odds with Justice Toohey's recommendation that those traditional laws and customs that were being examined 'must be understood from the point of view of the members of the society'. From a Yorta Yorta perspective, Olney J.'s judgement lacks both logic and sensitivity. It ignores the weight of the evidence and it demonstrates a complete failure to come to terms with cross-cultural discourses (Mabo (No. 2) Toohey J. at 188).

The petition was selectively isolated from other Yorta Yorta claims. These were all about land justice and reparation for the abrogation of prior rights. The need to secure land to settle on and develop agricultural practices was simply an intelligent political strategy adapted to the circumstances of the time. Like the previous claims, it was aimed at securing some land so that the Yorta Yorta could survive as a people, which is precisely what it has enabled them to do. It says nothing about the loss of traditional interests or abandonment of traditional rights (Appendix. 1). One of the implications of Olney J.'s approach to the petition and the writings of Curr and Matthews is that if those seeking to oppose Native Title claims demonstrate a time since the British claim to sovereignty for which there is an absence of evidence concerning 'continuity', or a single instance in which some Indigenous people appear to have indicated a desire to be accepted into mainstream society (no matter whether this overture is accepted or not, and no matter whether the author of the document supposedly indicating this desire is black or white), then they will have succeeded in undermining their original rights. Kerruish and Perrin have suggested that Olney J.’s use of the 1881 petition and other non-Aboriginal sources to determine Indigenous title amounts to a 'tour de force in distortion' (Kerruish and Perrin, 1999). From an Indigenous perspective, it is difficult to disagree. If 'Native Title' is to have any meaning, and if the relationship between Indigenous and non-Indigenous Australians is to ever be set on a more equal footing, it is critical that those charged with the responsibility of being agents of the law are able to set aside their prejudices and operate in a logical and just manner. Olney J.'s use of the 1881 petition clearly demonstrates that we have a long way to travel before such a point is reached.

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9.8.1 Exclusion of Oral Knowledge Justice Olney at paragraph 21 regards the oral evidence of many of the applicants' witnesses and particularly the more senior members as credible and compelling but regards the testimony of some of the younger members as ..less impressive because oral tradition passed down from generation to generation does not gain in strength or credit through embellishment..and for this reason much of the testimony of the more articulate younger witnesses has not assisted the applicants' case.

Why did Olney J. place so much faith in non-Indigenous writers over and above Indigenous knowledge, and why does he make such a sharp distinction between the way the knowledge is being articulated? The role of oral evidence in Aboriginal land claims is discussed by Lamer CJ. in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 229–30 and in Mirriuwung-Gajerrong (1998) by Justice Lee who held that, in determining whether the degree of presence on the land was sufficient to ground a claim to native title it is first necessary to look at the question from the standpoint of the indigenous community and the expression necessarily implies that the words are to be understood from an Aboriginal perspective, not constrained by jurisprudential concepts and there can be no suggestion of unfairness in a trial process in which Aboriginal applicants are permitted to present their case through the use of oral histories and by reference to received knowledge (Mirriuwung-Gajerrong (1998) at 29, 32–3).

The disregard of Yorta Yorta oral knowledge is at odds with those cases. Olney J.'s decision to treat oral knowledge as being less credible than the written record is unjustified (at 59–60, para. 106). If the weight of the knowledge (drawn from over 55 witnesses) conveys a consistent pattern of connections with country, it cannot be so simply disregarded (see extracts of oral evidence presented in Chapters 7–9). There may be differences in the manner in which individuals articulate the knowledge, but if there is consistency in its content being transmitted by a cross-section of the community, it deserves to be accorded due weight. (see analysis of oral knowledge in Chapter 1 at 1.6.1). The need to assess the claim against the totality of evidence has been ignored by Olney J. As indicated, some aspects of the Ethnographic record, including Curr, may be of relevance but to give it a superior status to all other materials seriously distorts the claims process. Moreover, the use of highly selective knowledge to make judgements about present day Indigenous connections is very dangerous. It has serious implications and can be used in a mercenary way to undermine the cultural identity and integrity that the Yorta Yorta has fought to maintain (Chapters 7 and 11).

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9.8.2 Embellishment Allegation The Judge regarded 'the testimony of some of the younger witnesses as less impressive' on the basis that... 'oral knowledge does not gain in strength or credit through the embellishment by the recipients of the tradition and for this reason much of the testimony of several of the more articulate younger witnesses has not assisted the applicants case' (paras 21–25). Olney J's dismissal of oral knowledge because of its unspecified embellishment is not qualified, and because this broad allegation is left up in the air we too are left guessing as to whom he was referring. Neville Atkinson, Darren Atkinson, Damien Bulled, Monica Morgan, Denise Morgan, Shane Walker, May Walker and Hilda Walker are in their thirties and forties. As their statements and the 'more senior' Yorta Yorta witnesses verify, the Yorta Yorta are very articulate. They speak with a similar air of confidence and conviction to that of their ancestors (see Chapters 7–9 on Witnesses’ evidence to Court, 1997–1998). The fact that younger people have a more poetic turn of phrase, have generally been better educated than their parents and have actively pursued knowledge of their past should not be held against them in this manner. Nor should their ability to articulate their history the way it has been passed on be seen as diminishing the quality of the knowledge. On the question of embellishment, it would be more appropriate to apply such an allegation to the likes of Curr. Having forty years to reflect on the past and leaving no records, notes or diaries to cross-check for accuracy, Curr is surely a far more legitimate target for the allegation that Olney J. claims and seems to hold against the Yorta Yorta as a whole. Olney J.'s allegation of embellishment is not only misplaced but when considered against the weight placed on Curr, the same question revisits and indeed exposes the rationale of his judgement. The question of why the senior evidence in the Croker Island Case was accepted and rejected in the Yorta Yorta case is unexplained.

9.8.3 Yorta Yorta Authorities Ignored The privileging of white materials is all the more remarkable when one considers the body of material written by Yorta Yorta people. They were in a better position to understand traditional Yorta Yorta connections with country than either of Olney J.'s favoured 'authorities'. The writings of Thomas Shadrach James, who married into the Yorta Yorta, and Yorta Yorta ancestors Ronald Morgan and Theresa Clements are good examples (see James, 1897; Clements, n.d.; Morgan, 1952). Their evidence was before the Court. Thomas James’ kinship with one of the original ancestors (Granny Kitty) gave him far greater access to knowledge than other non-

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Indigenous people. Grandpa James lived with the community for forty-two years, compared to Curr's intermittent ten-year association. His relationship with the community and his record of accomplishment as a leader, teacher and doctor from 1880 to 1922 is exemplary. The trust gained over this period, from the community and the opportunity to observe and learn from the people, would have provided him with a unique insight into local Yorta Yorta culture. It was this degree of rapport that enabled James to write on aspects of traditional based customs and Yorta Yorta land relationships. The Judge chose to ignore this evidence. Ronald Morgan, born in the early 1900s was able to observe and document many aspects of Yorta Yorta connections, including a description of original territories, family groups and stories relating to laws, customs and site locations, some of which correlated with the oral evidence. Theresa Clements, born in the 1880s, discussed important aspects of family organisation and occupation of the land in the eastern part of the claim area, which she wrote at the time of the Maloga Mission (1874-1888). Olney J. ignored this material in his judgement. I collected oral knowledge on the History of Cummeragunja in the late 1970s and early 80s, which culminated in a manuscript called 'A Picture from the Other Side' (1981). The manuscript did not focus specifically on Native Title, but much of the information was about past and present connections with the claim area. These sources, that went to the heart of the subject matter, were presented to the Court in support of the Yorta Yorta claim, but were treated as less authoritive than white sources (James, 1897, Letters to R.H Mathews, 27 September 1897, and with J. Chanter on Yorta Yorta language; Atkinson, W., 1981a: 79–84; Barwick, 1979:111; Jackomos and Fowell, 1991: 176–8; Cato, 1976:97; Goodall, 1996:129–30; Mavis Thorpe Clark, 1979:25; Morgan, 1952:1– 25). Olney J. says that the Court will have regard only to evidence that is relevant, probative and cogent (para. 17). But Curr alone, a highly questionable source, is used to verify traditional Yorta Yorta laws and customs. From both an academic and Indigenous perspective, Curr has far less probative value than the James, Morgan, Clements and Atkinson sources. At the very least one can not suggest that the Curr materials provide a cogent or compelling proof of the early contact situation without at least comparing them with the other written sources and the oral knowledge. Olney J.'s dismissal of the Yorta Yorta oral evidence is at odds with the weight that he gave to similar material in Mary Yammir & Ors (The Croker Island Case), (1998). There, Olney J. placed considerable reliance on the evidence of 'the most senior witnesses' and accepted it as 'credible' and 'relied on with some confidence' (Mary Yammir & Ors (1998) CLR 1: 40–1, 45–6). While Olney J. indicates in his judgement

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that he placed some degree of confidence in the senior Yorta Yorta witnesses whose evidence is regarded as 'credible and compelling,' its content is completely ignored in the elaboration of his decision.

9.9 Olney J.’s Irritation at the Proceedings Kerruish and Perrin (1999), critique Olney J.’s treatment of the evidence and the Native Title proceedings. They argue that the proceedings are 'littered with the record of the Judge's own extreme irritation'. This observation, coming from those who were not active participants in the case nor were privy to the degree of scrutiny that the Yorta Yorta were subjected to, is compelling. The following passage from the Judge's decision reflects the nature of this allegation, in relation to the way Yorta Yorta witnesses were treated: Another unfortunate aspect of much of the applicants' evidence was frequent, and in some instances, prolonged, outbursts of what can only be regarded as the righteous indignation of some witnesses at the treatment they, and their forebears, have suffered at the hands of the colonial, and later various State, authorities. As I have commented earlier, this case is not about righting the wrongs of the past, rather it has a very narrow focus directed to determining whether native title rights and interests in relation to land enjoyed by the original inhabitants of the area in question have survived to be recognised and enforced under the contemporary law of Australia (para. 21).

Olney J.'s comments here, in light of Kerruish and Perrin's analysis, highlights the antagonistic and often 'putting-down' nature of the Native Title process (Chapter 6). It also reinforces my own perceptions of Olney J.'s adjudication of the YYNTC. This was manifested by the Judge's impatience with witnesses, by his frequent sighs of frustration when the case was not progressing in accordance with his expectations, and by the protection given to some of the respondent’s witnesses when they were under cross- examination. History demonstrates that the Yorta Yorta have been forever explaining their case. The present claim cannot be separated from the past, nor can it be isolated from previous claims (see Appendix. 1 and Chapters 2–3). Olney J.'s approach suggests an inability to 'take account of the customary and cultural concerns of Aboriginal peoples'. It is the sort of comment that helps to explain the contempt that many Indigenous people (including myself) often feel towards the Anglo-legal system. It is the way that Judges, as agents of the law, administer the law in relation to Indigenous justice that is an ongoing problem. The preamble of the Act would seem to suggest that 'righting the wrongs of the past' was, in fact, one of the main functions of the law in the administration of justice. It recognised that 'it is particularly important to ensure that native titleholders are now able

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to enjoy fully their rights and interests, which under the common law of Australia need to be significantly supplemented' (NTA at 3). One is again reminded of the words of Brennan J., Deane and Gaudron JJ. (see Chapters 3 and 5) in which the values of justice, equality and full respect of Indigenous property rights were held to be the guiding principles of Native Title at common law. One is also reminded of the human rights principles recognised by a fellow Judge in the same jurisdiction. Justice North in Mirriuwung-Gajerong (1999) and the Karajarri Claim (Kimberleys) (2000) held fundamental human rights to be ‘par excellence’ in the administration of justice (Banham, 2000). Unfortunately these principles seem to have had little influence in Olney J.’s decision and again highlight the narrow and Anglocentric approach taken in the Yorta Yorta case (NTA; Mabo (No. 2) Brennan J at 40–41; Bartlett, 1993:11–12; Bartlett, 1999:408–26). Much of the material which Olney J. decried as 'frequent...and prolonged ... outbursts of ... righteous indignation' was, in fact, highly relevant. It went to the question of the constraints placed on Indigenous people in their pursuit of traditional customs 'so far as practicable', or in Brennan's words it helped to define the 'practicability'. Other evidence of this type helped to emphasise the strength of Yorta Yorta ties to the land. Surely, when people refuse to be assimilated into the dominant Anglo culture, despite the often extreme pressure exerted upon them, an indication is provided of the strength of their ties to their own cultural background and way of life. In many cases this evidence also went directly to the continued connection of people with their lands. Forced out of missions and reserves by the repressiveness of the circumstances, Yorta Yorta people continued to camp on the claimed lands, used bush resources for housing, relied on bush foods for sustenance and survival and fought a prolonged political struggle to hold onto links with country (see Chapters 3–5 and 8–9). 'Righteous indignation' by the Yorta Yorta reflects the way the case was conducted rather than the manner in which the evidence was articulated. The adoption of what Olney J. describes as 'innovative procedures' under the Court's obligations under NTA s. 82 are exemplary innovations but whether ‘the whole trial was conducted in a manner consistent with this section' is called into serious question (para. 15). Indeed the expectations that were imposed on the Yorta Yorta by the Native Title process need reviewing. In hindsight, the lack of trust demonstrated by witnesses in the Judge's treatment of witnesses and of the oral knowledge on sensitive cultural matters would appear to be vindicated (see Chapter 7). In the recent Full Bench Federal Court appeal decision over Olney J.'s decision in Croker Island (Commonwealth v. Yarmirr (1998)) Justice Merkell at 344 remarks:

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The second difficult concept relates to the circumstances in which it might be said that there has been loss of connection by reason of an 'abandoning of law and customs based on tradition' (Mabo at 60 per Brennan J) and therefore non-observance of those traditions. Plainly, abandonment does not arise where non-observance of laws and customs occurs in circumstances where a requirement of effective observance is unrealistic. Prior to the decision in Mabo, the common law did not recognise any native title right or interest of the indigenous population in Australia in traditionally occupied land (see the case at 431–2).

