ANTAR-AGM 23 NOV,2002

Yorta Yorta Native Title Claim (1994-2002)

PresentationYorta Yorta Struggle for Land Justice

Native Title Process -1994-2002

High Court Appeal -2002

Native Title Outcomes -2002

http://webraft.its.unimelb.edu.au/166010/pub/landjustice.htm

‘Internal Colonialism’: Key Characteristics

Relations of Dominance & Subordination

Appropriation of Indigenous land and resources

Exploitation and marginalisation

Ideologies of Racial Superiority

Institutional Racism (Roberts, D. Self-determination and the Struggle for Aboriginal Equality, in

Bourke, C. & Bourke, E & Edwards,W. eds, Aboriginal Australia, University of Queensland Press, St Lucia, Queensland, 1994, pp.212-236)

http://webraft.its.unimelb.edu.au/166010/prot/DRoberts.htm

Key Manifestations of Internal Colonialism Systematic discrimination, Domination &

Denialism have become institutionalised throughout the structures of society.

Structural Barriers within the Native Title Process preventing Indigenous claimants from gaining due entitlements- Sequential barriers process

Tide of History Euphemism used as ‘trope’ for dispossession.

Claimable Native Title Land under NTA, 1993

Chronology of Yorta Yorta Struggle for Land Justice 1860-2002

1 Yorta Yorta Claim for Compensation for disruption to Traditional Fishing Rights 1860.

2 Petition to NSW Governor for Land 1881.

3 Land Rented or Purchased in the Names of Aborigines as Dummy Selectors 1885.

4 Attempts by Matthews to Secure Land from Victorian Authorities 1881–87.

5 Application for Land (VBPA) to Establish a Fishing Reserve at the Barmah Lakes 1887.

6 Petition to NSW Governor for Land 19 July 1887.

7 Matthews' Final Attempts to get Land 1889–92.

8 Applications for Additional Cummera Land 1890 onwards.

9 Formation of Aboriginal Political and Land Rights Movement 1930s.

10 Petition to King George VI for protection of Human Rights including Land Justice 1935.

11 Efforts to get back Land 1959.

12. Further Deputations for Land 1959–66.

13 Campaign to get back Land 1966.

14 Land Rights Deputation to Canberra 1972.

15 Claim for Barmah/Moira Forests 1975.

16 Fight for Return of Cummera Land 1972–83.

17 Claim for Barmah Forest 1983.

18 Yorta Yorta v State of Victoria and Ors (1994–2002).

Chronology of YYNTC-1994-2002 Lodgment of YYNTC Application: 21 February 1994

Mediation: September 1994-April 1995

Preparation for Federal Court Trial: May 1995- October 1996

Federal Court Trial before Justice Olney: October 1996- December 1998

Date of Olney J. Judgment: 18 December 1998

Date of Appeal to Full Bench Federal Court: 18-27 August 1999

Decision of Full Bench Appeal: 8 February 2001

Date of Application seeking leave to appeal to High Court, 23 May 2002

Date of High Court Appeal 23-24 May 2002

Date of High Court Decision of YYNTC 2002?

Yorta Yorta v State of Victoria & Ors, Trial (1996-2002)

Justice Olney’s Decision, Federal Court Melbourne 18 December 1998

The Court determines that native title does not exist in relation to the areas of land and waters identified in Schedule D to Native Title Determination Application VN94/1 accepted by the NT Registrar on 26 May 1994 (19 Seconds)

Key Issues of Olney J. Decision , Dec 1998Yorta Yorta ceased to occupy the

lands in accordance with the traditional based laws and customs before the end of the 19 Century (pp.66-67,para 121).

The tide of history, Mabo (No 2) at 43, had washed away any real acknowledgment and observance of Yorta Yorta traditional laws and customs in relation to the claim area (pp. 70-71, para 129).

Decision of Full Bench Appeal: 8 February 2001

Majority of the Full Court of the Federal Court, comprising Branson and Katz JJ, found error in the reasoning of the trial judge, but upheld his determination and dismissed the appeal.

Black CJ (dissenting) considered that the finding of the trial judge that native title expired before the end of the 19th century was erroneous, that the appeal should be allowed

Summary of Yorta Yorta High Appeal Grounds High Court-23-24 May 2002:

Judge used the wrong test to determine whether or not YYNT survived in accordance with s.223(1) of the NTA, 1993.

Requirement of written proof of maintenance of a "traditional Aboriginal community" from 1788 to prove native title creates an impossible burden to fulfil, and a tea-towelled stereotyped image of

the "real Aborigine".

Justice Olney at the trial and the Majority on appeal erred in law by privileging the written record over oral testimony.

Anglocentric notions of Aboriginality used as the ultimate test in validating the truth of Indigenous knowledge of their connections to country.

Negotiations with Victorian Government Rob Hulls announced Victoria’s desire to mediate with

the Yorta Yorta on 8 February 2001 to:

- work towards negotiated settlement and resolve practical issues;

- recognise the special significance to Yorta Yorta of claim area; and

- enable long term Yorta Yorta involvement in land management.

Negotiation principles were signed by Victoria in May. Negotiations have progressed with Justice Tony Fitzgerald acting as mediator.

NT Outcomes, 1992-2002 (cont)

A decade since Mabo decision, there have been 30 determinations that native title continues to exist

24 of those were reached through negotiation rather than litigation.

There are 591 active claimant native title applications before the NNT. - almost half are in mediation.

NT Outcomes - 1992-2002

Internal Colonialism in 21st Century Australia

As much as Australia has emphasised Universal Human Rights, equality before the law and individual and collective freedom, it has also been guilty of denying such entitlements to its Indigenous’ peoples. Rights that are as fundamental as securing and protecting property interests including land have been accorded a lesser status to that of Indigenous occupants. Anglo created assumptions about racial superiority and the inferiority of Aboriginal people have been a standard feature of the discourse of colonisation since 1788 - the difference now being, what was explicit in’ driving the practices and policies of colonial Australia has become implicit in modem times (Platter,2002)

Yorta Yorta Struggle Continues