Here you go John, something to get your teeth into and prove various High Court Justices wrong.
www.alrc.gov.au/publication/essentially-yours-the-protection-of-human-genetic-information-in-australia-alrc-report-96/36-kinship-and-identity/legal-definitions-of-aboriginality/
36.11 The legal historian, John McCorquodale, has reported that since thetime of white settlement, governments have used no less than 67classifications, descriptions or definitions to determine who is an Aboriginalperson.[9]
36.12 The ALRC discussed the definition of an ‘Aborigine’in its 1986 report, The Recognition of Aboriginal Customary Laws.[10] TheALRC noted that early attempts at a definition tended to concentrate ondescent, without referring to other elements of Aboriginality. Problems arosein deciding whether descendants of unions between Aborigines and settlers wereto be regarded as Aboriginal for the purposes of various restrictive ordiscriminatory laws (for example, disentitling Aborigines from voting orenrolling to vote). In applying these restrictive laws, tests based on ‘quantumof blood’ were commonly applied.[11]
36.13 The Commonwealth Parliament obtained the power tolegislate with respect to people of ‘the aboriginal race in any State’in the 1967 referendum. The Commonwealth subsequently enacted a number ofstatutes for the purpose of providing certain rights and privileges for theexclusive benefit of Indigenous Australians.[12] Thesestatutes have generally defined an Aboriginal or Indigenous person as‘a person who is a descendant of an indigenous inhabitant of Australia’,[13] ora member or a person ‘of the Aboriginal race of Australia’.[14] Onecommentator has observed in relation to the latter definition:
Though possibly an improvement on ‘blood’ quantumdefinitions, the utility of this definition can still be questioned, not leastof all on the grounds that thereis no such thing as an Aboriginal race. Most scientists long ago stoppedusing the word ‘race’.[15]
36.14 In the early 1980s, the Commonwealth Department of AboriginalAffairs proposed a new three-part definition of an Aboriginal or Torres StraitIslander person.
An Aboriginal or Torres StraitIslander is a person of Aboriginal or Torres Strait Islander descent whoidentifies as an Aboriginal or Torres Strait Islander and is accepted as suchby the community in which he [or she] lives.[16]
36.15 Federal government departments adopted the definition as their‘working definition’ for determining eligibility to certain services andbenefits. The definition continues to be applied administratively in relationto programs such as Abstudy funding for tertiary students.
36.16 In The Recognition of Aboriginal Customary Laws, theALRC emphasised the benefits of a flexible definition of Aboriginality:
Experience under Commonwealthand States legislation suggests that it is not necessary to spell out adetailed definition of who is an Aborigine, and that there are distinctadvantages in leaving the application of the definition to be worked out, sofar as is necessary, on a case by case basis.[17]
36.17 Only a small number of judicial decisions in Australia haveconsidered this issue.[18]InCommonwealth v Tasmania, the High Court considered the definition of an‘Aborigine’ for the purpose of s 51(xxvi) of the Constitution, in relation tolaws with respect to ‘the people of any race for whom it is deemed necessary tomake special laws’. Deane J (RW: in the 1983 C’wealth VsTasmania over the Tasmanian Dam Case) applied the three-part test,stating:
By ‘Australian Aboriginal’ I mean, in accordance with what I understandto be the conventional meaning of that term,
- a person of Aboriginal descent, albeit mixed,
- who identifies himself as such and
- who is recognised by the Aboriginal community as Aboriginal.[19]
(RW: It was ‘Nugget’ Coombs(Governor of the Reserve Bank) who, in a private capacity, in 1982 suggestedthe above definition.)
36.18 Brennan J supported this approach in his leading judgmentin Mabo v Queensland (No 2), in relation to native title:
Membership of the Indigenouspeople depends on biological descent from the Indigenous people and on mutualrecognition of a particular person’s membership by that person and by theelders or other persons enjoying traditional authority among those people.[20]
36.19 As noted above, the Commonwealth has enacted a number of statutesfor the purpose of providing certain rights and privileges for the exclusivebenefit of Indigenous Australians. Due to the broad terms in which thesestatutes define an Aboriginal person, it has been necessary for the courts tointerpret these definitions.
36.20 In Attorney-General (Cth) v Queensland, the Federal Courtconsidered the meaning of the word ‘Aboriginal’ in relation to the LettersPatent authorising the Royal Commission to inquire into the deaths in custodyof ‘Aboriginal and Torres Strait Islanders’.
