On the 13 December 2005, the Federal Court signed off on a Native Title Consent Agreement between the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795 and  settler interests,  in the Mallee-Wimmera region of Victoria (the Wotjobaluk Claim). After a long and protracted journey through the native title quagmire (1995-2005), the claimants were granted permissive occupancy rights to two percent of their ancestral lands. The extent to which the original and oldest land title has been compromised to gain access to a small fraction of their ancestral land and waters in the Wotjobaluk case, invites rigorous scrutiny.  It also needs to be factored into the derisory record of land justice in 21st Century Victoria.
 
 

In the final analysis the consent agreement may well be another form of dispossession through the native title process.
 
 

This paper weighs up what real gains were achieved, and examines the relevance of this judgment to the Yorta Yorta Native Title claim, in the Murray Goulburn region (Yorta Yorta Native Title Claim, 1994-2002).  It also challenges the Victorian Governments shameful legacy of Indigenous land justice, and its lack of political will to deal with the matter in a fair and just manner.
 
 

The nature of the consent agreement reached between the claimants and the respondents, and the underlying reasons in the orders made by Justice Merkel, 13 December, 2005 send a message stick to the Brack's Government, and a spear to the heart of the Yorta Yorta Community v The State of Victoria & Ors [1998] - the Olney Decision. With a deep sense of irony however the agreement returns a boomerang to Justice Merkel’s judgment, in which  he  rejects  the way  euphemistic phrases like the ‘tide of history’ have been used to justify dispossession in the southern regions of Australia-the same idea that was construed from Mabo,1992 to deny land justice in the Yorta Yorta Native Title case, 1998-see Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 at 60 per Brennan J). The Judges recognition of the underlying and causative effects of land conflict, upon which this tide has been constructed is praiseworthy, and his acknowledgement of the fact ‘that Aboriginal peoples suffered ‘severe and extensive dispossession, degradation and devastation’ as a consequence of the imposition of British authority during the 19th century is compelling (p.2).  The importance that Justice Merkel places on the principle that traditional laws are not ‘fixed and unchanging’ (pp.11-12), and the need to be cautious about the reliability of historical sources in native title cases is also relevant to the Yorta Yorta.
 
 

The purpose of this analysis is not to make judgments on the decision reached by those communities who chose to go down the path of native title to achieve outcomes. Rather its key focus is to:
 

• assess the gains made from the  consent agreement determination in the context of the amount of land that has been returned to the original and oldest land owners in 21st Century Victoria on the basis of  prior occupation and ownership rights;
• evaluate the Federal Court consent determination, 13 December, 2005 and its relevance to the Yorta Yorta;
• highlight the need for a more efficient land claims process that will provide Victorian Indigenous peoples with substantive land justice and economic security for the future.

Justice Merkel provides a clear-eyed summary of the underlying history of the land wars in the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795 (13 December 2005) p.2, which is a potent reminder of the continued legacy of land theft and consequent neglect by past and present Governments.   From an Indigenous perspective, it is argued that the dispossession of Indigenous territories followed three distinct phases. First was wholesale dispossession under the legal fiction of terra nullius.    Second was dispossession of most of the reserve lands that were allocated for Indigenous use under the segregation and control policies of the mid 19th and early 20th century. The third, which is happening now, is backdoor dispossession through euphemistic phrases like the tide of history, and through the native title process, by which Indigenous entitlements to own and have control of land and resources have been reduced to the status of permissive occupancy.

The path to land justice in Victoria has been a hard and hollow one and the returns have been miniscule.  In 2006 the status of Indigenous land justice in Victoria is one that can be indicated with a dot on the map.  As indicated on the graph, Indigenous Victorians have been returned the derisory amount of less than a half of one percent of their ancestral lands.

