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LGD 2003 (1) - Mark Harris


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Mythologising 'Recollections of Squatting in Victoria': Law's Intersection with Colonial Memory


Mark Harris
Senior Lecturer, La Trobe Law School
and
Chair, Aboriginal Studies,
La Trobe University,
Bundoora, Australia
Mark.Harris@latrobe.edu.au

Abstract

The Native Title Act 1993 (Cth) represents recognition by the Australian federal legislature of the survival of a form of Indigenous native title. Whilst the native title legislation is ostensibly is directed towards achieving some form of recognition of Indigenous rights to land and waters, the subsequent cases have been as much about the competing claims of non-Indigenous Australians. In the Yorta Yorta case the trial judge, Justice Olney, considered the documentary evidence of a white settler's reminisces to be more persuasive than the oral testimony given by members of the Aboriginal claimants. This paper considers the role of the judiciary (and the law generally) in the mythologising of the sense of place and identity of the non-Indigenous community of Australia. It will be argued that while intervention of the legal discourse is crucial in legitimising the claims of non-Indigenous Australians to the land it also necessitates the diminishment of the narrative of belonging to the land that is presented to the court by groups such as the Yorta Yorta people.

Keywords: Native Title, Indigenous Australians, Yorta Yorta Case, History


This is a refereed article published on 30 April 2003.

Citation: Harris, M, 'Mythologising 'Recollections of Squatting in Victoria': Law's Intersection with Colonial Memory', Law, Social Justice & Global Development Journal (LGD) 2003 (1), <http://elj.warwick.ac.uk/global/03-1/harris.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_1/harris/>


1. Introduction

On 12 December 2002 the High Court of Australia handed down its decision in the case of the Members of the Yorta Yorta Aboriginal Community v The State of Victoria, affirming an original decision in the Federal Court by Justice Olney, which had been upheld on appeal by the Full Bench of the Federal Court. In the original trial Justice Olney had ruled that the Yorta Yorta people's native title application must fail because: 'The tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised in relation to controlling access to their land within the claim area' (Yorta Yorta, 1998, para 126) The Yorta Yorta case has since become representative of the difficulties faced by Indigenous Australians in the south-eastern part of the continent in establishing claims to land and waters under the Native Title Act 1993 (Cth). This article is concerned primarily with the judgment of Olney J for it is there that we find explicitly the conflict between colonial memory and Indigenous stories of continuing connection to country. Whilst the judgment of Olney J sought to clarify the historical record through the intervention of the law, the case has merely served to confirm the ambiguity of relations between Indigenous and non-Indigenous Australians.

2. The Yorta Yorta Claim

The Yorta Yorta claim spans an area of some two thousand kilometres inside a 20-kilometre radius. Bisected by the River Murray, the claim is oval in shape and takes in parts of two States, Victoria and New South Wales. The native title application by the Yorta Yorta people included a claim for specified parcels of land within the parameters of the claim and also a claim over all water within the claim boundaries. The Yorta Yorta native title application is only the most recent attempt of the group to assert claims to their traditional lands. Atkinson (1996, p 285) notes that during the period from 1860 to 1993 there were no less than 17 separate claims made by the Yorta Yorta for either land or compensation for the removal of their land. After initiating the proceeding in February 1994 the matter proceeded to mediation. With more than 500 parties represented at one stage it was clear that the matter could not be reasonably mediated and so it was moved to the Federal Court. After initial directions hearings in Shepparton and Melbourne the court sat first in Melbourne and then moved to locations throughout country Victoria and New South Wales to hear the testimony of witnesses.

3. The Colonial Memory: 'Recollections of Squatting in Victoria'

The Olney judgment can certainly be viewed as an instance of both the resilience and uncertainty that affixes to what can be termed the 'foundational fictional narratives' of settler societies of nations such as Australia and New Zealand (Neumann et al, 1999, p xvii). The foundational narratives are built around the vision of the gallant white explorers who have opened up the 'new' country, invariably without any reference to the original inhabitants of the country. Edward Curr's Recollections of a Squatting in Victoria was first published is 1883 and is notable for the manner in which, as Christie (1979, p 199) puts it: 'Nostalgia had begun to cloud the memories of frontier violence and brutality and ex-squatters like Edward M Curr'. Where Curr wrote of the Aborigines' physical beauty and 'their grace of carriage and elasticity of motion' in his Recollections, his earlier literary outpourings had been of a singularly more unpleasant tenor. Appearing before the Royal Commission on Aborigines in the State of Victoria in 1877, Curr had opined that: 'the blacks should when necessary be coerced just as we coerce children and lunatics who cannot take care of themselves' (Curr, in Royal Commission on Aborigines 1877-78, p 78). Similarly, in 1881 Curr commented on the question of absorption of the Aboriginal race into the white population by stating: 'substitute eradication for absorption and I think you will be correct' (Curr, in Christie, 1979, p 178). If the transformation of Curr from an advocate of genocide to ardent admirer of the Aboriginal as 'Noble Savage' does not raise questions as to the reliability of his jottings, contemporary academics have called into question the veracity of much of his writings. Diane Barwick, the first modern anthropologist to work in the field of southern Australia to any substantial degree, noted that:

'Colonial gentlemen like E MCurr and his friend A A LeSouef, who remembered the pastoral invasion of the 1840s, did not trouble to investigate indigenous systems of land tenure, denied the effective leadership by 'chiefs' and despised the liberal views of 1850s immigrants such as Smyth and Howitt, who could not get truthful answers to their queries about the disappearance of Victoria's Aboriginal population' (Barwick, 1984, p 103).

