Land Rights

1
Land Rights Indigenous Australia Law Race
Indigenous People Dr Wayne Atkinson Senior
Lecturer Fellow Political Science University
of Melbourne
2
Lecture Format

• The Land Rights Struggle
• Land Rights Native Title
• Yorta Yorta case study (1994-2002) Treatment of
  Oral Evidence

3
Land Rights Struggle
4
History of Land Rights Struggle before Mabo, 1992

• 1770-1800s Land Struggle at the heart of
  conflict and violence over ownership control of
  land and resources
• 1930s Indigenous leaders challenge the basis of
  terra nullius and assert rights to land (Acheron
  venture Victoria, 1859).
• Yirrkala (Yolngu) petition for land rights (NT)
  1963.
• Freedom rides of 1965.
• Gurindji wage dispute and land claim (NT)1966
• 1970s Tent Embassy, put Land Justice, on the
  National political agenda.

5
Tent Embassy 1972

• Political protest against the McMahon
  Government's policies which denied recognition
  of Aboriginal title and traditional land rights.
  

6
Woodward Commission 1974

• Set up by Whitlam Government when it came to
  office in 1972
• Woodward Commission offered a national framework
  for land rights legislation
• Woodward's recommendations implemented in the
  Northern Territory under the Commonwealths
  Aboriginal Land Rights (Northern Territory) Act
  1976 (Cwlth) (ALRNTA)

7
Symbolic Return of Gurindji, LandNT-1975.
Prime Minister Gough Whitlam pours a handful of
soil through the fingers of Gurindji elder
Vincent Lingiari, at the hand back of 3,238 sq-
kms of land in August 1975. Gurindji struggle
symbolised in song From Little Things Big
Things Grow by Paul Kelly Kevin Camody
(Photo Merv Bishop)
8
Nature Content of Land Rights

• In a LR claim Indigenous Australians seek a grant
  of title to land from the Commonwealth, State or
  Territory governments.
• Grant may recognise traditional Indigenous
  interests in land, and protect those interests by
  giving indigenous people legal ownership of that
  land- mostly in form of inalienable freehold
  title.
• In order to be accepted, LR claims must meet a
  set of conditions-Crown retains certain interests
  in land, mining and access.

9
Eddie, Koiki, Mabo1936-1992
10
Key questions of Mabo

• Would the High Court overrule Blackburn Js 1971
  decision in Milirrpum, and find that Native Title
  existed in Australia?
• What test would the Court formulate to determine
  the existence of Native Title rights?
• What barriers would Native Title Holders have to
  overcome to achieve Native Title rights

11
Mabo Decision 1992

• Overruled Blackburn J. abolished the legal
  fiction of terra nullius, which was not
  considered a barrier to Native Title.
• Recognised the existence of native title at
  common law in Australia.
• Found that Native Title survived colonisation and
  continued where it could be proven to exist in
  accordance with the traditional laws and customs
  of the Native Title holders.

12
Mabo gets rid of Terra Nullius (Mabo (No. 2) 1992
Brennan J. at 29, 403).

• Fiction of terra nullius was unjust and
  discriminatory.
• Had no place in the contemporary law of Australia
• Common law of this country would perpetuate
  injustice if it were to continue to embrace the
  enlarged notion of terra nullius and to persist
  in characterising the indigenous inhabitants of
  the Australian colonies as people too low in the
  scale of social organisation to be acknowledged
  as possessing rights and interests in land
• Decision was a twofold rejection of terra
  nullius and the imported racial ideology used to
  prop it up.

13
Change Cultural Continuity

• 'immaterial that the laws and customs underwent
  some change
• traditional based laws and customs not frozen at
  colonisation.
• modification of traditional society in itself
  does not mean traditional title no longer exists
  
• existence of NT must be understood from the point
  of view of the members of the claimant group
  (Mabo (No. 2) 1992, Toohey, Brennan JJ 29,
  403).

14
What Did Mabo Do?

• Removed old legal ideological barriers that
  stood in the way of Indigenous land justice.
• Attempted to bring the law into line with human
  rights principles and in touch with contemporary
  values of justice and equality before the law.

15
Key Issues Confronting Claimants post Mabo

• Achieving Native title under the Native Title
  Process
• The degree of scrutiny that claimants are
  subjected to in order to prove identity
  inherent rights
• The barriers to Land Justice-post Mabo- Yorta
  Yorta Case

16
The Essence of Native Title

• Video on Requirements of Native Title from Yorta
  Yorta Struggle for Land Justice Page at
• http//waynera.wordpress.com/yorta-yorta-struggle-
  for-land-justice/

17

• The Yorta Yorta Case Concepts of law and
  Evidence

18
Yorta Yorta Struggle for Land Justice

• Yorta Yorta v State of Victoria Ors,
• (1994-2002)

19
Barmah-Millewa Forest Wetlands, Yorta Yorta
Territory
20
Yorta Yorta v State of Victoria Ors, Trial
(1996-1998)

• Evidence being taken by Federal Court at Site of
  Canoe Tree in Barmah, 1996

21
Justice Olneys 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)

22
Key Issues of Olney J. Decision , Dec 1998

• Yorta Yorta ceased to occupy the lands in
  accordance with the traditional based laws and
  customs before the end of the 19 Century
  (pp.66-67,para 121).
• The tide of history, Mabo (No 2) at 43, had
  washed away any real acknowledgment and
  observance of Yorta Yorta traditional laws and
  customs in relation to the claim area (pp. 70-71,
  para 129).

