by Wayne Atkinson.
The purpose of this paper is to provide a background to the recent claim which has been lodged with the Federal Court. The claim is for the return of areas of land that formed part of Yorta Yorta tribal (Native Title) lands, and for compensation for loss of land and the destruction of culture and heritage..
The Yorta Yorta people occupied a unique stretch of territory located in what is now known as the Murray - Goulburn region. Their lifestyle was based on hunting, fishing and collecting food. However being river people, most of their time was occupied by fishing, as the majority of food was provided from the network of rivers, lagoons, creeks and lakes which were and are still regarded as the life source of the Yorta Yorta people. The annual floods that occur in this region are regarded by Yorta Yorta people as necessary for the replenishment of food sources and the survival of the forest.
The original territory was both rich and abundant in natural food sources. Archaeologists refer to this type of environment as a broad based economy which is capable of producing a wide range and variety of food. The first white intruder to have contact with the Yorta Yorta commented on its richness and recorded in his recollections that the area could have supported 'twice the population' he encountered there in 1843 (Curr,1883:107,120)..
In relation to population density, the Murray Valley Region was regarded as one of the most heavily populated regions in Australia prior to colonisation. By comparison with other areas, the Murray Valley was capable of carrying a much higher population density than the less fertile and more arid regions in Australia. Evidence to support this, such as the abundance of mounds (camping & cooking places), the fish trap systems and middens (build up of shell fish), indicates that the Murray Valley which includes the Yorta Yorta territory was intensively utilised by tribal groups. The population of the Yorta Yorta before contact is estimated to be approximately 2,400 (Tindale 1974:207; Kirk, 1981:39-41)..
Against this brief background one can reconstruct a rather idyllic picture of traditional Yorta Yorta lifestyle. It is clear that the people did not want for anything in terms of food and security and their lifestyle fits nicely into the picture of affluence described by Sahlins in 'The original affluent societies' (Sahlins 1974:chapter 1) This applies to those hunter gatherer societies who were able to live a relatively rich lifestyle because of the abundance, variety and continuity of food resources and the food quest required a minimal amount of energy input which allowed a large amount of time for leisure activities. In this context, the average amount of time the Yorta Yorta spent in acquiring food was about three and a half (3.5) hours per day, and the rest was devoted to the development of culture. When compared against the amount of time and energy devoted to work activities, the level of stress and the amount of leisure hours we have today I'm sure there are many people if not all that would be envious of such a lifestyle..
It must be said however that while one can paint a rather idyllic image of traditional society there were difficult times, and the Yorta Yorta were not immune to upheavals and conflict. It does seem, however, that they were able to deal with these situations as they arose and social cohesion was maintained. But most importantly their links with the tribal land which was the basis of their cultural identity and existence were unbroken since time immemorial. The integrity of this lifestyle and culture speaks for itself, and the most outstanding aspect is that whatever the difficulties may have been they survived most admirably..
The arrival of Europeans, however, had a devastating impact on traditional groups such as the Yorta Yorta. Within the first generation of the European invasion, the Yorta Yorta population was reduced by 85 per cent. All indications at that time, particularly when viewed against the extent of this destruction, is that they would eventually be wiped out as a distinct cultural group. Their ability to withstand these forces and to survive as a people is an amazing example of the strength and courage of Aboriginal society, and a sad reflection on the misguided beliefs and brutality of the perpetrators of this large scale genocide..
One also has to be cautious in over emphasising the ability to survive as these are events that the Yorta Yorta, and I'm sure the descendants and or beneficiaries of the perpetrators, would have preferred not to have happened. The reality is however there were no choices available and they are still a major legacy that the Yorta Yorta and the Koori community are dealing with today. Given the extent and intensity of those attacks on our land, culture and society, they are events that take a long time to heal in any people's experience and are still major obstacles to the reconciliation process. The image of Kooris as great survivors needs to be treated cautiously because it tends to portray them as being immune to those injustices they have had to suffer, and which are still to be rectified. It also provides a diversion for those Governments responsible for addressing the disadvantage and inequality Kooris still experience on a day to day basis as a direct result of their dispossession and mistreatment..
The outcome of the frontier period in the Yorta Yorta region is similar to other areas where the European invasion wrought havoc. The Yorta Yorta were dispossessed of their tribal lands and left to eke out an existence on the edges of European settlements as remnant tribal groups. As in other parts of the frontier, violence continued and the Yorta Yorta fought a sustained resistance struggle against the wholesale dispossession of their land. The further mistreatment and abuse of Aboriginal women by European men caused increased conflict and reprisals which were natural responses to colonisation wherever it occurred (Reynolds, 1981:106-187; Christie, 1979:53-80; Broome, 1983:36-51). .