It would 'perpetuate injustice' if the courts, when considering the issue of continued observance of custom, failed to give due recognition to the fact that prior to Mabo the prevailing notion of terra nullius characterised: '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' (Mabo at 58 per Brennan J.) Further, as was said in the joint judgment in the Native Title Act case at 431–2, the judicial treatment of the desert as 'uninhabited' resulted in Aboriginal title to land being 'ignored'. Finally, as was pointed out by Senior Counsel for the claimant group, from when sovereignty was acquired by the British Crown until the decision in Mabo it was not open, legally or practically, to the Indigenous people to require that settlers recognise or respect their traditional law or customs. Thus, when the issue of continued acknowledgment or observance of laws and customs in relation to land arises for consideration, the extent to which that acknowledgment or observance has diminished or changed may require some consideration of whether the diminution or change falls short of abandonment but, rather, came about by reason of conditions, including non- recognition of any Native Title, which were externally imposed on the Indigenous population. As was pointed out by Brennan J. in Mabo, one reason for the requirement of a ‘clear and plain intention’ to extinguish Native Title was the gravity of the 'consequences to Indigenous inhabitants' of the extinguishment of their traditional rights and interests in land (Mabo (No. 2), Brennan J. at 46). The same consideration dictates that a decision that Indigenous inhabitants have lost the general nature of their connection to their land should not be arrived at lightly. Merkell clearly contemplates the great relevance of material which Olney J. simply dismisses as 'righteous indignation'. This evidence from the claimants went to the very heart of the impediments placed in the way of the maintenance of traditional law and custom. By contrast, Olney J. says that he was 'very favourably impressed' with the way the evidence was presented by the respondents and 'accepted as credible the expressions of opinion of witnesses familiar with the processes relating to land tenure histories where documentation was not available' (at 22–3). An absence of documentation, it seems, was

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excusable and replaceable by oral testimony when it related to matters such as western land title, but inexcusable when it related to Yorta Yorta law and custom. Essentially Olney J. stood on its head the primarily documentary basis of western title systems and the oral basis of Yorta Yorta culture. The degree of scrutiny applied to the respondents and the absence of evidence relating to the central issue of land was excusable but the same standards were not applied to the applicants' evidence. There were other irritations manifested in the Judge's behaviour and body language, particularly towards the latter part of the case, which gave the impression that the decision was a fait accompli and the Yorta Yorta were merely going through the motions (Yorta Yorta Native Title Committee meetings, Arnold Bloch Leibler Offices, before and at the end of the November hearings, 1998).

9.10 Continuity and Tradition Revisited Returning to the crucial issue of interpreting Indigenous culture and the interface between Anglo and Indigenous law, one finds that this is not a new phenomenon to Olney J. The Judge's struggle to find a balance between the two legal systems is highlighted in Chapter 5. It was Justice Olney who raised the conflictual problem in a discussion with Francesca Merlan (in Claims to Knowledge, Claims to Country, 1994) by expressing fear as to how judges, like himself, could arrive at a decision about Native Title. Justice Olney compares the openness of Native Title to the specific criteria supplied by the Northern Territory statute, the Aboriginal Land Rights Act 1976 (NT). He explains that he does not want to make the Native Title definition more precise, but that he foresees difficulties in making a decision. Merlan took up these concerns. She referred to Justice Toohey’s interpretation in the 1981 Finniss River case, where 'Toohey valued continuity with the contested areas in a particular mode' and thus loosened the notion of ‘tradition’ from its often-found moorings in priority in time and stability in space, preferring to interpret it in terms of continuity in a particular mode (Merlan, 1994:21).

Merlan rejected the Court's tendency to seek out criteria in old (anthropological) authorities that often have 'a very systemic and totalising view of Aboriginal society' (Merlan, 1994:23). Instead, she claims that: [t]he most useful information [about ‘laws and customs’] is likely to be relatively recent, from sources (including Aboriginal accounts) concerned to document not only those social forms most highly objectifiable and indeed often objectified by Aborigines, but also to establish the sorts of understandings that respondents had of the conditions of their actions, including the giving of that very information' (Merlan, 1994:23).

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Dr Rose offers a suggestion whereby proof of Native Title could come from showing the reproduction of a given social practice thereby showing its continuity through time (in Merlan, 1994:29). In dealing with the Yorta Yorta claim, Justice Olney ignores the scholarly analysis offered by Merlan and Rose and completely disregards the evidence put to him on a range of matters including burial practices. Instead he commits the very error that Merlan cautions against: ‘So as with ‘tradition’, the phrase ‘laws and customs’ cannot be understood to point to a particular fixed body of lore’ (Merlan, 1994:23–4). The problems of interpretation rest on translating Aboriginal law into Anglo-Australian legal terms. Judges must show flexibility in allowing different kinds of evidence to be presented, such as oral traditions, testimony about sacred sites, creation stories and so on. Even more importantly, Judges must be aware of the possible ways of evaluating this type of evidence. Without the necessary training, judges might not be able to recognise the full worth of such non-Anglo-Australian evidence. This is what appears to have happened with the Yorta Yorta case. Despite Olney J.’s participation in the 1994 Australian Anthropological Society’s discussion, the Judge has shown no ability to deal properly with non-western forms of knowledge and evidence. He has done that which he cautioned judges against, that is, to act as ‘fact-finders’ in cases that demand flexibility and broad understanding. Olney J.’s reliance on the written records of a white squatter and a missionary, coupled with his inability to handle the evidence provided by Yorta Yorta witnesses, has put him in a position where he cannot make a well-informed decision.

9.11 Conclusion I have argued that the approach chosen by Olney J. in the Yorta Yorta case was erroneous and arbitrary as a matter of law, and Anglocentric in the way that white sources were privileged over Yorta Yorta knowledge. I also argued that preconceived notions of Aboriginality were imported into the Yorta Yorta context to infer that the Yorta Yorta ceded their original rights before the end of the 19th Century. The benevolent offering of a small piece of land in response to Yorta Yorta political agitation for traditional land and resources, and for the purpose of protection and survival, was construed to support this proposition. Indigenous groups must be mindful of the future implications of these aspects of Olney J.'s decision. If, for example, an Indigenous community possessing recognised Native Title decides in future years to use its land for farming or tourism it may, relinquish its rights, according to Olney J's interpretation. Olney J.'s judgement not only seeks to impose a 'frozen' view of the past, it also has the potential to 'freeze' the future. The NTA (s. 13.1.5) allows for the revocation of a determination of Native Title where 'events have taken place since the determination was made that have caused the

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determination no longer to be correct'. This would seem to provide ample scope for any judge following Olney J.'s line in the Yorta Yorta case to decide that any change in economic or cultural life is sufficient to destroy Native Title. The sequential/structural barriers to achieving land justice in light of Mabo were identified. These were acted out in the Yorta Yorta case, by the literal translation of the 'tide of history' and by the selective misconstruction of the '1881 petition'. That is, they were used to justify extinguishment arguments, to privilege white knowledge over that of the Yorta Yorta, to deny Yorta Yorta equality and justice before the law, and to maintain the status quo within the claim area. These matters will be elaborated upon in the concluding chapter.

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Chapter 10: Summary and Conclusions

The final chapter analyses the current state of the Yorta Yorta struggle, and identifies the main barriers to land justice under existing politico-legal processes. It assesses the Yorta Yorta Native Title Claim (YYNTC) against the principles of equality and justice before the law and analyses the extent to which existing land interests in regional Australia are prepared to reconcile their interests with Indigenous title. The chapter emphasises the way that the Native Title industry has usurped Indigenous voices, and argues that the human rights principles of racial equality and justice were not delivered in the YYNTC. It concludes by arguing that the power dynamics of domination, and racial inequality are key impediments to Indigenous land justice that have been perpetuated in the Yorta Yorta case.

10.1 Native Title Outcomes 1992–99

Nearly a decade has passed since the High Court recognised the existence of Native Title at common law in Australia (Mabo (No. 2) 1992). The current situation is that the land returned in Australia since Mabo has been minuscule. For those Indigenous people who have been waiting for over two centuries for land justice, it is a poor reflection on Australia's legal and political institutions. The lack of formal outcomes is experienced against a backdrop of community hostility and antipathy towards Indigenous rights (; Age 10 October 1996). Justice Olney’s decision, coming at the end of years of scrutiny of the Yorta Yorta people, and the subjugation of their voices to those of outsiders, made the 18th of December 1998 a sad day for the Yorta Yorta. Much of the sadness remains, but being familiar with similar setbacks, and belonging to such a resilient group of fighters, the struggle continues. The Native Title process has been emotionally and physically draining. Claimants are locked into a gruelling and often uncertain process for a significant duration. The first substantive Native Title cases to be heard on their merits following Mabo were expected to assist other claims, at common law hearings and at mediation, but the dismal returns have greatly heightened Indigenous cynicism about the process as a whole.

10.2 Reflections on Current Land Status As I demonstrated in Chapter 4, State and Commonwealth governments have refused to recognise prior Indigenous rights and to apply fair and just principles of restitution for the confiscation of property. To date, the only lands returned to the Yorta Yorta are a little over half of the original 2,965 acres of Cummeragunja lands (1800 acres). It was

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this land that Justice Olney construed as implying the relinquishment of Yorta Yorta rights. The land was reserved specifically for Aboriginal use, but the majority was leased to Europeans up to the 1950s. In 21st Century Australian society, we have less land than the reserve provided at the turn of the 19th Century, and that small but historically important parcel supports a growing and highly disadvantaged population of over 200 people. Compared to our original tribal lands, as indicated in Figures 2 and 9, it is a derisory small portion. The principle of compensation has also been accorded short shift.

10.3 Mabo Revisited 2000 With the raised hopes offered by Mabo, the Yorta Yorta were one of the first Indigenous groups to take advantage of the Native Title process. Australia's attempts to bring its law into line with the recognition of Indigenous title in other common law jurisdictions, and the High Court's rejection of those actions that justified the theft of Indigenous land, were commendable achievements. The barriers to Native Title, it appeared, had been dismantled, and a more level playing field was set for Indigenous claimants. While the removal of old barriers was encouraging, the construction of new ones has been disheartening. As demonstrated in the YYNTC, this has set the Indigenous struggle for land in the more populous regions back to the pre-Mabo era. This experience suggests that the ideals of equality and justice before the law under present conditions remain ever elusive. In establishing the ground rules for claimants to gain land justice, and the full respect that Native Title is seeking at common law, the High Court constructed major barriers to achieving land justice. It secured the property interests of settler society by applying the doctrine of extinguishment and refused to uphold fair and just principles in relation to the confiscation of Indigenous land and resources. Justice Brennan's metaphor concerning the 'tide of history' was presented as an extreme case scenario of Native Title loss. Its application to the Yorta Yorta in its absolute sense, however, unless overturned, will have serious negative implications for other claimants. Underpinning the events on which this ‘tide’ rests, is a history of land injustice and flagrant human rights abuses. They are sourced in violence and bloodshed over the ownership and control of land, acts of genocide in relation to the forced removal and attempted break- up of Indigenous families, and racist government policies aimed at subjugating and controlling Indigenous people. It is ironic in the extreme, many might say obscene, that the crimes against humanity, which constitute this ‘tide’, can be invoked by those seeking to deny Indigenous groups their rights to land.

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10.4 Structural Barriers Perpetuate Domination Following Justice Olney's judgement, the fiction of terra nullius, rejected by Mabo as having ‘no place’ as a barrier to Indigenous land justice in ‘contemporary law’ (Mabo (No. 2) Brennan J. at 29, 40–3), has now been replaced by the 'tide' euphemism. In the YYNTC, it was used to try and wash away the underlying injustices that are at the heart of our struggle (Birch, 1997:9). The Olney decision is a graphic illustration of how this euphemism has been construed to justify land theft, to maintain the status quo, and to support the continued domination of Indigenous people. Indeed, Australian historian Patrick Wolfe's comment 'that to fall within Native Title criteria, it is necessary to fall outside history' eloquently summarises the Olney approach (quoted in Alford, 1999:42; see also Gray, 1999:15–26). In using Anglocentric sources as a basis for reconstructing Yorta Yorta connections, Justice Olney displayed ignorance of accepted standards of analysis. The need to look at the body of knowledge within the context in which it was written and against the prevailing cultural biases of the time is universal practice. Early white ethnographers were notorious for interpreting traditional culture through their own blinkers, and were shown by other writers to exhibit bias. They mostly got it wrong. In reconstructing past and present Indigenous connections, ethnographic data is not exempt from the same standards of scrutiny as that which is applied to other sources. It is but one part of the larger jigsaw puzzle that is made up of ‘many pieces’ (Read, 1979:141). As indicated the privileging of European sources over the body of Indigenous knowledge is an Anglocentric approach to Native Title litigation. The Anglo-legal system already carries an historic bias and inequality towards Indigenous people by the exclusion of their oral testimony by the courts. Olney J.’s exclusion of Yorta Yorta knowledge can be seen as a reversion to past practices (Christie, 1979:115–16).

10.5 Race Relations Outcomes After lodging our claim, we chose in good faith to go before the National Native Title Tribunal (NNTT), which again brought us face to face with opponents of Indigenous rights. While the process provided a forum for the Yorta Yorta to speak without being subjected to the hostilities of past claims, and a platform to contest existing misconceptions of land ownership, it turned out to be a failure. After gaining no substantive agreements or expressions of 'co-existence’, particularly in the spirit of ‘reconciliation’, we chose to go before the Federal Court. Our reliance on the courts is based on the reality that there is no alternative to the introduced law as it stands, other than reverting to direct political action. Our customary law, contrary to the wishes of Indigenous people, is not given equal status and can only be called on to source the nature and content of our traditional connections even post-Mabo. We cannot call on

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international mechanisms until we exhaust all domestic remedies. We are locked into the process and are committed to following it through to its logical conclusion, which may mean years in the courts. Underpinning these realities are the expectations of Yorta Yorta people, who are watching closely in the hope of enjoying a better and more secure future. The main obstacle to gaining Native Title through mediation proved to be the limitations imposed on the NNTT’s powers, and the prevailing antipathy towards Indigenous rights. Respondents were unwilling to recognise the Yorta Yorta as a group, let alone that their inherent rights should be accepted and given equal protection. The regional mindset that met the 1984 claim came back to revisit the Yorta Yorta, fuelled with increased intensity by the racial politics of One Nation, which emerged from the aftermath of Mabo and Wik. This mindset remains a key impediment to land justice in the Mabo era, and it is against this background that the possibility of negotiating co- existive agreements in the claim area needs to be recognised. This time it was 'backyards', 'main streets', and 'bucketloads of extinguishment' that our opponents peddled as myths of the day (Victorian Government, Hansard, 12 November 1998:10– 25; Alford, 1999:43–4). In the absence of an equivalent-counter campaign, these myths were allowed to manifest themselves in antipathy towards local Indigenous groups. Indigenous communities were forced into a position of having to defend their rights against the attacks of the fearful and misinformed, rather than dealing with the issue at hand. The question of whether non-Aboriginal people are willing to abide by their own law's respect for Aboriginal title is pertinent to the YYNTC (see Chapter 5; Manne, 2000).