This amount does not include the ‘consent agreement’ reached by the claimants in the Mallee-Wimmera region, 2005, which the court states is ‘not a grant of native title’ (p.8).  The agreement offers no ownership or exclusive rights over land and waters and provides for no more say over its management than settler interests. The claimants traditional based rights to occupy possess and enjoy the  two percent of their claim area  along the Wimmera River  have been normalized to the extent that their  inherent rights to continue to camp, fish, and enjoy the land and waters as their ancestors have done, are treated the same as other Victorians. In exercising these rights they also will be required to comply with the imported Anglo laws and regulations that govern these activities.  Should there be any inconsistency between the native title rights of the claimants and the rights of other license holders, the latter’s rights prevail (Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795, 2005: 10-15). The question of whether this is land justice or continued dispossession by stealth is one of critical importance.
 
 

The nature of the title and the rights to land that has been returned to Victoria’s original owners by way of Government grants, transfers and the purchase of land on the open market is worth noting-see graph.  Most of the land has been returned under inalienable freehold title including some small areas that contained Aboriginal cemeteries. Some of the land was granted and or purchased on the condition that it is used for Aboriginal cultural purposes, and in all of the lands acquired, the crown retains certain rights and interests including the right of veto over mining.
 
 

This derisory record of land justice in Victoria offers little relief for the expressions of regret that were made by the predecessors of the current Government, John Cain and Joan Kirner, during the height of the reconciliation process. Regrets for not being able to do enough for Indigenous Victorians during their period of office are fine sentiments, but their failure to deliver is inevitably our loss.  Feelings of regret however  come back to revisit the Brack’s government which unlike its predecessors has the numbers and the power to deliver land justice to Indigenous Victorians on the basis of fair and just principles.  Added to this rather embarrassing track record is the fact that Victoria stands alone in that it is the only state that has not introduced a formal state-wide land claims process for Indigenous claimants. All other states and territories including Tasmania, (Aboriginal Lands Act 1995 (Tas), have introduced land claims processes that allow Indigenous claimants to achieve some degree of land justice on the basis of traditional and historic connections and on the basis of the need for land.
 
 

John Cain’s commitments to land justice in the early 1980s had some success but his attempts to introduce a state land claims process, the Aboriginal Land Claims Bill, 1983, failed, because he did not have the numbers in the upper house - a privilege that the current Government holds.  Whether this Government is morally and politically committed to rectifying the legacy of dispossession remains an urgent question. The Minister for Aboriginal Affairs, Victoria, Gavin Jennings and the, Victorian Attorney - General, Rob Hulls seem committed to this process.   In achieving greater positive social and economic outcomes for Indigenous Victorians, Gavin Jennings said that ‘he is prepared to role up his sleeves and get a bit of dirt on his hands’ (Interview 3CR Radio, 2 August, 2005).  An obvious step for these commitments to become political realities, would be  to set up a land claims process that will allow for a lot more dirt than that which has currently been returned to Victorias traditional owners.  Rob Hulls goes much further by acknowledging the legacy of dispossession. In his talk at the announcement of the Wimmera determination, December 2005, Hulls  admitted that ‘We are complicit in this atrocity, unless we can return autonomy and integrity to our relationships and reunite grieving custodians with the home lands they so love’.(Sydney Morning Herald, 9 January 2006). Fine sentiments again, but matching the rhetoric with the political action required to rectify complicity and to alleviate feelings of grief are the challenges at hand.   Whether political statements like these are aimed at healing the bad blood that emanated from the manner in which the Victorian Government chose to appose the Yorta Yorta claim all the way to the High Court, rather than negotiate an agreeable outcome, is debatable.  Nevertheless, they are matters that are still uppermost in the minds of the Yorta Yorta and their continued struggle for land justice.