The Queensland government argued that the Royal Commission could notinquire into the death of a 17-year-old boy in custody because he was notAboriginal.
While the boy had some Aboriginal descent, he had not identified as anAborigine and had not been recognised as such by the Aboriginal community.[21]
36.21 The Federal Court held that Aboriginal descent was, by itself,sufficient proof of Aboriginality for these particular purposes.
French J commented that the three-partdefinition should not be seen as representing the contemporary content of theword ‘Aboriginal’, irrespective of context or purpose.
The better view was that Aboriginal descent alone is a sufficientcriterion for classification as Aboriginal for the purposes there in question.[22]
36.22 Spender J commented that once it is established that a person is‘non-trivially’ of Aboriginal descent, then that person is Aboriginal withinthe ordinary meaning of that word.
Neither self-identification nor community recognition is necessary, andthe presence of either factor, or even both, is not sufficient to satisfy thedefinition of an ‘Aboriginal’ person.[23]
Spender and Jenkinson JJ both commented that where Aboriginal descent is uncertain, or where the extent ofAboriginal descent might be considered insignificant, self-recognition or recognition by other Aboriginal persons may have an evidentiaryvalue in resolving the question.[24]
36.23 In Gibbs v Capewell, the Federal Court discussed the meaningof the statutory definition of an Aboriginal person in the Aboriginal andTorres Strait Islander Commission Act 1989 (Cth) (ATSIC Act).[25]
The Act defines an Aboriginal person as ‘a member of an Aboriginal raceof Australia’.
Drummond J concluded that Parliament’s intention was ‘to refer to thegroup of persons in the modern Australian population who are descended from theinhabitants of Australia immediately prior to European settlement’.[26]
For the purposes of the ATSIC Act, an Aboriginal person must be a biological descendant of one of thoseinhabitants.
His Honour stated:
Since the Act itself makes itclear that proof of descent from the pre-European settlement inhabitants ofAustralia is essential before a person can come within the expression‘Aboriginal person’ in the Act, I reject thesuggestion … that a person without anyAboriginal genes but who has identified with an Aboriginal community andwho is recognised by that community as one of them can be an ‘Aboriginal person’ for the purposes of this particular Act.(RW: eg, ‘Prof‘ Bruce Pascoe)
It follows thatadoption by Aboriginals of a person without any Aboriginal descent andthe raising of that person as an Aboriginal … will not, because of thestatutory requirement for descent, bring that person within the description‘Aboriginal person’.[27]
36.24 Drummond J commented that Deane J’s three-part test should not beregarded as containing an exhaustive description of the meaning in ordinaryspeech of the term ‘Aboriginal’.
His Honour held that a person must have some degree of Aboriginaldescent to satisfy the definition of an ‘Aboriginal person’. A small degree ofAboriginal descent coupled with genuine self-identification or with communalrecognition may be sufficient for eligibility; alternatively, a substantialdegree of descent may by itself be sufficient.[28] DrummondJ recognised the probative value of communal recognition as evidence ofAboriginal descent.
Aboriginal communal recognition will always be important, when itexists, as indicating the appropriateness of describing the person in questionas an ‘Aboriginal person’.
Proof of communal recognition as an Aboriginal may, given thedifficulties of proof of Aboriginal descent flowing from, among other things,the lack of written family records, be the best evidence available of proof ofAboriginal descent. While it may not be necessary to enable a person to claimthe status of an ‘Aboriginal person’ for the purposes of the Act in aparticular case, such recognition may, if it exists, also provide evidenceconfirmatory of the genuineness of that person’s identification as anAboriginal.[29]
36.25 In Shaw v Wolf, the Federal Court again considered themeaning of an ‘Aboriginal person’ for the purposes of the ATSIC Act. Merkel Jheld that if a person has no Aboriginal descent then he or she cannot be anAboriginal person for the purposes of the Act. However, evidence about theprocess by which self-identification and communal identification occurs can beprobative of descent.[30] MerkelJ referred to the lack of documentary records and to the reticence of somefamilies of Aboriginal descent to publicly acknowledge that fact due to actualor perceived racism from the rest of the community.