10.6 Who is Native Title Empowering? The issue of empowerment under the Native Title process was analysed (Chapter 6). It was argued that resources being committed to Native Title have created a 'Native Title Industry' and that the Native Titleholders to whom the industry owes its existence benefit the least. This was clearly demonstrated in the Native Title process. The Yorta Yorta sat patiently at the back of the court, waiting for justice to be delivered, while their independent voices were spirited away by outsiders. The expenditure of those opposing the Yorta Yorta claim has not been made publicly available. The Victorian (Kennett) Government alone is said to have spent four million dollars, not to mention that expended by New South Wales and other land and water authorities (Age, 8 March 2000; Riverine Herald, 28 April 2000). The ability of State governments to absorb such high levels of expenditure in opposing claims without public protest inevitably leads to a massive increase in the cost and complexity of the process for all parties. It also

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substantially enriches many of those who have opted to ride on the Native Title bandwagon. Given the enrichment of non-Indigenous parties, particularly the large cohort of lawyers, it seems likely that they stand to gain more from prolonging the proceedings than from resolving them. Indigenous people have been further disempowered by these litigious and protracted proceedings. Non-Indigenous professionals have become richer, while Indigenous claimants have had to wait impoverished on the periphery of the Native Title process. Against this background, it was argued that if the main source of empowerment, that is the Native Titleholders, were taken out of the equation the industry would not survive (Atkinson, 1999). Being the first contested Native Title case before the Federal Court, the Yorta Yorta found themselves confronting the combined might of a multitude of vested interests. The mercenary character of some lawyers, anthropologists and historians further exacerbated the battle. The knowledge and experiences appropriated from Indigenous studies and from other claims was sold to government and vested interests in attempting to undermine the YYNTC. Ethical bodies associated with such professions must give serious consideration to the implications of these practices. The notion that expertise should simply be made available on a 'first cab off the rank’ basis, in the manner of commercial legal practice has been put forward by some practitioners (see, for example, Maddock, 1998; Sutton, 1982), but this ignores the very nature of the knowledge on which disciplines such as anthropology and, to some extent, history depend. To obtain information from Indigenous people and then to reformulate it in the fashion most suitable to the needs of a 'client' opposing Indigenous interests places the researcher in the position of mercenary, or 'spy'. It brings the professions concerned into disrepute and has the potential to destroy the trust necessary if these disciplines are to continue their dialogue with Indigenous groups.

10.7 Conclusion The principles relied on for analysing the Yorta Yorta struggle within contemporary notions of justice and human rights can now be assessed. From an Indigenous analysis, it was argued that the Yorta Yorta have been in occupation of the claimed lands since time immemorial, and that the Anglo-Australian legal system treats Indigenous title as an inferior interest that can be extinguished without the application of fair and just principles. The differential treatment of Native title under Mabo requirements was exposed as an inequitable burden that the Native Title process imposes on claimants (Chapter 5). The meagre rights offered, the recognition space between the two systems

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of law, and the unreasonable expectations imposed on claimants were critiqued by Indigenous and non-Indigenous analysts (Chapters 5, 9–10). Rather than the burden falling on the Yorta Yorta to prove rights, a more equitable process would be one in which, the onus should reside with non-Indigenous titleholders to prove the nature of their tenure and the means by which Indigenous land and resources were acquired. Under these conditions it would seem that shifting the onus of proof and applying substantive equality principles, are important measures that went missing in the YYNTC. It was these overarching principles that were relied upon by the Yorta Yorta in the spirit of Mabo to challenge opposing interests and achieve just ends for Indigenous peoples. Land justice and the equality of rights that Indigenous people are seeking from the Australian legal system was the basis for analysing the YYNTC. It was shown that while procedural equality allowed us to vent the issues of land justice before the law, distributive justice as a means of correcting past injustices and of pursuing substantive equality was not delivered. The return of land is an essential stepping-stone to substantive equality. Without land as a spiritual, cultural and economic base, the notion of substantive equality is still to be realised. As demonstrated in Chapter 1, ‘special measures’ are fundamental human rights norms by which ‘substantive equality’ can be pursued. They are not deemed racially discriminatory but are designed to provide a disadvantaged group with a 'starting point for participating as equals'. Once their objectives are achieved they do not amount to separate rights (Chapter 1). In view of our current land status, it is asserted that native title hearings should be guided more by principles of substantive equality. The weight of the burden of proof imposed on the Yorta Yorta, and the differential protection given to settler rights, creates inequality. Notwithstanding the principle of formal equality, it is inequality that has been perpetuated in the YYNTC. The way the Native Title law was applied created the conditions of contestation and closure. While we were able to assert traditional rights before the law, distributive justice was closed off by the sequential barriers process. No sooner were old barriers to land justice being dismantled than new ones were constructed. The YYNTC is a graphic illustration of the way the process of contestation and closure was acted out in the delivery of distributive justice. That is, the application of the 'tide of history' and the construction of a previous land claim were used to close off access to our due entitlements. Justice appeared to be seen to be done, insofar as providing a process for contesting the grounds of Native Title, but when it came to the final crunch, it was not delivered. In the final analysis, it seems that it is not so much a question of the law providing justice for Indigenous people but one of how justice can be achieved against existing

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barriers. As witnessed in the Yorta Yorta case, the privileging of Anglo-knowledge and property rights and the derogation of Indigenous entitlements are inherent obstacles. Others relate to the shameful record of State governments in dealing with land justice, the antipathy of opposing parties and the mindset of regional Australia. These barriers are not dissimilar to those identified in Chapter 5 following Gove. That is, when the foundations of the law in relation to the ownership and control of land are contested, and ground appears to be gained in the struggle for justice, the system tends to close ranks. It becomes the instrument of power that is used to serve the vested interests of settler society and to maintain the status quo. Under these conditions, it is the power relations between the dominator and the controlled, and notions of racial superiority that are perpetuated (Chapter 1). The degree of opposition encountered, and the allocation of millions of dollars by Governments to oppose our claim is an example of status quo politics at play. This may be a sign of how deeply the psychosis of white domination and racism still runs, particularly within government and parts of regional Australia. As indicated at the outset, whether we have moved beyond our 'state of internal colonialism' or advanced to a ‘better understanding’, are important questions that confront the Reconciliation process. This is not to deny that these are ideals that Indigenous and non-Indigenous Australians are endeavouring to achieve, but as demonstrated in the Yorta Yorta case there is still a lot of healing to be done before real, genuine and effective Reconciliation can be achieved. Removing the structural barriers to Native Title and rectifying past injustices, including the empowerment of Indigenous people, are necessary steps towards the process of healing, but they are still matters of unresolved business. Whether or not the mindset of opposition, highlighted in the YYNTC, can be reconciled with Indigenous land justice is a challenge that confronts Native Title, the Reconciliation process, and the nation as a whole. The first historic task of Reconciliation surely must be a fair and just settlement of land for Indigenous people, as a basis for achieving substantive equality and autonomy. In the context of the quest for Reconciliation, the Yorta Yorta experience signified the intransigent refusal to recognise past wrongs and prior rights, and the need to repair past injustices. These are severe and enduring wounds that are integral to the Reconciliation process. Similar issues were raised by the United Nations Committees on the Elimination of Racial Discrimination, March 1999, and Economic Social and Cultural Rights, August 2000. The Committees judged the Australian Government harshly for passing Native Title Act amendments that discriminate against Aboriginal people. The amendments undermine human rights principles. They also contradict the need to avoid past mistakes

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that were held to be discriminatory and unjust (Mabo (No. 2) Brennan J. at 29, 40–3; ; Age 30 April 1999 and 3 September, 2000). While the Australian Government continues to ignore the findings, the reality is that the matter will stay on the United Nation's agenda. The plight of Aboriginal and Torres Strait Islander people has gained significant national and international attention. The spotlight being focused on the morally repugnant 'mandatory sentencing laws, racially discriminatory land rights regimes and the Stolen Generations Inquiry' are important matters for Australia's human rights credibility in the international arena (ATSIC, 1999). Finally, the appropriation of land and resources without consent or without the provision of compensation continues to deny Indigenous people their legal entitlements. The common law provides equality before the law for settler interests, but then treats Indigenous title as an inferior form of land ownership. The rhetoric of 'full respect' and equality supposedly given to Native Title in Mabo is not mirrored in the way it is being applied in the administration of Native Title law. As demonstrated in the YYNTC, the attainment of these principles is dependent on the extent to which a settler society is prepared to concede its dominant position to one of fairness and equality before the law. Native Title, in theory, seems to be trying to accomplish fairness and justice. In practice however, there are major flaws in the criteria being used to translate Indigenous law and knowledge into the Anglo-Australian legal system because of pre-existing norms and values. The NTA cannot be interpreted without reference to the existing context and interpretive tradition. The Yorta Yorta case exemplifies these inadequacies and highlights the prevailing barriers. From the evidence, I have argued that notions of racial superiority and the practice of institutional racism underpin Indigenous disadvantage and are used to marginalise Indigenous rights. These have served to entrench Indigenous inequality. Unless the barriers to land justice in the YYNTC are removed, the rhetoric of Mabo and the principles of law on which the Yorta Yorta pinned their hopes will remain elusive. With ‘not one iota’ of land arising from inherent rights, the words of Yorta Yorta elder and leader, William Cooper, revisit us in 21st Century Australian politico-legal discourse. One can be reassured that these words will continue to be the driving force of the Yorta Yorta struggle for land justice.

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Relevant Cases Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876. Administration of Papua and New Guinea v Daera Guba [1973] 130 CLR 353. Advisory Opinion on Western Sahara [1975] 1 11 ICJ 3. Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399. Asher v Whitlock [1865] LR 1 QB1. Attorney-General v Brown [1847] 1 Legge 312. Attorney-General for Ontario v Bear Island Foundation [1985] 15 DLR. 321. Attorney-General for Quebec v Attorney-General for Canada [1926] SCR 163. Ben Ward & Ors v State of Western Australia & Ors [1998] 1478 FCA. Brandy v Human Rights and Equal Opportunity Commission [1995] 127 ALR 1. Calder v Attorney-General of British Colombia [1973] SCR 313. Campbell v Hall [1774] 98 ER 848. Case of Tanistry [1608] 80 ER 848. Cherokee Nation v Georgia [1831] 30 US 1. Coe v Commonwealth [1979] 53 ALR 403. Coe v Gordon [1983] 1 NSWLR 419. Commonwealth v Yarmirr (DG6005 of 1998) and Yarmirr v Northern Territory (DG6006 of 1998) 68 ALR 426 FC. Cooper v Stuart [1889] 14 App Cas 286. Darkingung Local Aboriginal Land Council v Minister for Natural Resources (No 2) [1987] 61 LGRA 218. Delgamuukw v British Columbia [1991] 3 WWR 97; 1993, 104 DLR (4th) 470; 1997 152 DLR (4th) 185; 1998 1 CLNR 14. Fejo & Anor Larraki People v Northern Territory [1998] 119 HCA 58; (1998) 156 ALR 721. Finniss River case [1982] 29 SASR 597. Fletcher v Peck, [1810] 10 US 87. Geita Sebea v Territory of Papua [1941] 67 CLR 544. Guerin v R [1984] 13 DLR (4th) 321. Hamlet of Baker Lake v Minister of Indian Affairs [1979] 107 DLR (3d) 513. Hayes (Alice Springs) v Northern Territory [1999] FCA 1248; BC 9905696. Johnson v McIntosh [1823] 8 Wheat 543. John Dudu Nangkiriny and Ors on behalf of the Karajarri People v The State of Western Australia and Ors, WAG 6100/98 (Part Heard). Mabo v Queensland [1988] 166 CLR 186. Mabo v Queensland [1992] HCA CLR 1 QdR 78. Mabo v. State of Queensland (No. 2) [1992] 107 HCA ALR 1. Mary Yarmirr & Ors v The Northern Territory of Australia & Ors [1999] 771 FCA 112. Mason v Tritton, [1994] 84 LGERA 292; (1994) 34 NSWLR 572. Milirrpum v Nabalco Pty Ltd [1971] 17 FLR 141. Minister for Natural Resources v New South Wales Aboriginal Land Council [1987] 9 NSWLR 154 (CA).

263

New South Wales v Commonwealth [1975] 135 CLR 337. New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Department of Education Claim) [1992] 76 LGRA 192. North Ganalanja Aboriginal Corporation v Queensland [1995] 132 ALR. Onus v Alcoa of Australia Ltd [1981] 149 CLR 27. Pareroultja v Tickner [1994] 68 ALB 28 HC. Perry v Clissold [1907] AC 73. R v Murrell [1836] Legge 72. R v Sparrow [1901] 1 SCR 1075. R v Symonds [1847] 1 NZPCC 387. R v Van der Peet [1996] 137 DLR (4th) 289. Randwick Corp v Rutlege (1959) 102 CLR 54. Re Southern Rhodesia [1919] AC 211. Roy Sainty and TALC v Allen & Murray & La Trobe University 28/7/1995 FC- VG643/1995. Sac and Fox Tribe of Indians of Oklahoma v US [1967] 383 F 2d 991 (Ct Cl)). St Catherine's Milling and Lumber Co v R [1888] 14 App Cas 46. State Government insurance Commission v Trigwell [1979] 142 CLR 617. Te Weehi v Regional Fisheries Officer [1986] 11 NZLR 680. Tinglit and Haida Indians of Alaska v US [1977] F Supp 452. Tweed Byron Local Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act [1990] 72 LGRA 177. United States v Santa Fe Pacific Railroad Co [1941] 314 US 339. Western Australia v The Commonwealth [1997] 183 CLR 373. Wik Peoples v Queensland [1996] 187 CLR 1. Wik Peoples and Thayorre Peoples v Queensland [1996] 141 ALR 129. Williams v Attorney-General (NSW) [1913] 16 CLR 404. Worcestor v Georgia [1832] 31 US 515. Yarmirr v Northern Territory [1998] 156 ALR 370. Yorta Yorta Community v The State of Victoria & Ors [1998] FC- VG 6001-95. Aboriginal Affairs Reports Consulted

Victorian State Library, Melbourne and Mitchell Library, Sydney Department of Aboriginal Affairs, Victoria. Statistics Section, 1981. McLean Report on the Aborigines of Victoria, 1957–58. New South Wales Aborigines Welfare Board, Reports, 1940. New South Wales Public Service Board Inquiry, 1938. Royal Commission of the Aborigines in Victoria, 1877. Select Committee Inquiry on the Aborigines, 1836–37. Select Committee Inquiry on the Aborigines, 1845. Select Committee Inquiry into the Aboriginal Protectorate, 1849. Select Committee Inquiry into the Aboriginal Protectorate, 1859. Select Committee Report on the Aborigines of Victoria, 1859–60. Select Committee Inquiry into Land Rights in New South Wales, 1978. Victorian Aborigines Protection Board Annual Reports, 1861–86. Victorian Aborigines Protectorate System 1838–49, Various Documents. Victorian Aborigines Welfare Board Annual Reports, 1963–74.

