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Connell, Rachel --- "Who is an 'Aboriginal Person'?: Shaw v Wolf" [1998] IndigLawB 49; (1998) 4(12) Indigenous Law Bulletin 20


Who is an 'Aboriginal Person'?:
Shaw v Wolf

Shaw v Wolf

Federal Court of Australia (Melbourne), Merkel J

Unreported

20 April 1998, TG33/1996

Casenote by Rachel Connell

In Shaw v Wolf[1] two prominent members (the petitioners) of the Tasmanian Aboriginal community challenged the eligibility of eleven people (the respondents) to stand as candidates in the Hobart region ATSIC Regional Council elections. The challenge was brought under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ('the Act') which states that to be an eligible candidate for election a person must be an Aboriginal person' or a 'Torres Strait Islander'.[2] The Court dealt only with the definition of 'Aboriginal person defined (circuitously) in the Act as 'a person of the Aboriginal race of Australia: s4(1).

The petitioners argued that the respondents were not Aboriginal persons' for the purposes of the Act, because they were not descendants of Aboriginal persons. They based their submissions on what Merkel J, of the Federal Court, termed the 'traditionally accepted theory of the genealogy of Aboriginal Tasmanians. The respondents refuted this theory of descent, presenting competing hypotheses.

The Act

Merkel J alluded to the issue of whether a court is a suitable forum to decide the question of Aboriginality. The argument was made, by reference to the preamble and object clauses of the Act, that the purpose of the Act is to enfranchise Australia's indigenous peoples within representative organisations that have some input into the policies and programs that affect them. Despite the now generally recognised right of indigenous peoples to self-determination the fact remains that: '...the structure of the Act is such that any substantive determination of eligibility for a voter or candidate as an Aboriginal person can be only determined in a petition under Sch 4', to the Federal Court (p13). Merkel J found that there was a need to develop 'a practical and realistic approach to the definition of an Aboriginal person which gives effect to ... the Act and its objects' (p4).

An 'Aboriginal person'

Merkel J found that descent, self-identification and community recognition are the three criteria to consider in making determinations in respect of whether someone is an 'Aboriginal person' for the purposes of the Act.

Descent

Merkel J adopted an 'elucidated' version of the finding of Drummond J in Gibbs v Capewell [1995] FCA 1048; (1995) 128 ALR 577. Drummond J held that the object of the Act and the ordinary meaning of Aboriginal person' support the interpretation that an 'Aboriginal person' is a person descended from the inhabitants of Australia prior to European settlement. This was based on the finding in the Tasmanian Dams Case that statutory definitions which relate to a race have a 'wide and non-technical meaning'.[3] Merkel J supported the conclusion that, while some degree of descent is necessary, it may be that community recognition, given the inadequacy of written records, will be the best evidence of proof of descent (p 6). He made the qualification that the definition of 'Torres Strait Islander' under the Act which makes specific reference to descent, further supports the interpretation that descent alone is not a sufficient criterion for recognition as an Aboriginal person'.

Merkel J wandered into the domains of sociological Theory and autobiography to elucidate the context in which 'identification as an Aboriginal person occurs in Australia', and to illustrate the intertwined nature of descent, self-identification and communal recognition. His central thesis is that the denial which attends years of discrimination, the effect of assimilationist policies, and the way in which others (including the media) construct and reproduce what it is to be Aboriginal', are factors which impact on one's self-identification and communal recognition. The fact that white society has offered different identities to Aboriginal people over time has resulted not only in the reluctance of people to identify as Aboriginal, but to there being few records of descent (p7). Ultimately Merkel J concluded that Aboriginal identity cannot be assessed according to inflexible criteria (p7).

Self-identification

Merkel J held that it is the genuineness of identification, and not its content, that is the critical issue for a court considering the issue of self-identification: 'What it means for a particular individual to be an Aboriginal person will be highly subjective and will vary from individual to individual and community to community' (p 8) The subjective test aside, bona-fide self-identification will be sufficient.

