Clark claims genocide on ruling

13 December 2002 – The Yorta Yorta people’s failure to establish uninterrupted links to the lands of their forebears killed off their native title claim over vast tracts of the country along the Murray River, the High Court has ruled.

In a 5-2 decision, the court said yesterday the Aborigines’ ancestors had ceased to occupy the 1860sqkm of land and water in accordance with traditional laws and customs some time after 1788.

ATSIC chairman Geoff Clark said the decision amounted to genocide and terrorism. He said he would not blame Aboriginal people if they began occupying traditional lands following the “sorriest day in this country’s history”.

“This is the genocide of Aboriginal people in this country,” he said. “This is the terrorism that has continued for 200 years.”

The Yorta Yorta claim covered land and water along the Murray, Ovens and Goulburn rivers in Victoria and NSW bounded by the towns of Albury, Finley, Deniliquin, Cohuna, Shepparton, Benalla and Wangaratta. The claim was opposed by nearly 300 parties, including the NSW and Victorian governments, councils, forestry and fishing groups, farmers, beekeepers and tourist operators.

The Aborigines argued they had inherited native title rights from their ancestors who occupied the land and water at the time of European settlement.

They said they had maintained “continuing uninterrupted occupation, use and enjoyment” of the claimed area and therefore had met the requirements of the Native Title Act.

But the majority of the High Court said there was no evidence of uninterrupted occupation as defined by the act.

“Acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty,” Chief Justice Murray Gleeson and judges Bill Gummow and Ken Hayne said.

“It must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period (1788 to the present) as a body united by its acknowledgment and observance of the laws and customs.”

Any attempt to revive those laws and customs by later generations did not restore native title, the judges said.

However, judges Mary Gaudron and Michael Kirby, in dissent, said the Yorta Yorta “community” did not need to live on the claimant area to establish native title. “Communities may disperse and regroup,” the judges said.

“The relevant issue under … the act is simply whether the Yorta Yorta people now acknowledge and observe traditional laws and customs by which they have a connection with the land and waters claimed by them.”

Aboriginal senator Aden Ridgeway branded the decision “terra nullius by attrition”.

But federal Attorney-General Daryl Williams welcomed the decision, saying it further clarified the principles on which native title claims could be established.

Yorta a ‘dismal day for Aboriginal justice’

By Cynthia Banham

13 December 2002 – Aborigines claimed yesterday they faced an impossible task achieving land rights, after the High Court dismissed a native title application by the Yorta Yorta people.

The court ruled 5-2 that indigenous people had to prove their observance of traditional law and custom could be traced back to 1788, and had remained “substantially uninterrupted” ever since.

The Yorta Yorta, who claimed title over more than 1800 square kilometres in areas including southern NSW, near Albury, as well as northern Victoria, were devastated by the decision. The claim co-ordinator, Monica Morgan, said it was a “dismal day for Aboriginal justice”.

Their legal fight had lasted eight years, and was the longest in native title history.

The chairman of the Aboriginal and Torres Strait Islander Commission, Geoff Clark, said the decision flew in the face of the Mabo decision recognising native title. It meant native title “doesn’t exist”.

Lawyers involved in the case said the decision confirmed the bar to proving native title was a high one, and that it would be very difficult to prove it existed in more settled parts of Australia. Proving laws and customs could be traced back to pre-European settlement days was “not going to be easy”.

The judgement was welcomed by the Federal Government, with the Attorney-General, Daryl Williams, saying it was an “important additional piece in the evolving picture of native title”, and did not represent a departure from Mabo.

In a joint judgement, Justice Murray Gleeson said the key question in determining native title was whether Aboriginal law and custom could be seen to be “traditional”, or had they changed and adapted so much so they could no longer be said to be the same rights or interests observed by the relevant group’s forebears, in 1788.

“Acknowledgement and observance of those laws and customs must have continued substantially uninterrupted since sovereignty,” the judges said.

“Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the people concerned.”

Justices Michael Kirby and Mary Gaudron dissented.

A senior law lecturer at Melbourne University, Maureen Tehan, believed the decision went further than previous High Court rulings.

She said the decision meant “it’s part of the claimant’s case to establish there has been a substantial continuity of traditional law and custom from the time of sovereignty until the present day, and that a gap in the evidence of that continuity may be fatal to meeting that test”.

The National Native Title Tribunal president, Graeme Neate, said the decision showed litigation was “an onerous way to go”.

He said it was clear many indigenous groups pursuing native title faced a “difficult challenge” and they should be encouraged to use mediation instead.

The Victorian Government committed itself to pursuing out-of-court negotiations with the Yorta Yorta people to “address their aspirations”.

Labor’s spokesman on reconciliation, Senator Chris Evans, said the decision was a “disappointing blow” to the Yorta Yorta.

Democrats Senator Aden Ridgeway described it as “terra nullius by attrition”, and Greens Senator Bob Brown said the groups’ dispossession “is a national injustice”.

Yorta slam High Court

Tears overflowed and angry voices were heard outside the High Court offices in Melbourne as Yorta Yorta claimants learned their appeal for land rights along the Victorian/NSW border had failed.

Yorta spokeswoman Monica Morgan said was a “dismal day for Aboriginal justice”.

She said the five out of seven judges who dismissed the claim were products of a white country with a black history.

“It’s not about native title, it’s about racism,” she told supporters and media outside the court.

“It’s about recognition, it’s about seeing our sovereignty.”

Ms Morgan said the Yorta Yorta people could take their legal battle no further and it appeared they were going to have to pay the legal costs of the eight-year battle.

“We have heard today that they’re so mean spirited that they (the High Court) are even saying the court costs have to be met by the Yorta Yorta people themselves,” she said.

ATSIC leader Geoff Clark said it was a sorry day in Australian history with Aboriginal traditions not recognised by the government.

Yorta case sets native title precedent

The High Court yesterday ruled the native title rights of the Yorta Yorta people to areas in New South Wales and Victoria have been washed away by the tide of history.

The tribunal’s Graeme Neate says the case confirms Aboriginal claimants have to prove native title rights to the land have continued uninterrupted.

“So this is a principle that applies nationally, but its implications will depend on the facts in each case,” he said.

“Although the Yorta Yorta people’s claim was for land along the banks of the Murray, the principal of law will apply in Darwin as much as it does in Victoria and elsewhere in the country.”