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Newspaper Articles

Age, 29–30 June 1984. Age, 14 February 1994. Age, 12 July 1995:13. Age, 10 October 1996. Age, 19 May 1998. Age, 12 July 1998. Age, 24 August 1998. Age, 11 September 1998. Age, 24 October 1998. Age, 7 November 1998. Age, 30 April 1999. Age, 12 August 1999. Age, 1 November 1999. Age, 23 January 1999. Age, 3 February 1999. Age, 8 March 2000. Age, 10 April 2000. Age, 18 April 2000. Age, 4 October 2000. Australian, 24 February 1972. Australian, 3 February 1999. Sun Herald, 2 July 1983. Koorier, 3 August 1991. Koori Mail, 23 September 1998. Numurkah Leader, 17 August 1983. Numurkah Leader, 16 November 1983. Riverine Herald, 18 January 1999. Riverine Herald, 28 April 2000. Shepparton News, 10 August 1984. Shepparton News, 29 September 1994. Shepparton News, 22 September 1999. Sun Herald, 5 May 1984. Sydney Morning Herald, 7 September 1999

Aboriginal Organisations Cited

Rumbulara Aboriginal Cooperative, Mooroopna. Njernda Aboriginal Cooperative, Echuca. Shepparton Aboriginal Arts Council, Aboriginal Keeping Place Shepparton. Swan Hill Aboriginal Cooperative, Swan Hill. Dja Dja Whurrong Aboriginal Cooperative, Bendigo. Wurundjeri Land Heritage and Compensation Council, Dandenong-Healesville. Yota Yota Local Land Council, Cummeragunja. Yorta Yorta Tribal Council (superseded by YYMGRCI). Yorta Yorta Murray and Goulburn Rivers Clans Group Inc, Barmah.

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Yorta Yorta Witnesses in YYNTC A8 = Witness Statement t = Transcript of Evidence *= Named Applicants

*Ella Anselmi, exhibit A8. pp. 2–3, 22, 24–30, t. 211–12, 214–15, 583–8, 688–99, 744, 747– 51, 796, 1862–3. Darren Atkinson, exhibit A8. t. 1123–9, 2516–7, 2540–7, 2761, 4861–2. Doris Atkinson, exhibit A8. pp. 202–3. Henry Atkinson, exhibit A8. t. 1694, 2195–6, 2212. Kevin Atkinson Snr, t. 1721–30, 2328–33, 2354–6, 3670–1. Leon Atkinson, exhibit A8. t. 3812. Neville Atkinson Snr, exhibit A8. t. 568–70, 919–26. Neville Atkinson Jnr, exhibit A8. t. 321–2, 718, 730–2, 740–3, 620, 758, 1077, 1117 1977, 3052–5, 4364-5, 4374, 4979, 4982. Richard Atkinson, t. 1774–96, 1798, 2317. *Wayne Atkinson, exhibit A8. pp. 1–33, t. 1351–5, 1708, 5441, 5444. Elsie Bailey, exhibit A8. t. 2276, 2282, 5520. Sandra Bailey, exhibit A8. t. 5455. *Geraldine Briggs, exhibit A8. t. 260–1, 333–41, 3185, 4487–92, 834–6, 847, 4536–7, 4553. Josephine Briggs, exhibit A8.pp. 136–7 t. 813. *Ken Briggs, exhibit A8. t. 321–2, 330, 1077, 1345, 1577–8, 4979–82, 5657, 5679, 5681–3. Lesley Briggs, exhibit A8. t. 879, 1100. Paul Briggs, t.879, 892–4, 900–9. Roderick Briggs, exhibit A8. pp. 167, 176–80, t. 889–90, 1332, 1345, 5568–9, 5656–7, 5678– 82, 6116. Denise Morgan Bulled, t. 2047. Fay Carter, exhibit A8. t. 844. Wally Cooper, exhibit A8. t. 2913, 2941, 3064, 3069. *Elizabeth Hoffman, exhibit A8. pp. 39–40 t. 844, 1228–9, 1239–41, 1250. Melva Johnson, t. 1146– 77. Frances Mathyssen, exhibit A8. t. 333–4, 3185, 4487–92, 4536–7, 4539–4540, 4553, 4556, 10894–900. *Des Morgan, exhibit A8. pp. 6–8, 10–13, t. 1177–227, 1487, 3282–5. Monica Morgan, exhibit A8. pp. 52–3, 60–1, 64–5 t. 620, 730–1, 1494–5, 1277–80, 1287, 1497–8, 3259–60, 3873, 5520. Gary Nelson, exhibit A8.23 pp. 1–8 t. 230–1, 236–7, 240–3, 260–1, 588–92, 1327–8, 4143. Rochelle Patten, exhibit A8.31 pp. 1–8, 14 t. 1345, 652–66, 1329–34, 1345. Osley Patten, t. 3079–80. Hilda Stewart, exhibit A8. pp. 24–5. Norm Stewart, exhibit A8. t. 2657, 5558, 5565-6, 5582–3. Irene Thomas, exhibit A8. t. 2276–8. Zeeta Thompson, exhibit A8.t. 844, 2149, 2175–6, 4894, 4914. Alf Turner, exhibit A8. t. 245–6. *Colin Walker, exhibit A8. pp. 1–7, 8–12, 17–21, 34, 38–45, t. 1412–14, 1427–30, 1562–78, 1583–95, 2316–7. Shane Walker, exhibit A8. pp. 32–3 t. 5593–4. Kevin Whyman, exhibit A8. t. 2590–6, 5022. *Margaret Wirripunda, exhibit A8. pp. 154–55, 157–9, 161–2 t. 844, 5768.

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Other Witnesses in YYNTC Fels, M. The State of Victoria & Ors (1995–98) (VG 6001), Exhibit Vic 54–55, Appendix. 15, item 34, t. 7653, 7655, 7663–7664, 7670-2, 7678, 7703. Hagen, R. Yorta Yorta v The State of Victoria & Ors (1995–98) (VG 6001), Exhibit A17, A67. pp. 67–68, t. 3877–8, 3886, 3993, 6265, 6269, 6275–76, 6280, 6288, 6386–88, 6421–23, 6769–70. Harris, H. Yorta Yorta v The State of Victoria & Ors (1995–98) (VG 6001). Exhibit Vic 3.6.1, A67 Appendix. 3 t. 4984–8, 5767, 10830, 10849, 10856, 10864, 10873, 10875, 10894–6, 10898–9, 10900–06, 10909–10. Theresa Clements (ex A54–2–8) t. 62276, 6279–80. Maddock, K. The State of Victoria & Ors (1995–98) (VG 6001), Exhibit, and NSW: 3.1–3.3, pp. 3–4, t. 5886, 7297–99, 7308–10,7321–27, 7345, 7381, 7383–84,7492– 93, 7518. Rose, D.B. 1997b, Yorta Yorta v The State of Victoria & Ors (1995–98) (VG 6001), Exhibit Vic, A28, pp. 4–5, 28–9. Yorta Yorta Submission to the Federal Court on Native Title Exhibit A17.

Web Sites Consulted Yorta Yorta v State of Victoria and Ors (1998): The Olney J. Decision

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APPENDIX. 1

Chronology of the Yorta Yorta Struggle for Land Justice 1860–2000

Introduction The chronology is drawn from the oral and documentary evidence on Yorta Yorta attempts to claim land, water and compensation (1860-2000). It demonstrates that the assertion of rights to the ownership of land and the control of resources that culminated in Yorta Yorta v State of Victoria and Ors (1994–1999), have always been at the heart of the Yorta Yorta struggle. The chronology is set out in the following order: 1) A chronology of recorded attempts made by Yorta Yorta people and their representatives to claim land and/or compensation. 2) A detailed list of claims describing the nature of the claim, the way the claim was made, the response to the claim, and the reasons, where given, for its rejection.

1. Chronology of Claims 1.1. Yorta Yorta Claim for Compensation for interference to Traditional Fishing Rights 1860. 1.2. Petition to NSW Governor for Land 1881. 1.3. Land Rented or Purchased in the Names of Aborigines as Dummy Selectors 1885. 1.4. Attempts by Matthews to Secure Land from Victorian Authorities 1881–87. 1.5. Application to Victorian Board for Land to Establish a Fishing Reserve at the Barmah Lakes 1887. 1.6 Petition to NSW Governor for Land 19 July 1887. 1.7 Matthews' Final Attempts to get Land 1889–92. 1.8 Applications for Additional Cummera Land 1890 onwards. 1.9 Formation of Aboriginal Political and Land Rights Movement 1930s. 1.10 Petition to King George V for Human Rights including Land 1935. 1.11 Efforts to get back Land 1959. 1.12 Further Deputations for Land 1959–66. 1.13 Campaign to get back Land 1966.

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1.14 Land Rights Deputation to Canberra 1972. 1.15 Claim for Barmah/Moira Forests 1975. 1.16 Fight for Return of Cummera Land 1972–83. 1.17 Claim for Barmah Forest 1983. 1.18 Yorta Yorta v State of Victoria and Ors (1994–2000).

2. Details of Claims

2.1 Claims for Compensation: 1860 In 1860, the Yorta Yorta asserted their rights by seeking compensation for interference to their natural fishing areas by paddle steamers. They made their intentions known to a Government representative of the Protection Board who reported: Since the Murray has been navigated by steamers, the natives have found it scarcely possible to catch fish, heretofore their chief means of support. A native of the Moira (Yorta Yorta), who rode up the Murray with me, informed me of the intention of himself and five other Aborigines to proceed as a deputation to His Excellency the Governor to request him to impose a tax of 10 pounds on each steamer passing up and down the Murray, to be expended in supplying food to the natives in lue [sic] of that which had been driven away (Victorian Aborigines Protection Board, Annual Report, 1861:19).

No further reference is made of these requests or whether the government acted them upon. It does show, however, that the Yorta Yorta were clear about their Indigenous rights and independently made plans to seek compensation for the effects of the European intrusion.

2.2 Petition to NSW Governor for Land: 1881 On the 5 July 1881, a petition signed by 42 Maloga people was presented to the NSW Governor. The demands were for: a sufficient area of land to cultivate and raise stock; that we may form homes for our families [and in] a few years support ourselves by our own industry.

They asked this as compensation, because all the land within our tribal boundaries has been taken possession of by the Government and white settlers (Barwick, 1972:47; Cato, 1976, Appendix. 10).

The petition was refused at that time, however in 1883, almost two years later, a reserve of 1800 acres was gazetted adjoining the Matthews' property. This was the site that later

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became Cummeragunja when Maloga was closed and relocated on the new reserve in 1888–89 (Cato, 1976:12, 131, Appendix. 14 for location and details). Note: This was the particular claim that Olney J. construed as the acquisition of Native Title rights by the Yorta Yorta in Yorta Yorta v State of Victoria and Ors (1998).

2.3 Land Purchased in the Names of Aborigines as Dummy Selectors: 1885 Dummying The term 'dummying' was a method used by squatters after the introduction of legislation that threw open land for selection. It meant that when someone who was ineligible (eg, a squatter who already had land) to buy land employed or asked somebody else to apply for land on their behalf. When the applicant was granted the land they could then transfer it over to the person who was ineligible. John Atkinson (son on Granny Kitty) rented some land from Moira Station. This land was to the northeast towards Barmah where he erected a bark hut for his wife and children, and cultivated some acres of wheat. Matthews noted in his diaries that he suspected Johnny was dummying this land for Moira Station. Johnny Atkinson's farm venture was only short-lived and he later returned to Maloga. No further reference is made to his farming venture, but it is known that during this period land was being selected in the names of Aborigines by European landowners. John O'Shannasy of Moira Station is recorded as selecting and paying the deposit for land in 'the name of two Aborigines', as dummy selectors. No doubt one of these were Johnny Atkinson (Buxton, 1968:158). Many squatters in the Murray Region exploited this system as a way of retaining prime areas of river frontage land (personal communication, History Department, La Trobe University). 2.4 Further Attempts by Matthews to Secure Land from Victorian Authorities: 1881– 87 During this period, Matthews pleaded for assistance from the Victorian Board for land. He applied for land to set up a small reserve across the river from the Maloga site to enable him to set up workshops because any industry located at Maloga was subject to double customs duties at the Moama Bridge for import of raw materials, and export of goods when they were manufactured at Maloga. The Victorian Authorities again refused to grant any land to Matthews for the same reasons as mentioned (Barwick, 1972:47). Prior to the closure of Maloga in 1887, Matthews noted in his diaries that the Maloga people 'talked incessantly' of their desire to 'own' blocks of land. They wanted their own piece of land to work for themselves and pass on to their children – not a selling title but

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a grant in perpetuity. The administrators initially encouraged these ambitions, particularly when they wanted people to move to the new reserve after Maloga was closed. The Maloga people were led to believe that they would be granted land when they moved to the new Cummeragunja site. Furthermore, they were blackmailed into moving to the new site by being threatened to have their opportunity to own land taken away if they didn't (Cato, 1976:160).

2.5 Application to Victorian Board for Land to Establish a Fishing Reserve at the Barmah Lakes: 7 July 1887 Matthews applied to the Victorian Board for a fishing reserve for the Yorta Yorta at Moira Lakes, which is their traditional fishing grounds. The application was refused by the Board who could not: see its way clear to carrying out your suggestion of forming or assisting to form a fishing station at Lake Moira (Cato, 1976:169).

Matthews was well aware of the potential of establishing a fishing reserve at the Barmah Lakes and developing fishing as a commercial enterprise. From 1855, Rice's Murray River Fishing Company had made huge profits by exploiting the skills of Aboriginal fisherman, which they 'payed for in grog' in return for their labour (Cato, 1976:54).

2.6 Matthews' final Attempts to Get Land: 1892–99 After Matthews lost control of the Maloga Mission and was sacked as supervisor, he rented land on the Victorian side opposite Maloga where he set up a refuge for Aboriginal children. This place was called Beulah House, and again because of its location on the Victorian side and its potential undermining of Victorian Aboriginal policy, Matthews' venture was closed in 1899.

2.7 Petition to NSW Governor for Land: 19 July 1887 On this day Jack Cooper, son of Granny Kitty, and brother of Bob, William and Ada read an address of welcome to Lord Carrington at the Moama Railway Station on one of his visiting stops with a vice-regal party. Cooper presented a petition to His Excellency asking that one hundred acres of land be granted to such Aboriginal men who were capable of farming, in order to support themselves and their families (Cato, 1976:231). The petition was not granted, but from 1896–1907 some land was granted as farm blocks for individuals. These were about forty acres each, according to oral history evidence, and they were cleared, sown and harvested by Yorta Yorta people. For example: 'six small blocks were allotted in 1895 and another seven during 1896, and by 1898 twenty were being cultivated and cleared' (Barwick, 1972:42–3; Atkinson, 1981a).