In these circumstances Aboriginal identification often became a matter,at best, of personal or family, rather than public, record. Given the historyof the dispossession and disadvantage of the Aboriginal people of Australia, aconcealed but nevertheless passed on family oral ‘history’ of descent may insome instances be the only evidence available to establish Aboriginal descent.Accordingly oral histories and evidence as to the process leading toself-identification may, in a particular case, be sufficient evidence not onlyof descent but also of Aboriginal identity.[31]
36.26 Merkel J noted that his decision involved the interpretation of astatutory definition only, and did not purport to be a comprehensive definitionof Aboriginality. His Honour commented that:
Aboriginality as such is notcapable of any single or satisfactory definition … The present case offers agood example of the difficulties thrown up by issues of Aboriginalidentification. That some descent may be an essential legal criterion requiredby the definition in the Act is to be accepted. However in truth, the notion of‘some’ descent is a technical rather than a real criterion for identity, whichafter all in this day and age, is accepted as a social, rather than a genetic,construct. The solution to such problems is a matter for thelegislature rather than the courts.[32]
36.27 In his concluding observations in Shaw v Wolf, Merkel J madethe point that since this issue involves an important aspect of Aboriginalself-determination, it is best left for bodies with Aboriginal representation:
It is unfortunate that thedetermination of a person’s Aboriginal identity, a highly personal matter, hasbeen left by a parliament that is not representative of Aboriginal people to bedetermined by a court which is also not representative of Aboriginal people.Whilst many would say that this is an inevitable incident of political andlegal life in Australia, I do not accept that that must always be necessarilyso. It is to be hoped that one day if questions such as those that have arisenin the present case are again required to be determined that that determinationmight be made by independently constituted bodies or tribunals which arerepresentative of Aboriginal people.[33]
36.28 In summary, the Commonwealth government appears to apply thethree-part test of Aboriginal descent, self-identification and communityrecognition for determining eligibility for certain programs and benefits. Thecourts, in interpreting statutory definitions in federal legislation, haveemphasised the importance of descent in establishing Aboriginal identity, buthave recognised that self-identification and community recognition may berelevant to establishing descent, and hence Aboriginal identity, for thepurposes of specific legislation.
Internationalapproaches
36.29 Dr William Jonas, the Aboriginal and Torres Strait Islander SocialJustice Commissioner of the Human Rights and Equal Opportunity Commission, notedthat Indigenous peoples have resisted attemptsinternationally to prescribe an exhaustive definition of ‘Indigenous’.[34]
36.30 The United Nations Working Group on the Rights of IndigenousPopulations has considered the definition of Indigenous peoples, communitiesand nations but has never adopted a formal definition.
In the Working Group’s first session, indigenous participants arguedagainst attempts to formulate a definition, in the absence of more broadlyrepresentative indigenous participation.[35]
In its second session, the Working Group considered a definitiondeveloped by Martinez Cobo, the Special Rapporteur to the United Nations’Sub-commission on Prevention of Discrimination and Protection of Minorities:
Indigenous communities, peoplesand nations are those which, having a historical continuity with pre-invasionand pre-colonial societies that developed on their territories, considerthemselves distinct from other sectors of the societies now prevailing in thoseterritories, or parts of them … They form at present non-dominant sectors ofsociety and are determined to preserve, develop, and transmit to futuregenerations their ancestral territories, and their ethnic identity, as thebasis of their continued existence as peoples, in accordance with their owncultural patterns, social institutions and legal systems.[36]
36.31 The importance of self-identification has also been recognised inArticle 1.2 of International Labour Organization Convention 169, concerningIndigenous and Tribal Peoples in Independent Countries:
Self-identification as indigenous or tribal shall be regarded as afundamental criterion for determining the groups to which the provisions ofthis Convention apply.[37]
36.32 Dr Larissa Behrendt, Professor of Law and Indigenous Studies atthe University of Technology Sydney, has commented:
If we’re going to talk abouttreaties and recognition of rights, the question of who’s in and who’s out isgoing to be the most important issue facing indigenous Australians. If thatisn’t resolved, you run the risk of having the parameters stretched to theludicrous point where someone can say: ‘Seven generations ago there was anAboriginal person in my family, therefore I am Aboriginal’.[38]
Concernsabout the application of existing law
36.33 A number of submissions commented on theappropriateness, or otherwise, of the existing legal definition ofAboriginality.[39] TheCommonwealth Attorney-General’s Department commented:
The question of whether genetictesting and information should be used to establish Aboriginal identity is animportant issue given that it may determine eligibility to Indigenous-specificentitlements. Any departure from the current three-pronged test to determinewhether someone is an Aboriginal or a Torres Strait Islander based on descent,self-identification and community recognition requires careful consideration.[40]
36.34 The Inquiry was told in some consultations that the three-partdefinition works well enough in most circumstances.
However, a number of concerns were expressed about the test.
