Giving away Victoria in an Age of Consent — Dark Emu Exposed

An historic native title determination has seen exclusive native title rights granted to three Traditional Owner groups in north-west Victoria.

The Latji Latji, Ngintait and Nyeri Nyeri peoples celebrated the end of a decades-long fight on Friday with a Federal Court ruling that their application for native title, formally lodged in 2015, was valid. [SBS]

This post contains a collection publicly available reports and comments related to the recent succesful granting of exclusive native title in NW Victoria to the Millewa-Mallee First Nations peoples.

The determination was on the basis of consent - that is, no opposition to the demands of the Aboriginal claimants was presented in court. The Labor State Government of Victoria just consented to the demands of the claimants and a mutually agreeable agreement was signed, sealed and delivered by the Federal Court’s Justice Bennett. [See Notes below for a bio on Justice Elizabeth Bennett]

The granting of exclusive native title is a surprise to many given that previously Aboriginal claimants needed to demonstrate conclusively in a court (Federal or higher) that they had maintained a, “real observance or acknowledgement of traditional law and custom” over the lands they were claiming. (Figure 13 below)

For example, in the failed Yorta Yorta native title claim in Victoria, the court found that the case,

…turned ultimately on extinguishment by 'expiry'…the majority of the Full Federal Court ruled against the Yorta Yorta people on the basis of…finding that there had been a loss of traditional connection with the land in the late 19th century. (See Figure 14 below)

This failure in the Yorta Yorta case was immortalised in Justice Olney’s borrowing of Brennan J’s (in)famous Mabo “tide of history” terminology (Figures 1 and 13):

**Figure 1 - “…the tide of history has washed away any real acknowledgement of tradition…”*Source***

1 - Were the Applicants Really “Traditional Owners” with a Continuing Connection to their Land and Customs in a Real Meaningful Way?

Given the failure of the Yorta Yorta case, which was contested in a court, it is a surprise that one of the successful claimants in the recent Millewa-Mallee Native Title case is a woman claiming to be an Aboriginal from the Nyeri Nyeri tribe, amongst several others. “Auntie” Wendy Brabham (centre Figure 2) claims to be a traditional owner from four First Nations - the Wamba Wamba, Wergaia, Nyeri Nyeri and Dhudhuroa.

This is surprising with respect to the findings in the Yorta Yorta case because how is it possible for one person to maintain a “real observance or acknowledgment of traditional law and custom” and a meaningful “traditional connection with the land” of four, separate tribes from widely separated and different tribal lands or “Countries”?

We understand that Wendy Brabham has lived and worked most of her life in Geelong - 500km south of her claimed native title land in Mildura (Figure 3). She has previously been an academic at Deakin University in Geelong (Figure 4) and now is a director of another separate Aboriginal group based in Geelong, the Wathaurong. She appears to have no claimed descent from the Wathaurong although she claims to have been part of this community for “more than 30 years.” (Figures 5 & 19)

**Figure 2 -** “Auntie” Wendy Brabham claims to be a Traditional Owner Aboriginal woman from several tribes [ Wamba Wamba, Wergaia, Nyeri Nyeri] First Nations. in the NW of Victoria where she was one of the successful Native Title claimants. Yet she also claims to be a Traditional Owner of the Dhudhuroa from the NE of Victoria, but then she appears to live and work in Geelong where she is a director of another Aboriginal group the Wathaurong outside Melbourne, a six hour drive away from her native title ancestral lands. ***Photo Source***

**Figure 3** - Map of successful exclusive native title (excluding land, farms, businesses, houses, etc., which are under freehold or leasehold. The successful claim will cover Crown land, national and state parks, roads, riverbanks, etc.

It was reported that,

Nyeri Nyeri elder Wendy Brabham, who was an early respondent in the native title claim application, is following in the footsteps of her mother.

"My mother's demands for land rights in the 1970s and, for more than 25 years, our claims for native title suffered, until now, an onslaught of rejections," she said.

"Nyeri Nyeri Peoples, with their own ancient, longstanding laws, customs and protocols, have had to listen to, and bend to Australian laws, customs and protocols in a constant battle, in a clash of world views. I hope our future generations of all our family groups will build on today's decision to honour our ancestors by strengthening, preserving and sharing our culture."

