Indigenous Law Bulletin
by Dr Wayne Atkinson
This paper analyses the Yorta Yorta mediation process that began in 1994 under the Native Title Act 1993 (Cth) (‘the NTA’). It argues that while the mediation process provided a forum for the Yorta Yorta to assert rights to land and resources, it proved to be a failure in mediating agreements.
In order to understand the experience of the mediation process for the Yorta Yorta it is important to be aware of what happened during our 1984 land rights claim. Opposition to the claim was driven through local media by corporate and vested interest groups. Local government, farmers, councillors, the National Party, and the League of Rights, combined to undermine the Federal and Victorian governments’ land rights proposals and the Yorta Yorta claim. The opposition was part of a more widespread anti-land rights campaign in the 1980s, which reflected a mindset driven by race politics and the underlying fear and insecurity that emanated from theft of Indigenous land.
Any apprehensions that the Yorta Yorta may have had before agreeing to partake in mediation in the 1990s were based on prior experience. Our position is best exemplified by Yorta Yorta elder, Elizabeth Hoffman, who explains: ‘we were fighting from our old position of nowhere’.
Although we had the option of going straight to the High Court following the success of Mabo v State of Queensland (No 2) (‘Mabo’) the Yorta Yorta chose mediation on the advice of our legal counsel. To have the matter heard on its legal merits before the High Court rather than attempting to negotiate through a minefield of prejudice, ignorance and entrenched interests was a tempting alternative. However there was optimism that the new procedures under the NTA, at that point untried, offered a positive way forward. In the event that the mediation failed we would have to go to court to have our claim decided.
We lodged an application and it was accepted by the Native Title Registrar in May 1994. The date for the commencement of the mediation process was set for September 1994.
The National Native Title Tribunal (‘the NNTT’) opened the mediation conferences in the Shepparton Town Hall in September 1994. The mediation process ran for nine months, and included numerous meetings with various parties in the townships of Shepparton, Mathoura, Wangaratta, Corowa and Echuca.
The mediation was presided over by Justice Grey. The Tribunal opening was one of great expectations. Mabo still occupied the central stage. The Town Hall was packed with local people: those who had come to explain their interest in the land, and those who had come to test Mabo images that had taken on new and often sinister dimensions. Sitting opposite us were men and women we would be up against for the next five years but whom we would never really get to know. These were the lawyers representing the non-Yorta Yorta parties. There were two long rows of them, mostly men dressed in suits. They fitted the stereotypical image that lawyers seem to attract even without the wigs. At the beginning there was a fair degree of interaction between the key players but this was to change as people became more polarised.
After an introduction to the proceedings by Justice Grey, the barrister (now QC) for the Yorta Yorta, Brian Keon-Cohen, rose to open the Yorta Yorta case. He was followed by a small group of Yorta Yorta representatives and I was the first of these. For a moment in history the Yorta Yorta were given an opportunity—space, time, a silent audience, a respectful judge—to say who we were and what we wanted, to define in our own words our aspirations for our land and community. The Yorta Yorta presentations went to the heart of what it is to be Yorta Yorta. We raised the big issues about land care and management and spoke of the degrading treatment of the waterways, and the loss of plant and animal life. Some of the elders spoke of the land, and of the ancient forests looking tired and in need of a rest. In hindsight, it felt as though the tide of history was at last turning in our favour. It felt as though we were on the edge of a new start.
The Yorta Yorta spoke with the same air of conviction and compassion that our ancestors had before us: pride, dignity, diplomacy, forbearance and passion for the land. To most of the audience this was a new story, an unknown aspect of the Aboriginal community beside whom they had lived for generations without ever really knowing us. It challenged their sense of reality.
When the Yorta Yorta finished speaking, the judge turned to the opposite tables and invited them to speak. These were the cattlemen, the water users, the timber millers, the politicians, the recreational fishermen, and the beekeepers. We braced ourselves. What racism and prejudice would we have to face this time? Would any show or spirit of Reconciliation shine through in respect of the justice of our claim? Had they really heard our heartfelt statement about the land and did it make any difference to their entrenched positions?
Hearing the over 400 parties went on for nearly three days. Many of the racist stereotypes emerged again as parties expressed concerns about the land being locked up, the effects of native title on local wildlife, and their fears about Yorta Yorta involvement in land and water management. Old prejudices such as ‘We’ve never seen an Aborigine around here’ re-emerged. Ironically, some of these came from tourist operators who often used Yorta Yorta heritage to promote tourism. Yorta Yorta Cultural Officer, Neville Atkinson, responded to these prejudices by saying ‘we are still not at the stage where we can say who we are and not be insulted’.
