Lofgren, Neil --- "Gibbs v Capewell & Ors : Defining Aboriginal Identity" [1995] AboriginalLawB 30; (1995) 3(73) Aboriginal Law Bulletin 18

• Gibbs V Capewell &Amp; Ors Defining Aboriginal Identity

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Gibbs v Capewell & Ors

Defining Aboriginal Identity

Gibbs v Capewell & Ors

Federal Court of Australia, Drummond J

3 February 1995

by Neil Lofgren

The petitioner sought an order under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ('the Act') schedule 4, clause 10 that the 4 December 1993 election for ATSIC's Roma Regional Council be declared void, or, alternatively, that the election of the respondent be declared void, because he was not qualified to stand for election as he was not an 'Aboriginal person' or Torres Strait Islander' as required by the Act (ss.102(1)(a) & 101(a)), and further because votes were cast by people who were neither 'Aboriginal persons' nor Torres Strait Islanders' (s.101).

His Honour, Justice Drummond, directed that the question of the true meaning of the expression 'Aboriginal person' in the Act be determined as a preliminary issue in the proceedings, and hence the judgment only deals with this matter.

The petitioner submitted that the term 'Aboriginal person' in the Act meant a descendant of those people who inhabited Australia at or before the time of British settlement. The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs ('the third respondent') made a similar submission but also contended that biological descent was by itself "... a necessary, and sufficient, condition for eligibility to vote as an Aboriginal person ...". (At 2.) His Honour differentiated,between these positions, on the basis that (at 3):

... the Minister submitted that any degree of Aboriginal genetic material, no matter how small, was enough to bring a person within the expression 'Aboriginal person', while the petitioner submitted that, if all that could be shown in a particular case was a small degree of Aboriginal genetic material, then it would only be if the person either identified himself as an Aboriginal or was accepted by Aboriginal persons as one of them that he could come within the expression 'Aboriginal person' in the Act."

His Honour stated that the definition of an 'Aboriginal person' contained in the Act (s.4) as 'a person of the Aboriginal race of Australia' bore the meaning that it had in ordinary usage and subject to any statutory qualifications (at 3). His Honour also conceded that the 'race power' definition of an Aboriginal person contained in section 51(xxvi) of the Commonwealth Constitution was "hopelessly imprecise" (at 4). He contended that an examination of the preamble of the Act and its objectives (s.3) showed that the Commonwealth Parliament had used the Constitution's race power expression of 'Aboriginal race of Australia' to refer (at 6):

... to the group of persons in the modern Australian population who are descended from the inhabitants of Australia immediately prior to European settlement. It follows that an 'Aboriginal person' is, for the purposes of this Act, one of those descendants."

His Honour rejected the first respondent's proposition that a person "...wthout any Aboriginal genes but who was identified with an Aboriginal community as one of them can be an 'Aboriginal person' for the purposes of the Act" (at 7). He further stated that adoption by Aboriginals of a person without any Aboriginal descent and the raising of that person as an Aboriginal would not bring them within the statutory requirement of descent (at 7).

His Honour then considered whether the term an 'Aboriginal person' denoted only "... full blood descendants of the pre-European settlement inhabitants of the continent or whether it comprehends persons of mixed descent, i.e., persons who posses some Aboriginal genes" (at 8). He concluded that the preamble and objectives (s.3) of the Act suggested that 'Aboriginal persons' "comprise[d] a large group" (at 8), and that this suggestion was implicit in other provisions of the Act which prescribed the functions of the Commission (s.7), and the functions of its Regional Councils (s.94).

