New strategies for Aboriginal rights needed after failure of Yorta Yorta land claim

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December 12, 2002 was a low point in the sordid history of race relations in Australia. On that day, by a 5-2 majority, the High Court tossed out the land claim of the Yorta Yorta people. The decision upheld a lower court that had ruled, infamously, that the Yorta Yortas’ connection to their ancestral country has been “washed away by the tide of history”. The new ruling spells doom for the land rights of Indigenous Nations throughout the southeast of the continent. It makes it clear that it will be nearly impossible for them to “prove” their ongoing connection to their traditional territory to the satisfaction of the colonisers’ laws.

The High Court showed utter contempt for the consistent oral history of the Yorta Yorta claimants, preferring the dusty, self-serving writings of the white men who themselves stole the land in the 19th and 20th centuries. It was a judgement for the thieves and conquerors.

Invasion and genocide. On January 26, 1788, Captain James Cook “took possession” of the continent on behalf of the British monarchy.

His claim was based on the legal fiction that Australia was terra nullius, meaning nobody already occupied the land. The British ignored the hundreds of clan groups, totalling maybe a million people, who not only inhabited the country but had a well-organised system of customary land law. For the next two centuries, governments and settlers did their level best to turn the fiction of terra nullius into fact. Until 1967, Indigenous people were not even counted as part of the population. Lands were confiscated by force, whole clan groups were murdered, and nations were imprisoned on reserves — enslaved to the so-called “Aboriginal Protectors”, agents of the racist state governments.

In 1937, a meeting of the Protectors resolved on a “final solution to the Native Question”, embarking on a strategy of removing mixed-race and other “endangered” children from their families and communities. In the 1980s, governments began a campaign to simply criminalise Indigenous youth, removing them from their communities by jailing them. The proportion of Indigenous people in prison is now many times greater than the proportion of Aboriginal people in the general population.

The white settler Establishment has never abandoned its goal of the complete obliteration of one of the world’s oldest societies.

Extinguishing the light. In 1992 a then-progressive High Court finally recognised the right of Aboriginal Australians to their customary lands, overturning the Big Lie of terra nullius. The Mabo judgement was described as “a lighted beacon” for the continent’s Indigenous peoples, and the Yorta Yorta claim was one of the first to be made.

On December 12, the beacon was snuffed out. But the white-supremacist court was not the only agent of dispossession.

In order to limit the effect of the Mabo ruling, an incumbent Labor Government enacted the 1993 Native Title Act (NTA). This law severely limited the ability of Indigenous peoples to claim lands directly. Instead it created a complex, demoralising system of tribunals and courts.

This development derailed a rejuvenation of the militant land-rights movement of the 1970s. Rather than organise on the streets, co-opted Indigenous bureaucrats led their peoples into a maze of litigation and one-sided negotiations with hostile state governments and corporations.

While the use of the courts is often a useful tactic, to rely on it as the main game is disastrous. When the current conservative government amended the NTA in 1998, turning it into an outright tool for land theft, the Yorta Yorta legal case was rendered hopeless. Now, only the relatively intact nations of the north and centre of Australia have any prospect of regaining title to their lands through the courts.

As Yorta Yorta elder and professor Wayne Atkinson puts it, “I am now in a position to say … that Native Title gives you bugger all”.

Justice and survival. A just settlement of the 215-year-long undeclared war on this continent is desperately needed. It would include reparations for seized land, compensation for genocide, and recognition of the sovereignty of Indigenous Nations, who have never ceded a metre of their land and have fought mightily to get it back. Says Atkinson, “I personally feel a great sense of freedom in that we are no longer gagged and oppressed by the Native Title process. I think it’s time for our people to unleash themselves … and to speak direct and strong like our forebears”.

In 2000, two million people took to the streets in a protest by the “reconciliation” movement against government racism. This movement is not particularly radical, but the enthusiasm with which it has been embraced shows how deeply ordinary Australians abhor the government’s treatment of Indigenous people. Many favor a treaty and compensation for Indigenous Nations.

The bankrupt struggle in the courts needs to be replaced with a broad-based, multifaceted political mobilisation. If Indigenous leaders spearhead a move to the streets, as they did in the 1930s, ’60s and ’70s, they will meet with support. Survival depends on resistance.

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