After the decision was handed down, she said she had "mixed feelings" on an otherwise uplifting occasion. "It was always our land," she said. "Native title is such a hard process for people to be a part of. "It's not just native title … it's also balancing the human rights issues in this country and being recognised as First Nations people."

The native title holders' rights will be managed by the First People of the Millewa-Mallee Aboriginal Corporation, which will serve as the registered native title body corporate.The Latji Latji, Ngintait and Nyeri Nyeri peoples have been seeking recognition of their native title rights since the 1990s and in 2015 lodged an application for a native title claim with the Federal Court. - Source ABC

The reason why Brabham is able to claim, without any real pushback, that her "Nyeri Nyeri Peoples [have] their own ancient, longstanding laws, customs and protocols” is because this granting of Native Title was a Consent Determination. (Figure 7)

The court never made any finding as to how she could be a successful Nyeri Nyeri “traditional” claimant despite the fact that she appears to live and work “off-Country”, 500km away in Geelong, and live a typical Euro-centric based life. For example, she engages in Melbourne’s GreenLeft politics (see Figure 6), speaks English and dresses in typical European fashion and has worked in the university, all of which are deeply European social constructs. She appears to have no continuing, day to day, connection to the lands, customs, or cultural traditions of her claimed Nyeri Nyeri ancestors in any real or meaningful way.

2- Does a Consent Determination Lower The Bar In The Scrutiny of the Claimants?

Previously native title claims in Victoria were contested in court. Specifically, applicants claiming exclusivity had to convince the court that there was an unbroken tradition of occupation on the land.

However, if the parties to the proceedings were to consent to an agreement, that would be sufficient for the case to succeed, with no adversarial critiquing of the evidence being required. The claims of the applicants would be accepted, no questions asked. (see Figure 7)

**Figure 7 -*Source***: *ATNS is maintained by the Indigenous Studies Unit at The University of Melbourne.*

This recent Millewa-Mallee Native Title case was successful because it was not contested. It was settled by consent between the Governments of Victoria and the Commonwealth and the other respondents - the utility corporates, Powercor, Telstra and Ampitel. No respondents with a contrary view to the agreement were admitted. This is unlike the Yorta Yorta case, which was lost because the evidence presented by the claimants failed to convince the judges, when it was contested in the court, that they had maintained their connection to country. This resulted in the ‘extinguishment’ or ‘expiry’ of any native title as was stated in the Yorta Yorta judgement:

Much of the recent native title litigation has been concerned primarily with the extinguishment of native title by inconsistent legislative or executive action. The Yorta Yorta case, however, turned ultimately on extinguishment by 'expiry', the question to be decided being whether the Yorta Yorta people had maintained the necessary connection with the land since acquisition of sovereignty by the Crown in 1788. As noted by the majority of the Full Federal Court, extinguishment is fatal to a native title claim under the Native Title Act 1993: if extinguishment is established, 'nothing more need be considered. (Source: Reference 1, p29)

In the successful Millewa-Mildura Native Title Case, the First Peoples of the Millewa-Mallee Native Title Claim Group [FPMMAC] had provided so-called historical, genealogical and anthropological evidence to support their claim. Specifically, the applicants claimed that they were direct descendants, and inheritors of the traditional customs and rights, of the following apical Aboriginal ancestors and traditional owners:

3 - But Was there a Real Continuing Connection to Traditional Customs and Country by the Successful Native Title Descendants?

A surprising aspect of this Native Title case is that the court accepted that the modern-day claimants could show a direct connection and inheritance to the “traditional laws and customs” of the the Aboriginal tribes via their apical ancestors, John and Nelly Perry.

However, the records show that John and Nelly Perry were not living traditional Aboriginal lives.

For example, John and Nelly Perry had written and signed a letter to the Adelaide Advertiser newspaper in 1901 describing, and complaining, of their conditions on “Metco mission, near Mannum” (see Figures 9, 10 & a similar mission at Manunka in Figure 11).

