Joanne Knight

January 17, 2009

Hearing Aboriginal Voices

Filed under: native title — joanneknight @ 6:50 am
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Written March 2007

The Noongar people in Western Australia celebrated their successful native title claim over Perth by hanging a banner at the WA Parliament. Now they prepare for the appeal to the Full Federal Court. The response by the WA and Federal governments is to assert that native title cannot exist in areas of high non-Aboriginal development such as Perth. They claim that native title law now lacks certainty and that the principle established by the Yorta Yorta case has been called into question. The Yorta Yorta Native Title claim was rejected on the basis that the Aboriginal community had lost its ‘traditional’ character because of the genocidal actions of the Australian Government. To allow genocide to continue by denying Native Title rights to Aboriginal people leaves Australia stuck in our dark past, failing to acknowledge the human rights violated and to offer any amelioration. It is only by listening to Aboriginal voices and acknowledging their truth that we may achieve justice in this country.

The judgment in The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors[1] (‘the Yorta Yorta case’) focuses on the acts of dispossession perpetrated by the Australian government and settlers on the Yorta Yorta people in the nineteenth and early twentieth centuries and concludes that Native Title was extinguished as a result of these acts. In contrast, in Bennell v State of Western Australia[2] (‘the Bennell case’), a thorough examination of the anthropological and historical evidence is conducted and it is concluded that in spite of acts of dispossession, Native Title has continued among the Noongar people from the establishment of the colony in Perth to the present day.

Native Title Law

Under general principles of Native Title law, the more developed or urbanised an area is, the less likely it is that Native Title rights will be found to exist. However, Native Title may exist in metropolitan areas, for example in areas of vacant crown land. In addition, if there is any inconsistency between Native Title rights and non-Native Title rights, then the non-Native Title rights prevail to the extent of any inconsistency.

In the Bennell case, Justice Wilcox determined that in 1829, at the time of European settlement in Western Australia, there was a Noongar community whose laws and customs governed the land throughout the claim area. The traditional laws and customs observed by the present day Noongar community are based on a recognizable adaptation of the traditional laws and customs existing as at 1829. Native Title continues to exist within an area in and around Perth that was the subject of the prior ‘Combined Metro claim’. This area is part of a larger area included in the Single Noongar Claim, but was determined separately by the Federal Court at the request of the Commonwealth and State Government in order to obtain certainty about whether Native Title exists in the Perth area. A determination about whether Native Title exists in relation to the rest of the Claim area is yet to be made.

On 18 December 1998, Justice Olney determined that Native Title does not exist in relation to the claimed land and waters. Of the determined area 720 sq km falls within New South Wales and 1,140 sq km falls within Victoria. He concluded that before the end of the 19th century the Yorta Yorta People’s ancestors had ceased to occupy their traditional lands in accordance with their traditional laws and customs. He stated: ‘The tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs’. The decision was appealed to the Full Federal Court.

The majority judgment found, among other things, that Justice Olney’s finding that there was a period of time during which the Yorta Yorta community had lost its character as a traditional Aboriginal community was consistent with the law. The appeal was dismissed. In a separate dissenting judgment, Chief Justice Black concluded that Justice Olney was in error, having applied too restrictive an approach to the concept of what is ‘traditional’ and having failed to deal with various aspects of the evidence. Chief Justice Black would have allowed the appeal and referred the matter back to Justice Olney for further consideration. In 2002, the High Court found that Aboriginal groups must show ‘substantially uninterrupted’ traditional links to their country to prove Native Title.

For a claim to Native Title to succeed it is necessary to prove that the claimants are descendants of the Aboriginal people who occupied the claimed area prior to the assertion of Crown sovereignty; and that the claimants have substantially maintained the traditional laws and customs in connection with the land of their ancestors since sovereignty.

Silencing Aboriginal Voices

Justice Olney’s approach to this issue involved emphasizing the non-Aboriginal history of a small part of the claim area where the ancestors of the Yorta Yorta claimants resided after 1788. This is in contrast to Justice Wilcox’s approach. He examined in detail the evidence of the claimants and anthropologists as to their traditional laws and customs.

