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Introduction and Methodology

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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 1 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 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 3 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 4 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 5 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 6 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.
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