The Real Issue - Aboriginality is still a mystery to most Australians (Part IV)
When Eddie Mabo went to the High Court, there was no concept of Native Title in Australia, no legislation, no recognition. It was his case that laid out the grounds for Native Title, that his people, the Meriam people, had a law and custom that predated British sovereignty, was still in existence, and gave them rights and interests in the land that the State of Queensland should recognise.
It was the arguments in Mabo, from the Meriam people themselves, that the Tripartite Test was developed from. Like the Meriam, there must be other Aboriginal groups, with a still-thriving law and custom predating British sovereignty, that gives them rights and interests in particular lands and waters, but throughout this Article Series, we have outlined that not all Aboriginal groups will meet the Mabo definition, nor do all Aboriginal identifying individuals meet the criteria for membership for any Mabo-defined group.
Two Kinds
All the while, the Commonwealth / Tasmanian Dam definition, while rejected by Courts for the Native Title and Non-Alien arguments, is still in use by Government agencies, educational facilities, and other private institutions that may provide other rights, benefits, specific-programs for Aboriginal people. Essentially, Aboriginal Australia is already divided into two kinds:
“Mabo” Kind:
“a person who descends from an Indigenous people and has mutual recognition by that person and by the elders or other persons enjoying traditional authority among those people of that particular person's membership.
“Tasmanian Dam” Kind:
“a person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he or she lives.”
These two kinds are slowly being pushed further a part, with the Mabo kind possessing recognised rights that the Tasmanian Dam kind does not, i.e. the ability to claim Native Title and recognition as non-aliens. As time goes forward, this division may widen further - will State government’s sign Treaties with both kinds or will only Mabo kind / Traditional Owner groups be given Treaty?
The Voice and Aboriginality
Most importantly, the definition of Aboriginality is a Constitutional Issue, should the Voice pass, any definition of Aboriginality will need to take into account these past precedents or be prepared for legal challenge. South Australia’s parliament passed a state-based Voice to Parliament Bill earlier this year, and it’s definition of a ‘First Nations Person’ seems to depart from the normal Commonwealth wording of “is accepted as such by the community in which he or she lives” to “is accepted as an Aboriginal or Torres Strait Islander person by the relevant Aboriginal or Torres Strait Islander community.”
4—Meaning of First Nations person
(1) For the purposes of this Act, a person will be taken to be a First Nations person if the person—
(a) is of Aboriginal or Torres Strait Islander descent; and
(b) regards themselves as Aboriginal or Torres Strait Islander (as the case requires); and
(c) is accepted as an Aboriginal or Torres Strait Islander person by the relevant Aboriginal or Torres Strait Islander community.
What the ‘relevant community’ means and what qualifies as acceptance are not really qualified and leave room for debate. The SA Bill may hint at what could possibly be in store for a National Voice Bill. Ultimately, the issues surrounding Aboriginality, its definitions, and the rights/interests attached to those definitions, are still in flux. It is not hard to imagine that will be at least another one or two High Court cases in the future.
In the final article of this series, we’ll be taking questions from our readership. Comment below with a question you’d like to see answered about this topic!