Whether the Australian Government should or should not apologise to Aborigines is a politically charged issue. So too is the symbolism of Australia Day. Commemorating the landing of the English and their cargo of convicts on Sydney shores is one thing, but lauding it as symbolising 'one of the success stories in the history of the modern world', as the historian Geoffrey B1ainey recently has, is quite another.

For over a hundred years, the doctrine of terra nullius was taken as the basic legal principle to justify and perpetrate the legal dispossession of the indigenous occupants of Australia. During the early 1990s, however, it seemed that white Australia was at least taking steps in the right direction. The High Court's 1992 Mabo judgement recognised the existence of a vestigial, limited form of native title. It rejected the doctrine of tena nullius as a reason for denying current native title claims, notwithstanding 'the tide of history' since white settlement in Australia.

Current trends in dealing with native title claims, however, do not provide much hope that real progress is being made. The Howard Government's Native Title Amendment Act, passed in late 1998, involved a significant watering down of past native title legislation, with big losses for native title holders and claimants. The overall Bill was clearly detrimental to Aborigines, and the minor amendments made by the Senate did nothing to rectify the situation. In its final form, the new Act fell short of the 'bucketloads of extinguishment' promised by the Deputy Prime Minister, Mr Tim Fischer, but not by much. The constitutional lawyer, Professor Tony Blackshield, has described it as providing 'Akubra hats-full of extinguishment'. Several experts believe that the amendments are unlikely to survive a constitutional challenge.

The effects of this legislation have been reinforced by a judgement in the Federal Court in December 1998, which resulted from a native title claim lodged by peoples of the Yorta Yorta Aboriginal community; in 1994. The land claimed by about 4,500 Yorta Yorta people is important, not only because it is large, but because it lies in a relatively populous region of northern Victoria and southern New South Wales. The area is bisected by the Murray Rivet from east to west, and embraces a number of substantial towns, including Shepparton, Echuca, Yarrawonga and Wangaratta. The ciaim covered public lands, including state forests, leased crown land and licences held by private interests such as timber and mining companies. Waterways within the area were also clauned.

The case was judged-on the unamended Native Title Act. In the judgement, Justice Olney rejected the Yorta Yorta people's native title claim over their traditional homelands in south-east Australia. Ironically, in view of the Mabo judgement, he repeatedly referred to 'the tide of history' as having destroyed the foundation of native title to the land at issue.

A month before this judgement was handed down, Justice Lee in the same Court ruled in favour of native titLe claimants from the East Kimberley region in the north-east of Western Australia. Appeals have been lodged against both judgements which were apparently judged on similar legal principles and standards of proof required, but related to quite different parts of Austlalia.

The reason given in the Yorta Yorta judgement may indicate the difficulties indigenous groups face in getting legal recognition of their connection with their traditional homelands. Intentionally or not, governments and the courts have framed and interpreted native title legislation to ensure that among the most disadvantaged and dispossessed of all indigenous people-namely those who the courts consider have long since been partly or wholly removed from their homelands, cultural ties and kinship networks- receive the least of all. This may apply more to Aborigines in the longer-established areas of white settlement in Australia's south-east.

The Yorta Yorta people's history since settlement

Much of the Yorta Yorta traditional land around the Murray River is extremely valuable economically, and was recognised as such as early as the 1820s. The explosive expansion of pastoral occupation from the 1830s rapidly displaced indigenous peoples from the lands around the Murray. Violence was widespread and intense in the process. By 1850, Aboriginal 'physical resistance to settlement had ceased', in the words of Justice Olney, and their numbers had been drastically reduced by conflict with whites and contact with the diseases the newcomers brought with them.

In the 1840s, the pastoralist Edward Curr inspected part of the Yorta Yorta's territory on horseback, and found it fertile and econorhically promising. The ease with which he took over the land was breathtaking. In his own words, 'being satisfied with what I had seen, I shortly after applied for, and obtained about eighty square miles of Moira country, which turned out very valuable'. Indeed it was. Curr retired early, a wealthy man. Forty years after his tour of inspection he penned and published his recollections. These were relied on by respondents to the Yorta Yorta claim to advance their case that native title in the region had long been extinguished,

Government policies towards indigenous people were paternalistic at best, representing the well-meaning efforts of men of their times. At their worst, they have been judged as genocidal. Many children were removed from the influence of their families, whom conventional opinion regarded as either deprived or depraved. Assimilation, as it became known, entailed the removal of thousands of indigenous children from their families throughout Australia. The Yorta Yorta people's family and kinship networks tvere severely affected by this policy.

Relocation to missions and reserves was the fate of many indigenous people. From the 1870s, many ancestors of the current Yorta Yorta generation lived at the Msloga and then Cummeragun~ja hiissions on the New South Wales side of the Murray River. White management on the missions tried to detribalise, tame and Christianise 'the natives',: by extinguishing their traditional customs and laws and replacing them with the White, Westem, Westminster variety. To some extent it worked. Rewards were few while the punishments were many, particularly for lapses into traditional ways. Rations were removed, women and children beaten, and people expelled for 'immoral' acts such as failing to attend religious services, and even for going to cricket rnatches.

