One of the first native title claims lodged after the passage of the Native Title Act in 1993 was that brought by the Yorta Yorta Nation in February of the following year. Yorta Yorta country lies across northeastern Victoria and southern New South Wales, forming an oval around the junction of the Murray and Goulburn Rivers. The claim sought the return of just eighteen thousand square kilometres of public land, much of it floodplain along the Murray, Goulburn, and Ovens Rivers, including the Barmah and Moira Forests.
From the outset, the application was widely regarded as a test case, one that would signal the prospects of other Indigenous peoples across Australia seeking recognition of title to their ancestral lands. Yet the Yorta Yorta soon found themselves entangled in the intricacies of what they described as white-fellah law. The claim was lodged in February 1994 by the representative body Yorta Yorta Murray Goulburn Rivers Clans Incorporated, but at that time the legislation permitted applications only by “a person or persons,” not by corporations or other collective entities. Nearly a year of community discussion followed before agreement was reached to proceed in the Federal Court of Australia in the names of eight individuals acting on behalf of the Yorta Yorta Nation.
The hearings stretched over four years. Justice Howard Olney heard evidence from fifty-four Yorta Yorta witnesses, along with testimony from two anthropologists, an archaeologist, and a linguist. By the close of proceedings, nearly two hundred witnesses had been heard at more than sixty-five locations over 141 hearing days. The transcript alone extended to 11,664 pages.
Justice Olney accepted that much of the oral testimony given by the applicants’ witnesses was “in some respects both credible and compelling,” particularly that offered by senior men and women. Nevertheless, he insisted that such evidence had to be assessed within the wider context of the case, including, where available, documentary sources and the recorded observations of those who had witnessed events and practices about which contemporary claimants knew only through transmission from their forebears.
The historical material on which Olney relied most heavily consisted of the ethnographic writings of Edward Micklethwaite Curr (1820–1889). In the early 1840s Curr had taken up a fifty-mile-square squatting run on behalf of his pastoralist father, Edward Curr (1798–1850), establishing a head station on the Goulburn River some eight miles from its junction with the Murray. Within a few years, Curr and four of his brothers were managing additional pastoral leases acquired by their father, covering more than three hundred square miles of northern Victoria. These runs proved less profitable than anticipated and were sold after the elder Curr’s death a decade later. Edward Curr left Victoria, spent time in Britain, toured Europe, and later attempted horse importing in Auckland before returning to Victoria in the mid-1860s, where he eventually drew on his pastoral experience to become Chief Inspector of Stock.
In retirement, Curr devoted himself to writing. He published Recollections of Squatting in Victoria in 1883 and followed it with the four-volume ethnographic compendium The Australian Race: Its Origins, Languages, Customs(1886–87). In both works he wrote extensively about the Towroonban and Wongatpan clans, among whom he had lived during the 1840s. More than a century later, Justice Olney was strongly influenced by Curr’s Recollections, judging it to be “the most credible source of information concerning the traditional laws and customs of the applicants.” It became the foundation for his ruling that, before the end of the nineteenth century, the ancestors through whom the claimants asserted title had ceased to occupy their lands in accordance with their traditional laws and customs. In his words, “the tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs.”
The Yorta Yorta response was one of shock and dismay. As Monica Morgan, the applicants’ coordinator, remarked upon hearing the judgment, “Our mob knew we were taking a chance trusting the system of the white man…but this is like an annihilation of our culture.” Whatever trust remained was extinguished when an appeal to the High Court of Australia failed in December 2002 by a majority of five to two. As applicant Wayne Atkinson later observed, the failure lay less with the principles of common law or Mabo itself than with the manner in which those principles had been interpreted. The invocation of the “tide of history” to justify extinguishment, and the expectation that tradition be frozen in time, were inconsistent with the changes and adaptations that all cultures undergo.
Historian Bruce Buchan likewise criticised Justice Olney’s approach, arguing that it rested on measuring Indigenous oral testimony against colonial documentary sources while neglecting the historically contingent and culturally shaped nature of those documents themselves. The irony, Buchan observed, was that the Yorta Yorta were disadvantaged precisely because they could not produce written records from before the 1830s, having lived undisturbed on their lands until that time. In the absence of documentation, there was deemed to be no proof that the claimants were descendants of the “original occupiers” prior to the Crown’s assertion of sovereignty in 1788.
Over the past twenty-five years, much has been written about the astonishingly naïve conception of tradition revealed in Olney’s judgment and the High Court’s majority ruling. Like all peoples, the Yorta Yorta have lived dynamic lives, their culture shaped by changing material conditions and patterns of thought. Yet Olney ruled irrelevant the historical wrongs endured by the Yorta Yorta in determining their entitlement to reclaim a portion of their ancestral lands. It was deemed immaterial that abundant evidence exists of their survival following violent dispossession and of their efforts to maintain language, belief, and cultural practice after removal to government reserves and mission stations operating under regimes explicitly designed to destroy tradition. As Buchan has noted, such adaptations were effectively treated as proof of cultural loss.
I reread Justice Olney’s judgment earlier this year while revisiting the campaigns by the Yorta Yorta and other Victorian First Peoples for the return of the remains of ancestors taken from burial sites during the twentieth century. What struck me most forcefully was his treatment of a particular dimension of Yorta Yorta tradition: care for the dead. I was especially struck by his comments on the successful efforts to rebury ancestral remains. Olney acknowledged that, following European settlement, skeletal remains were routinely removed from Aboriginal burial sites and sent to Melbourne and elsewhere for scientific examination. In “more enlightened times,” many had been returned for reinterment, and reburials in the claim area had taken place since about 1984. Yet he concluded that while the return of remains was unquestionably important, the modern practices associated with reburial did not form part of the traditional laws and customs handed down from the original inhabitants.