After commenting upon how Curr's ignorance of Aboriginal people had been publicly mocked during the course of the Royal Commission of 1877, Barwick observes that the criticism of his writings by better informed contemporaries were tempered only by his death. This led to the situation where, Barwick reflects that: 'Recent reprints have made Curr's books widely accessible and his views are often uncritically quoted by modern writers, unaware of their falsity' (Barwick, 1984, p 103). The Curr falsities are of themselves reprehensible, but they are imbued with even greater significance when it is considered that they provided the substantial basis for the determination of Olney J that the Yorta Yorta people could not establish the continuance of their traditional law and custom, such that a native title claim could succeed.

4. Native Title and Judicial Reasoning

The recognition of the existence of native title in the Mabo (No 2) decision represented a challenge to the accepted versions of Australian colonisation. The joint judgment of Justices Deane and Gaudron, for example, recognised the 'inappropriateness of forcing the native title to conform to traditional common law concepts and to accept it as sui generis or unique' (Mabo, 1992, p 89). Despite this initial acknowledgment of native title as sui generis, the ensuing decade has seen a concerted effort through legislative enactment and narrow judicial interpretations to ensure that native title is defined and regulated in a form that is cognisable to the common law. In seeking to control and subdue native title's disruptive possibility the subsequent decisions of judges in these matters have revived what Meehan has called 'law's Grand Narrative'. Meehan further explains the term to mean that:

'If the trial is before a judge alone, the dominant narrative encouragements will come from the familiar stories of the law, from approved 'verdict categories' and from narrative already legally processed, from stories already heavily munched over, as Franz Kafka would put it, by the law. The doctrine of stare decisis exerts a powerful hold over fact as well as law' (Meehan, 1992, p 117).


Even though the High Court departed from 'the familiar stories of law' in the Mabo case by acknowledging that the doctrine of terra nullus could no longer have any credence, its judgments were still grounded in the indivisibility of sovereignty and the ultimate capacity of the legislature to extinguish native title. Despite this, in departing from the accepted versions of history, the members of the High Court were excoriated for indulging in what was termed 'judicial activism' (Blainey, 1995, p 203). In the absence of any reference points in the law's 'Grand Narrative' as to how native title should be dealt with and how it related to other, often competing, interests in land and water there was widespread disquiet. With the passage of the Native Title Act 1993 an attempt was made to reinstall the approved 'verdict categories' and in a number of judgments a body of precedent was established to limit the dangerous sui generis nature of native title. The restoration of the law's 'Grand Narrative' can certainly be seen as consistent with the triumph of legal positivism. Drawing from Hart's seminal work it is clear that the limited reading of native title is consistent with, at the very least, the contention that:

'… a legal system is a 'closed logical system' in which correct decisions can be deduced from pre-determined legal rules by logical means alone (and) that moral judgments cannot be established, as statements of fact can, by rational argument, evidence or proof' (Hart, 1961, p 253).

The triumph of legal positivism can be seen in the incremental changes wrought in native title to ensure that it does not disrupt the existing system of land tenure in Australian property law. Despite these attempts to limit the application of native title it is arguable that its belated recognition by the High Court did provide an avenue for Aboriginal people to assert rights over their country. The term that is often used in native title applications is 'speaking for country', yet it remains unclear whether the native title process has, in reality, provided Indigenous claimants with a forum to articulate their claims to traditional lands and waters.

5. Can the subaltern speak ? Aboriginal 'expert witnesses'

In posing the question of 'Can the subaltern speak?' Spivak (1988, p 294) was referring to those who were deemed to be of 'inferior rank' or the oppressed classes. The work of the subaltern studies group is seen, as Leela Gandhi puts it, to 'allow the 'people' finally to speak within the jealous pages of elitist historiography and, in so doing, to speak for, or to sound the muted voices of, the truly oppressed' (Gandhi, 1998, p 2). In considering how imperialism as the narrative of history came to gain ascendancy Spivak draws from Foucault's articulation of 'subjugated knowledge'. These types of knowledge are defined as including 'a whole set of knowledges that have been disqualified as inadequate to their task or insufficiently elaborated: naïve knowledges, located low down on the hierarchy, beneath the required level of cognition or scientificity' (Foucault, in Spivak, 1988, p 281). It remains unclear, however, as to whether Aboriginal peoples generally, or the Yorta Yorta people in particular, could be termed the 'subaltern classes'. The very heterogeneity of Aboriginal peoples experiences within the colonial system in the first instance militates against such a general descriptor. In considering the specific example of the Yorta Yorta people who have, historically, been very politically active, it is perhaps paternalistic to presume that they are the muted voices of the 'truly oppressed'. The argument that Aboriginal people are consigned to the 'margins' of the native title process is also worth examining in light of the procedural changes that were introduced to give effect to the Native Title Act 1993.

