Withstanding The Tide Of History: The Yorta Yorta Case And Indigenous Sovereignty

Abstract

In December 1998, Justice Olney (Olney J, Yorta Yorta 1998)* in the Federal Court of Australia found against 'Members of the Yorta Yorta Aboriginal Community' in their application for lands under the Native Title Act.This paper is not about Native Title or its determination, rather, in the wake of the High Court's dismissal of the Yorta Yorta people's appeal against that decision (on December 13, 2002), I will seek to reconsider some of the implications of the 1998 decision.In particular, the paper aims to examine Justice Olney's reliance upon a particular interpretation of Indigenous 'tradition', 'custom', and its continuity.What the case represents is an illustration of a number of assumptions about the nature of the collective life of Australia's Indigenous inhabitants, and the authority of the observations made of them by outsiders, specifically European colonists.In essence, these assumptions reveal the prevalence of the view that the Indigenous people of Australia lived in tribes that were bound by a kind of 'invisible power' of custom and tradition that they were unable to change or develop themselves.In his finding, Justice Olney explicitly relied on such assumptions in finding that Indigenous oral testimony -no matter how reliable and 'credible' -simply could not be accepted without European documentation.Though not itself concerned with the question of sovereignty, the case is not without important implications for the continuing debate in Australia on the nature and content of an Indigenous sovereignty.

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