In one of the more insidious racial policies adopted in Victoria from the rnid 1880s, the-government prohibited marriages between 'full-bloods' and 'halfcastes', and expelled 'half-castes' from the Aboriginal stations. This led-to the breakup of extended Aboriginal families and the closure of many Aboriginal stations, forcing people to move from piaces that had been their homes for many years. This was part of what Justice Olney described as 'the tide of history' that had washed away the Yorta Yorta's entitlement to their lands.

Yet the Yorta Yorta have repeatedly resisted this tide of dispossession and have held on to some of their traditional lands. In 1881 a much reduced population represented by forty-two Aboriginal male residents on the New South Wales side of the Murray-River petitioned the Governor for 'a sufficient area of land granted to us to cultivate and raise stock'. This was no strident political display of black power but an attempt to carve out a niche for themselves within an economy that denied them the means of subsistence. Written with the help of sympathetic Whites, the petitioners regretted that:

All the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are usedfor sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.

They asked to be granted 'a sufficient area of land to cultivate and raise stock ... that we may form homes for our families ... and in a few years support ourselves from our own industry'. Two years later the government conceded their case. It gazetted 1800 acres of riverfront land near BarmaR on the Murray River for the Cummeragunja Aboriginal reserve, which amounted to a tiny portion of the Yorta Yorta-claimed land a century later. Little of the land was arable and all of it was flood-prone. The Yorta Yorta continued to agitate for more adequate land grants.

In the twentieth century the Yorta Yorta continued to press their case in the face of official neglect and h~nt, induding the Protection Board's resumption of family farm blodcs at Cummeragunja, its leasing of areas of the reserve to white farmers, its policy of dlild removal and its repeated expulsion of 'agitators' from Cummeragunja. In the 1930s the Cummeragunja exile community in Melbourne formed the core of the Australian Aboriginal League, which mounted a campaign for land rights over the existing reserves.

]n the 1950s, although Cummeragunja had been officially closed and most of the buildings dismantled, about seventy residents refused to leave, and in 1963 the exile community formed a delegation to ask the New South Wales govemment to return some of the mission land that had been leased to white farmers. Their request was granted in 1966, and, since then, the Cummeragunja township's indigenous population has inaeased with over 200 residents there today.

Many Yorta Yorta have been uprooted from their traditianal homelands and livelihoods, but continue to live within their traditional country at Mooroopna (near Shepparton) and other local centres, or along the Murray River near Barmah. Relatively few have entered or succeeded in the white economy, and they experience similar circumstances as indigenous people elsewhere, induding poverty, unemployment and illhealth. Many feel that this 'cycle of despair' will only be broken by recognition of their traditional land rights.

The Yorta Yorta native title claim: an imbalance of power

In early 1994 the Yorta Yorta people applied to the National Native Title Tribunal for recognition of their legal right to own and occupy their traditional homelands. This was, they said, 'the eighteenth attempt to seek justice for past injustices' since white settlement. Nearly three years after the initial application the hearing began. In December 1998 the Australian Federal Court rejected the indigenous people's claim. The judgement-by Justice Olney took less than a minute to deliver. The brevity of his statement extinguishing these indigenous people's land rights stood in stark contrast to the historical process at issue and the protracted nature of the proceedings themselves.

Both the claimants and the several respondents had reputable legal advice and representation, but this could not disguise the dramatic contrast between the relative power and resources of the opposing parties. The claimants called sixty individual witnesses, fifty-four of whom were descendants of the Yorta Yorta people. Many lacked the relevant Western education or legal experience required for success. By contrast, their opposition included three State governments (Victoria, New South Waies and South Australia), six local government councils and shires, rural water authorities, Telstra, and a large number of corporate interests m the irrigation, timber, pastoral, tourist and minmg mdustries. This united opposition was represented by nine different firms of solicitors and legal counseL

A promment regional media proprietor also formally opposed the claim. Not formally represented but backing this powerful array of opposing parties were local conservative Members of Parliament, who regularly expressed their views in the regional newspapers. Among the politicians, the newly elected federal Member for Murray was presented in the local media as a supporter of dairy and timber companies. These were depicted as being in conflict with the Yorta Yorta claim. These adversarial antics contributed to an atmosphere of mounting hostility to aL1 Aborigines. This may also have prevented indigenous and nonindigenous land users from reaching a consensusbased regional agreement.

Legal dlfficulties in proving native title claims

The nature and extent of the legal proofs required of the Yorta Yorta placed them at a disadvantage at the outset. The burden-of proof was on them to prove native title, rather than on the respondents to prove otherwise. Terra nullius had been been rejected as a legal fiction by the highest court in the land in 1992. But the claimants were still required to prove geographical and genealogical continuity with the land, and also legally acceptable verification of these two criteria.

The geographical criterion required the claimants to prove that their traditional physical, legal and customary connections with this land were 'substantially maintained'. The second, genealogical criterion obliged-the Yorta Yorta people to prove that they were thedescendants of the traditional occupants of the land. In Justice Olney's words: 'So long as occupancy by a traditional society is established now and at the: time of annexation, traditional rights exist'.