His Honour took "... judicial notice of the fact that there are few, if any, full blood descendants of the pre-settlement inhabitants of the continent living in" (at 8) Sydney, Brisbane, Adelaide, Hobart and Perth. And he cited Re Byrning [1976] VicRp 8; [1976] VR 100 at 103 for judicial notice that "... for a long time it has been widely known that there remain very few [Aboriginal] persons of full blood in the whole continent" (at 8). Accordingly, His Honour concluded that because the Act established such "... an elaborate system designed to vest in Aboriginals and Torres Strait Islanders political, administrative and financial powers to be used for the benefit of all persons of those races", the Commonwealth Parliament would have been unlikely to establish "[s]uch a legislative scheme ... to benefit only a tiny group within the Australia community" (at 9). His Honour further suggested that a reading of the Act (at 9):

... against this factual background requires acceptance of the proposition that the expression 'Aboriginal person' comprehends not only full blood descendants of the original inhabitants, but also persons who possess some Aboriginal genetic material- Persons with a limited Aboriginal genetic heritage are therefore not necessarily excluded from being 'Aboriginal persons'.

His Honour then proceeded to decide on "... the correctness of the Minister's proposition that [Alboriginal descent is not only a necessary but a sufficient condition of eligibility to vote as an 'Aboriginal person" (at 10). The Minister supported this proposition by submitting that (at 10):

... the statutory definition of 'Aboriginal person' operates by reference to genetic factors, not social ones, so it is irrelevant to have regard to cultural considerations; race (so it is said) is determined at birth and cannot subsequently be acquired or relinquished, while culture is acquired from a person's upbringing and environment and is not a necessary element of a person's race.

The Minister further submitted that a significant number of Aboriginal people would be excluded from the benefits of the Act by the imposition of a cultural test in addition to descent, including "... those who, in accordance with official policies of past times, were removed from their Aboriginal families and communities and brought up without any contact with their Aboriginal heritage" (at 10).

His Honour rejected the Minister's argument that the only relevant consideration was the genetic one on the basis that it ignored the fact that the Act contained "... clear indications that the expression 'Aboriginal person' bears the meaning it has in current community parlance" (at 10).

His Honour proceeded to examine the extensive discussions of the Full Federal Court in Attorney-General (Cth) v State of Queensland (1990) 94 ALR 515 at 517-8 of the current meaning of the word 'Aboriginal' in ordinary speech, where Jenkinson J stated that (at 12-3):

... in vernacular use ... the word 'Aboriginal' ... is applied only to a person thought to be a descendant of the people who occupied this country before British settlement, or thought possibly to be a descendant of those people. Descent, at least as a real possibility, is essential ... [and] ... where the proportion of Aboriginal blood in a person of mixed race is thought to be small, or where uncertainty exists as to whether a person is in any degree of Aboriginal descent, the word may be used ... in reference to that person under the influence ... of cultural circumstances.

His Honour also agreed with the "... marking out of the furthest reach of the term [Aboriginal] in the vernacular use" (at 13) of the phrase 'people of any race' contained in section 51(xxvi) of the Constitution in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 274, where Deane J stated that it is:

... apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of paragraph] (xxvi) in its original form ... [t]he phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. By 'Australian Aboriginal' I mean, in accordance with what I understand to 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 an Aborigine.

His Honour stated that he could not find either the 'identification or the recognition' to which Deane J referred as necessary to attract the term Aboriginal person in ordinary parlance to a person of wholly Aboriginal descent (at 13).

His Honour then proceeded to examine those persons whose "... genetic claims to the appellation ... are exiguous or uncertain in proof - 'persons ... who are, so to speak, on or near the boundaries of the racial classification as ordinarily understood"' (at 13). He further suggested that rejection or acceptance by the Aboriginal community "... influence[s] the placing of that person within or beyond that boundary" (at 13). His Honour provided clarification that (at 13):

[t]he closer to the boundary the person's genetic history - or, more accurately, the speaker's belief about that history - places him, the greater the influence of his conduct and of the conduct of the Aboriginal community.

His Honour further agreed with the observation of Jenkinson J in Attorney-General (Cth) v State of Queensland, supra at 517-8 that " ... in the absence of clear proof of [A]boriginal descent ..." (at 14) a person may be described in ordinary speech as an Aboriginal person, but the Act nevertheless requires "... proof of actual [A]boriginal descent ... before a person can be regarded as [an] 'Aboriginal person"' (at 14). His Honour also noted that he did not read Jenkinson J's comments as suggesting that "... both self-identification and [A]boriginal communal recognition must exist in borderline cases before a person would be described in ordinary speech as an [A]boriginal" (at 14). His Honour further agreed with Jenkinson J's concluding comments that (at 14):

... where there is proof of only limited [Alboriginal descent, that fact, coupled with self-identification alone or with communal recognition alone, may in a given case, be sufficient ... [for that person to] ... be described in ordinary speech as an Aboriginal.

