Masters Research - Master of Philosophy (Law) / In Yorta Yorta, it was expressly found that native title law could not support a ‘frozen in time’ approach. It was held that the rights making up native title could not be considered static and archaic instruments, but must be given reign to adapt. However the question must be asked whether, in its examination of the requirements of native title, Yorta Yorta has in the same breath re-introduced the ‘frozen in time’ approach, albeit in a different form. Specifically, it is a question of whether the continuity of connection requirement means that the evolution of rights is frozen and claimants are burdened with the task of proving they relate to land in exactly the same manner as their ancestors did, over 200 years ago. That is the question which this thesis attempts to answer. It will do so by examining in detail not only the requirement of continuity of connection as espoused in Yorta Yorta, but the evidentiary analysis which was performed under that requirement. It is the nature of this analysis in which the effect of continuity of connection on the nature of native title rights is revealed. This thesis will also examine the effect of Yorta Yorta on subsequent cases, particularly how subsequent Courts have interpreted the continuity of connection requirement and how it has affected the questions of proof they felt the claimants were required to answer. Particularly highlighted will be the cases of Larrakia and Single Noongar, two cases which have brought about starkly different outcomes for the claimants. The approach taken will be to discuss whether the requirements of native title in Yorta Yorta have produced a native title system which equitably and in justice recognises traditional owners’ rights to land in modern times, or whether they consign native title to being an historical relic, of little utility in reflecting the modern-day relationships of traditional owners to their land. In other words, was Yorta Yorta ‘the great re-freezing’?

Masters Research - Master of Philosophy (Law) / In Yorta Yorta, it was expressly found that native title law could not support a ‘frozen in time’ approach. It was held that the rights making up native title could not be considered static and archaic instruments, but must be given reign to adapt. However the question must be asked whether, in its examination of the requirements of native title, Yorta Yorta has in the same breath re-introduced the ‘frozen in time’ approach, albeit in a different form. Specifically, it is a question of whether the continuity of connection requirement means that the evolution of rights is frozen and claimants are burdened with the task of proving they relate to land in exactly the same manner as their ancestors did, over 200 years ago. That is the question which this thesis attempts to answer. It will do so by examining in detail not only the requirement of continuity of connection as espoused in Yorta Yorta, but the evidentiary analysis which was performed under that requirement. It is the nature of this analysis in which the effect of continuity of connection on the nature of native title rights is revealed. This thesis will also examine the effect of Yorta Yorta on subsequent cases, particularly how subsequent Courts have interpreted the continuity of connection requirement and how it has affected the questions of proof they felt the claimants were required to answer. Particularly highlighted will be the cases of Larrakia and Single Noongar, two cases which have brought about starkly different outcomes for the claimants. The approach taken will be to discuss whether the requirements of native title in Yorta Yorta have produced a native title system which equitably and in justice recognises traditional owners’ rights to land in modern times, or whether they consign native title to being an historical relic, of little utility in reflecting the modern-day relationships of traditional owners to their land. In other words, was Yorta Yorta ‘the great re-freezing’?

I am connected to the Yorta Yorta, Wamba Wamba, Mutti Mutti and Boonurong people through my heritage. My connection to these four language groups provides the framework for my arts practice research project. Totems are an important component of my work. Totems govern life in Koori tribal language groups. For example, they dictate who you can talk to and marry, and govern rights for making art, including men's business and women's business. This translates as 'Lore' in Koori culture. Lore is a Koori term meaning a way of being that encompasses kinship systems, responsibilities, and beliefs, as they interconnect with a particular area of country. In the past, when the Museum acquired Aboriginal artefacts, they sometimes did not record all the details. This meant there was then a break in the knowledge. Aboriginal people have our own collection of artefacts in various cultural institutions, but we do not have that layer of information about what the designs were about. The totems are not necessarily in the designs on the shields and artefacts. They are generally designs relating to those different areas. Gunnai/Kurnai can be quite different to Latje Latje, for example. Some of the designs on the banners may represent the totems. This can reflect an artist's interpretation of the meanings within such designs. My work incorporates a re-interpretation of a range of different totems connected to the language groups I have a blood connection to.

This thesis is a work of Christian theology. Its purpose is twofold: firstly to develop an adequate understanding of reconciliation at the level of peoples and nations; and secondly to make a practical contribution to resolving the problems in Australia for the welfare of all the peoples, and of the land itself. The history of the relationships between the Indigenous and non-Indigenous peoples in Australia has left many problems, and no matter what the non-Indigenous people try to do, the Indigenous peoples of Australia continue to experience themselves as being in a state of siege. Trying to understand what is happening, and what can be done to resolve the problems for the peoples of Australia and the land, have been the implicit drivers for the theological development in this thesis. This thesis argues that the present generation in any trans-generational dispute is likely to continue to sin in ways that are shaped by the sins of the past, which explains why Indigenous peoples in Australia find themselves in a stage of siege, even when the non-Indigenous peoples are trying to pursue policies which they believe are for the welfare of all. The only way to resolve this is for the peoples of Australia to seek reconciliation. In particular, the non-Indigenous peoples need to repent, both of their own sins, and the sins of their forebears. Reconciliation processes have become part of the international political landscape. However, there are real concerns about the justice of pursuing reconciliation. An important part of the theological development of this thesis is therefore to show that pursuing reconciliation establishes justice. It is shown that the nature of justice, and of repentance, can only be established by pursuing reconciliation. Reconciliation is possible because God has made it possible, and is working in the world to bring reconciliation. Because land is an essential part of Indigenous identity in Australia, the history of land in court cases and legislation in Australia over the past half century forms an important case study in this work. It is shown that, although there was significant repentance within the non-Indigenous legal system in Australia, the degree of repentance available through that legal system is inherently limited, and so a more radical approach is needed in order to seek reconciliation in Australia. A final chapter considers what the non-Indigenous people of Australia need to do in order to repent.