The remaining Yorta Yorta population and other tribal groups from neighbouring areas were eventually relocated at Maloga Mission on the New South Wales side of the Murray River in 1874. Maloga was eventually closed and the residents were relocated at Cummeragunja in 1888-9 which became the place where the Yorta Yorta were able to regroup after the destruction. It also provided a base for the development of what became the Aboriginal political movement in the 1930s..
A small group of Yorta Yorta people being consciously aware of the legacy they were left with as a result of the European invasion were active in setting up the first Aboriginal organisations. These organisations, such as the Aborigines Progressive Association in Sydney in 1937, and the Australian Aborigines League in Melbourne in 1932, were responsible for raising the consciousness of the general community to the plight of the Aboriginal people. They demanded that Aboriginal people be given full citizenship rights, including the right to land, self determination and to retain their own unique cultural identity. Social justice and equity were a major part of their policy objectives and the issue of land rights and compensation were at the forefront of their struggle (Horner, 1974:75-80)..
Both these organisations gained major achievements for Koori* people in Aboriginal affairs, and were the forerunners of other organisations that later emerged on both the state and national level (Bennett, 1991:4-5)..
Other political activity in this period which involved Cummeragunja residents was the 1939 walk off in which the majority of residents packed up and 'walked off' in protest against the living conditions, the leasing of most of the reserve land to a European, and the oppressive laws of the reserve system (Bennett,1991:5)..
Whilst Cummeragunja residents were active on the broader front they also fought their own struggle at the local level, and between the periods of 1860 to the present they have been continuously demanding land and compensation for the past injustices they have suffered..
As early as 1860 members of the Yorta Yorta demanded compensation from the Victorian authorities for the destruction of their natural fishing areas by paddle steamers. The demand was for a tax of 10 pounds ($20) to be imposed on each steamer passing up and down the river to be expended in supplying food to the natives in lieu of the fish which had been driven away (Victorian Aborigines Protection Board, 1861:19). These demands were obviously unsuccessful, but it does illustrate that as early as 1860 the Yorta Yorta ancestors were well aware of their natural indigenous rights and were quick to exercise them..
Following the 1860 action, there were continuous attempts to claim land and compensation which have been documented in a chronology of the Yorta Yorta people's struggle for land and compensation (see Atkinson,1985)..
Between 1860 and 1993 there were approximately 17 separate attempts to claim land and compensation by the Yorta Yorta people Overall the only land that has been returned is 1,200 acres of the former Cummeragunja Reserve, which was originally 2,965 acres. This land was granted to the Yorta Yorta Land Council in 1983 by the New South Wales Government under its land rights commitments. The land which was granted under inalienable freehold title, when measured against traditional Yorta Yorta territories, was a mere pittance. It amounts to a tenth of 1 percent of their tribal lands of some thousands of square kilometres. I will now look at the most recent claims for the Barmah and adjoining forests which were lodged in 1984 and 1993 (International Permaculture Journal, 1988:29-31)..
The 1984 claim was prepared by the Yorta Yorta Tribal Council which has since been superseded by the Yorta Yorta Murray-Goulburn River Clans Inc. (YYM-GRC). The claim was for the return of the Barmah Forest to its traditional owners and for compensation for its past use and the destruction of culture. A prior unsuccessful claim to the same area, including the Moira Forest was made to the Victorian Government in 1975 by the Aborigines Advancement League..
The 1984 claim and those of the past reflect the ongoing concerns of the Yorta Yorta people for land, culture and for justice. The Yorta Yorta people have continued to exercise their natural rights as the indigenous occupants and owners of the forest. Furthermore the Yorta Yorta have shown through oral documentary and material evidence that their social, spiritual, economic and cultural links with the area have never been broken . In other words they can clearly demonstrate that their relationship with the area has continued since time immemorial (Yorta Yorta Land Claim, 1984:1)..
The legal basis for the claim, which was prepared in 1984 asserts that in 1967 a referendum was conducted in which an overwhelming majority of the people of Australia voted to amend the Constitution so that the Federal Parliament would have the power to legislate for the :.
"peace order and good government of the commonwealth with respect to the people of any race, including the Aboriginal race of Australia, for whom it is deemed necessary to make special laws". (S. 51,xxvi, Commonwealth Constitution).