Justice Olney focuses on the land comprising the Maloga mission which later became known as Cummeragunja. In the 1880s the Aboriginal population of the claim area was relocated from their traditional lands, which had been claimed by settlers, to missions and reserves. The claimants’ ancestors resided at the Maloga mission. The history of the mission is little different to that of other missions and reserves in Australia. The practice of traditional laws, customs and language Aboriginal culture was violently oppressed with starvation, beatings and even expulsion. As early as the 1860s children were removed from their communities and sent to stations. In 1909, the Aborigines Protection Act (NSW) was passed, enabling the removal of ‘any Aboriginal person who … in the opinion of the Board, should be earning a living away from the reserve’. Much of the land itself was subsequently leased to a neighbouring white farmer[3].

In the 1930s, funding for the reserve was cut back. Aboriginal people living on reserves were not eligible for State unemployment relief. Nor were able bodied Aboriginal people eligible for rations. Many people moved to camps in Victoria where State relief and pensions were more readily available. In the mid 1930s at least forty people were already living in bag humpies at Barmah on the Victorian side of the river. Aboriginal children living on reserves were not legally allowed to enrol in public primary or secondary schools in New South Wales at that time. In February, 1939 all but four of the remaining families at Cummeragunja crossed over the river and set up camp near Barmah in Victoria, where those who had been expelled in earlier years had lived[4].

The history which Justice Olney constructs is a heart rending one for the Yorta Yorta people. It is one of paternalism, violence, forced removal and neglect. If these actions amount to genocide, as some writers have argued, then to deny people Native Title on the basis that their traditional society was destroyed, may amount to an act of genocide itself.

In Article II of the Genocide Convention genocide is defined as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group by causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part or forcibly transferring children of the group to another group.

Genocide Denied

Writers have argued that the policies of ‘protection’ and ‘assimilation’ by ‘smoothing the pillow’ of a race near extinction, fulfilled the prophecy by acting to ensure that Aboriginal people were dying out and makes out the case for intent to destroy[5]. The isolation of Aboriginal people would keep whites out and Aboriginal people in, to encourage or coerce people away from settled areas and to allow ‘Christianising’ and ‘civilizing’ processes away from temptations[6]. As we can seen from Justice Olney’s description and works such as the ‘Bringing Them Home – Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families’, these ‘civilizing processes’ were often applied brutally: beatings, starvation, restriction of movement. It has been argued that such treatment amounts to physical and mental harm under the Genocide Convention.

Forced assimilation also meant the forcible removal of children from parents and families and ‘relocation’ to white foster homes or to special ‘half-caste’ or assimilation homes. The forcible transferring of children from one group to another is another aspect of genocide[7]. For the Federal Court of Australia to use these potential acts of genocide to deny people Native Title over land is surely a continuation and compounding of genocide in Australia.

These actions have never been recognized legally in Australia as genocide. Thus no Aboriginal Australian has yet been able to claim damages by challenging the lawfulness of his or her removal from his or her family as a child. In Kruger v Commonwealth[8], the applicants argued that their Constitutionally implied right to freedom from genocide was infringed. The High Court held that there was no right to freedom from genocide. The Genocide Convention, to which Australia is a party, had never formed part of Australian domestic law. Further, even if there were such a right, it nevertheless had not been infringed as there was no intent, as required by the Convention, to destroy the Aboriginal Australian people or their culture[9]. This failure to acknowledge and attempt to redress the wrongs of the past means that as a nation we cannot heal and move forward.

While the government of Australia acknowledges that people were hurt by policies of removal, they do not acknowledge that it may amount to genocide. At the time of the release of the Bringing Them Home report, Senator John Herron, the then Minister for Aboriginal Affairs, went so far as to argue (nonsensically) that the Stolen Generation did not exist because the numbers of people affected were not sufficient to amount to a generation[10]. These responses trivialize the great hurt and abuse inherent in these actions and the devastating consequences for Aboriginal people.