As the judge hirnself acknowledged, it is difficult to reconstruct pre-colonial tribal boundaries one or two centuries later. What he did not acknowledge was the fact that the Yorta Yorta had no option of remaining on most of the land within their tribal boundaries. Some who survived the period of frontier conflict chose to move to Cummeragunja, or dispersed to other parts of their homelands. Others left the area. Opponents of the native title claim suggested that this had 'extinguished' the link with their traditional homelands, customs and language. It had not, the Yorta Yorta insisted, but the judgement did not recognise this continuing association.

The legal requirements to prove geographical, genealogical and continuing customary links with the land proved to be an unsurmountable barrier to the Yorta Yorta claim before Justice Olney. The difficulties experienced by the Yorta Yorta in establishing their cLaim may serve to indicate more general problems for other indigenous groups daiming native title against a backdrop of long-term dislocation, dispossession and cultural colonisation.

First, in the mission days, and through the years of dispossession and poverty that resulted from the government's dispersal policies, few Aborigines had the technology or resources required to record, photograph and preserve their familial and clan history. Yet a century or more later they are required to turn up to court with this meticulously recorded and preserved evidence.

Second, well over a half of the Yorta Yorta evidence was based- on their oral history. Justice Olney alleged that the absence of written or visual historical records did not necessarily invalidate the Aborigines' case. His contrasting responses to the presentation of the competing sides' cases told a somewhat different story. The judge approved of the AboAginal elders' 'credible and compelling' oral evidence but was sceptical of the younger people's statements. 'Evidence based on-oral tradition,' he said, might be an 'embellishment by the recipients of the tradition'.

By contrast, Justice Olney was 'very favourably impressed' by the written evidence assembled by the opponents of the claim, in voluminous records and contracts regarding land tenure and land and water use over the past century and more. This is not surprising. Historical records left by the victors are unlikely to provide much ammunition for the losers in a replay several generations down the track. Where relevant documentation no longer existed, the judge accepted government, corporate and professional expert witnesses opposing the Aborigines' claim as 'credible ... expressions of opinion'.

Third, the written work of the pastoralist Edward Curr in the 1880s was regarded as credible and conternporary evidence by Justice Olney. It was neither. The respected anthropologist Diane Barwick considered that much of Curr's ethnography was self-serving propaganda rather than seAous scholarship. It was not based on records at the time of contact with the Yorta Yorta in the 1840s, but on the memories of old settlers. Curr's credibility was challenged publicly in the 1880s, and has been since by anthropologists and scholars of repute. All this was presented in evidence to the Court; Yet Curr's writings were regarded by the Court as more credible than the oral history of the Yorta Yorta.

Fourth, a level of proof was required of the Yorta Yorta which was probably impossible to meet in relation to demonstrating continuing customary and cultural links with the land claimed. The current Yorta Yorta were required to prove that little had happened to their culture in the past 150 years; that, in effect, they had remained 'culturally frozen'. All cultures change, particularly those in which the community's cultural practices have either been suppressed, as in the Yorta Yorta's mission days, or forced to adapt to a culturally hostile, alien environment. An emphasis on cultural continuity militates against successful native title claims by such communities. Indeed it may be, as the Australian historian Patrick Wolfe has said, 'The more you have lost, the less you stand to gain. To fall within native title criteria, it is necessary to fall outside history'.

Finally, in a terrible irony, the Yorta Yorta applicants in 1998 were darnned by their ancestors' petition to the Governor of New South Wales in 1881. The judge read the petition as proof of the Yorta Yorta people's 'frank acknowledgement' that government and white settlers had dispossessed their ancestors by the 1880s. Many of the applicants before him, he noted, were descended from the petitioners of the 1880s, and they 'apparently subscribed to these sentiments' expressed in the petition, to the effect that 'all the land within our tribal boundaries has been taken possession of by the Government and white settlers'.

In conclusion, Justice Olney went on:

It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, byforce of the circumstances in which they found themselves, ceased to observe those laws and customs based on traditz'on which might otherwise have prouided a basisfor the present native tztle claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time ... Native title rights and interests once lost are not capable of revival ... The tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised in relation to controlling access to thezr land within the claim area.

The Yorta Yorta applicants' response to the judgement was anger, but not surprise. The indigenous people now have to contend with the adverse consequences of the judgement and the rising tide of regional racism arising from the associated scare campaign.

The 'tide of history' language used in the Yorta Yorta judgement symbolises deeper underlying problems with Australia's native title legislation. The legislation does not deal adequately and equitably with the long term consequences of dispossession. Any statute that makes the return of land to its traditional owners dependent on ongoing occupancy will do little for those indigenous groups most affected by white settlement. Emphasising cultural continuity will aggravate the problem.

For the future, the Yorta Yorta people's appeal will only succeed if the courts pay heed to the humanitarian credo of the anthropologist W.E.H. Stanner: 'We can neither undo the past nor compensate for it. The most we can do is give the living their due.'

Katrina Alford is in the School of Business at La Trobe University, Shepparton campus.