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2.7.1 Blocks taken back by Board In 1907, just eleven years after the farm blocks were granted, the pioneer farmers received a most disheartening blow from the NSW Board. The Board decided to revoke the twenty individual holdings and informed the holders that they did not have title, as they had always been led to believe, but merely 'permissive occupancy' (Barwick, 1972:53). The Board's reasons were that the land was being misused, as they had leased some of their blocks to outsiders for grazing during the years 1903-07, and thus had sown less crops. In fact, the decision to lease some of their land for stock use was an intelligent response to a fearsome drought that killed two-thirds of the State's livestock, forced hundreds of Europeans off their land and was finally broken, not by rain, but by floods (Barwick, 1972:53–4). At least the Aboriginal farmers gained some return for their land by leasing the remaining grass and thus were able to carry on. This was indeed an act of good farm management, but the Board did not agree, which was a blatant contradiction to their management program in 1914–18. During this period, when faced with similar adverse conditions the Board agreed that agistment fees and leases would provide a useful supplement to the Cummeragunja Station's income (Barwick, 1972:57). The underlying reason that the Board revoked the farm blocks was that it wanted to make Cummeragunja self-supporting by making the able-bodied and successful Aborigines support the whole community. The irony of it all was that those Aborigines who had adopted the European work ethic were rewarded by being forced back into a cooperative effort (Broome, 1994:81).

2.8 Applications for Additional Cummera Land: 1890–1900s

The original reserve of 1800 acres was inadequate for pastoral and agricultural development, as there was only four hundred acres of sand hill above flood level and suitable for cultivation. The remainder was heavily timbered and subject to flooding. 2.8.1 Additional Grants Pressure from local settlers defeated the Board's 1885 and 1887 applications for extensions, but three additional grants were made between 1890 and 1900: 90 acres, 510 acres and 320 acres. Soon after 1900 an additional 254 acres was granted, which combined to make the total size of 2,965 acres (Barwick, 1972 50).

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2.8.2 List of Areas of Land Granted

1. 1881 800 acres 2. 1890 90 acres 3. 1899 510 acres 4. 1900 320 acres 5. 1900 onwards 245 acres

Total 2,965 acres In view of this amount of land granted on a 'temporary basis' for Aboriginal use, one needs to consider it in the context of the original land occupied by the Yorta Yorta (see Figure 1). The map indicates that the amount of land the Yorta Yorta gained was infinitesimal in relation to their traditional lands that were forcibly taken. Moreover, because Aboriginal occupation of Australia was never legally recognised by the British and later Australian Governments, Aborigines had no secure tenure to their reserves nor did they receive any compensation for the dispossession of their tribal land. In Canada, New Zealand, Papua New Guinea and North America, settlements were made with the Indigenous people that recognised prior occupation and title to land. Different groups were granted perpetual tenure of specific portions of their traditional lands as compensation for the relinquishing title to their lands (Barwick, 1972:14). In this context it is even more disturbing when one considers that nearly all the 2,965 acres of Cummera land was leased to European farmers from 1921. Most of these were only short term, but pressure had been building up since the 1890s for leases, and in 1934 the Board gave a European neighbour a ten-year cultivation and timber lease of 2,000 acres for only 416 pounds a year. Leases of almost the entire reserve to Europeans were continued through the 1940s and 1950s (Barwick, 1972:14–15, 56–7).

2.9 Formation of Aboriginal Political Movement During the 1930s, Cummeragunja people were instrumental in forming the first Aboriginal Protest Organisations in the capital cities. These were the Aborigines Progressive Association established in Sydney in 1933 and the Australian Aborigines League in Melbourne in 1933. These Organisations were the springboards from which other organisations gained their inspiration and indeed, from which the National Movement can trace its origins. Their main concerns were for the abolition of the Protection Board and its restrictive laws, better conditions for Aborigines living on reserves and equal citizenship rights. The call for land rights was also a major part of their charter which they recommended – 'that a special policy of land settlement for Aborigines should be put into operation, whereby

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Aborigines who desire to settle land should be given the same encouragement as that given to Immigrants and Soldier Settlers, with expert tuition in agriculture, and financial assistance to enable them to become ultimately self-supporting (Horner, 1974: 69–70).

2.10 Petition to King George V: 1935 In 1935 William Cooper drafted a Petition signed by 2,000 Kooris asking for representation by Aborigines in Parliament, a unified and National Department of Aboriginal Affairs, and an advisory panel in each State consisting of European experts and Aborigines (Horner, 1974:47). Cooper also sent a letter to the NSW Premier's Department asking for the development of Aboriginal lands in NSW, suggesting that Cummera could be an ideal experiment that other reserves could follow (Annual Report of the Australian Aborigines League, 1936:6). These proposals and the petition won considerable publicity and public support, which impelled Commonwealth authorities to convene a Conference of State Ministers in April 1937 to discuss the adoption of a new policy of assimilation (Barwick, 1972:62).

2. 10.1 Deputation to Prime Minister: 1938 On the 26 January 1938, Cummera people led the first Aboriginal deputation to Canberra to advise the incumbent Prime Minister on the need for Commonwealth intervention to improve Aboriginal Welfare in all States by establishing what they called a Ministry of Aboriginal Affairs (Barwick, 1972:67–8). The deputation gained little result and people left discouraged (Horner, 1974:16–63). 2.10.2 Loss of Land: 1953–59 In 1935, the Board requested the Lands Department to revoke the reserve of all but 200 acres, on the ground that the land was no longer needed for Aborigines. The revocation, however, was not made immediately, but four years later in 1959, 1,535 acres had been revoked and subsequently leased by the Lands Department to a farmer who had used it since 1934. The remaining land, 1,427 acres, including the 200 to be retained as an Aboriginal reserve, was being farmed by other Europeans under Permissive Occupancies granted by the Lands Department to under leases granted by the Board. An Aboriginal resident describes the loss of land by saying: 'Because the land up to our doorstep was leased, residents had to work elsewhere as farm labourers' (Barwick, 1972:64).

2.11 Efforts to Get Land Back: 1959 In 1959, Cummera residents with the support of the Aborigines Advancement League began to investigate the possibility of cooperative farming, and petitioned for the use of

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the land still reserved. One lease of 200 acres ended on the 31 December 1959 but farming on this land was virtually impossible because it was overtaken with burrs.

2.12 Further Deputations for Land Residents continued to send letters and deputations to the NSW authorities asking for the use of more of the land that their forebears had cleared. The Board's response, however, was that the persistence of separate Aboriginal communities was inconsistent with the policy of assimilation, and adhered to its plans for revocations and the dispersal of residents (Barwick, 1972:64). The remainder of the reserve was leased until 1964 despite Crown Law opinion at the time that leases had 'always been illegal,' for the Board had never had authority to hand over reserves to persons who were not Aborigines. Reserves, as previously mentioned, were Crown Lands reserved from 'lease or sale' for 'Aboriginal purposes' (Barwick, 1972:64).

2.13 Campaign for Return of Cummera Land: 1966 After forty-five years of complaints and seven years of direct negotiations with the Board, the descendants of the pioneer farmers finally won permission to begin farming Cummera once again (Barwick, 1972:64).

2.13.1 Conditions of 1966 Agreement The agreement signed in 1966 made them merely 'tenants at will' of the Board, who could cancel their tenure on a month's notice and retain all fixed properties and assets (Barwick, 1972: 64.). 2.13.2 Recommencement of Farming: 1968 In February 1970 the NSW Ministry of Aboriginal Affairs, which was established in 1968, granted a loan to the fifth generation descendants of the pioneers to develop their farming on the remaining land at Cummera.

2.14 Land Rights Deputation to Canberra: 1972 In 1972, descendants of the Yorta Yorta joined another deputation to Canberra to protest against the 16 January 1972 declarations of the Commonwealth policy by the Prime Minister, which still denied recognition of Aboriginal title and traditional land rights. The press and public paid little attention and the Minister responsible for Aboriginal Affairs later told Parliament: Freehold in the Australian legal system represents a holding from the Crown tantamount to exclusive ownership of the land, entailing a right to take out

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and dispose of the land, as the title holder wishes. This notion, we believe, is alien to Aboriginal thought and custom (Australian, 24 February 1972).

2.15 Claim for Barmah Forest: 1975 Between 1972 and 1983 there have been other important claims made by Yorta Yorta people for land and compensation. These were for the Barmah Forest in 1975 and Cummera lands. The Aborigines Advancement League, the National Council of Aboriginal and Islander Women and the Victorian Council of Aboriginal Culture supported them. Yorta Yorta people were instrumental in setting up these organisations (Margaret Wirripunda, 1985). The claim for the Barmah Forest was again lodged in 1984 without success.

2.16 Return of some Cummera Lands: 1983 Cummera people lobbied for the return of the former reserve lands that were leased to Europeans in the 1930s. As indicated in Chapter 4, they lobbied State and federal Governments and were successful in gaining the return of some of the reserve lands in the 1970s and in 1983 (approximately 1,200 acres) under the Aboriginal Land Rights Act 1983 (NSW) (see Chapter 4).

2.17 Yorta Yorta Tribal Council: 1983 In April 1983, Yorta Yorta members held a meeting in the Barmah Forest to discuss the Victorian Land Conservation Council's Report on the Murray Valley region, with the aim of forming a Council, which would be the representative body for land, compensation and cultural issues relating to Yorta Yorta people and their tribal lands. The Yorta Yorta Tribal Council was formally established from this important meeting and given a mandate to represent Yorta Yorta people in those matters, particularly the Barmah, Millewa and Moira Forests, which are the heartland of Yorta Yorta ancestral lands. The emergence of the Council was a very important historical event for the Yorta Yorta people, because it marked one hundred years since their ancestors were first granted a piece of land in response to their petition to the NSW Government in 1881. In April 1883, they were granted 1800 acres of their traditional land on a temporary basis for their future use. This was the original piece of land on which Cummera was established (see claim No. 2 in Chronology). The forty-two people who signed the petition were the founding ancestors of Maloga and Cummera. Present day descendants trace their genealogical links directly back to these ancestors.

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In this context, the Council was symbolic in that it marked a century since their ancestors first petitioned for land rights and it emerged from the forest, which is still today seen as a significant part of Yorta Yorta lands. It is the keeping place of Yorta Yorta cultural heritage and the resting place of Yorta Yorta people's spirits.

2.18 Yorta Yorta v State of Victoria and Ors (1994–2000) The Clans Group superseded the Tribal Council in 1989 and carried on with the work of the Tribal Council. In March 1993 the Clans were advised of their rights to claim land and compensation as the Traditional owners and occupants of lands within their tribal territories. The advice came from the legal council employed by the Victorian Aboriginal Legal Service to consult with Aboriginal communities in Victoria in relation to the Mabo High Court Judgment in June 1993. The Clans Group and its members decided to lodge another claim for lands within their traditional territories and for compensation, which is still before the Federal Court under the Native Title process.

Conclusion The foregoing events illustrate that for more than a century the Yorta Yorta people's struggle for land and compensation as a fundamental right have always been at the heart of the Yorta Yorta people's conscience and beliefs. The history clearly demonstrates that Yorta Yorta people had explicitly petitioned for land as 'compensation' for their stolen tribal territories in order to gain self-determination and economic security. From these requests they expected 'secure tenure' but received only 'permissive occupancy' of Crown Lands controlled by the Protection Board and the Lands Department. The Yorta Yorta Clans Group's current claim on behalf of Yorta Yorta people is a clear indication that the question of justice is still the main item on the Yorta Yorta agenda and is a continuation of the struggle that began over a century ago. It is imperative therefore that the current claim be understood in its proper context.

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APPENDIX. 2

Yorta Yorta Policy on Claimed Lands and Waters 1996

Introduction The policy document is a working paper that was presented to the National Native Title Tribunal and the Federal Court as part of the Yorta Yorta evidence in support of their Native Title Claim 1995–2000. It is a working document only and provides policy proposals on future management strategies for the land and waters being claimed. (See map and details of claim in thesis.)

1. Yorta Yorta Policy Statement The policy objectives on those matters relating to lands, waters, natural and cultural heritage that are embraced by Yorta Yorta lands are set out. The policy document is not final but it does provide some preliminary directions in relation to the study area and it also identifies some of the key potential threats to those values it seeks to maintain. The New South Wales and Victorian Governments and private users of the lands must recognise that the Yorta Yorta are the Native Titleholders of the claimed land and waters, and respect the Yorta Native Title rights. These rights are detailed below, being rights available under the Native Title Act 1993 (Cwlth) (NTA). These rights include a right to exclude others and exercise control over the claimed lands. The Native Title rights being claimed can and will be exercised according to law, especially the NTA, should mediation prove unsuccessful.

2. Joint Management Plan and Board of Management Establishment of a Joint Management Plan to be developed between the New South Wales Government, the Victorian Government and the Yorta Yorta. The Plan will establish a Board of Management in relation to the claimed land and waters. The Plan will reflect the acknowledgment by the New South Wales and Victorian Governments of the right of the Yorta Yorta to a decision making role in the management of the claimed lands and waters within the Yorta Yorta territorial boundary. The Yorta Yorta's participation in management in terms of day-to-day activities will be as an equal partner, not as subordinates providing advice when asked. The Joint Management Plan will be part of a joint management arrangement in which the Yorta Yorta have management decision making powers and a power of veto over all decision making in respect of the claimed land and waters. The Plan of Management will set out the purposes for which the claimed land and waters are to be managed, the

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manner in which the management will be carried out, by whom and by what means. The Plan will set out the rules for the claimed land and waters and will entrench the rights of the Yorta Yorta, including their Native Title rights and other rights under the NTA, particularly the 'future act' provisions of the NTA, with respect to the use and management of the claimed land and waters. Through the Board of Management the Yorta Yorta will be involved in management at all levels, including policy formulation. If agreement is reached on the terms of a Joint Management Plan, it will be subject to inquiry and determination by the National Native Title Tribunal under the NTA.