Justice Merkel's findings in Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795 (13 December 2005) are revealing. A sense of irony emerges however particularly when one reflects on the Yorta Yorta case, and its attempts to seek land justice through the native title process.  The first issue that quickly comes to mind is Justice Merkel’s decision to stand down from the full bench of the Federal Court hearing of the Yorta Yorta appeal, 2001. The appeal was against Justice Olney’s shocking decision of December, 1998, which found that our native title rights had been washed away by euphemistic phrases like the ‘tide of history’. In reaching his decision that our native title rights did not exist, Justice Olney relied almost totally on the writings of a European pastoralist, to the exclusion of the majority of oral knowledge presented by the Yorta Yorta.

Justice Merkel stood down from the full bench of the Federal Court appeal hearing after counsel for Victoria had claimed that his former role as a trustee with the Koori Heritage Trust meant he could be perceived as biased (Age, 18 August 1999, p 8, citing the Victorian Solicitor General describing the Koori Heritage Trust as trying to preserve the “living culture” of Aborigines in south-eastern Australia). Why such involvement would prevent a judge from respecting the special purpose of the Native Title Act and why the same degree of scrutiny was not applied to other judges for perceived bias was never raised. Nor is it clear why this perceived bias was seen as an impediment in the Yorta Yorta and not the Wotjobaluk case.  Justice Merkel's enlightenment in Indigenous history and culture and his commitment to its survival in my view is no barrier to the judge’s ability to administer the law in accordance with the legal framework of Mabo, 1992 and the Native Title Act, 1993.   It has always been my personal belief that if Justice Merkel had of hung in there, we stood a good chance of getting across the line at the Full Bench of the Federal Court Appeal, 2001. This view is confirmed by Chief Justice Black, who would have allowed the Yorta Yorta appeal, quoting in his dissenting judgment Merkel’s opinion in another native title case, where Merkel found that Olney’s approach partly subverted the aim of the Native Title Act (Commonwealth v Yarmirr [2001] HCA 184 ALR 113 at p158-59 per Justice McHugh, summarizing Merkel’s opinion in that case about Olney’s approach).
 
 

One vital issue that Merkel was well aware of was the need to watch out for the inherent biases in historical sources particularly when judging the value of oral and written evidence. He thought it “desirable for the courts to consider” whether historical sources “were not invalidated by a particular preconception, bias or prejudice of the author”. He said judges should be careful not to use such sources to deny the validity of oral history. (Merkel in Yarmirr, quoted by Chief Justice Black, Yorta Yorta v Victoria (2001) 110 FCR 244 p 262). This is another barb that goes straight to Olney, in the way that he relied almost exclusively on the writings of a European land seeker to determine the existence of native title laws and customs in the Yorta Yorta case, to the exclusion of the majority of evidence presented.  The Yorta Yorta case generated nearly 12,000 pages of transcript which included 6,247 pages (54%) of Yorta Yorta oral knowledge (Atkinson, 2000:10). The question of whether a different Federal Court outcome at the appeal might have produced a different outcome from the High Court, 2002 or whether we should have gone to the High Court following Mabo, 1992, remains academic, but the opportunity to deal with  the matters raised at the full bench was certainly there in the waiting.
 
 

The other revelation that quickly emerges from the Wotjobaluk case is that that the native title agreement was reached through mediation rather than adversarial litigation. The Yorta Yorta attempted mediation (1994-95) but the opposing parties on the advice of their legal council chose to close ranks, and were unwilling to negotiate a mediated outcome. It is interesting to note that some of most incalcitrant of these opposing parties have continued to enjoy the monetary benefits of the native title gravy train, and represented parties to the Wimmera claimant’s mediated outcome (Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795, 2005, pp. 8-9).

The spear that was driven so deep into the wounds of the Yorta Yorta returns to its sender, and ironically the boomerang comes back to revisit Justice Merkel who may often share the dissatisfaction that we do, in that the opportunity to deal with euphemistic phrases like the tide of history, and the inherent prejudices in historic sources was at the Yorta Yorta appeal, 2001 (Members of the Yorta Yorta Aboriginal Community v State of Victoria (Including Corrigendum dated 21 March 21 2001) [2001] FCA 45 (8 February 2001) Full Federal Court Decision.