Certain procedural innovations in the courts that followed from the recognition of native title would seem to suggest that, ostensibly, a place is made within the native title hearings for Aboriginal people to speak. It might further be argued section 82 of the Native Title Act 1993 represented an attempt to acknowledge aspects of Aboriginal culture and law. The section provided that:

(1) The Federal Court must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt.
(2) The Court, in conducting proceedings, must take into account the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.
(3) The Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence.

Significantly these provisions were amended in the Native Title Amendment Act 1998 (Cth), so that the Federal Court may consider such matters but only if no other party is 'unduly prejudiced' and the Court, pursuant to section 82 (1) is 'Bound the rules of evidence, except to the extent that the Court otherwise orders'. The removal of subsection 82(3) also substantially diminished the possibility for Aboriginal people to give evidence in a traditional form (through oral testimony) where such evidence might not have complied with the rules of evidence. The application of the rules of evidence to exclude material based upon oral traditions was commented upon by Justice Lee in the Ward case (1998, para 504) where he commented: '… application of a rule of evidence to exclude such material unless it is evidence of general reputation may work substantial injustice'. Despite the existence of such measures there is no guarantee that the judiciary will give any weight to such measures. In the course of the Yorta Yorta decision, for example, Olney J (Yorta Yorta, 1998, para 17) observed of these provisions that:

'... the special procedures that were previously ordained by s 82 do not authorise the Court to depart from two basic principles of litigation in this Court namely that the standard of proof is on the balance of probabilities and that the Court will have regard only to evidence which is relevant, probative and cogent'.

Later in the same judgment Olney J (1998, para 17) observed:

'Nor is there any warrant within the Native Title Act 1912 (sic) for the Court to play the role of social engineer, righting the wrongs of past centuries and dispensing justice according to contemporary notions of political correctness rather than according to law'.

In this disavowal of any role of the Federal Court as 'social engineer' Olney J reiterates a view of the law that is entirely consistent with Hart's definition of legal positivism outlined above. The law, at least the law as framed through the lens of legal positivism, cannot countenance the interruption of moral claims for justice.

Even if the claimants do appear as witnesses, however, there is no guarantee that their testimony will be accorded any weight. Statements based upon knowledge passed down from parents or grandparents, couched in terms such as 'My father told me that…' have generally been excluded from testimony under the hearsay rule. Keon-Cohen (1993, p 192) observes that in the Mabo case the issue of admissibility did not arise for the High Court because Justice Moynahan had admitted such statements into the evidence during the preliminary hearing into the determination of facts. While the discretion to depart from the rules of evidence under the Native Title Act 1993 might be seen as an example of the law making space for the Aboriginal claimants to speak and to be heard, the matter remains within the preserve of judicial discretion. In the Yorta Yorta case, for example, Olney J (Yorta Yorta, 1998, para 21) made reference to the veracity of a number of the witnesses, noting that while the oral evidence was 'in some respects both credible and compelling', but he found that '[r]egrettably this was not always so. In one instance two senior members of the claimant group were caught out telling deliberate lies'. With regard to the testimony of the younger Yorta Yorta witnesses Olney J found it 'less impressive' than that of the elder witnesses, and all but dismissed it for having been the subject of 'embellishment' (Yorta Yorta, 1998, para 21). Although the Native Title Act 1993 does allow for certain exceptions to the rules of evidence in receiving the testimony of Aboriginal witnesses, the Yorta Yorta case exemplifies the practice of courts allowing the subaltern voices to speak, but not hearing their voices. In observing that 'evidence based upon oral tradition passed down from generation to generation does not gain in strength or credit through embellishment by the recipients of the tradition' (Yorta Yorta, 1998, para 21), Olney J. clearly endorsed the argument put by the experts for the respondents that the culture of the Yorta Yorta was one of 'recent invention'. Paradoxically, the 'benefit' of Western education is viewed as a factor that diminishes the veracity of the testimony of the younger Yorta Yorta witnesses. In considering the nature and content of the traditional laws and customs of the Yorta Yorta Olney J. also clearly accepted the privileging of Curr's writings in the narrative, noting that:

'The most credible source of information concerning the traditional laws and customs of the area from which Edward Walker's and Kitty Atkinson/Cooper's early forebears came is to be found in Curr's writings … The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it than the information recorded by Curr' (Yorta Yorta, 1998, para 106).

The assertion by a number of the Yorta Yorta witnesses that oven mounds, shell middens and scarred trees were sacred was similarly dismissed because there is no corroborating evidence from Curr that they 'were of any significance to the original inhabitants other than for their utilitarian value, nor that any traditional law or custom required them to be preserved' (Yorta Yorta, 1998, para 122).