3. Board of Management The powers of the Board will concern, amongst other things, management and control of water rights and utilisation regimes; timber production; grazing; general use of the claimed lands; and cultural heritage matters. The Board of Management will be structured such that the Yorta Yorta have a majority representation. The Board of Management will include representation from the Victorian and New South Wales Governments. The Board of Management will make general policy decisions and the Yorta Yorta people are to have a power of veto over decisions made by the Board in administering the Plan of Management. Management decisions by the Board are to be implemented according to the Plan. For land and waters falling in New South Wales or Victoria, the present government departments involved will implement the Plan and Board decisions and will act on behalf of and subject to the decisions and direction of the Board and the Plan. The Board of Management may receive advice as required from the advisory and decision making structures, committees and other bodies, which currently exist and operate in relation to the claimed areas. 4. Exercise of Native Title Rights Under the Management Plan to be administered by the Board of Management, the Yorta Yorta may exercise the following Native Title rights according to law, especially the NTA, in respect of the claimed areas: 4.1 The right to exclude others; 4.2 The right to make use of natural resources; 4.3 The right to participate fully in determinations concerning land and water management or development programs which impact upon the natural resources and natural environment;

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4.4 The right to prevent actions which may damage the lands, the natural resources or the natural environment; 4.5 The right of access; 4.6 The right to live on the lands; 4.7 The right to maintain cultural and spiritual interests in the areas; 4.8 The right to be buried in and ensure the protection of burial grounds, ancient and modern, located within the lands; 4.9 The right to continue traditional fishing and food gathering practices; 4.10 The right to use traditional management practices eg. fire.

5. Policy on Specific Areas The Management Plan and Board of Management, in addition to and as a means of complementing Yorta Yorta Native Title rights, will develop policy, amongst other things, on the following issues: 5.1 Timber production 5.2 Grazing rights 5.3 Water rights and regimes 5.4 General recreational and tourist uses 5.5 Cultural heritage.

5.1 Timber Under the Management Plan, in both New South Wales and Victoria, the agent of day- to-day management of the timber production regime will be the governmental management structures, which presently exist. These agents are to monitor, regulate and renew any timber permits or licences in accordance with policy pursuant to the Management Plan, decisions of the Board of Management and the NTA and other relevant estate laws. The Board of Management will receive advice from the relevant structures, organisations, committees and other bodies currently operating with respect to the claimed lands. The Board of Management is to have power of veto in relation to the abovementioned agents' decisions on timber production licences and permits if such decisions are inconsistent with or contravene policy, Board of Management decisions, the Management Plan, the NTA (particularly the 'future act' provisions of the NTA), or other relevant laws.

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As an indication of general policy, the Yorta Yorta favour gradual phasing out of timber production in the claimed lands. The Yorta Yorta want to regenerate and maintain the claimed lands in a natural and healthy state. This will be achieved in the future by a policy of protection of Yorta Yorta Lands against logging. In the interim: a) Timber production should be limited to designated areas to minimise the impact of timber harvesting on environmental, recreational and cultural values. b) Timber production in designated areas may also include Yorta Yorta timber production operations or ventures in the form of dead wood operations only. c) The Yorta Yorta are to receive royalty and/or access fees for timber production by current and any future permit and licence holders. These fees are to be applied towards the uses described in the Management Plan. The uses will all be associated with management, regeneration and improvement of the claimed lands.

5.2 Grazing Under the Management Plan the present New South Wales and Victorian government structures, acting as agents for the Board of Management, are to monitor, regulate and renew within their respective judiciaries any grazing permits or licences in accordance with the Management Plan, Board of Management decisions, the NTA, and relevant State laws. The Board of Management is to have general power of veto in relation to the abovementioned agents' decisions on grazing licences and permits over the claimed lands if such decisions are inconsistent with or contravene policy, the Management Plan, Board of Management decisions, the NTA (particularly the 'future act' provisions of the NTA) or relevant State laws. In relation to grazing, the Yorta Yorta favour a gradual phasing out of grazing within the claimed land with a complete removal of cattle in the long term. In the interim: a) The Yorta Yorta aim to minimise grazing impact on water, soil, flora, fauna, archaeological and other Aboriginal sites by limiting grazing to designated areas at designated times. Winter grazing should be stopped. There should be no grazing on riparian zone vegetation areas or around the Moira and Barmah Lake areas. b) The Yorta Yorta oppose the proposed legislation currently being prepared for the spring session of the Victorian State Parliament for grazing leases and/or licences with a tenure of thirty-five years.

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5.3 Recreational and Tourism Uses As to general, recreational and tourism uses of the land and waters, the Yorta Yorta want to utilise the present governmental structures currently existing in both New South Wales and Victoria for the implementation of Board of Management policy and decisions. The agent of day-to-day management will be the current relevant New South Wales and Victorian government departments involved in monitoring, regulating and renewing permits and licences for general, recreational and tourism uses in the claimed lands and waters. The Board of Management is to have power of veto in relation to the abovementioned agents' decisions on permits and licences if such decisions are inconsistent with or contravene policy, Board of Management decisions, the Management Plan, the NTA, (particularly the 'future act' provisions of the NTA), or relevant State laws. As an indication of general policy, the Yorta Yorta favour, amongst other things: a) A moratorium to be placed on all proposed changes to existing schemes of management and ownership of land and water within the claimed lands and waters until negotiations between the Victorian and New South Wales governments and the Yorta Yorta have been concluded pursuant to the forthcoming mediation conferences. b) Control over the pace and nature of development on their claimed lands and waters and control over rights of general access including, camping and other recreational uses. c) Minimising the impact of apiculture on native flora and fauna. Apiculture is to be monitored and, subject to eliminating any known adverse effects, the Board of Management will regulate apiculture with permits. d) Eco tourism and cultural tourism on the claimed lands to be pursued only on Board of Management terms. These must commence or continue only with Board of Management informed consent, and must be consistent with Board of Management policy under the Management Plan. e) Reservation of areas of claimed lands and waters for cultural and ceremonial purposes. f) A general prohibition of power boating, trail bikes, bardigrubbing, off-road horse riding and off-road four wheel drive vehicles. g) Removal or eradication of all feral animals within the claimed lands. h) Control and protection of, including copyrights, all traditional food and medicine plants.

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5.4 Water Rights & Utilisation Regimes As to water rights and utilisation regimes, within the claimed areas, management decisions implemented according to the Management Plan will be made by the Management Board. The agents of day-to-day management of the Board's decisions will be the Murray Darling Basin Council, Murray Darling Basin Commission, Community Advisory Committee and all constituent State and federal departments, and advisory catchment committees, where applicable. These agents are to monitor, regulate and make day-to-day decisions on water rights and regimes within the claimed areas. The Management Board will, amongst other things: a) Have power to veto decisions made by its agents concerning water rights and allocation of water regimes, including environmental flows of waters within the claimed areas if such decisions are inconsistent with or contravene policy, the Management Plan, Board of Management decisions, the NTA (particularly the 'future act' provisions of the NTA), or relevant State laws. b) Make decisions on minimum standards of water quality on waters within the claimed areas. c) Have decision making power in relation to the proposed privatisation of irrigation and stock water entitlements in relation to waters within the claimed areas, which is currently on the Murray Darling Basin Commission Agenda. d) Have decision-making power on proposed levee bank systems. As an indication of general policy, the Yorta Yorta favour a water regime system which emulates natural wetting and drying regimes, including reinstatement of regular and seasonally favourable flood events of sufficient extent and duration by way of an environmental water allocation. The Yorta Yorta wish to maintain a minimum standard of water quality and to reduce the level of drainage of nutrients and herbicides into waters within the claimed area.

5.5 Cultural Heritage The Management Plan to be developed jointly between the Yorta Yorta, New South Wales and Victorian governments will set out a general scheme, including providing for the implementation of Yorta Yorta policy on Aboriginal cultural heritage issues. Under that scheme, the Yorta Yorta will facilitate the control of and make policy decisions on cultural heritage information within the claimed areas. The Management Plan and policy decisions will deal with and include, amongst other things: a) The establishment of mechanisms that will enable Yorta Yorta control and protection of, Aboriginal sites of significance within the traditional land and waters.

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b) A system of appropriate Yorta Yorta representation in employment and training as administrators, rangers and cultural officer positions within the claimed areas. c) Board of Management control of programs, general management, employment and administration of the Dharnya Centre. d) Implementation of the Management Plan and Board of Management policy and decisions will involve the New South Wales National Parks & Wildlife Department and the Victorian Archaeological Survey acting as agents of the Board of Management in relation to protection of sites of significance and the carrying out of other works in relation to those sites in and around the claimed areas. (e) Board of Management involvement in public education in relation to Yorta Yorta cultural heritage. f) Mechanisms by which the Yorta Yorta will have rights to access and control all historical and present information and materials (including Yorta Yorta intellectual property rights), pertaining to the Yorta Yorta People, Lands and Water. g) The compiling and control of access to a detailed register of all information and materials pertaining to Yorta Yorta cultural heritage. h) Return of all skeletal remains and artefacts, wherever located, to the Yorta Yorta people. i) The establishment of mechanisms to enable the Yorta Yorta to control, protect, and access traditional food and medicinal plants.

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APPENDIX. 3

List of Yorta Yorta Ancestors

Introduction The list of Yorta Yorta ancestors presented to the Federal Court are the 'known ancestors' that were in occupation of the claim area at colonisation, and through whom the Yorta Yorta community trace their connections to the Indigenous ancestors that were in occupation since time immemorial. The list is drawn from oral and documentary evidence presented by the Applicants (see Chapter 9).

1. Edward Walker It is interesting to note the progression in Olney J.'s interpretation of the significance of the tribal identities in the Maloga lists. In para. 69 he suggests that 'it is likely' that people described as 'of the Moira tribe' were so identified 'simply because of their place of residence.' When discussing Edward Walker in para. 72 he suggests that Matthews' identification of his 'tribe' as Ulupna is consistent with him having been living at Ulupna in the claim area immediately before his move to Maloga but suggests that at some stage he had moved from the Moira region where he was born.

It would, of course, be equally consistent with him having been born at Moira but having interests at Ulupna by descent. It is also consistent with him having interests in more than one place, a process recognised in general terms as possible/probable by the various experts called in the case. Olney's concept of 'place of residence' and 'moving' seems a very Euro-centric one. The evidence from Robinson who provides direct evidence of people associated with a wide range of named local groups living and travelling together throughout the original lands in the earliest days of settlement, and from Matthews himself who draws attention to a high degree of mobility amongst the community at the time of Maloga, suggests that the Indigenous community was highly mobile within the broad Yorta Yorta area throughout this period. So too does the obvious interchange between Wahgunyah and Maloga shown readily by comparing individuals identified in the Fels (1995–98) materials re Wahgunyah with the Maloga records in Mr Maloga. These people were not static, but travelling through various parts of their lands. By para. 100 (below) Olney has firmed up his view that Matthews Maloga lists deal only with residence at the time of entering Maloga:

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The fact that in Matthews' 1883 list he and his family are shown as being of the Ulupna tribe indicates only that prior to 1877 he had lived at Ulupna and Matthews' 1883 description of his 'tribe' as Ulupna appears to merely reflect his place of residence immediately prior to his move to Maloga.

There is no documentary evidence indicating that he lived at Ulupna prior to entering the Mission. There is evidence of his family living at Moira at this time, and there is evidence of his living at 'Korong' in 1876 (6 months prior to entering the mission. He was actually visited there by Matthews.). Olney's speculation about this matter has very little underlying it. Effectively, though, he uses it as the basis to ignore any further consideration of the Ulupna area in his deliberations and to completely ignore the evidence contained in the Maloga lists of locations other than Moira when considering other ancestors. In light of the extent of such evidence, Olney goes on to say that 'nothing is know of Edward Walker'. Nothing more is known if you ignore the Indigenous evidence completely! (See various witness statements and transcripts 1237-1239, 1416, 1545-47, 1572, 1576-7, 3171, 3192-3, 3980-81, 3989, 3991, 4594, 4676, 4844, 5538, Also Hagen evidence transcript 6261, 6262, 6267, 6287-8, 6510-2, Harris 10849, 10864 ff. See also Ronald Morgan reminiscences in which he discusses Edward Walker (Morgan, 1952). Olney concludes that the evidence 'provides a reasonable basis that Edward Walker’s antecedents were Indigenous inhabitants in 1788 of the part of the claim area known as Moira' (at 57).

2. Kitty Atkinson/Cooper Olney J.seems to favour an 'either/or' view of association for Kitty, with either the 'Wallithica' or Moira. There is nothing inconsistent with the evidence in regarding her as both. Again, Olney makes no use of the very extensive Indigenous references to Kitty but does make the inference that Kitty's paternal grandfather was an Indigenous inhabitant of part of the claim area in 1788 (at 58). It is with the other ancestors that Olney J. has great difficulty in establishing Indigenous connections to the claim area. I will discuss his findings individually and then look at the evidence presented in the genealogical information in support of the ancestors as Indigenous to the claim area at colonisation. These are:

3. Alfred Morgan In transcripts 2506-7, 5094ff, 6264-5, 6708, 10904-5, Hagen Sup Rep Ex A67, Alf Morgan is identified by Harris (p. 12.4) as 'Moira tribe'. The same Alfred Morgan, Moira Tribe, appears in the Maloga Mission lists for 1884 (Hagen Ex A67, Appendix. 5.26) having entered the mission in January 1882, shown as born at Warr-parilla (ie.

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Wharparrila – a couple of kilometres west of Echuca) on certificates (cited in Olney para. 74). Olney J. subsequently makes the comment in para. 89 that 'Alfred's place of birth remains a mystery'. Olney's comment itself becomes more of a mystery still when one considers his own contribution to the transcript (p. 10904) on the issue: Mr Howie: Right. Now, it is 54 and 55, is that the marriage certificate of Alfred Morgan and Caroline Ferguson?

Helen Harris: That is right.

Mr Howie: He is shown as having been born at Warrparilla, that is W, I think u-r-r, or it might - w-a-r-r, Warrparilla, and it is p-a-r-i-l-l-a, which I think is - - -

His Honour: Just near Echuca.

Mr Howie: Near Echuca, yes. I was hoping somebody would remind me. And he is shown as being the son of a man named Morgan who was a squatter and Mary, an Aboriginal.

4. George Charles Olney notes that there is a 'degree of conflict between the information on George Charles' death certificate and that on the birth certificate of his son' (p. 75). Presumably Olney is referring to the furphy raised by Victoria concerning George Charles' birth place, which is described as 'Wyuna Station' on his son Thomas' birth certificate, and as 'Goulburn River, Simpson's Push' (or possibly 'Simpson's Reach' or similar – the second phrase is almost illegible) on the death certificate. Wyuna Station is on the Goulburn River within close proximity (21–15kms) to the Maloga Mission. It's a bit like saying there is a conflict between the suggestion that someone was born in Melbourne and that they were born on banks of the Yarra! There is no conflict between the two alternatives offered. Why does Olney draw our attention to it, even when there is none? (See transcripts 6265– 6270, 10906, Hagen Sup Rep Ex A67; Mr Maloga lists 'Echuca Tribe'; Tindale sheet C2b, C5 (possible ref to mother as 'F.B. local moira tribe'), C3b (mother as 'FB of Mulwalla'); Harris 2nd report, Appendix. 12.1, Harris 1st report, p. 14).