In some cases, the courts have interpreted ‘descent’ in terms ofbiological descent when interpreting the meaning of an Aboriginal person.[41] Thistends to undermine the role of social descent within Aboriginal communitieswhose traditional laws and customs might provide for adoption or other socialforms of inclusion into a family or community. The emphasis on biologicaldescent has led to some anxiety that genetic testing might increasingly be used(or even required) as a means of proving a person’s kinship relationship withanother Aboriginal person.
36.35 Several submissions emphasised the difference between Westernand Aboriginal definitions of kinship.[42] TheAboriginal and Torres Strait Islander Social JusticeCommissioner commented that:
While Aboriginal people may generallybe direct descendants of the original inhabitants of a particular part ofAustralia, indigenous customary law does not rely on linear proof of descent inthe Judeo-Christian genealogical form of ‘Seth begat Enosh begat Kenan’ (RW: LINK) in order toprove membership of the group. … A person may have been adopted into a kinshipgroup where there is no direct or suitable offspring to carry out ceremonialobligations. … Genetic science should have no part to play in determiningwhether or not a person should be eligible for benefits. If the element ofdescent is to remain in Australian law as a test of Aboriginality, it should beinterpreted in accordance with Indigenous cultural protocols.[43]
36.36 Professor Larissa Behrendt also expressed concern about thetendency of the courts to distort the three-part test by focussing unduly ondescent, however defined. Professor Behrendt noted that self-identification hasbeen recognised as the international standard for establishing indigenousidentity, and she emphasised that, in talking about elections and treaties,indigenous people need to talk among themselves about Aboriginality and whatmakes their Indigenous identity.[44]
36.37 In its submission to the Inquiry, AIATSIS supported theexisting definition, commenting that it should be emphasised in legaldeterminations, but it stressed the need for judicial flexibility to ensureIndigenous peoples were not disadvantaged.
The legal imperative ofutilising the three-pronged approach to Indigenous identity should beemphasised in legal determinations. There should also be a strengthening of thethree-pronged test to allow judges to make this test a legal standard. AIATSISstresses the need for judicial discretion so that Indigenous people [a]re notfurther disadvantaged in legal proceedings.[45]
36.38 The difficulties surrounding elements of the three-part test areillustrated by the controversy that arose in 2002 over eligibility to vote inthe election for ATSIC councillors representing Tasmania LINK. The ATSICAct provides that a person is entitled to vote in a Regional Council wardelection if he or she is an Aboriginal person or a Torres Strait Islander.[46]
36.39 Some Tasmanian people who identify as Aboriginal, and areacknowledged as such by the relevant Aboriginal community, nevertheless mayhave difficulty obtaining documentary evidence of their Aboriginal descent.
This is due to inadequate colonial record keeping, (RW: and theabsence of any Aboriginal record-keeping) past policies of removal andother consequences of the historical discrimination against Aboriginal people.
These persons assert that self-identification and community acceptanceshould be sufficient evidence of their Aboriginality for legal purposes.
On the other hand, it has been argued that requiring proof of descent isone way to protect against fraudulent or inappropriate claims of Aboriginalityby non-Indigenous persons for personal or financial reasons.[47]
36.40 These concerns led ATSIC to trialan Indigenous Electoral Roll for the purpose of the Tasmanian RegionalAboriginal Council Elections.[48]
Individuals could object to an applicant being included on the roll onthe basis that he or she was not of Aboriginal or Torres Strait Islanderdescent. (RW: Note that Tasmania denies that ‘Prof’ Bruce Pascoe is anaboriginal.)
Where an objection was made, the applicant was required to providedocumentary evidence addressing his or her Aboriginal ancestry,self-identification and community acceptance.
To prove ancestry, the person generally was required to provide averifiable family tree, or archival or historical documentation that linked theperson to a traditional family or person.[49] TheInquiry understands that several applicants sought genetic testing to produceevidence supporting their claims of Aboriginal descent.[50]
-oOo-