Significantly, he rejected the idea that motive or 'opportunism' should be a determining factor in analysing self-identification, acknowledging that it is 'an inherently difficult criterion to apply' (p8). The fact that identification as an 'Aboriginal person' was in previous times actively discouraged had obvious bearings on this conclusion. He recounts parts of the stories of Roberta Sykes and Sally Morgan, as illustrations.

Community recognition

Merkel J concluded that community recognition is often related to self-identification. Views held in the relevant Aboriginal, and sometimes the general, community will be instructive, although there is no need for the court to be concerned with defining the relevant community: 'Communal identification may be based on physical, cultural, social or other attributes perceived in a particular community to exist in Aboriginal persons' (p 10).

Application

Merkel J found that the weight to be placed on each aspect of the three-pronged test for Aboriginal person' will depend on the circumstances of the case. History and the subjective nature of identity demand this:

'Aboriginal identity for contemporary Aboriginal Australians has survived, developed and been maintained in spite of the history of destruction of Aboriginal family life, culture and traditional life through killings, disease and subsequently by racism and policies of assimilation.' (p 14)

Evidentiary standards

Merkel J dealt with issues surrounding the relevant onus and standard of proof to be applied in the case at hand. There was considerable dispute between the parties as to which one was obliged to make the case of Aboriginaliry or non-Aboriginality. Merkel J found that the petitioner has the onus of establishing that the respondent is not an Aboriginal person' for the purposes of the Act, on the balance of probability (p 12). However, Merkel J found that the circumstances of the case were such that a higher standard - the 'Briginshaw standard' -should be applied: 'the Court should not lightly make a finding on the balance of probabilities, that any of [the] respondents is not an Aboriginal person as defined in the Act' (pp 12,14). The rationale being that an adverse finding against the eleven respondents would have severe consequences, considering each of them had identified as an Aboriginal person prior to the decision to stand as a candidate for election under the Act.

Aboriginal Tasmanians

The Court was presented with extensive evidence and expert testimony over five days of hearings. Merkel J rejected the traditional theory that all Aboriginal Tasmanians must be descendants of either Fanny Cochrane (Smith) or Dolly Dalrymple, after detailed consideration of the often contradictory historical and archival records. His analysis of the genealogy, self-identification and communal recognition of the eleven respondents provides an interesting document.

Merkel J found that two of the eleven respondents were not Aboriginal persons' for the purposes of the Act: Ms Debbie Oakford and Mr Lance Lesage. Ms Oakford was elected at the Regional Council elections in question.

The Court accepted that Ms Oakford genuinely identified as an Aboriginal person, and found no reason to reject her evidente that she enjoyed some community recognition. However, Merkel J found that, on the evidence and cross-examination, the petitioners had established that Ms Oakford had no Aboriginal ancestry deriving from either her father's or her mother's family tree. (pp 40,42).

Mr Lesage did not appear in the proceedings. Merkel J found that there was insufficient evidence relating to his Aboriginality.

Merkel J found the fact that unqualified candidates took part in an election amounted to an 'illegal practice' under clause 12(3) of the Act, and also under the Regional Council Election Rules. He found that Ms Oakford was not duly elected and, rather than declare the election void, ordered that votes be recounted.

A comparison of the respondents' 'biographies' as detailed by the judge reveals the difficulties of being consistent in judicial determinations of Aboriginality, and the nuanced and complex nature of biographies when told through different filters. The case indicates the difficulties in presenting historical evidence of family trees. The judgment is problematic and raises a number of issues which need further consideration. Of particular concern are the Court's determinations in relation to the discharge of the onus and the standard of proof.

Rachel Connell is a policy officer at the NSW Department of Aboriginal Affairs. None of the views expressed here represent the views of the Department.


[1] All page numbers in this article refer to the unreported version of the decision.

[2] Sections 101(8) and 102(1)(8).

[3] The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 273-4 per Dean J cited in Shaw v Wolf at p5.


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