In his Opening Ceremony Speech on 26th May 1997 to the Australian Reconciliation Convention, the Prime Minister, John Howard, denied that there is a history of imperialism, exploitation and racism. He claims that this history is a ‘gross distortion’ and will be ‘repudiated by the overwhelming majority of Australians’. These responses ensure that the Australian government’s policies remain woefully inadequate to the needs of Aboriginal people. Just as the voices of the Yorta Yorta people are excluded from the judgment of the Yorta Yorta case, so they have been excluded from the formulation of Aboriginal policy in Australia under the Howard Government.

Denial of the existence of genocide in Australian history is not confined to the Federal Government. Keith Windschuttle’s book ‘The Fabrication of Aboriginal History Volume One: Van Diemen’s Land 1803-1847’[11] argues that the colonial settlers of Australia did not commit widespread massacres against Aboriginal Australians, and that there was not a campaign of guerrilla warfare against British settlement, as claimed by Henry Reynolds and Lyndall Ryan. The Federal Court has contributed to the silencing of an alternative history of Australia: one which acknowledges the horrors of our past and seeks to redress them.

The Federal Court’s treatment in Yorta Yorta of the anthropological and historical evidence also seeks to silence any alternative voice. Justice Olney’s conclusions on the anthropological evidence are damning to the professionals who presented it. He calls into question their professional ethics and abilities to be expert witnesses in the area of traditional Aboriginal laws and customs. He states that the anthropologists’ evidence suffers from ‘partisanship’, lack of experience and over-reliance on the evidence of the Aboriginal witnesses. As for the Aboriginal witnesses their evidence seems to have been largely dismissed for ‘lying’ (‘on minor matters’), ‘embellishing’ and for outbursts of ‘righteous indignation’. Justice Olney was criticized by Chief Justice Black in the appeal to the Full Federal Court for his approach to the historical and anthropological evidence.

Hearing Aboriginal Voices: A Way Forward

In contrast, Justice Wilcox makes a thorough analysis of the evidence presented by the anthropologists in regard to language, kinship and traditional laws and customs. Justice Wilcox and Justice Olney approach the significance of language in contrasting ways. Justice Wilcox states:

‘In his anthropological report, Dr Palmer discussed the significance of language in identifying a society. At para 2.10, he said: ‘Anthropologists generally accept that language is one of the unifying cultural traits that can be understood as forming commonalities between groups and so result in their members being considered as a part of one society.’[12] (original italics)

Justice Olney’s approach correlates little significance in the existence of a system of laws and customs connected by language. ‘There is no evidence to support the proposition that because two or more Aboriginal tribes or groups spoke the same or similar languages that they thereby necessarily enjoyed Native Title rights and interests in relation to all of the lands occupied by the separate groups.’[13] The anthropological evidence of the Noongar case seems to contradict this statement.

Justice Wilcox’s opinion regarding the connections between laws and customs and language indicates that the existence of a single group speaking one language contributes to the evidence that a single system of traditional laws and customs existed among the claimant group. Establishing that a system existed at the creation of the colony in Western Australia is essential to determine whether the system of laws and customs has survived settlement and thus whether Native Title has survived.

Justice Wilcox gives due consideration to the evidence presented by the Crown anthropologist, Dr Brunton, but disagrees with his conclusions. He questions an assumption by Dr Brunton that travel limitations would automatically bring about separate communities and discusses contradictory historical evidence by Daisy Bates about differences in systems of kinship descent. He also takes into consideration the evidence of Noongar witnesses while practicing due caution.

‘Moreover, the witnesses who gave evidence in these cases were all aware that the Single Noongar application depends upon a finding that there was, in 1829, and is, today, a single community occupying the whole of the claim area, which community is usually called ‘Noongar’. So it is appropriate to treat with caution the evidence of the Aboriginal witnesses about their group identity.’[14]

However he does not dismiss the evidence of witnesses wholesale as Justice Olney does.

The issue of changes to traditional laws and customs since the relevant date goes to the question of extinguishment of Native Title. Justice Wilcox’s approach, supported by the High Court in the Yorta Yorta case, is that ‘one should look for continuity of the society, rather than require unchanged laws and customs’. He continues:

‘No doubt changes in laws and customs can be an indication of lack of continuity in the society; they may show that the current normative system is ‘rooted in some other, different, society’.’[15]

However he goes on to say that while there have been changes in the system of descent, the changes are ‘not inconsistent with the maintenance of the presettlement community.’