Looking back and with the advantage of recent judgments before us, one can say that land justice for my people was there in the waiting, but was whisked away by political and legal deception. That the course of justice was perverted in our case is a fair call.
 
 

While the notion of the tide of history has been rejected in the Wotjobaluk case, the determination has had the effect of erasing their full and exclusive entitlements to the ownership and control of their ancestral lands.  Backdoor dispossession by way of the native title process may well be the final outcome. That such rights could have been achieved through a negotiated outcome with the Government in which the claimant’s rights to occupy and enjoy their ancestral lands would have been fully restored, rather than being subjected to the costly and draining native title process, are other significant political questions that demand urgent attention.
 
 

On a final note it is reasonable to suggest that Justice Merkel's rejection of antiquated notions of native title, invites comfort from within the legal, political and academic community.  The Yorta Yorta struggle for land justice has been a major case study within academic, legal, political and community circles. In my role as an Indigenous lecturer I have had the pleasure of presenting the Yorta Yorta case to multitudes of Australian and International students, many of whom are studying law.  There are literally thousands of students who have had the opportunity to analyse and to critically assess the reasoning behind the Olney Judgment, 1998.   In their analysis of the case materials, students have virtually picked up the tide of history idea, have turned it around and have unceremoniously dumped it back in Justice Olney’s lap.  Indeed it has been difficulty to find sufficient grounds upon which students can take a pro Olney view, and it would be correct to say that most of the general legal and political analysis of the case has pointed to the fact that Olney J. got it fundamentally wrong.  Comforting as these critiques of Olney have been, the reality is that while Merkel J.  attempted to drown the tide idea in the Mallee-Wimmera region, it is still floating in the Yorta Yorta case.   Whether there are avenues for redress in light of the recent Federal Court determination are legal technical questions that offer further examination.   Or whether the process of gaining land justice can be better advanced through a more efficient and effective land claims process that delivers equality in land on the basis of fair and just principles, are the moral and political issues that confront the Government and Indigenous claimants in 2006.
 
 

References:
 
 

Aboriginal Land Claims Bill, 1983 (Vic).
 
 

Aboriginal Lands Act, 1995 (Tas).
 
 

Atkinson, W.R. Land Justice in Victoria & New South Wales, in Not One Iota: The Yorta Struggle for Land Justice, PhD Thesis, School of Law and Legal Studies, Faculty of Law and Management, Latrobe University, 2000, pp.10, 70-89.
 

Commonwealth v Yarmirr [2001] HCA 184 ALR 113 at p 158 per Justice McHugh, summarizing Merkel’s opinion in that case about Olney’s approach.
 
 

Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 at 60 per Brennan J.

Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] 1606 (18 December 1998) Federal Court Decision.

Members of the Yorta Yorta Aboriginal Community v State of Victoria (Including Corrigendum dated 21 March 21 2001) [2001] FCA 45 (8 February 2001) Full Federal Court Decision.

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December 2002) High Court Decision.

Merkel in Yarmirr, quoted by Chief Justice Black, Yorta Yorta v Victoria (2001) 110 FCR 244 p 262.
 
 

Sydney Morning Herald, 9 January, 2006.
 
 

The Age, 18 August 1999, p 8, citing the Victorian Solicitor General describing the Koori Heritage Trust as trying to preserve the “living culture” of Aborigines in south-eastern Australia.
 
 

The Age, Opinion, Friday 2 December, 2005.
 
 

Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795 (13 December 2005).
 
 

Yorta Yorta v Victoria (2001) 110 FCR 244 at pp. 283, 293.
 
 

also ‘Not One Iota of Land Justice’: The Yorta Yorta Case
        Reflections on the Yorta Yorta Native Title Claim, 1994-2003

text marked up by Sarah Peckham 12th February 2006