5. Margaret Nelson Nothing is known of Margaret Nelson's antecedents except that she was born to the south of the claim area in the early 1860s (p. 76).

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Contrary to Olney's suggestion, there is, however, some very significant material concerning Margaret's antecedents contained in the Tindale genealogies (Appendix to Harris' first report, Ex 3.6, sheets c12). Margaret Nelson is identified on sheet c12 as one of Tindale's informants (age 77 or 78 in June 1938 suggesting a birth date around 1860). Margaret's mother was 'Mary Jane', from 'Station on the little river near Keywar [i.e. Kiewa – RH] Vict. Mr Mitchell's Stn.' Tindale has also added the following annotation after her mother's name, obviously documenting a comment from Margaret herself: 'My people have land as far as Wangaratta'. Margaret's grandmother (bear in mind Margaret herself was born circa 1860) is identified as Maryann and her grandfather as King Billy (both of solely Aboriginal descent). A Mary Ann, living in the same area, just to the southeast of the claim area, is identified by Robinson as 'Waaringilum' (a variant of 'Kailetheban' – one of the Bangarang groups) in 1840 (see Hagen transcript 6269). Hagen provides the following description in his evidence: Roderick Hagen: The descendants of Granny Mag Nelson, in fact, also make their claim as Yorta Yorta people by other means. But I think it is interesting that in this case we have a person who is identified by Tindale quite clearly with the eastern parts of this claim area and who apparently was a quite significant figure in the community generally, also as an antecedent of many of the applicants, in fact. There is another interesting connection in Robinson's material concerning Granny Mag Nelson, Margaret Nelson, in that Robinson, on 11 May 1840, when at Mount Battery in the course of one his trips into the claim area, identifies a woman by the name of Mary-Ann, who he calls a waaringulum. Mary-Ann, in fact, is the grandmother's name of Granny Mag Nelson. But there is a coincidence not only of name but also of location and, I would suspect, approximate ages between Mary-Ann, on 11 May 1840 at Mount Battery Station, just to the south-east of the claim area.

Olney's comment that ‘Nothing is known’ of Margaret Nelson’s antecedents is challenged by the available information.

6. Louisa Frost Louisa Frost's father was non-Aboriginal. She was born at Mathoura (within the claim area) in about 1855. There is no evidence to connect her mother Topsy with the claim area apart from the fact that she would have been present at Mathoura when Louisa was born. This is insufficient to justify drawing any inference relating her back to the indigenous inhabitants of the area in 1788 (Olney J., para 92).

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Again, we rely on the information about Louisa herself, not the information of her mother. Louisa is: 1) Identified as 'Moira Tribe' in Maloga lists (Ex A67, App 5.26, 9th Report); 2) Mother of Florence Atkinson (first child born at Maloga); 3) Embraced by Harris as 'one of those 12 named ancestors' (transcript 10880); 4) Margaret Wirripunda identifies here as Yorta Yorta and Wamba at trans 5767; 5) Transcripts 200, 822, 850, 4486–7, 4984, 5658, 5765-7, 6269–70, 10877–88; Mr Maloga Lists 'Moira Tribe' (as Louisa Atkinson); Mr Maloga text –various passing refs; Treseder report – Born Mathoura and was at Moira Station when Matthews set up Maloga.

7. Janet (Jenny) McCulloch/Charles Olney J. refers back to George Charles: Jenny Charles appears in the Maloga lists for 1884 as 'Goulburn River' tribe, age 24 (ex A67, App 5–26). Details in Olney's account in para. 75 are accurate as far as they go). Additional materials: Harris 10906; Hagen 6266-7.

8. Mary Friday/Brangy Olney J. claims that 'There is no evidence as to the antecedents of Mary Abbott's mother Kate'. There may be no specific information about her mother's 'antecedents', but there is certainly useful information about the Indigenous group with which her mother was associated, of which Olney J. makes no mention. Justice Olney's characterisation of her mother as simply 'from "near Wodonga"', which is not in the claim area, is counter to the available documentary evidence. Kate Brangy's own letters, and correspondence concerning her, make up a significant part of the material relating to Wahgunyah contained in Fels' supplementary report Appendices. She is clearly identified as a member of the group associated with the Wahgunyah area within the original lands (see para. 52 cont. above & Fels Sup rep Ex Vic 55 pp 43ff & Appendix. 15; Fels transcripts 7653–5, 7663–4, 7703; Hagen 6275). Kate Brangy also appears in the Maloga lists. She is identified as 'full' colour from Wodonga and her age as listed suggests a birth date of around 1850 (Hagen ex A67, Appendices. 5–26). Ken Briggs identified the Brangy's as Yorta Yorta in his oral evidence (transcripts 179, 2627).

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9. George Middleton Whatever the source, however, there is nothing contradicting his association, and his descendants' association, with the Ulupna area, within the claim area. It is supported by the documentary materials of Theresa Middleton and the Maloga mission lists (1884 list) as well as by extensive Indigenous evidence (834 –836, 847; Geraldine Briggs – knew George Middleton personally (her grandfather) 333–41, 3185, 448–4492, 453–7, 4553; Frances Mathyssen 10894–10900, 1909 (Harris) 2149, 2167–2175; Zeeta Thompson 4894, 4914; Ken Briggs 5657, 5679, 5681, 5683; Rod Briggs 1332, 1345, 6116; Hagen discusses the issue at 6275–6 and in Ex A67).

10. Annabella Howard Olney at para. 96 remarks that All that is known of her mother is the description on Annabella's June 1873 marriage certificate 'Mother black woman' and on the December 1877 certificate 'Mary – Aboriginal. There is insufficient evidence to connect Annabella's mother with the original inhabitants of the claim area.

The material cited by Olney is consistent with a birthplace in the Ulupna/Corowa region between 1837 and 1850. Treseder (not cited here by Olney, though he usually is) indicates that she was aged 49 in 1891, suggesting a birth date around 1842. Treseder suggests a birthplace at Cobram. Matthews identifies her with the 'Ulupna' tribe in the Maloga lists and gives her an age of 31 in 1884. (Hagen Ex A67, Appendix. 5.26) (suggesting a birth date of 1853.) Ken Briggs and others provide oral evidence concerning her. (Transcript refs: Ken Briggs, trans 162, 166, 194 (speaking language), 281–7, 4889 (personal recollections of when he was a young boy), 4892, 4893 (identifies her as Yorta Yorta woman born in 1840s at Ulupna on the basis of information from his grandmother – Annabella's daughter); Eddie Vincent 4984–4918 (protracted exchange re church records etc); Josephine Briggs, pp. 808, 823–4; Neville Atkinson Jnr pp. 4333–5; Frances Mathyssen 4490, 4553; Vincent Davis 5647–53; Roderick Briggs, 5679 (Harris 10900–04, 2nd report, Appendix. 13); Hagen 6276, Supplementary Report, p. 43).

11. Sarah Walker There are extensive references in Mr Maloga. An interesting one (p. 70 in paperback edition, p. 98 in hardback) indicated that her son's Aboriginal grandmother's name was 'Nanny' who was 'keeping him away from Maloga' near Korong presumably (Nanny is identified at the 'Korong' camp with Sarah's father-in-law, Edward Walker and her husband Freddy a few days earlier).

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'Nanny' may well be a diminutive or alternative of 'Mary Ann', identified on Sarah's marriage records as her mother. 'Nanny' also appears on the Maloga lists. Nanny is identified with Moira in the Maloga lists and her age is suggested as 68 (presumably in 1883). This would give her a birth date around 1815. Regardless, if 'Nanny' is Herbert's grandmother, as indicated, it provides an arguable link back to twenty-five years prior to the arrival of Curr. 'Nanny' is clearly not Fred Walker's mother who is clearly identified as Matilda, and who was present at Korong with 'Nanny'. She is therefore either Sarah's mother or perhaps a second wife of Edward Walker. Harris also cites the Mr Maloga reference at p. 21.16 of Vic 3.6.1. At trans 10871 Harris (called by the respondents) suggests that Sarah was one of the original ancestors. Again, there is no evidence contradicting her association with the claim area. Again, the Maloga lists identify her with the 'Moira tribe'. In this case, there is also some evidence suggesting links to a much earlier time, also to Moira, through 'Nanny'.

12. Freddy Walker Olney suggests that, as Freddy was the child of two full blooded Aboriginals, it necessarily follows that her son Herbie was not a child of Freddy.

Firstly, it is abundantly clear on the evidence that Herbert, whatever the genetic situation, was reared as the child of Freddie. Such processes were raised by the applicants as sufficient for incorporation into the Yorta Yorta claimant group. No contrary evidence was put. Without sufficient explanation, all reference to documentary certificate evidence which identifies Herbert as the child of Freddy (see transcript 10869), as well as all discussion of the issue by Indigenous witnesses and expert witnesses has been omitted (Harris and Hagen).

13. Tommy McCrae Also discussed by Olney at para. 97 where he concludes that: in the absence of any evidence as to his parents, it is not possible to draw any inference that would connect him with an original inhabitant of the claim area.

In Mason v Tritton, the test is expressed in terms of the inference of connections by 'biological links to groups or clans of aboriginal Australians', not to individual members of these groups. If the evidence supports the view that this person is a descendant of a

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group, which held Native Title at sovereignty, this is sufficient. There is no need to establish the link to 'an original inhabitant'. In the case of Tommy McCrae, the evidence supports the view that he was born at or prior to the time of white occupation of the area. His death certificate suggests a birth date of circa 1826. It also supports the view that he was a member of the 'group or clan' associated with the area. There is no real evidence suggesting that the 'group' had changed between sovereignty and settlement. This should be enough. His parents should be irrelevant. We proposed him as an ancestor, not his mother or father. To require information about the parent of an ancestor is nonsense. When this is available, the parent becomes the 'original ancestor' instead and the same question arises. Requiring a parent of an ancestor is thus effectively another way of saying that inference is not sufficient – that even when one can establish, on the evidence, that a person alive at the time of white occupation was a member of the group in occupation no inference can be drawn back to sovereignty. This runs counter to both Mason v Tritton and the Canadian cases. There is a substantial body of evidence (documentary and otherwise) that identifies McCrae as a member of the group occupying the original lands. Olney omits the discussion of Tommy McCrae in the Fels (historian called by Victoria) materials (her supplementary report, pp. 43-7, especially 46 & Appendix. 15, pp. 22, 38, transcripts 7664, 7670, 7671, 7672, 7678). Fels regards McCrae as one of the 'Ovens blacks' who she also identifies as 'Waveroo' or the 'Wangaratta blacks'. She cites correspondence between Alexander Tome (the honorary guardian of the 'Ovens blacks' in the 1870s and early 80s. In June 1881, (around the time of Matthews petition!) Tome wrote to Captain Page, the secretary of the Board for the Protection of Aborigines, indicating that when I asked them if any desired to go and live in Coranderrk they exclaimed in fear that place too cold in fact then two or three who lived there told me some time ago that they would not go back they like Wangaratta which they call their own country (Fels, Vic 55, Appendix. 15, item 34).

In May 1885, 'Tommy McCrae 'his wife & 2 children' head a list of people identified by Tome as 'These aboriginals belonging to Wahgunyah & Wangaratta' (Fels, Vic 55, Appendix 15. item 34). Fels writes: From this period the local police were appointed as Guardians. Constable Hewitt newly transferred to Yarrawonga was called out by Billy McCrae to visit his son Stewart McCrae...The camp at Lake Moodemere [i.e. Wahgunyah – RH] appeared to have been rebuilt in 1892, but in 1896

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Tommy McCrae and his wife were still there, defining for the BPA the status of two newly arrived people from NSW, Albert Kennedy and Kate Kennedy aged 2 years. They 'belong to this tribe'.

(The supporting documents that she indicates in this para are not in my copy of the Appendices of her report unfortunately, though they should be in the original.) 1) Tommy McCrae, Harris transcript 10905, Vic 62 WS 3.6.1, page 16.1), died Wahgunyah, 1901, and 2) Lily McCrae (Vic 62 WS 3.6.1, page 16.1). Ms Harris cites Tindale's Lake Tyers genealogies as the source of an alternate view (Vic 62 WS 3.6.1, page 16.5). It is worth noting, however, that Tindale identifies Tommy McCrae's son, Alex, as 'of Murray River at Corowa'. This accords well with other historical information available concerning his father (such as Appendix. 1 of Ms Harris' original report, being Exhibit Vic 62 WS 3.6, entitled 'Cooper and Urry, Art, Aborigines and Chinese: A Nineteenth Century Drawing by the Kwat Kwat artist Tommy McCrae- Aboriginal History, V5, 1981', and with the evidence of a further witness for the respondents, Dr Fels, including transcript pages 7671, 7672, and her supplementary report exhibit Vic 55, pages 44–7 also below, para 182 ff; Harris trans 10905; Hagen discusses Tommy McCrae at transcript 6278–9, 6288; Yorta Yorta evidence appears at: Ken Briggs 179 (ref to McCraes from 'Corowa' area as Yorta Yorta; Alfred Turner 234–5 re his stepdaughter who was the daughter of Tommy McCrae.) Sarah was a later wife of William Cooper. Alf lived with them for a time as a child. Norm Stewart 2657, 5558, 5565-6, 5582–3; Neville Atkinson Jnr 4364–5, 4374. A biographical article about Tommy McCrae by Cooper and Urry in Aboriginal History (1981:88) (tendered as part of Harris' first genealogical report) indicates that 'Evidence from a number of sources indicates that he belonged to a group called Kwat Kwat by their Pangerang neighbours.' (The Yorta Yorta identifies the Kwat Kwat as a part of the Yorta Yorta community.) The same article also includes a reference to 'Tommy McCrae, chief of the Wahgunyah tribe' from an original sketchbook held in the Mitchell Library. Other information in the article provides indications of his association with the general area from at least 1849. The article indicates an association with Broklesby Station from 1849. Brocklesby encompassed present day Corowa according to materials in Harris' second report (Appendix. 16.1) cited also by Olney. Harris also cites a letter, dated May 1896, in which a Guardian at Wangaratta indicates that 'Tommy McCrae states he belongs to this tribe but has been away in N.S. Wales working.'