These issues dominated the mediation sessions and distracted from the main issue of the original land title and its recognition within the introduced land scheme. At the end of the first day, the enormous challenge we had taken on came home to us. It was patently obvious that the locals wanted to maintain the status quo and a loggerhead situation would be hard to avoid. On the other hand, at least we had the opportunity to put our case and we were acquiring confidence in our ability to do this.
In attempting to reach agreements with parties, the Yorta Yorta bent over backwards. We had reluctantly conceded those lands that were under exclusive possession by others, and were only claiming a small percentage (less than 10 percent) of the original lands. The Yorta Yorta took the position that persistence would inevitably lead to justice and, in the spirit of Reconciliation, some good must shine through at the end of day.
Proof requirements in native title claims fall heavily on Indigenous applicants. The non-Indigenous parties, who have usually been the prime beneficiaries of Indigenous land and resources, are not required to prove their identity or connection to the land. Nor, as stated by Yorta Yorta elder Margaret Wirripunda, are they required ‘to prove by what authority they are on our land’.
The claim was always likely to raise the ire of the NSW and Victorian governments as it does not conform to the stereotype that native title claims will only affect ‘remote’ Australia. Contrary to this perception, while the Yorta Yorta claim is in an intensive non-Indigenous farming district, the Yorta Yorta have maintained their connections with the claim area.
Victorian Government representatives attended, but took the view that native title was extinguished. Considering the Victorian government’s extremely poor track record in addressing prior Indigenous rights, an opportunity to redress past land injustices was again lost. The NSW government withdrew from the mediation in the early stages, also taking the position that native title was extinguished over the whole of the claim area.
While most of the opposing parties had interests which were capable of co-existing with native title, they decided to follow the negative position of State governments and the advice of lawyers who took the view that native title was extinguished. This entrenched opposition not only to our claim, but also our validity as a cultural group. This proved to be the main barrier to agreement.
The lands and waters claimed by the Yorta Yorta lie in the heartland of a populous region of northern Victorian and southern NSW. The claim was contested by 470 non-Indigenous vested interests. As the definition of a party is ambiguous, limited interests like short-term licence and permit holders, could become parties. This significantly increased the number of parties in mediation (and subsequent court) proceedings and overloaded the system. Much of the mediation time was absorbed with identifying the characteristics of ‘a party’ and allowing due process to the multitude of interests. The entourage of lawyers, bureaucrats, academics and other experts that accompanied the many registered interests was an additional weight confronting the Yorta Yorta.
The distance travelled throughout the claim area of some 20,000 square kilometres was a huge burden on the Yorta Yorta. Further the time taken to hear the many parties involved placed enormous strain and pressure on the claimants’ time, energy and resources. It was apparent from the outset that with limited resources to get people to the mediation meetings, to feed and accommodate them, and report to the community, the process would impose a major drain on the community. The load of maintaining a presence at the mediation fell on the shoulders of individuals, some of whom had to pay out of their own pockets to get to meetings and to attend the mediation conferences.
The ‘Native Title Industry’ is the industry, employing a multitude of people, which has emerged from the native title process. Native title mediations and hearings can cost up to $60,000 a day, and hence a multi million-dollar enterprise has been created. Most of these resources have empowered and enriched the industry, at the expense of native titleholders, on whose interests the industry owes its very existence. Yorta Yorta members were confined to the status of the ‘other’ in our own claim. There are limitations placed on what we can achieve, despite our ability to represent ourselves, when our capabilities and interests are usurped and represented by others. Anyone visiting the mediation and court proceedings would have seen claimants sitting at the back of the court patiently waiting and hoping that justice would prevail, while their rights and interests were spirited away by the industry.
The media coverage that occurred in some newspapers during the mediation had a significant negative impact on the process. Someone from within the ‘confidential’ mediation meetings leaked the claimants’ policy document to the media, resulting in an article entitled ‘Native Title Fears’ appearing in the Shepparton News. Also, both prior to and throughout the proceedings, regional conservative politicians regularly challenged the validity of the Yorta Yorta’s heritage in regional newspapers. The misconceptions that occurred as a result inevitably rebounded on the Aboriginal community who had to counter the tide of regional racism that resulted.
Unfortunately the NNTT’s powers proved to be ineffective to prevent such a situation. While it can request that evidence be treated as confidential, it has no power to prevent any party from making public statements about what is said in mediation. This flaw in the NTA was a significant problem in the mediation process.