A further example of the attempt of the law to be seen to be accommodating of difference in the native title discourse was the decision to hold hearings of native title cases 'on the country'. While this was a procedure that had long been established in the Northern Territory in cases under the Northern Territory Land Rights Act 1976 (Cth), it represented a new development in other jurisdictions. The recognition of the need to hear testimony in this way is acknowledged by Justice North of the Federal Court as something of a 'little mini-revolution', such that it represented an 'extremely rapid learning curve that everybody is going through in the conduct of native title hearings, to ensure real and practical access of indigenous people to the system … One of the essentials in my view to that accessibility is to conduct hearings on the country of the people' (Banham, 2000). A newspaper account of the commencement of the Yorta Yorta hearings recorded the on-country visit in the following way:

'This week from Mooroopna, which means 'deep water' Yorta Yorta witnesses led Justice Olney and his court to sacred sites within the Goulburn Valley to testify to their relationship with the claimed land. At the bottom of a cattle paddock cornered by the Goulburn River and a broken barbed-wire fence, the judge was shown evidence of tribal burial grounds and trees scarred by the stripping of bark for canoes and coolamons, traditional platters for gathering bush foods' (Le Grand, 1996).

It is salient to contrast the account of the visit to the Yorta Yorta country with another 'on-country' visit for a claim in Western Australia, where the Federal Court convened north-west of Karratha. The newspaper account of the Burrup native title claim visit reported:

'The Federal Court, which last week heard evidence about the Burrup via a video link between Karratha and Perth, yesterday convened on the disputed territory, north west of Karratha. Far from its sterile environs in Perth the court rolled out of Karratha in a convoy of hired four-wheel-drive vehicles ferrying Justice Robert D. Nicholson, lawyers, Aboriginal land claimants, court staff and anthropologists…The spires of two distant radio aerials, just visible above the ranges, were the only signs of Western civilisation. But as Western eyes focused under broad-brimmed hats, the existence of another civilisation became apparent' (Martin, 2000).

The juxtaposition of the description of the two geographical locations where the evidence was given 'on country' gives a revealing insight into the respective constructions of connection to land. While the description of the Yorta Yorta case makes reference to the contested nature of the land (the cattle paddock and the broken barbed-wire fence) and the presence of the Yorta Yorta is presented as evidence of traditional activities (essentially cast in the past tense), the visit to the Western Australian site is clearly described as being in a landscape devoid of non-Indigenous presence, save for the 'two distant radio aerials' which are the 'only signs of Western civilisation'. It is at this point that, for the Western eyes, the 'existence of another civilisation' is revealed. The experience is revelatory, presenting an experience for the outsiders from the 'sterile environs in Perth' of a country where the Aboriginal presence is tangible and, more importantly, without evidence of a non-Indigenous presence to contest claims for native title.

Despite the attempts to make the native title process less daunting for Aboriginal claimants, measures such as hearing evidence 'on country' are contradicted by the intimidation encountered in the courtroom the proceedings. During the Yorta Yorta case, for example, the hostile nature of the cross-examination of Aboriginal witnesses was clearly at odds with any claim that the proceedings would be culturally sympathetic. In the evidence given by Alf Turner (Background Briefing, 1997), for example, the Crown counsel, Michael Wright, attempted to undermine the credibility of the witness by attacking his religious beliefs:

WRIGHT: Alf, I'm Michael Wright and I represent the State of Victoria. Now Alf, you yourself would wish to be buried at Maroopna, is that right? In the cemetery at Maroopna?

TURNER: Well I'd like to be buried at Cummeragunja, but my family lives in Maroopna; my children married there, so probably be Maroopna.

WRIGHT: Then the - you would hope to be buried according to the rights (sic.) of the Christian church?

TURNER: I suppose I will, but that's up to the --

WRIGHT: I suppose there's very little you can do about it. Would you describe yourself as a Christian gentleman, Alf, a Christian person?

TURNER: I don't think so.

WRIGHT: The practice of burying deceased Yorta Yorta persons in sandhills or other easily excavated places, if it ever existed, is no longer followed, is it? And has not been followed for many, many years?

TURNER: I think the laws prevent that.

WRIGHT: Well, so the answer to my question is yes, is it?

TURNER: Yes.

WRIGHT: Putting the laws to one side, assume that it was OK by white man's law to be buried in an easily excavated place, which was not a formal cemetery. You would prefer to be buried in a cemetery, would you not? Rather than in a sandhill?

TURNER: Yes

WRIGHT: Yes. Have you ever during your lifetime, heard of any Yorta Yorta person being buried in a sandhill? And I'm not talking about re-burials, talking about a person who has died during your lifetime and been buried?

TURNER: No.