This effectively gave the Federal Parliament over riding powers in Aboriginal affairs with respect to the states. The Commonwealth is authorised by the Constitution to legislate with regard to specific matters: in the ordinary course of events, where a conflict arises between the state and federal laws, the Commonwealth law shall prevail to the extent of inconsistency (S.109, Constitution, Niland v. Viskauses, High Court)..
The Australian Government is also a signatory to the international Covenant on Political and Civil Rights. Article 27 states:.
"In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such shall not be denied the right, in community with other members of their group to enjoy their own culture, to profess and practice their own religion or to use their own language.".
The land is an inextricable part of culture and identity, all of which are inseparable in Aboriginal belief..
The Commonwealth may therefore legislate to implement an international law or covenant, such as the above, pursuant to its External and Foreign Affairs power under S.51 (xxix) of the Constitution (Koowarta v. Bjelke Petersen, 1982 (ALR:417). This power was asserted in the Tasmanian Dams case in the High Court in 1983, along with the power under S.51,xxvi, Commonwealth v. Tasmania 1983 46 (ALR:625)..
Further to these federal jurisdictions, is the Murray Island (Mabo) decision which has thrown new light on the situation. The implications of the Mabo High Court decision establishes that the legal fiction of terra nullius has been finally put to rest and there is a stronger case for indigenous land rights in Australia, where groups can establish they have continued links with certain areas. The current Yorta Yorta claim fits neatly into this criteria and is further strengthened by the final 'Management Report' (1993) of the Department of Conservation and Natural Resources which clearly recognises the Yorta Yorta peoples continued associations with the area..
Land Rights Legislation before Mabo:
Victorian Kooris currently hold 0.013% of their traditional lands which have been returned under various Land Acts between 1970-1992. The following list provides details of those areas of land that the Victorian Government has returned to Victorian Kooris. .
|Date||Place||Amount of Land (hectares)|
|Total land 2,991 hectares or 29.91 sq km|
By comparing this amount of land with the original 227,600 sq km of territory occupied by Victorian Kooris it means they currently have regained 0.013% (one hundredth of 1%) of their original Native Title Land. This means in real terms that they have been dispossessed of more than 99.9% of their traditional lands without any recognition of their prior ownership and occupancy rights or reparation for the loss of land and damage to life and culture (O'Neill and Handley, 1994:448-450).
On current analyses the status of Koori people as reflected in the amount of land they own in Victoria is appalling and the refusal to deal with such matters in a fair and just manner is a shame on the Victorian Government. It also reflects badly on the attitude of some politicians, the media and certain elements of society who perpetuate the misguided perception that land rights is some sort of sinister exercise aimed at "taking people's private land and backyards." The reality is that the amount of land returned to Victorian Kooris is a mere pittance when one considers the vast amount of land that has been stolen from them (Australian National Opinion Polls, Survey,1984; Riley, 1994:169-172; Brennan, 1995:38-40).
The legislation enacted for Victorian Kooris shows a very careful approach to land rights legislation by the Commonwealth. Under the Aboriginal Land (Lake Condah and Framlingham Forests) Act 1987, the Commonwealth refused an opportunity to acknowledge that the Aboriginal people were the traditional owners of the land, let alone that their rights had never been extinguished. The Commonwealth also refused to give the Aboriginal owners of the land complete control over whether or not their land was mined indicating that their ownership rights to land in this regard were similar to those of other Australian land owners. No real Native Title Rights as in the Mabo judgement were recognised such as the right to exclude others, the power of veto over mining and other activities that are considered to be incompatible with the enjoyment of Native Title. (O'neill and Handley, 1994:448-450; Aboriginal Land (Lake Condah and Framlingham Forest) Act, 1987; Bird, 1994:329).
The Victorian government has demonstrated in these instances that land can be granted through legislation relating to specific areas. It can also call on the Federal government, as it did with the above case, under the Commonwealth's constitutional powers to grant land to Aboriginal communities in Victoria.
From this background it can be strongly argued that both the State and Federal governments have the power and legal mechanisms to rectify the injustices that Aborigines have suffered over the last two centuries.
Furthermore the High Courts Mabo decision has given the Yorta Yorta new hope of reclaiming what they regard as rightfully theirs.
The current claim when viewed in the context of all those past efforts to claim land will be the eighteenth attempt to settle the long outstanding issue of justice. As this claim is now before the Federal Court no further comment can be made on its substance or the area being claimed.
It is important to note however that given the Yorta Yorta peoples strong links with the area and their continuous struggle for land and compensation it is still the main item on the Yorta Yorta agenda - Justice must prevail in the long run.
*Koori = a term used in New South Wales and Victoria in preference to Aborigine.
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text marked up by Sarah Peckham, 21/5/96.