No substantive agreements were achieved as a result of the mediation process. Most of the time was absorbed dispelling misconceptions about native title rather than addressing the reality of its existence. As there was no sign of any meeting point, the application was referred to the Federal Court in May 1995.
The Yorta Yorta experience may assist other native title claimants to decide whether mediation is worth pursuing. Although it is an early case, the signs are not particularly favourable. Yorta Yorta barrister Bryan Keon-Cohen was critical of achieving ‘nothing at the end’ of so much effort and goodwill on the part of the claimants. He commented after the failure of mediation that:
This could also happen to you in the court, but if you go through the mediation process and get nothing, you then have to get back up, regroup and start to prepare your claim for trial. At least if you lose in the court, you know that it is the end of that process and Aboriginal people will still have to start thinking about the ways that they will assert their rights politically or whatever. In our case, the mediation was nine months of negotiation that achieved nothing. It was a clear negative in our capacity to sustain the effort to prove our claim in Court.
Looking back, the High Court would have been the better option rather than being used as ‘guinea pigs’ to prop up the newly formed Tribunal.
The Yorta Yorta experience is a case study in trying to steer a course through a minefield of regional biases and bigotry fuelled by a rural conservative elite. Because of these powerful opposing interests damaging the prospects of mediation leading to a regional agreement, the Aboriginal and Torres Strait Islander Social Justice Commissioner urged governments to take a more constructive role. Public education and awareness programs in Aboriginal history and culture were recommended. This ‘would not eliminate all racism and ignorance but it might make a dent’ the Commissioner noted. He also recommended that the NTA ‘be amended to render punishable breaches of confidentiality harmful to the mediation process’.
The NNTT provides an alternate mode of dispute resolution that relies on reaching negotiated agreements between parties. The provision of a more flexible style not totally bound by legal conventions, and one that takes account of the cultural concerns of Indigenous people are worthy innovations of the NNTT. However of the 745 claims lodged between 1994–98, only two resulted in mediated agreements. While the mediation process has created a more amicable environment, in the case of the Yorta Yorta it seems to have had the effect of entrenching attitudes against us.
Dr Wayne Atkinson is a member of the Yorta Yorta and principal claimant in the Yorta Yorta case. He is also a lecturer in Indigenous Studies in the Department of Political Science, University of Melbourne.
 Australian National Opinion Polls, ‘Australian National Survey of Public Attitudes’ in C Fletcher (ed), Aboriginal Self Determination (1984) 167; H McRae, G Nettheim and L Beacroft, Indigenous Legal Issues: Commentary and Material (2nd edition, 1997) 196–200.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (1995) 104.
  HCA 23; (1992) 175 CLR 1.
 W Atkinson, Personal Reflections on Mediation Process (1995).
 Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 2, 100.
 K Alford, ‘Washed Away on a Tide of White History’ Guardian Weekly, 21 March 1999, 69–71; K Harvey, ‘Stories from Elders’ (Victorian Aboriginal Community Elders Care Centre, Melbourne, unpublished, 1999) 21–8; Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 2, 94–103; M Dodson, ‘Power and cultural difference in native title mediation’  AboriginalLawB 61; (1996) 3(84) Aboriginal Law Bulletin 8.
 Victorian Government, Hansard, 12 November 1998, 775.
 G Neate, ‘Proof of Native Title’ in B Horrigan and S Young (eds), Commercial Implications of Native Title (1997) 243–6; Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 2, 100–1.
 EW Said, Orientalism (1990).
 W R Atkinson, ‘19 Seconds of ‘Dungudja Waala’’ (1999), <www.sljr.org/frames.htm> 5–8.
 J Finlayson, Indigenous Heritage Protection, Native Title and Regional Agreements: The changing environment, Discussion Paper No 145, Centre for Aboriginal Economic Policy Research (1997).
 Shepparton News (Shepparton) 29 September 1994, 1.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 2, 100.
 See Native Title Act 1993 (Cth) ss 62, 63 & 74; Miriambiak Nations Aboriginal Corporation, Mirimbiak Yarmbler (Volume 5, 1998), 18.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 2, 94–105; B Horrigan and S Young (eds), Commercial Implications of Native Title (1997) 39.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 2, 100.
 Ibid 121; Dodson, above n 6, 8–11; Alford, above n 6, 75–83.
 See North Ganalanja Aboriginal Corporation v Queensland (1995) Fed No 869/95, 565-74 (Jenkinson J); Native Title Act 1993 (Cth) s 71; M Thornton, ‘Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia’ (1989) 52(6) Modern Law Review.733.
 See Native Title Act 1993 (Cth) sub-s 109(1)(2)(3).