‘changes to them [the descent rules] must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices.’ Based on the evidence of Aboriginal witnesses, Justice Wilcox concludes that even though people were removed from their traditional lands and children were not born on them, the laws regarding rights over country adapted to accommodate this. If a person was willing to commit to living upon their country for a substantial period and learning about it, they could maintain their entitlements to that land.[16]

Justice Olney’s approach to the question of the continuity of laws and customs has been criticized Dr Lisa Strelein, Research Fellow and Manager of the Australian Institute of Aboriginal and Torres Strait Islander Studies’ Native Title Research Unit. Strelein argues that Justice Olney gives excessive consideration to one document: an application by the Yorta Yorta to have the land of the Maloga mission granted to them by the New South Wales government[17]. Justice Olney claims that this document is significant evidence that the Yorta Yorta claimants had abandoned their traditional laws and customs and he dismisses evidence by the claimants themselves to the contrary.

Dr Strelein also comments that Justice Olney dismisses evidence of protection of sacred sites, gathering, fishing and hunting activities and the reburial of returned Aboriginal remains as having no connection to the traditional laws and customs of 1788[18]. Justice Olney gives preeminence to the writings of a nineteenth century squatter[19]. He mentions earlier the mounds of evidence presented by Yorta Yorta witnesses. Such evidence however becomes easily dismissed in a few paragraphs. The significance of the Yorta Yorta people’s struggle to maintain their connection with their traditional laws and customs in spite of beatings, starvation and forced removal is lost in this approach the evidence.

The contrasting approaches of Justice Olney and Justice Wilcox represent two avenues of non-indigenous relations with Aboriginal people. One perpetuates the injustices of the past by failing to allow redress of genocidal actions of the past. The other seriously considers the point of view of Aboriginal people and listens carefully to their stories and history. We can only hope (though it seems forlorn) that the High Court will concede this history of genocide in Australia and choose a new direction by upholding the Noongar’s Native Title rights in Perth. Until non-Aboriginal Australians acknowledge this history, it will not be possible to come to terms with the genocidal actions of past governments. All non-Aboriginal Australians benefit from them and all Aboriginal Australians continue to suffer from those actions.


[1] [1998] FCA 1606

[2] [2006] FCA 1243

[3] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] FCA 1606 at para 37-42

[4] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] FCA 1606 at para 43-47

[5] Chalk, F., ‘Redefining Genocide’ in Andreopolous, C.J.(ed) Genocide: Conceptual and Historical Dimensions, University of Pennsylvania Press, Philadelphia, 1997

[6] Tatz, C. With Intent to Destroy, Verso, London 2003

[7] ibid

[8] [1997] HCA 27

[9] ibid; The Hon Justice Roslyn Atkinson,Denial And Loss: The Removal Of Indigenous Australian Children From Their Families And Culture’ [2005] QUTLJJ 4; Strelein, L. Compromised Jurisprudence, Aboriginal Studies Press, Canberra, 2006

[10] Federal Government Submission, Senate Legal and Constitutional References Committee Inquiry into the Stolen Generation, March 2000, p6

[11] Windschuttle, K. The Fabrication of Aboriginal History, Volume One: Van Diemen’s Land 1803-1847, Macleay Press, Paddington, NSW, 2002

[12] Bennell v State of Western Australia [2006] FCA 1243 at para 253

[13] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] FCA 1606 at para 61

[14] Bennell v State of Western Australia [2006] FCA 1243 at para 449

[15] Bennell v State of Western Australia [2006] FCA 1243 at para 776

[16] Bennell v State of Western Australia [2006] FCA 1243 at para 777-778

[17] Strelein, L. ‘Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December 2002): Comment, Native Title Research Unit AIATSIS

[18] ibid

[19] ibid; Atkinsinon, W. ‘Not One Iota of Land Justice: Reflections on the Yorta Yorta Native Title Claim, 1994-2001’, [2001] Indigenous Law Bulletin 12

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