ABC NEWS ONLINE

Thu, 12 Dec 2002 11:04 AEDT

The Yorta Yorta people have lost their High Court bid in a native title claim over 2,000 square kilometres of land and waterways along the Victoria and New South Wales border. The court has upheld a ruling that the tide of history has washed away the Yorta Yorta's traditional rights.

The case tested the definitions in the Native Title Act, which require that traditional laws and customs be substantially uninterrupted. Crucial evidence against the claimants included a written account suggesting their forebears had lost their land and ceased to practise their traditions by the 1880s. The Yorta Yorta argued not all native title elements need to be satisfied for native title to be asserted.

But in a 5-2 ruling, the High Court has found the group failed to demonstrate they had met any of the requirements under the Native Title Act.

Melbourne Herald-Sun 12 Dec 02

The Yorta Yorta people have branded the High Court dismissal of their native title claim as racist. Tears overflowed and angry voices were heard outside the High Court offices in Melbourne today as Yorta Yorta claimants learnt their appeal for land rights along the Victorian/NSW border had failed.

Yorta Yorta spokeswoman Monica Morgan said today was a "dismal day for Aboriginal justice". She said the five out of seven judges who dismissed the claim were products of a white country with a black history. "It's not about native title, it's about racism," she told supporters and media outside the court. "It's about recognition, it's about seeing our sovereignty."

Ms Morgan said the Yorta Yorta people could take their legal battle no further and it appeared they were going to have to pay the legal costs of the eight-year battle. "We have heard today that they're so mean spirited that they (the High Court) are even saying the court costs have to be met by the Yorta Yorta people themselves," she said.

ATSIC leader Geoff Clark said it was a sorry day in Australian history with Aboriginal traditions not recognised by the government.

ANTaR Vic Media Release, 12 December 2003

YORTA YORTA FAILURE IS OUR FAILURE

Today the High Court ruled against the Yorta Yorta People's appeal to have their native title rights acknowledged. The Yorta Yorta were appealing the decision of the Federal Court in 2001, which denied their native title claim.

"ANTaR Vic would like to express its extreme disappointment and utter frustration with the inability of the legal system and the current native title regime to deliver any justice to traditional owners and to fairly acknowledge the reality of the Yorta Yorta people's ongoing connections to their traditional land and culture." ANTaR Vic Spokesperson Peter Lewis said today. "This is a disastrous outcome for the Yorta Yorta and for all native title claimants and indigenous communities in Victoria. It is a failure for us all and a monumental setback for reconciliation. After years of struggle, still the Australian community and the legal system is failing the first peoples of Australia."

"ANTaR shares the Yorta Yorta's feelings of anger, frustration and sorrow over this decision. The failure of the courts to recognise that the Yorta Yorta have survived and maintained their connections despite forced relocation and dispossession demonstrates that other solutions must be sought to dealing with indigenous land rights. ANTaR knows well that the Yorta Yorta people are resilient and that their culture is strong. But by extinguishing the native title rights of the Yorta Yorta people, the courts have denied the community generally the opportunity to give some redress for past dispossession and to continue to claim, wrongly, that land is occupied free of any Aboriginal rights or interests."

"Whether as a community we can retrieve anything meaningful for the Yorta Yorta is now up to the Victorian Government . It's time for Steve Bracks and his colleagues to move beyond mere rhetoric over mediation and finally sit down with the Yorta Yorta to return to them recognition and rights."

MEDIA RELEASE

Australians for Native Title and Reconciliation (ANTaR) National Office

12 December 2002

Yorta Yorta decision a further act of dispossession and cultural genocide

"The High Court's decision to reject the Yorta Yorta's native title appeal confirms that the Native Title Act is resulting in continuing acts of dispossession and cultural genocide", the National President of Australians for Native Title and Reconciliation (ANTaR), Phil Glendenning said today.

"In this case it is particularly staggering that not only have the Yorta Yorta been unfairly deprived of recognition of their culture and the rights which flow from it, but that they have been lumbered with the costs of their own dispossession.

"On this day our justice system has utterly failed the Yorta Yorta.

"The decision demonstrates how the definition of native title is becoming increasingly more restricted and narrow and that the opportunities of Mabo are being steadily whittled away", Mr Glendenning said.

"It confirms that the most dispossessed have the least to gain from native title.

"The odds are clearly stacked against native title claimants at every stage.

"The decision to award costs against the Yorta Yorta will also act as a disincentive for native title claimants to appeal adverse decisions", Mr Glendenning said.

"This decision, hard on the heels of the disappointing Mirriuwung-Gajerrong decision, once again underlines the urgent need for a new approach to native title and other matters of 'unfinished business' based on genuine negotiation with Indigenous people.

"What is required are negotiated solutions that recognise that a coexistence of Indigenous and non-indigenous interests is not only possible, but a desirable outcome. That would be real reconciliation in action.

"ANTaR calls on the Federal Government to rethink its approach to native title and to embark on meaningful negotiations with Indigenous peoples to secure solutions that properly respect Indigenous rights and interests, and that provide Indigenous communities with the means to address economic and social disadvantage", Mr Glendenning concluded.

ABC NEWS ONLINE Thu, 12 Dec 2002 19:34 AEDT

The Federal Government has rejected calls to rewrite or scrap the Native Title Act after the High Court's Yorta Yorta decision today.

Five of the seven judges have upheld a Federal Court ruling that native title has been washed away by the tide of history. The claim area included land and water near Echuca on the New South Wales/ Victorian border.

Senator Ridgeway says the decision undermines the original Mabo judgments. "It seems to me that the burden of proof issue is what's at the source of the problem," he said. "The act is fundamentally flawed because it places a burden on Indigenous people rather than the Crown, to show native title has been extinguished. I think it should be scrapped or taken back to the drawing board."

But Indigenous Affairs Minister Philip Ruddock says native title was never meant to be available to everyone. "It seems to me if you've relied upon for the court to establish native title, and the common law title for Indigenous people was established by a court decision initially, you should be prepared to accept the decision of the umpire."

HIGH COURT OF AUSTRALIA

GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MEMBERS OF THE YORTA YORTA APPELLANT ABORIGINAL COMMUNITY

AND

STATE OF VICTORIA & ORS RESPONDENTS

Members of the Yorta Yorta Aboriginal Community v Victoria

[2002] HCA 58

12 December 2002

M128/2001

ORDER Appeal dismissed with costs.

On appeal from the Federal Court of Australia

FULL JUDGEMENT: http://www.austlii.edu.au/au/cases/cth/high_ct/2002/58.html