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Title tide turns?

OPINIONS are split over what ramifications a Victorian Native Title decision will have for WA.

Some believe the Federal Court’s decision to uphold a finding that the Yorta Yorta people had lost their link to their Murray Basin land has set a precedent for the southern parts of WA.

In his 1998 decision on the Yorta Yorta people’s claim covering 98 Victorian land parcels and 53 parcels in New South Wales, Justice Howard Olney found the “tide of history” had extinguished their Native Title.

He judged the exposure of the Yorta Yorta people to European settlement had removed their traditional links with the land.

On February 8, the full bench of the Federal Court voted two to one to uphold Justice Olney’s decision.

Minter Ellison solicitor Mark Gregory said the case was relevant to WA because it was the only claim in the south of Australia to go before the Federal Court.

“There has been a long history of cultural mixing in the southern parts of Australia,” he said.

“You would expect the number of Aboriginals living their traditional lives in the south to be less than in the north.”

Association of Mining and Exploration Companies CEO George Savell said the decision put the stamp on the fact that what happened in the development of Victoria extinguished Native Title.

“The decision has implications for Crown Land in that area,” Mr Savell said.

“It’s an important decision in terms of case law.”

Mr Gregory said the decision confirmed there was a threshold to prove connection to the land.

“This threshold principle was always known in theory,” he said.

“You can generally expect Native Title claims are going to have less chance of success in WA’s south west.

“It’s an important decision in terms of case law.”

– George Savell

“Beyond that I don’t think this shifts the ground on Native Title much at all. The Federal Court decision was always expected. There are no surprises in it.”

However, some Native Title experts believe Yorta Yorta holds no precedent for WA.

Chamber of Minerals and Energy executive officer Abor-iginal affairs Ross Theedom said Yorta Yorta did not mean much to WA.

Dr Theedom believes the threshold issue will have some impact on WA but beyond that there is a lot of uncertainty.

“From the mining perspective

it will have little effect.”

Deacons Graham & James lawyer Marcus Holmes said anyone trying to apply Yorta Yorta to WA Native Title claims risked failure.

Mr Holmes said members of the National Native Title Tribunal had found WA Aboriginals still had strong links to their land.

“Unless Labor starts negotiating with the Nyungars and the tribes around Kalgoorlie, there will be some long hauls through the Federal Courts,” he said.

Dr Theedom said Miriung-Gajerrong was more of a concern for the WA mining community.

The Miriung-Gajerrong issue affects landowners in WA’s Kimberley Region including the Argyle Diamond Mine, farmers around the Ord River Irrigation Scheme and pastoralists.

In that case the original trial judge found the traditional owners of the land had control of its minerals and water.

That decision was overturned last year by a full bench of the Federal Court which found mining titles and enclosed and improved areas of pastoral leases extin-guished Native Title. The Federal Court’s decision is now under appeal.

Dr Theedom said if the High Court found the Miriung-Gajarrong people had control of the land and its resources, it put a lot at risk

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