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Editors --- "Re Watson (No 2) - Case Summary" [2002] AUIndigLawRpr 8; (2002) 7(1) Australian Indigenous Law Reporter 30

Court and Tribunal Decisions - Australia

Re Watson (No 2)

Supreme Court of Tasmania (Cox CJ)

27 August 2001

[2001] TASSC 105; BC200104959

General — Aboriginal persons — determination of Aboriginal descent — eligibility for inclusion on the Aboriginal Land Council of Tasmania Electors Roll — guidelines for enrolment — Aboriginal ancestry, self-determination and communal recognition as an Aboriginal person

Facts

The appellant was appealing under s 10(6) of the Aboriginal Lands Act 1995 (Tas) (the Act), against the acceptance by the Chief Electoral Officer of objections to her name being included on the Aboriginal Land Council of Tasmania Electors Roll (the Roll), which the Chief Electoral Officer is required to prepare pursuant to s 8 of the Act. The crucial question was whether or not the appellant had demonstrated that she is an Aboriginal person within the meaning of the Act. In support of her appeal, the appellant claimed descent from one Ellen Janet Bessell who, the appellant argued, was of Aboriginal descent herself. The appellant also adduced photographs of Ellen Bessell, several of her children and grandchildren, contending that Ellen and her sons Ernest and Geoffrey Walter had Aboriginal facial characteristics and pigmentation.

Held, dismissing the appeal

1. The onus of demonstrating that the appellant is an Aboriginal person within the meaning of the Act, and proving eligibility to be entered on the Roll, lies upon her. The position is different where there is a challenge to the election of a person who has been placed on the Roll without an objection, or where an objection has been rejected by the Chief Electoral Officer (or by the Supreme Court on appeal). Gibbs v Capewell [1995] FCA 1048; (1995) 128 ALR 577, Shaw v Wolf (1999) 163 ALR 205 distinguished. [2], [5]

2. There is no evidence of any connection between Ellen Janet Bessell and an Aboriginal person. However, while the fact that early records are incomplete and sometimes inconsistent renders it difficult in some instances for a person claiming Aboriginal descent to demonstrate that descent from documentary records, proof of Aboriginality is not confined to evidence of this nature. Evidence as to the process by which self identification and communal identification occur can be logically probative of Aboriginal descent. A concealed but nevertheless passed on family oral ‘history’ of descent may in some instances be the only evidence available to establish Aboriginal descent. Gibbs v Capewell [1995] FCA 1048; (1995) 128 ALR 577, Shaw v Wolf (1999) 163 ALR 205 followed. [6]–[7]

3. In the appellant’s case, there is no evidence of any family oral history of descent from a known Aboriginal person and little evidence of such a history connecting any ancestor of the appellant with an Aboriginal community. She has been accepted by some members of the Aboriginal community but only, it would seem, by reason of photographic material and the sincerity of her commitment to that community rather than by reason of any oral tradition or history known by those members. [8]

4. In order for someone to be described as an ‘Aboriginal person’ within the meaning of that term in the Act, some degree of Aboriginal descent is essential, although by itself a small degree of such descent is not sufficient. The photographs are not definitive: darkness of pigmentation is common to the descendants of many different races and is not, on its own, indicative of Aboriginal descent. [13]