Dirkley, Karin --- "Ancient customs, legal first" [1997] LawIJV 5; (1997) 71(1) The Law Institute Journal 14

• Ancient Customs, Legal First

Ancient Customs, Legal First

The Yorta Yorta people of

the Murray-Goulburn

Rivers region are the first Aborigines in Victoria to stake a claim for their traditional lands and waters under the new Native Title Act, post-Mabo.

Karin Derkley talked to the lawyers involved about how the case is setting ground rules for such claims and how it is testing the limits of the legislation.

* * *

On a bend of the Murray River, an elder of the Yorta Yorta tribe points out remnants of his people's life on the land - here, a scarred tree, its bark once stripped for crafting into a canoe; there, an oven mound built up over years of cooking fish caught in the river.

Gathered around him is the "court" - Justice Howard Olney, his associate Julia Avis Keast, counsel Bryan Keon-Cohen and Ross Howie, members of the Yorta Yorta community and representatives of the 540 parties opposing the Yorta Yorta's claim for their traditional lands.

There's not a wig or gown in sight - shirt sleeves and sturdy boots are de rigueur in this dry, snake-ridden countryside.

The court strains to hear the old man's softly spoken stories of hunting trips into the forest with his grandfather and later, with his own children and grandchildren.

The rivers, and the lands bordering it, have been the source of life for the Yorta Yorta people for thousands of years, he says.

"It belongs to us and we belong to it."

This extraordinary session of the Federal Court, held late last year, was not the first time that the Yorta Yorta people have

appealed to the powers that be for the right to use and enjoy traditional lands alienated since the 1840s by the demands of cattle graziers, logging and recreational use (see box).

It is, however, the first time they have had the chance to talk to a court about what the land means to them in their own setting, and under their own laws and customs - as stipulated by the native title legislation that emerged out of the Mabo judgment.

The Mabo case itself was held under the old regime. Evidence was subject to the normal rules, and most of it was heard in a formal court setting in Brisbane with just one week at the site of the land claim on the Murray Islands.

For the Yorta Yorta claim, the first Mabo-style land claim in Victoria, the court came to

the actual sites of contention to hear general evidence at the first stage of the proceedings.

For the first two days of each of the six weeks of this stage, it set up in a marquee on the grounds of the Aboriginal community centres in towns around the region, including Mooroopna (near Shepparton), Echuca and Wangaratta. Representatives of the group gave general evidence and testimonies about family histories and related accounts of their own and ancestors' lives.

Then the contingent moved through the countryside, examining in detail the archaeological evidence and features referred to in the general evidence and listening to stories specific to each site.

There was no cross-examination at this stage (that would come in the new year). The way evidence was given was also outside the normal rules and processes. Group members could confer among themselves when giving evidence and, according to traditional custom, elders were required to be present and could be consulted when they were not actually giving evidence themselves.

Bryan Keon-Cohen, who acted as junior counsel in the Mabo hearings and who is now chief counsel for the Yorta Yorta, says that these arrangements were not just true to the spirit of the legislative requirements but fair, given the nature of the case. Holding the hearings in a "sterile alien court in Melbourne" would hardly have been conducive to people speaking freely, he says.

"Imagine if you were talking about your home town while you were in New York, for instance. There are millions of things that would get in the way. You'd lose such a lot."

The court has had to adapt to the fact that it is dealing with an oral culture, he adds, ensuring that the stories which underpin its connection with the land are allowed to flow freely. "It's essential that the right people are able to give evidence about the right piece of land."

Mark Love, who is representing the farming interests, agrees that while the open and unconventional conduct of the court may be unfamiliar to representatives of the respondents (he has been closely involved with native title claims including the Wik case), it is essential that the claimants are given the opportunity to speak freely and state their case.

The background The Yorta Yorta people are making a native title claim for about 2000 sq kms of land and waterways in north-eastern Victoria and south-western New South Wales. The lands and waters include forestry reserves, nature conservation reserves, water supply reserves, Aboriginal lands and Crown lands in the vicinity of the Ovens, Goulburn and Murray Rivers. They are claiming the rights to use, occupy, in-habit and possess the area, including the right to hunt, fish, forage and gather the natural resources and the right to prevent others from using the area without the claimants' consent and direction. Their case is that their ancestors occupied, possessed, used and enjoyed the claimed areas and that they and their descendants should be able to enjoy them under the same traditional laws. There are approximately 4800 Yorta Yorta people to-day, descendants of inhabit-ants of the area from at least 20,000 years before the time of white occupation in the 1840s. Most of the Yorta Yorta today live in and around the towns that have grown up in their traditional territory during the last 150 years, including Shepparton, Mooroopna, Echuca, Barmah, Kyabram and Nathalia. The old Aboriginal station of Cummeragunja is home to approximately 200 people. This is not the first time the Yorta Yorta have asserted proprietary interests or made a formal claim to governments on their tradition-al land and waters. The first was in January 1838 when they bid a party overlanding cattle through their territory to be gone. There were sixteen further attempts to assert their rights to the land, including petit-ions to government officials for compensation for lands and fishing grounds lost as a result of white occupation. The Yorta Yorta have played prominent roles in many facets of Australian society and been at the leading edge of political, social and cultural life in indigenous Australia. One member, Sir Doug Nicholls, was previously Governor of South Australia. The Native Title Act 1993 Native title is defined in s223(1) of the Act as "the communal, group or individual rights and interests of the Aboriginal peoples or Torres Strait Islanders in relation to land and waters, where: a) the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or water; and c) the rights and interests are recognised by the common law of Australia."