Bruce Buchan has rightly questioned this reasoning, asking whether, on Olney’s logic, reburial could ever count as customary, given that the theft of the dead was not something the Yorta Yorta’s ancestors could have anticipated before European arrival. Three further points are striking. First, neither Olney nor the High Court addressed the fact that British jurisprudence had long treated the setting aside of land for funerary purposes as evidence of native title. Colonial officials in South Australia, for example, were instructed to ensure that land used for burials was excluded from sale. Second, under common law, the Yorta Yorta, as British subjects, had the right to ensure decent burial of their dead and protection of their remains, irrespective of burial form. Third, as shown by the peoples of the Murray River, a key continuity lay in fulfilling ancestral obligations that the dead be laid to rest in their own country.
As Jules Michelet understood, historians have a duty to pacify the dead by restoring meaning to their brief existences, offering them, as he put it, a second life among those who acknowledge themselves as kin.
Which brings me to William Colin Mackenzie and his vision of the Murray River Valley as the “cradle of race,” a phrase he employed in an address to the Victorian Branch of the British Medical Association in April 1926. The occasion was the presentation of a mineralised skull unearthed the previous year at Kow Swamp near Cohuna.
Mackenzie is best remembered as the founding director of the Australian Institute of Anatomy, established in 1931 and abolished in 1985. A Melbourne medical graduate with honours, he trained in surgery, obstetrics, and children’s diseases, becoming senior resident surgeon at the Children’s Hospital, where he gained a reputation for his work with children crippled by poliomyelitis. Before the advent of an effective vaccine in the 1950s, treatment focused on restoring function through prosthetics and surgical innovation. Mackenzie’s further training took him to Edinburgh in 1903, and to orthopaedic centres in Heidelberg and Liverpool under Oscar Vulpius and Robert Jones.
From his student days, Mackenzie cultivated a strong interest in comparative anatomy. Alongside clinical duties and private practice, he contributed to anatomical teaching at Melbourne University and devoted his spare time to studying monotremes and marsupials. This interest was shared by leading Australian anatomists such as J. T. Wilson and his student Grafton Elliot Smith, later appointed to University College London. Although Smith would later criticise Mackenzie’s claims about the Cohuna skull, Mackenzie increasingly pursued anatomy for practical ends, seeing in marsupial musculature clues for restoring function in polio patients and, later, in war casualties.
Mackenzie’s evolutionary thinking underpinned what he termed the “evolutionary law of muscle function.” In The Action of Muscles (1918), he argued that understanding muscular evolution from marsupials to humans offered insight into restoring function in limbs damaged by congenital defects, disease, or injury. What might appear a strange comparison—the wombat, the koala, and a wounded soldier—was, he argued, a promising avenue for therapeutic innovation. Similar reasoning guided his rejection of bone grafting in certain cases, favouring instead muscular development aided by specialised footwear.
Mackenzie also believed Darwinian evolution provided an “unassailable basis” for reconstructing human prehistory. His interest was likely shaped by his associations with Arthur Keith and Richard Berry. In London, Mackenzie assisted Keith at the Royal College of Surgeons’ Hunterian Museum, sharing interests in evolutionary anatomy. Keith, then Britain’s leading paleoanthropologist, had just published The Antiquity of Man. Mackenzie appears to have been receptive to Keith’s controversial views on endocrine regulation and human variation.
Mackenzie’s friendship with Berry, appointed to Melbourne’s anatomy chair in 1905, likewise proved influential. Berry’s interest in paleoanthropology owed much to William Turner of Edinburgh, whose extensive cranial collections shaped racial genealogies of humankind. Berry carried these interests to Australia, assembling crania from Tasmania and the mainland and concluding that physical differences between populations were genetic rather than environmental.
Mackenzie shared Berry’s interest in brain evolution and supported his investigations. Although his principal focus remained marsupial anatomy, Mackenzie increasingly believed that upright posture drove cerebral development, a view that may reflect growing openness to Lamarckian ideas. This made the discovery of the mineralised skull at Kow Swamp in 1925 particularly compelling. Mackenzie acquired the skull, consulted geologist Derek Mahony, and concluded—despite Mahony’s caution—that its morphology marked it as profoundly archaic.
In a lecture delivered in April 1926, Mackenzie proclaimed the Cohuna skull the most archaic yet known, casting the Murray River Valley as the greatest anthropological field in the world. Australians, he declared, bore responsibility for uncovering the secrets of these ancient peoples.
Such claims were swiftly challenged. Grafton Elliot Smith dismissed the possibility of Australian remains rivaling Piltdown in antiquity. Berry urged caution pending geological confirmation. Frederic Wood-Jones likewise judged the skull ancient in type but not in geological age, and certainly not ancestral to humanity.
Mackenzie remained undeterred. Encouraged by Arthur Keith, he sought further evidence, enlisting George Murray Black, who plundered burial sites along the Murray River, including those of Yorta Yorta ancestors. Over two decades, Black supplied thousands of remains to the Institute of Anatomy. Archival records attest to both the scale of this activity and the resistance it provoked from Indigenous communities seeking to protect their dead.
Oral testimony, such as that of Yorta Yorta Elder Henry Atkinson, conveys the enduring pain caused by these violations, recalling burial sites robbed, ancestors displayed in museums, and the absence of protection for people treated as less than human.
[to be continued]