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This presentation discusses the Yorta Yorta Native Title Claim from 1994 to 2002, highlighting the challenges faced by Indigenous claimants and the outcomes of the legal process. It explores the key manifestations of internal colonialism and the impact of institutional racism on land and resource appropriation. The chronology of events and court decisions are provided, along with the efforts of the Victorian government to negotiate a settlement. This serves as a reminder that the Yorta Yorta struggle for land justice continues in 21st century Australia.
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ANTAR-AGM 23 NOV,2002 Yorta Yorta Native Title Claim (1994-2002)
Presentation • Yorta 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.
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?
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 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).
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.