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Against this volume of material, a single entry in Tindale's Lake Tyers genealogies (see Harris, Appendix. 16.5) contains a notation, which seems to be 'Bidawal' (not 'Bidewal' as indicated by Olney in para. 97, following a similar error by Harris in her second report, Appendix. 16.1) next to the name of Tommy McCrae. Given that he was born at or before the time of first settlement (some time in the 1830s) and the preponderance of evidence clearly supports his association with the area, Olney's comment in para. 97 that 'In the absence of any evidence as to his parents, it is not possible to draw any inference that would connect him with an original inhabitant of the claim area.' is surely highly questionable. It implies a standard far beyond that suggested in Mason v Tritton.

14. Maggie Toodle Transcripts 333-4, 3185, 4487-4492, 4536-7, 4553 (Frances Mathyssen); 2149, 2175- 2176 (Zeeta Thompson); 653 (Rochelle Patten); 10830, 10894-6, 10898, 10899, 10909- 10910 (Harris), (Harris suggests that in fact the line can be traced back beyond Toodle to her parents George Farmer and Mary. She indicates that on the basis of certificate evidence Maggie was born at Moira lakes around 1849. She suggests at transcript 10895–97 that it may be possible to go even further back on this line, possibly to 'King Billy Tool'. She also indicates that she would be happy to regard Maggie Toodle as an 'original ancestor'); 5656, 5657, 5678–82 (Roderick Briggs); 1330–33, 1345 (Rochelle Patten identifies 'Toodle' family as being associated with Ulupna); 834–6, 847 Geraldine Briggs (knew George Middleton personally – her grandfather). Theresa Clements (ex A54–2–8) 6276, 6279–80; (Rod Hagen) Maloga lists – identified as age 34, Ulupna tribe in 1883 (Additional materials not in evidence – Matthews Diary for 16 Aug 1881 – 'Maggie Toodle gave me an a/c of blacks up the river').

15. Bagot Morgan 1150, 1151 (Melva Johnson); 1228, 1229,1239-1241, 1250 (personally known to Elizabeth Hoffman – 'I remember he was in his 70s I think when I was born. He was a man, or a gentle man who liked to tell stories and to sing little ditties in the language to us. He could speak the language, his own language, and that was what he did, singing to us. Loved to sing and tell stories'.); 3877, 3878, 3886, 3993, 6265, 6280, 6288; (Hagen); 10851, 10856, 10873, 10875 (Harris), Ex A67 Appendix. 3. Above all else, of course, Ronald Morgan's published reminiscences! Here (as with Theresa Clements and George Middleton) we have documentary evidence from a child of the person concerned, written in 1952, long before the case, before 'Native Title', before the 'land rights era', which specifically identifies Bagot Morgan as

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a Yorta Yorta man, provides information about group location etc. Surely this, at least, should be sufficient for a Judge to 'draw inferences' from! Olney makes no mention of the Ronald Morgan material in either para. 87 or para. 89, in which he deals with Bagot as an ancestor. Olney says that 'all that is known' of Bagot's mother is through Tindale. Ronald Morgan was born before the turn of the century. His father lived for another thirty-six years after his birth. It is not difficult to come to the conclusion that the knowledge which he had of his father's ancestry was more developed than any certificatory or Tindale genealogical materials. Ronald Morgan says of Bagot: Most of his childhood days he spent with his mother's native tribe roaming the wild. This tribe is known as the Yorta Yorta and joined the territory of the Yullaba Tribe (Morgan, 1952).

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APPENDIX. 4

Vital Statistics of Yorta Yorta Claim 1994–2000

Chronology The following chronology outlines the statistics of the case, from the filing of the original statement of claim in 1994, to the judgment that was handed down in December 1998. The case is still in litigation and as of writing the Yorta Yorta are waiting for a decision from the Federal Court appeal that was heard in August 1999. It is anticipated that the case could go to the High Court on appeal. This being the most likely scenario, it would mean that Native Title litigation will continue into the year 2001. This will stretch the time involved in the Native Title process, for the Yorta Yorta, to seven years (from 1994 to 2001), which is three years less than that involved in Mabo (No.1 and No. 2) 1982–92.

January 1994 Community discussions and consultations with Victorian Aboriginal Legal Service and lawyers began with the Yorta Yorta Clans Group at the Dharnya Centre (Barmah Forest) after the Mabo decision. Native Title Legislation was introduced in January 1994.

February 1994 The Yorta Yorta Clans Group decided to lodge an application for a determination of Native Title to land, water and compensation with the registrar of the National Native Title Tribunal (NNTT) on 21 February 1994. The claim was one of the first substantive claims on mainland Australia following the Mabo (No. 2) decision. The compensation claim was held over until the land and water claim was heard and the Court established whether or not and to what extent Native Title has survived.

September 1994 The application was accepted and Mediation began before Justice Grey of the NNTT in September. Some 470 interests applied to be parties to the claim including local farming, recreational and commercial interests and State and local governments on both sides of the Murray (Chapter 7). Mediation began in Shepparton Town Hall and other conferences were held with parties throughout the claim area at Mathoura, Deniliquin, Wangaratta, Mulwala, Corowa, Echuca and Melbourne.

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April 1995 No mediated agreements were reached under the NNTT and application was then lodged with the Federal Court under s. 74 of the NTA 1993 (Chapter 7).

May 1995 The Application was subsequently amended on 2 May 1995 for the purpose of replacing the Yorta Yorta Murray Goulburn River Clans Group Inc as Applicants with Ken Briggs, Wayne Atkinson, Geraldine Briggs, Elizabeth Hoffman, Des Morgan, Colin Walker, Margaret Wirripunda and Ella Anselmi applying for a determination of Native Title on behalf of the members of the Yorta Yorta Aboriginal Community (Yorta Yorta Proceedings Doc, 1998:4)

June–August 1995 During the interim and in anticipation of the Claim being heard by the Federal Court, the Yorta Yorta prepared their case for trial. A major research and field study was conducted to consolidate and strengthen the evidence collected and to record additional interviews with key witnesses. Further research on Yorta Yorta associations and the impact of European settlement was carried out in Libraries and Archives throughout the claim area and in Canberra, Sydney, Adelaide and Melbourne. Others were engaged to work on the claim who had expertise in anthropology, archaeology, history, genealogies, and in water and land tenure systems. Numerous directions hearings were held and the Court issued various orders in preparation for trial. Pleadings were pursued by way of the filing and serving of the applicants' Amended Statement of Facts and Contentions and the filing of Replies by some of the respondents. Rulings were made about who were parties to the Federal Court Proceedings, and those parties were organised into eleven groups. An informal discovery process occurred. Witness statements and expert reports were filed, and other interlocutory steps were pursued.

August 1995–October 1996 On 15 August 1995 Justice Olney ordered that the heading to the proceeding be amended to: 'The members of the Yorta Yorta Aboriginal Community applicant and The State of Victoria & Ors respondent'. As a lead up to the Federal Court hearing, the Yorta Yorta Clans Group conducted a consultation program to discuss the claim with communities, affiliate organisations in the area and other relevant government bodies: these were the Njernda Aboriginal Corporation, Echuca; Rumbalara Aboriginal Co-operative, Mooroopna; Shepparton Aboriginal Art Co-operative Ltd; Camp Jungai Co-operative Ltd, Rubicon; Aborigines

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Advancement League, Melbourne; Cummeragunja local Land Council; New South Wales Land Councils, Deniliquin, Wagga Wagga and Sydney; Aboriginal and Torres Strait Islander Commission in Canberra and Melbourne; Australian Heritage Commission; Australian Conservation Foundation, Melbourne; Department of Conservation Forests and Lands, Melbourne; and Murray Darling Water Commission, Canberra. Preparation of materials and site visitation continued during 1996. The Native Title Committee, lawyers and anthropologist selected some sixty sites throughout the length and breadth of the claim area as locations from where key witnesses would give evidence. Further work on witness statements was done concurrent with selection of appropriate sites.

October 1996 Federal Court began conferences in Shepparton with the claimants and other parties to set out the procedures for the hearing. Monday, 28 October 1996, the first historic sitting of the Federal Court was held at Rumbulara Aboriginal Cooperative in Mooroopna before Justice Olney under a tent where the first of the fifty-five Yorta Yorta witnesses start giving evidence. Site visitation program began in the Goulburn Valley region of the claim area. First on-site evidence was recorded at the former Goulburn Protectorate site at Murchison and along the Goulburn River at sites where Yorta Yorta had maintained connections.

May 98 On 15 May 1998, the Yorta Yorta Native Title Federal Court hearing ended in Melbourne. The Trial Judge indicated that a determination would not be handed down until sometime the next year but the date was then bought forward to November 1998.

December 1998 Olney J. of the Federal Court handed down decision on the YYNTC in December 1998. The claim was appealed to the full bench of the Federal Court in August 1999 and if successful it is expected to be appealed to the High Court. The length of time from the preparation and filing of the statement of claim with the Tribunal in 1994, to the judgment in 1998, including consultations on the setting up of the Prescribed Body Corporate (holder of the proposed Native Title rights and interests under s. 57 of the Native Title Act 1993, is nearly five years. This does not include the number of meetings, consultations and mobilisation of the Yorta Yorta community over the period or the fact that the claim is still in litigation at July 2000.

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Conclusion A summary of the key issues involved gives an insight into the magnitude of the Yorta Yorta case. The comparative figures are for highlighting the extent of the Yorta Yorta claim rather than the nature of the rights being pursued. The area covered by the Murray Islands in Mabo (No.1 and 2) was not more than 9 sq km; the Yorta Yorta claim was 200,000 sq km. The number of key witnesses in Mabo was eight, and in the Yorta Yorta there were about sixty. Other statistics are summarised below. In total there were 190 witnesses who gave evidence including four anthropologists, two archaeologists, a linguist, an historian, a genealogist, a variety of departmental officers and local government representatives, and many local residents and land users. In addition to those 110 sitting days mentioned, one also needs to include the mediation process, which was approximately 50 days; the administration, preparation of materials, field work, research, and community consultations; and the physical resources required in the mobilisation of the Court and Yorta Yorta witnesses and elders throughout the claim area and Melbourne. Interstate trips undertaken by the Yorta Yorta to conduct research in Adelaide and attend meetings with ATSIC in Canberra, and the special Court sitting in Sydney were all part of the Native Title process (Yorta Yorta Proceedings Doc, 1998:26). The Material Evidence presented to the Court, excluding the transcript, occupy some '15 meters of shelf space' in the Judges' Chambers (Age, 19 May 1998). More than sixty sites were visited in the claim area including five hours in aerial views and visits to sites by boat during the replenishment season of 1996-97.

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APPENDIX. 5

Parties and Legal Council to the Claim

1. Parties to the Claim Over 400 people were included as parties to the claim. All the respondents were represented during most of the hearings by lawyers and various other authorities in land and water matters. There were six main categories of interests, which consisted of the following groups: 1. the States (Victoria and New South Wales), 2. local government, 3. recreational users, 4. water interests, 5. pastoralists and wood loggers, 6. tourist operators.

2. Counsel for the Applicants Counsel for the applicant: Mr B.A. Keon- Cohen QC Mr K.R. Howie Mr T.P. Keely Solicitors for the applicants: Arnold Bloch Leibler

3. Counsel for the Respondents Counsel for the State of Victoria, Goulburn Valley Region Water Authority, Goulburn-Murray Rural Water Authority, Ms M. Sloss and North East Region Water Authority: Mr S.G.E. McLeish Solicitors for the State of Victoria, Goulburn Valley Region Water Authority, Murray-Murray Rural Water Authority, and North East Region Water Authority: Victorian Government Solicitor Counsel for the State of New South Wales: Mr V.B. Hughston Mr J. Waters

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Solicitors for the State of New South Wales: New South Wales Crown Solicitor's Office

Counsel for Murray Irrigation Limited, Field and Game Australia Inc, Graeme Ross McPherson, Greater Shepparton City Council, Campaspe Shire Council, Moira Shire Council, Estate of Christopher Stephen Ryan decd, Mr G. Hiley QC and C.R. and K.R. Moorse: Mr G.J. Moloney Solicitors for Murray Irrigation Limited, Field and Game Australia Inc, Graeme Ross McPherson, Greater Shepparton City Council, Campaspe Shire Council, Moira Shire Council, Estate of Christopher Stephen Ryan decd, and C.R. and K.R. Moorse: Suzanne Sheed & Associates Counsel for Emat Industries Pty Ltd, V. Grima and K. Lord: Mr A. Neal Solicitors for Emat Industries Pty Ltd, V. Grima and K. Lord: Scott Thompson & Co Counsel for Barmah Forest Mr T. Brennan Cattlemen's Association & Ors: Mr M. Love Solicitors for Barmah Forest Cattlemen's Association & Ors Corrs Chambers Westgarth Counsel for Mulwala & District Services Club Limited,

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Mulwala Water Ski Club Limited, Yarrawonga Border Golf Club Limited, Berrigan Shire Council, Corowa Shire Council, Murray Shire Council, and J.B. and G.A. Gorman: Mr J.E. Curtis-Smith Solicitors for Mulwala & District Services Club Limited, Mulwala Water Ski Club Limited, Yarrawonga Border Golf Club Limited, Berrigan Shire Council,

Corowa Shire Council, Murray Shire Council, and J.B. and G.A. Gonnan: Hargraves Solicitors Counsel for Murray Darling Basin Commission: Mr R.S. Osbom QC Ms M.L. Warren QC Solicitors for Murray Darling Basin Commission: Blake Dawson Waldron Counsel for Telstra Corporation Ltd: Mr P.J. Hanks Solicitors for Telstra Corporation Ltd: Holding Redlich Counsel for State of South Australia: Mr M.P. Walter QC Mr R. Smith

Solicitors for State of South Australia: South Australian Crown Solicitor's Office Counsel for New South Wales Aboriginal Land Council: Mr J. Basten QC Solicitors for New South Wales Aboriginal Land Council: Andrew Chalk & Associates

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4. Dates of Hearing:

8–9 October 1996, 28–31 October 1996, 4–7 November 1996, 11–14 November 1996, 18–21 November 1996, 25–28 November 1996, 3–5 December 1996, 9–12 December 1996, 10–13 February 1997, 18 February 1997, 24–27 February 1997, 11– 13 March 1997, 17–20 March 1997, 24–27 March 1997, 17 April 1997, 5–7 May 1997, 12–16 May 1997, 19–21 May 1997, 27 June 1997, 4–8 August 1997, 11–14 August 1997, 25–29 August 1997, 1–3 September 1997, 8–1 1 September, 1997, 15–1 8 September 1997, 22–25 September 1997, 13–16 October 1997, 20–23 October 1997, 27 October 1997, 29–30 October 1997, 4–8 May 1998, 11–15 May 1998, 2-4 November 1998. 5. Decision on Appeal (Not handed down at time of writing)

6. Date of Judgement: 18 December 1998

7. Date of Appeal: 18-27 August 1999

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