The week before Christmas seems to have become the traditional time for the release of controversial judgements on Aboriginal heritage and land claims.
On 19 December 1995, the Hindmarsh Island Bridge Royal Commission presented its report; on 23 December 1996 the High Court issued its Wik decision; and on 18 December last, Justice Howard Olney of the Federal Court found that native title did not exist over land and water the Yorta Yorta people were claiming in Victoria and New South Wales.
There may be good reasons for this rather curious timing. Perhaps judges hope the Christmas break will give people the opportunity to actually read their findings before launching into wild commentary. But if this is what Justice Olney wished, he must now be feeling sorely disappointed.
A Yorta Yorta spokeswoman immediately used the "G" word -- accusing the court of committing "genocide". The environmental group Friends of the Earth issued a press release stating that it was a day of "absolute shame" for Justice Olney and the Federal Court.
And in a less inflammatory tone, Australian Democrats Senator Lyn Allison said "the system is clearly inadequate if people robbed of their land title little over 100 years ago cannot affirm their traditional rights that extend back many thousands of years".
But if the senator's logic is accepted, the only way to make the system "adequate" would be to return all of Australia to Aboriginal ownership. In a time scale encompassing thousands of years, why should people "robbed" of their land 100 years ago have more rights than those who lost their land 150 or 200 years ago? And why should Aborigines be precluded from affirming their traditional rights over "robbed" land now held under freehold title?
One of the tragedies of human history is that so much of it is a tale of dispossession. Many of the early settlers and convicts who came to Australia from the British Isles had themselves been "robbed" of customary rights to land, or were the descendants of such unfortunates.
As Justice Olney stated, the Native Title Act gave him no warrant "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". And as a former Aboriginal Land Commissioner, he cannot be portrayed as a crusty old conservative, seeking any excuse to reject a native title claim. Indeed, I would be surprised if his findings in the Yorta Yorta case gave him any great pleasure.
A judge who was unsympathetic to the Yorta Yorta might have taken strong action against the two senior claimants who were caught out telling deliberate lies. Personally, I believe that it was unwise to allow a lie under oath to go unpunished, because this sends out an unfortunate message, one that may ultimately ensure that our legal system really does become "inadequate".
I must declare a specific interest in the Yorta Yorta case. I was called as a witness by some groups who were opposing the native title claim, although Justice Olney stated that the various anthropologists, historians and linguists who gave evidence did not have much influence on his decision. Nevertheless, his findings are consistent with the arguments presented by those of us who appeared on behalf of respondents to the claim.
There was overwhelming evidence that the Yorta Yorta people had lost or abandoned those connections with the land that derived from a traditional system of laws and customs, or from anything that might reasonably be seen as a continuation of that system. By ceasing to acknowledge and observe these laws and customs, the foundation of their claim to native title had disappeared, and the High Court has determined that in these circumstances native title cannot be revived.
The evidence did not just come from outside observers, but from the statements of Yorta Yorta themselves. Justice Olney cited an 1881 petition in which ancestors of the present claimants said they had lost possession of all the land within their tribal boundaries and that they wished to change their old mode of life.
In the 1930s Yorta Yorta leaders were denouncing Australians who wanted to prevent them from adopting "the culture of the white man". They argued that the only aspects of traditional culture that should be retained were items like corroborees, but only if they were treated in the same way that Europeans treated their old folk dances.
As recently as two decades ago a number of the most senior Yorta Yorta elders -- including some of the present claimants themselves -- were recorded as stating that the traditional culture had long disappeared, and that only the most scattered fragments had been retained.
Since that time, many Yorta Yorta have sought to revive aspects of their traditional culture. In some instances this has meant adopting practices based on fantasies about the past. A number of witnesses gave evidence about their commitment to the environment based on traditional customs, and said that they only took from the land and waters "such food as is necessary for immediate consumption".
As Justice Olney noted, this is commendable. But it represents a definite break with traditional customs rather than any continuity. Early observers were struck by the "very wasteful" way in which the Yorta Yorta and other Aboriginal people actually treated their resources, and their indifference towards conservation. Contemporary Yorta Yorta have taken their cue from Friends of the Earth, not from their ancestors.
If people like Senator Allison really believe that the Yorta Yorta have suffered a serious injustice under the current law, they should campaign to change the law so that native title can be claimed by descendants of the traditional owners even if they have not maintained an appropriate connection with the land. Senator Allison could give a wonderful start to such a campaign by allowing Aborigines to affirm their traditional rights over any land that she now holds, and convincing all her Democrat colleagues to do the same.
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