In December 2002, when the High Court of Australia rejected the final appeal in the Yorta Yorta native title case, a headline in The Age announced: ‘Claim sunk by pen of a swordsman’. The man in question was Edward M. Curr (1820-1889), who was certainly fond of fencing in his youth, but is better known as the author of Recollections of Squatting in Victoria (1883), an engaging account of his early life as a pastoralist on the Goulburn and Murray rivers. In 1841 Curr was among the first squatters to occupy land belonging to ancestors of the Yorta Yorta people, described by Curr as ‘the Bangerang Tribe’. His nostalgic memoir is one of very few written accounts of Indigenous life in the early years of the pastoral invasion of northern Victoria. The apparent failure of Yorta Yorta people to maintain traditions identifiable with those that Curr had described was a key reason for the defeat of their native title claim.
Born in Hobart on 25 December 1820, Edward M. Curr was a pastoralist, horse trader, and stock inspector. He rose to a senior position in the Victorian public service and authored several influential books and essays. A prominent member of Victoria’s Board for the Protection of Aborigines during a highly controversial period, he also pursued an interest in Aboriginal languages and ethnology. The trial judge in the Yorta Yorta case, Justice Howard Olney, strongly favoured Curr’s written account, arguing that he ‘clearly established a degree of rapport with the local Aboriginal people’. He posited Curr’s writings as the principal yardstick against which legitimate Yorta Yorta tradition must be measured. In contrast, the judge largely rejected the credibility of Yorta Yorta oral testimony, which he viewed as inherently unreliable. The oral testimony was crucial to the claimants’ argument that, while their traditions had evolved, they had nonetheless been continually observed since Curr’s arrival in 1841. Justice Olney’s rejection of the oral evidence and reliance on Curr thus played an important role in his final conclusion, which was that ‘the tide of history’ had ‘washed away’ Yorta Yorta native title rights.
Dr Samuel Furphy is a Research Fellow in the National Centre of Biography, School of History. He is the author of Edward M. Curr and the Tide of History (2013).