His Honour also suggested that Deane J'.s comments in the Commonwealth v Tasmania, supra at 274, should not be regarded as an exhaustive description of the meaning of the term Aboriginal person in ordinary speech. And he agreed with the comments made by French J in Attorney-General (Cth) v State of Q eensland, supra at 538-9 who suggested that Deane J's comments should not been seen as representative of the contemporary

context of the term Aboriginal but in terms of a discussion of laws protecting

Aboriginal cultural heritage.

His Honour further suggested that an opportunistic claim by someone to be an Aboriginal person, even if that person "... could prove he possessed a small quantum of Aboriginal genes" (at 15) would not attract the status of being Aboriginal in ordinary speech. Nevertheless, he did suggest that a person of "... limited [A]boriginal heritage who ... genuinely identified himself ... as Aboriginal would be likely to [be] described by ordinary Australians as an Aboriginal, even without Aboriginal communal recognition" (at 15).

He further commented that (at 15):

... genuine self-identification plus Aboriginal communal recognition would ... lead to a person with only a small degree of Aboriginal descent being described as an Aboriginal. Counsel for the Minister referred to the possibility of there being many persons of limited [A]boriginal descent who learn of that fact only after time, but who then feel a genuine desire to proclaim their [Alboriginality; counsel referred to past government policies of separating Aboriginal infants from their families and of seeking to integrate them into white society. I do not think that Australians using their ordinary mannerr of speech would deny to such a person who discovered their Aboriginal heritage in maturity and who genuinely desired to acknowledge that heritage the description 'Aboriginal'. Communal [A]boriginal recognition as an Aboriginal person would not in such case be required before the person would be so described.

His Honour also suggested that a substantial degree of Aboriginal descent may by itself be enough for a person to be regarded as an 'Aboriginal person'. His Honour again referred to the comments of Jenkinson J in Attorney-General (Cth) v State of Queensland, supra, at 518, who discussed the impossibility of a person of "wholly Aboriginal descent" being able to avoid being described in ordinary speech as Aboriginal, ..... irrespective of any steps [they] personally took to avoid such an appellation" (at 15).

His Honour, further suggested that (at 16-7):

... where a person is either wholly of Aboriginal descent or where ... descent is so substantial that the person possesses what would be regarded by the ... Australian community as clear physical characteristics associated with Aboriginals that ... person would be described in ordinary speech as 'Aboriginal'. It is racial origin not external physical appearance that governs whether a person is 'Aboriginal' ... [A]s the High Court said in Ofu-Koloi v The Queen [1956] HCA 64; (1956) 96 CLR 172 at 176, ... '[p]igmentation is not the chosen test. Racial origin or derivation is the criterion. But of course, pigmentation is a characteristic of race and may be of cogent evidentiary significance'. In such cases, questions of self-identification or self-denial of [Alboriginalit or [A]boriginal communal recognition or non-recognition would be irrelevant.

His Honour concluded that according to the circumstances (at 17):

[a] person with a small degree of Aboriginal descent who genuinely identifies as an Aboriginal and who has Aboriginal communal recognition ... would ... be described in ... ordinary usage as an 'Aboriginal person' ... [b]ut where a person has only a small degree of Aboriginal descent, either genuine self-identification ... or Aboriginal communal recognition... may suffice.

His Honour concluded his judgment by stating that (at 18):

Aboriginal communal recognition will always be important, when it exists, as indicating the appropriateness of describing the person ... as an 'Aboriginal person'. Proof of communal recognition ... may, given the difficulties of proof of Aboriginal descent flowing from, among other things, the lack of written family records, be the best evidence available of proof of Aboriginal descent ... [s]uch recognition may ... also provide evidence confirmatory of the genuineness of that person's identification as an Aboriginal.