**Figure 9** - ***Source:*** McLisky, C., *From missionary wife to superintendent: Janet Matthews on three independent Murray River missions, Journal of Australian Studies,* 2015, Vol. 39, No. 1, p37

It therefore seems incongruous that the court could have accepted that John and Nelly Perry had maintained a “real observance or acknowledgement of traditional law and custom” or that there had not “been a loss of traditional connection with the land in the late 19th century” (Figures 13&14).

There is ample historical, documentary evidence that both John and Nellie Perry had given up their traditional life-style. They were living on missions, writing to the Adelaide Advertiser (Figures 9,10 &11) and receiving benefits on other missions (See Further Reading 4).

But of course these contrary views were not aired in court - the judgement was a consent determination. The parties all just agreed amongst themselves that Native Title had not been extinguished - even though it clearly had been, like in the Yorta Yorta case - and so exclusive Native title was granted over crown land, no questions asked. Any evidence that was presented in court to support Justice Bennett’s consent order was deemed to be confidential and is ‘closed’ to scrunity by third parties. Thus, there is no way of finding out the real merits of the claimant’s case.

Some 50 so-called, and self-identifying, “First Peoples of the Millewa-Mallee” are now the legal custodians over a block of land, some 8600 square kilometres in size (See Figures 17, 18 but less the freehold and other exempt titled land).

Conclusions

On the face of it, this is a very troubling decision by Justice Bennett. Although she was only doing her job, given that the parties had come to an agreement, her “rubber-stamping” of this consent determination is troubling for the following reasons:

It makes a mockery of the whole Native Title “system” where the precedence of the Yorta Yorta determinatiuon can be ignored if the parties involved come to a “consent determination” in which no alternate position is put to the court. If the respondent government, in this case the Victorian Labor Government puts up no opposition, then exclusive native title is found, no questions asked.
The burden of proof on the applicant is now so low that that any modern-day, self-identifying and so called ‘Aboriginal or Torres Starit Islander’ person/people can make a native title land claim without fullfilling the most basic of requirements of the Native Title Act, namely that “there is a real and continuing traditional connection with the land in question”. If the parties claim and agree that there is, the judge doesn’t have to spend time determining if the evidence supports their mutual agreement - the judge essentially just rubber stamps the exclusive native title claim.
This is an example of recurring legal phenomenon in our society, as The Australian’s Janet Albrechtsen observed with regard to a recent “Stolen wages” case, a term she described as,
“…a non-legal label attached to a spate of class actions brought by groups of Indigenous people against state and federal governments for claims or underpaid wages between the mid to late 1930s up until the early 1970s.
Although these appear to be legal claims, the judgments in these cases – which have yielded damages awards running into the hundreds of millions of dollars unwittingly reveal they are no such thing. In each case, the judge admitted there is not enough evidence to support the various “stolen wages” claims.
Given there is little chance of establishing legal liability, the stolen wages claims are political, not legal, in nature. It follows that the law, our legal system, is not the right place for governments to make these enormous taxpayer-funded settlements [incl. exclusive Native title claims]
And yet there is now a troubling pattern of governments doing precisely that, reaching huge settlements paid for by taxpayers to Indigenous groups under the a cosy insiders club comprising a bevy of defendant and plaintiff solicitors and barristers, myriad other experts, litigation funders, of course, and judges.
This elite club is allowing the legal system to be co-opted for political purposes.
To be clear, lest what follows be misunderstood, there is nothing inherently wrong with Indigenous people making political claims for receiving little or no wages early decades of the last century.
The fault lies with the political and legal club that is responsible for handing out taxpayer money under the cloak of the court system when in fact the claims short of a legal daydream…[I]f settlements are to be made to recompense Indigenous people for historical wrongs, they ought to be done in a transparent, honest and rigorous manner.
Instead, judges are overseeing an unseemly and faux legal dance where a small group of legal insiders make whoopie with taxpayers’ money.”
- Janet Albrechtsen, The Australian 2 Aug 2015

Sadly, Victorians now live in an undemocratic state, where major transfers of tax-payer funds and our democratically-owned Crown lands are being transferred ‘legally’ to small, select, so-called Aboriginal groups, but without any debate or transparency. And the legal profession, the courts and the State oppossion all seem to be complicit.