In the Crown questioning the Yorta Yorta cultural practices are put under scrutiny ('if it ever existed') and the witness' own religious beliefs were also brought under scrutiny by Mr Wright. Later in the same cross-examination, Mr Turner was challenged on his capacity as an elder to speak on the 'laws and traditions of the Yorta community' in relation to the sacred nature of the midden sites where Aboriginal people camped and cooked (Background Briefing, 1997). In the course of his questioning Mr Wright put it to Mr Turner 'Well is a camping site sacred if Yorta Yorta people for example used those sites'. When answered that this would not be the case the Crown counsel badgered Mr Wright to put a certain age or antiquity at which the site assumed the status as a sacred site. This exchange is revealing of the assembling of a judicial narrative, as Olney J subsequently found that such sites could not be deemed to be an expression of traditional law and custom (Yorta Yorta, 1998, para 122). The veracity of the Aboriginal witness is challenged because it is argued that the origin of customs cannot be verified in a scientific or exact manner and the lifestyle of the witness does not involve continued observance of certain customs. The Aboriginal witness is contrasted against the practices of 'real traditional Aboriginal people' and found lacking. In this way their testimony can be de-legitimised.

Another example of how the courts can entertain Aboriginal evidence, only to later on disregard the content and substance, was in the battle of the Haida First nations people in British Columbia to prevent a logging company from exercising its licence to log in their lands1. After being granted leave to give testimony based upon 'symbolic dress, mythologies, masks and totem poles as well as the legends, stories, poems and other forms of interpretation that such art and mythology implied' (Goodrich, 1990, pp 182-3) the Haida found their efforts were effectively ignored. Despite the efforts of the Haida witnesses Justice McKay gave unreserved judgment in favour of the validity of the logging licences. In Goodrich's eyes the case of the Haida represented a prime example of what he termed 'legal deafness', the incapacity to entertain difference 'in all its manifestations, in all its discourses' (Goorich, 1990, p 184). Chief Judge Durie, (1997:275) from the Maori Land court, cited a further example of this 'legal deafness' when he noted that:

'Monoculturalism, in the Maori Land Court, continued into this century. Some decades ago a Maori elder appeared before the Court and did no more than sing a song of the Whanganui River, on a claim to the ownership of the river bed. The court noted that he sang a song but had nothing to say' (Durie, ET, quoted in Neate, G, 1997).

The court missed the point however that, in the elder's eyes, his song was a declaration of ownership. In the Delgamuukw case the Gitskan sought to tender evidence based upon their 'adaawk', which is essentially a collection of sacred oral narratives about the traditions of their ancestors. Similarly the Wet'suwet'en entered evidence in the form of their 'kungax', which is a spiritual song or dance tying each of the Wet'suwet'en houses to their country. After the Gitskan and Wet'suwet'en witnesses were cross-examined about this evidence McEachern CJBC noted that there were serious questions raised concerning the authenticity of the evidence (Delgamuukw, 1991, paras 258-9). In contrast to the approach adopted by the Haida Indians in British Columbia and the Maori elder in the Maori Land Court referred to by Durie CJ the submissions made by the Yorta Yorta people in their native title case conformed with the form and content demanded by the legal process.

The silencing of Aboriginal voices in the native title process can also occur at the very outset, by their own legal representatives, when the lawyers decide who will prove the most effective or credible witnesses. Ritter and Garnett hint at the complexities of the issue when they note that:

'There is both a functional imperative and an ethical and legal duty to ensure that we are taking instructions from the appropriate Indigenous people or an appropriately representative Indigenous group. This requires lawyers to have some knowledge of the dynamics of community which they represent and where knowledge is absent, to make inquiries and to themselves take advice and be assisted by other experts in these matters' (Ritter and Garnett, 1994, p 4).

At least Ritter and Garnett acknowledge the artificiality of the native title process, stating that:

'While we endeavour to provide advice to Indigenous people to assist them to achieve their aspirations, in so doing we are further manifesting the colonisation of our clients. We are part of a push to compel Indigenous people to take part in a legal process that is foreign to them and not of their own making; urging Indigenous people to divulge their cultural information in circumstances not of their choosing and to describe and arrange their social and cultural affairs such that the native title process can be cognisant of them' (Ritter and Garnett,1994, p 7).

It is the lawyers who represent the claimants who decide who will be the most effective or successful witness.

In the course of the Yorta Yorta case the expert evidence tendered by the respective sides, the Yorta Yorta relied upon an anthropological report prepared by Rod Hagen while reports for the respondents were prepared by the anthropologists Ron Brunton and Ken Maddock and the historian, Marie Fels. The report by Rod Hagen is acknowledged by Olney J. as being 'comprehensive' and asserts that the ancestors of the applicants had claim to the extent of the claimed area. The report prepared by anthropologist Ron Brunton was critical of the report prepared by Rod Hagen, noting that 'at various points in his report he has made unjustified and anthropologically naïve infererences from the data…he has ignored important, seemingly contrary evidence that he could have been expected to consider…[and] he does not offer plausible models to explain certain key developments' (Brunton, 1995, p 106). One of the most critical assertions made by Brunton related to his argument that the traditional laws and customs asserted by the claimants were 'recent invention'. It was Brunton's contention that:

'While the beliefs and practices of many contemporary Yorta Yorta may well express a strong attachment to the culture and land of their ancestors, the evidence - both that which actually exists, and that which would be expected to exist, but apparently does not - suggests that this was a relatively recent development. It involves advantageous inventions and reinterpretations of past actions and statements to meet contemporary needs relating, amongst other things, to the Aboriginal cultural renaissance of the past two or three decades, and the opportunities for claiming land under the various legislative mechanisms that have been introduced in recent years' (Brunton, 1995, p 94).

