home | news l

A failed Yorta Yorta claim is not the end

16 December 2002 - Victorian Aboriginal land claimants and the government need to sit down and
talk.

The High Court ruling against the Yorta Yorta people's long-running land claim in Victoria really came as no surprise. Yet there is a danger that some will read into this judicial resolution the suggestion that the whole of the mechanisms for settling Aboriginal land claims will now collapse. The ruling does not mean this.

Proving a land claim on behalf of Aboriginal people in Victoria was always going to be difficult. That was evident in this instance. First lodged in 1994, the Yorta Yorta claim to 2000 square kilometres of lands and waters in Victoria and New South Wales was the longest running native title case.

The native title legislation sets high standards of proof in relation to claims, compelling claimants to establish a continuing connection to the lands in accordance with traditional laws and customs. The legislation itself sets out in the preamble how difficult it will be for many Aboriginal people to meet the demands of the law.

From the perspective of the Yorta Yorta claimants denied the entitlements a successful claim would have entailed, the decision upheld - in the words of one - the "pitiful Anglocentric, ethnocentric, racist evaluation" view of their relationship with the land. This is an understandable reaction, but it overstates the effects of the judgment. The resort to the legal system was always going to be an imperfect way to resolve the Yorta Yorta's claim.

Many Aboriginals, especially those in Victoria, have been removed from the lands of their ancestors for so long that they cannot meet the demands of the legislation.

The High Court in a 5:2 decision upheld the Federal Court's view that the tide of history had in effect washed away the claims of the 4000-strong Yorta Yorta people to having traditional rights over the land. The reasoning has been interpreted as meaning that Aboriginal people will have to prove the existence of continuous systems of laws and customs linking the people to the lands for any claims to succeed.

This concept of the need for continuity was rejected in the minority judgements, which said people simply had to prove continuity as members of a community.

The complexities of such refinements serve to underscore the point that resorting to the legal system to determine native title claims, particularly taking them to the extremes of a High Court appeal, is in no one's interests. Victoria's Attorney-General, Rob Hulls, has already expressed the state's commitment to continuing to negotiate a settlement with the Yorta Yorta people regardless of their failed legal action.

It is increasingly clear that in many cases, the merits of native title claims can be more appropriately dealt with outside the combative environment of the legal system. The process needs to be about finding creative solutions that respect the wishes and the traditional rights of indigenous claimants while acknowledging the rights and usage of others with interests in the lands.

Source: The Age

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

|| click to go to the top of this page