"We recognise that if the native title hearings are to be part of the reconciliation process, the applicants must be able to invest some faith in a system which they see as having taken away many of the rights that they had."

Apart from providing for a more informal court setting and relaxing the normal rules of evidence, the Native Title Act also stipulates that native title be proved under a group's own traditional laws and customs.

According to Maureen Tehan, an expert on native title at the University of Melbourne, this is one of the legislation's major distinctions from the original vehicle for indigenous land claims - the Land Rights (Northern Territory) Act.

"The Land Rights Act set up a particular definition of what a traditional owner was and the group of people making the claim had to bring themselves within that definition to win a grant of freehold title."

But the ways in which groups relate to the land, and the systems by which people acquire these relationships, vary across Australia, she says.

"It depends on the tradition of each group."

The Native Title Act acknowledges this variety, broadening the test by which groups prove their ongoing connect-ion with the land.

"When it talks about laws acknowledged and customs observed, it's saying that it's whatever the group's laws and customs are that give the shape and form of that interest.
"So, rather than a group of people trying to fit themselves into the pigeonhole, they can say, well, this is what our relationship is."

For Peter Seidel, instructing solicitor for the Yorta Yorta, this element of the Act forms the essence of the case.

"When we talk about customs observed and laws acknowledged, we are saying that this is a distinct localised and bounded community and its laws are the knowledge about its country that is possessed and handed down by those community members.
"The questions that we ask are all pointing to the fact that the system (of laws and customs) exists, and demonstrating how different areas (of the community's workings) fit into that system."

According to Seidel, this system is separate to the paradigm of Anglo-Australian property law. "It's a different system. It's an indigenous system- as recognised by the common laws."

Native title legislation does provide for connections with the land, involving responsibilities and mutual obligations between the land and the people in ways not envisaged by western systems of land ownership. However, Love argues that the Mabo judgment says that the native title rights which the common law will recognise are those rights which have the capacity to be recognisable by the common law - such as possession, rights to hunt and fish and being the exclusive group to be able to take fish from a part of the river.

According to Tehan, it is perhaps inevitable that the claims most likely to be successful are those which can be proved under concepts most familiar to Anglo-Australian property law.

"There is a slippage into Anglo notions. The legislation appears to say this [system under which the claim must be proved] is something separate, but there is a continual use of similar language."

Tehan cites as an example the arguments leading to the Mabo decision.

"The way the Murray Islanders used the land was very similar to the way the Europeans use land, for example, with marked boundaries. It was just the sort of system that makes an English property lawyer go - oh yes, that has to do with property rights.
"In relation to the Yorta Yorta claims, one of the issues is how much of a physical connection do you have to have? The Yorta Yorta may not have lived on that land in a day-to-day way, but we also know that people have continued to visit and use at least parts of the land under claim.
"The point about whether the connection requires a physical occupation, and the extent of that occupation, has not yet been decided."
The kind of connection proved on the claimed land will also affect the extent to which native title is granted, says Tehan.
"It's not that you just walked over it, or just visited a little block of land every few years for religious ceremonies. Other-wise, it's easy (for the court) to say well, we'll just put a fence around that bit of land and that's all that native title consists of.
"A group that says all of this land is land that we use and we use it in a variety of ways - for resources, for food and for spiritual purposes - that makes it a bigger claim and a bigger right."
No matter which system the claims must be proved under, according to Keon-Cohen, the problem remains a matter of mustering and presenting facts.
"A non-Aboriginal person can prove land ownership if he rolls up to court with a certificate from the Land Titles Office. But we still have to prove the case on the balance of probabilities.
"Native title is founded on traditions and customs and they're a matter of fact as with any case. These are facts about a traditional society and they can be about all sorts of things.
"We've called people who've talked about fishing with their grandfathers when they were children 60 years ago, hunting, gathering. learning stories of the creation of this land. We've called people who say, `I still take the roots of trees to make boomerangs in the traditional way as my father taught me'.
"The court has to look at these facts and decide whether this amounts to native title."

What will in the end serve as the proof of a continuing traditional connection is anyone's guess, says Keon-Cohen.

"That is one of the novel elements of this case. No one's tried it before." 

KARIN DERKLEY

Karin Derkley is a freelance journalist.