In producing her report on the historical material Marie Fels (p 111) observes that that 'it is only by selective use of the available evidence and contemporary records that Hagen's argument can proceed.' Even more significantly is Ms Fel's assumption of the first person plural. She writes:

'We know that the Bangerang were a discrete population, speaking an isolated language. We know that this language was called Yorta Yorta (or equivalent) by their neighbours.

We know reasonably well from the totality of the material available that at the time of contact the Bangerang occupied the country at the Murray/Goulburn angle, together with the country a little to the north and a little to the south. The eastern boundary was along an imaginary line dropped from Yarrawonga to Toolamba; the southern boundary was a four mile strip of country just below Murchison; the western boundary was seven or so (perhaps ten) miles west of Echuca. We have a scaled map of this country which the Bangerang occupied.

We know
that the country occupied by the Bangerang was of significantly less area than that which is now claimed. It is important that the 4000 to 6000 claimants who seek now to trace descent from the original Bangerang prople do not obtain a determination of native title to land that did not belong to their ancestors'.

The anthropological report by Prof Kenneth Maddock was filed on behalf of the State of New South Wales and was made in response to the expert reports prepared on behalf of the Yorta Yorta claimants by Rod Hagen and Deborah Bird Rose. The Maddock report (1995, p 2) acknowledged at the outset that:

'As I have no firsthand knowledge of the region and its Aboriginal population my assessment is based on literature available to me, including the expert reports. I have not attended the hearings or seen the transcripts of evidence. I have read the witness statements'.

Ultimately the expert evidence tendered in the Yorta Yorta hearing was premised upon differing interpretations of historical accounts and this prompted Olney J to observe that:

'Contemporary scholars have analysed the works of Curr and the records kept by Robinson and have come to conflicting conclusions. For the applicants, Robinson's records are relied upon to demonstrate that the early ancestors of the claimant group occupied the whole of the claim area, and to the extent that Curr's work suggests otherwise it is rejected as being either based on incomplete information or simply wrong. The respondents on the other hand (or at least those who have chosen to enter this aspect of the debate) rely heavily on Curr's conclusions in limiting the area which in his day was occupied by those from whom the applicants claim descent. The Court has derived little assistance from the testimony of the various experts who have given evidence in this proceeding and this because apart from the recorded observations of Curr and Robinson, much of the evidence was based upon speculation. I say that without in any way meaning to disparage the qualifications, experience or integrity of the witnesses concerned … Be that as it may, the Court must address the evidence that is before it and to the extent that it admits of firm findings, make such findings as are relevant to the case' (Yorta Yorta, 1998: para 54).

Later Olney J observed that:

'… the Court is not in a position to resolve disputed questions of anthropological interpretation…There are no objective facts to which the Court can have regard to support a conclusion one way or the other. That being so, if scholars learned in the relevant discipline are unable to provide an authoritative answer, the Court must have resort to such credible primary evidence as is available and apply the normal processes of analysis and reason (Yorta Yorta, 1998, para 62).

Without disavowing the anthropological evidence, Olney J clearly justifies the reasoning behind his decision to give prominence to historical, documentary sources. Speaking from the anthropological perspective Keen notes that: 'there are acute dangers in making naïve interpretations both of oral and written evidence. There are also hazards in interpreting early ethnographies taken as a base line for deducing social and cultural change' (Keen, 1999, pp 6 -7). The decision made by Olney J not to accord any substantive weight to the submissions of the Yorta Yorta anthropologists is all the more perplexing for his admission, made some four years earlier at an Australian Institute for Aboriginal and Torres Strait Islander Studies (AIATSIS) workshop, but made ex cathedra, that:

'It always seems strange to me that, if a judge expresses a view on anthropological evidence, it seems to acquire greater weight than it had before the judge expressed that view. What is rather odd, because I know that, of the four or five people who have been Land Commissioners, none of them has had anthropological background. And, probably to start with and even throughout their terms, none of had the same understanding of the issues as an expert witness who appeared before them …' (Olney J, in Edmunds, 1994, p 30)

Just as it is interesting to note the manner in which the Yorta Yorta case privileges certain types of 'expert' evidence, so too the case is revealing of different attitudes to the reception of this expert evidence. By contrasting the attitudes of the Court and the non-Aboriginal parties in native title cases elsewhere with the conduct of the Yorta Yorta case it becomes clear that evidence from different Aboriginal claimants from different parts of the country can be treated differently. If we compare the evidence tendered in the Yorta Yorta case with, for example the Hayes case in the Northern Territory, the Miriuwung Gajerrong case in the Kimberly region of WA and the Northern Territory and the Croker Island case, which involved islands to the north of the Northern Territory, a demonstrable gulf exists in the reception of expert evidence and the testimony of the Aboriginal claimants. In the Hayes case, for example, Olney J observed of the expert evidence:

'The paragraphs which follow contain, in summary form, a description of some aspects of the social organisation and cultural traditions of the members of the claimant group. What is written is based upon a report prepared by Dr John Morton, a consultant anthropologist engaged by the applicants. The report was tendered in evidence (exhibit A3) without objection. Its contents are not controversial and accordingly these paragraphs represent a commentary on undisputed aspects of the evidence of an expert witness and as such provide a context in which the evidence of the Aboriginal witnesses can be more readily understood. To the extent that assertions of fact are made, they represent Dr Morton's evidence which is unchallenged; and to the extent that opinions are expressed, they are Dr Morton's and stand uncontradicted. The respondent did not call any expert evidence' (Hayes, 1999, para 11).

Similarly in the Croker Island case Olney J observed that:

'The applicant's anthropological evidence is virtually unchallenged. Drs Peterson and Devitt clearly have extensive experience in the anthropology of Aboriginal land tenure in the region. They carried out extensive field work with the Aboriginal people associated with the claimed area and in addition to the report they prepared genealogies of the several claim groups and mapped the very considerable number of significant sites to which reference was made in the evidence. None of these documents has been the subject of challenge by the respondents either in cross-examination or by calling of other expert evidence' (Yarmirr, 1998, para 65).


The distinction between the reception of evidence in the two cases from the Northern Territory (Yarmirr and Hayes) and that from the more closely settled south-eastern part of the Continent (the Yorta Yorta case) is striking. While the testimony of the Aboriginal claimants still requires the intervention of a white 'expert' to establish its veracity, the information is virtually unchallenged. In large part this can perhaps be attributed to the Court's willingness to accept as valid the traditional laws and customs of the Aboriginal claimants where it has been given in evidence in the language of the claimants. The Yorta Yorta people, along with all other Aboriginal tribes in the south-east of the Australian continent, suffered a far more dramatic and intensive disruption to their traditional life during the course of white invasion and settlement. As a consequence there are few Aboriginal people who still speak their traditional languages. The other dimension to the Court's reluctance to accept Yorta Yorta testimony can be linked to more extensive number of settler stories of people such as E M Curr in the more settled regions. Almost without exception these settler accounts present a vision of the land as virtually terra nullius. The absence of an Aboriginal presence is explained variously as being due to the inevitable decline of an inferior race or through the onset of disease. Clearly when these cherished versions of settler history in areas of large populations of non-Indigenous Australians are challenged by the oral testimony of Aboriginal native title claimants it is seen as a threat to the legitimacy of the occupation of the land in these areas. The settler version of history is privileged and, consequently, the manner in which white settlers appropriated Indigenous lands is no longer an issue.

6. Conclusion

In upholding the original decision of Justice Olney, both the Full Bench of the Federal Court and the High Court of Australia have set a disastrous precedent for Indigenous Australians in the more 'settled' part of the country. While the Yorta Yorta case can be seen as an example of the Courts reining in the unknown, dangerous sui generis element of native title and rectifying what were seen as the excesses of judicial activism in the Mabo (No 2) decision, the case is more profoundly about how Australian society will view competing voices when a history of this nation is assembled. An observation of Wayne Atkinson, one of the Yorta Yorta claimants, is relevant here. Atkinson reflected on his experiences during the course of the Yorta Yorta claim and said:

'Indigenous people have been further disempowered by these litigious and protracted proceedings. They wait, patiently, impoverished, on the periphery of the native title process. It seems that in relation to native title, the question is not so much one of the law providing justice for Indigenous people but one of how justice can be achieved against existing barriers. As witnessed in the Yorta Yorta case, the privileging of Anglo knowledge and property rights and the derogation of Indigenous entitlements are inherent obstacles' (Atkinson, 2001, p 22).

In Atkinson's eyes the native title process has not allowed the Yorta Yorta people to move from the periphery to the centre. The insistence that Anglo knowledge is paramount echoes the point made by Foucault (in Spivak, 1988: 281) that the knowledges of the 'subaltern classes' will be 'disqualified as inadequate to their task or insufficiently elaborated: naïve knowledges, located low down on the hierarchy'. So it can be argued that the native title process, far from elevating Indigenous knowledges, acts to confirm them as inferior and 'low down on the hierarchy'. Despite Olney J's insistence that he was 'conscious of the need to avoid assuming the role of historian' (1998: para 26) the outcome of the Yorta Yorta case confirmed a view of history that excludes Aboriginal voices. It is little wonder that Monica Morgan a Yorta Yorta woman, commenting on the High Court decision observed that Australia is white country with a black history (AAP, 2002). The black history, Morgan concluded, however, is ' a silent history'. She went on to assert that: 'the history of the Yorta Yorta people has been silenced by the rhetoric and the books and the history that has been written by the white people.' In this it could perhaps be said that Spivak's definition of the 'muted voices of the truly apposite' is apposite after all. The native title process in many ways is no more than a product of neo-colonialist thought, where Indigenous Australians have 'no history and cannot speak' (Spivak, 1988, p 287).