23
Olneys Test for Yorta Yorta Native Title The
Frozen in time view of Indigenous people
24
Yorta Yorta Appeal

• Appeal went to Full Bench of Federal Court, Feb,
  2001 2-1. Decision appealed to High Court.
• Appeal dismissed by High Court, Dec 2002 5-2

25
Barriers to Land Justice 21 Century Australia

• Mindset of opposition to Indigenous rights
• Way law is being interpreted and applied in the
  Yorta Yorta case
• Anglocentric and narrow minded interpretation of
  Native Title Act

26
Yorta Yorta Oral Knowledge

• The transmission of knowledge for the greater
  part of Yorta Yorta occupation has been by oral
  tradition.
• It is the oldest method of acquiring information
  from which written history has evolved.
• Early European historians, used this technique to
  write history like the Persian and Peloponnesian
  Wars-Herodotus father of history used oral source
  materials.
• Much of the Bible is said to have been written
  from oral sources (Harris, Cash, Hoover and Ward,
  19752 Julin, Zabdyr and Meyer, 19791).
• Written history is a relatively recent adaption
  in Yorta Yorta society.
• It was introduced during the days of the reserve
  system (18761967) and while the Yorta Yorta
  adapted 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.

27
Oral Knowledge as source of evidence in
Indigenous land claims.

• Justice Toohey regards oral knowledge as the
  'source by which physical presence, meaning and
  use of the land is to be understood' (Mabo (No.
  2) Toohey at 70).
• Its role in traditional land matters is
  recognised in the landmark Canadian case of
  Delgamuukw v British Columbia (1997).
• Chief Justice Lamer declared that the 'laws of
  evidence must be adapted to accommodate oral
  history' and acknowledged that it was from this
  source that anthropologists, and many others by
  inference, 'obtain their expert evidence'
  (AIATSIS Oral History Project, 197981
  Delgamuukw v British Columbia (1993) Bartlett,
  19981718).

28
Olney Js. Treatment of Oral Knowledge in Yorta
Yorta Case

• In establishing the test for determining Native
  Title, the Judge set himself on a course of
  enquiry that was essentially back to front. He
  not only took a frozen and static approach to
  Yorta Yorta Native Title, but sourced its origin
  and content in selective white interpretations.
• The disregard for Yorta Yorta oral knowledge (54
  of the 11.600 page transcript) and the written
  works of various Yorta Yorta descendants reveals
  an Anglocentric approach to Native Title in the
  Yorta Yorta case.
• The Judge's reliance on a squatter, Edmund Curr,
  to elicit traditional Yorta Yorta customs, is
  monstrously ironic. Curr was one of the first
  white people to misappropriate Yorta Yorta lands,
  in similar fraudulent style to that of Batman in
  1835.
• Curr 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 (Atkinson,
  W. Not One Iota, Phd Thesis, LaTrobe University,
  2001208).

29
VEAC Study of Red Gums along the Murray What it
delivers for Traditional Owners
30
National Parks Joint Management
Co-Management

• What is it ? How does it work? and how can it be
  used to enhance local Indigenous control
  empowerment?

31
JM as a Concept

• JM is a compromise position, to that of sole
  management which has been practiced by
  Indigenous Australians for the majority of our
  land management history-60000 years or since
  creation, land has been cared for as ancestral
  lands in a more holistic way.

32
Joint Management Models

• Jointly Managed NP are now well established in
  the NT Uluru-Kata Tjuta, 1985, Nitmiluk NP,
  Katherine Gorge,2000 and elsewhere in Aust-
  Boodaree (ACT) Mootawindigie (NSW).
• There is no generic model or blueprint for
  successful JM.
• They are not set in concrete but are evolving
  processes that can be adapted for the improvement
  of future management plans.
• Each agreement needs to be negotiated and be
  responsible to the needs and aspirations of each
  local community (Lawrence, 1996-97).

33
Way Forward from Here

• Announcement of Victorian Governments Native
  Title Settlement Agreement Framework VNTSF.
• Came out of package recommended by the Victorian
  Native Title Steering Committee chaired by
  Professor Mick Dodson.
• Provides and alternative path to land justice for
  Traditional Owners in direct negotiation with the
  Victorian Government.
• Yorta Yorta Nations in process of negotiating
  with Victorian Government for Agreements on
  National Park Management.

34
Keeping it for the Future
Spirit of Dhungulla Keep Her Flowin
Old River Reds Keep-em Growin
Thank you Dr Wayne Atkinson, Yorta Yorta Elder
Senior Fellow, University of Melbourne