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Lost in the tide

by Hal Crawford and Claire Cavanagh

12 December 2002 - Australia's Aboriginal people have suffered a blow with the highest court in the country dismissing a long-running land claim in the fertile south-east of the continent. The Yorta Yorta claim, made in the hope of establishing native title over 2000 square kilometres of grazing land, was dismissed on the basis that the claimants had not maintained traditional links to the area.

The case began eight years ago, with the people of the Yorta Yorta tribe claiming land they had occupied before the European colonisation of Australia in the late 18th century. The area stretches across the Murray River, which forms the border of the states of New South Wales and Victoria.

The existence of ‘native title' for Aborigines was established with a seminal decision of the Australian High Court in 1992. Previously no ancestral Aboriginal land ownership had been recognised, with the British claim to the continent resting on the legal fiction of ‘terra nullius'; the idea that Australia was effectively vacant at the time of colonisation.

A key element to establishing native title, as set out in the 1992 decision, is for the Aboriginal claimants to prove an ongoing connection to the land in question. When the Yorta Yorta case was first brought before the Federal Court in 1998, the judge presiding ruled that "the tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs."

Two further appeals, ending with Thursday's decision, have agreed with that original decision. The High Court added emphasis to their verdict by requiring the claimants pay the undisclosed costs for the case.

According to David Cooper, spokesman for a pro-native title pressure group, the decision has emphasised the unfairness of a system that denies traditional land rights to those Aborigines who have suffered most.

"It's just one of those ironies that most dispossessed of the indigenous people of Australia are going to benefit the least out of native title. This decision is part of ensuring that this is the case."

The Yorta Yorta people were displaced from the claimed land by white settlers. The court ruled that by 1888 all traditional connection had been lost. But Mr Cooper denies this.

"The Yorta Yorta are closely associated with that country. They have extensive contact with it today, they maintain knowledge and traditions about it. Some things have of course been lost over time, but that doesn't mean the cultural links to that country have been lost. This gets down to the fundamental question of who's interpreting what is appropriate and what's not."

While indigenous pressure groups lamented the decision, attorney general Daryl Williams welcomed what he described as a "further clarification of important principles about how native title claims can be established."

The case is likely to sink similar claims over densely populated and settled areas in Australia's south, where traditional practices and languages have died out in an urbanised Aboriginal population.

Source: Radio Netherlands

Further information: native title issues page - includes news index and external links