Endnotes

1. Western Forest Products Ltd v Richardson. Unreported judgment which cannot be copied or removed from the court. See Goodrich, P (1990) Languages of Law From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicholson), pp 179-208.

References

AAP (2002) 'Native Title Near Impossible to Prove: Lawyer' Sydney Morning Herald, 12 December 2002.

Atkinson, W (1996) 'The Yorta Yorta Struggle for Justice Continues' in Bird G, Martin, G andNielsen, J (eds) Majah: Indigenous Peoples and the Law (Annandale: Federation Press).

Atkinson, W (2001) 'Not One Iota of Land Justice: Reflections on the Yorta Yorta Native Title Claim 1994-2001' Indigenous Law Bulletin 5(6), p 19.

Background Briefing ABC Radio National Transcripts, 11 May 1997.

Banham, C (2000) 'On country, travelling North' Age, 22 July 2000.

Barwick, D (1994) 'Mapping the Past'Aboriginal History 8, p 2.

Bennett, W and Feldman, S (1981) Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture (New Brunswick: Rutgers University Press).

Blainey, G in Evans R (1995) 'The Blainey View: Geoffrey Blainey Ponders Mabo, the High Court and Democracy' Law Institute Journal 69, p 203.

Brunton, R (1995) 'Report on Anthropological and Socio-Historical Issues in the Yorta Yorta case' filed for Victorian Field and Game Association, Corrs Respondents, No VG 6001 of 1995.

Christie, M (1979) Aborigines in Colonial Victoria 1835-86 (Sydney: Sydney University Press).

Curr, E M (1965) Recollections of Squatting in Victoria, 2nd Ed (Melbourne: Melbourne University Press).

Douglas, L (2001) The Memory of Judgment (Michigan: Yale University Press).

Fels, M 'Ancestral Lands from Bangerang to Yorta Yorta: An Historical Analysis of
the Yorta Yorta Native Title Claim'. Unpublished report.

Gandhi, L (1998) Postcolonial Theory: A Critical Introduction (St Leonards, NSW: Allen & Unwin).

Goodrich, P (1990) Languages of Law From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicholson).

Hart, H (1961) The Concept of Law (Oxford: Clarendon).

Keen, I (1999) 'Cultural Continuity and Native Title Claims', Land, Rights, Laws: Issues of Native Title Issue Paper No 29 (Canberra: AIATSIS Native Title Research Unit).

Keon-Cohen, B (1993) 'Some problems of Proof' in Stephenson, M and Ratnapala, S
(eds) Mabo: A Judicial Revolution (St Lucia: UQP).

Le Grand, C (1996) 'Land claim judge sees old skills' Weekend Australian, 2-3 November 1996.

Maddock, K (1995) 'Native Title Report filed by the State of New South Wales' (NSW: Victorian District Registry of the Federal Court), p 2.

Martin B (2000) 'Court goes walkabout to consider Aboriginal lore' Age, 29 March 2000.

Meehan, M (1992) 'Law and Literature: Reworking the Master Plot' in Ruthven, K (ed), Beyond the Disciplines: the New Humanities, Papers from the AustralianAcademy of Humanities Symposium, Canberra.

Neumann, K, Thomas, N and Ericksen, H (1999) Quicksands: Foundational Histories in Australia and Aotearoa New Zealand (Kensington: UNSW Press).

Olney J (1994). 'Discussion' in Edmunds, M. (ed), Claims to Knowledge, Claims to Country (Canberra: AIATSIS).

Ritter, D and Garnett, M (1999) 'Building the Perfect Beast: Native Title Lawyers and
the Practise of Native Title Lawyering', in Strelein, L (ed) Land, Rights, Laws:Issues of Native Title Issues Paper No.30 (Canberra: AIATSIS).

Royal Commission on Aborigines(1877-78) 'Minutes of Evidence' Victorian Parliamentary Papers Vol 3.

Spivak, G (1988) 'Can the subaltern speak' in Nelson, C and Grossberg, L (eds) Marxism and the Interpretation of Culture (Urbana: University of Illinois Press).

Cases

Delgamuukw v British Columbia [1991] 79 DLR (4th) 185.

Hayes v Northern Territory [1999] FCA 1248.

Mabo v Queensland 175 CLR 1.

Ward v Western Australia [1998] 159 ALR 483.

Yarmirr v Northern Territory [1998] 156 ALR 370.

The Members of the Yorta Yorta Aboriginal Group v The State of Victoria [1998] 1606 FCA.

The Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45.

The Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58.

Legislation

Native Title Act 1993 (Cth)

Northern Territory Land Rights Act 1976 (Cth)

Evidence Act 1995 (Cth)

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