In the Matter of The Aboriginal Lands Act 1995 and In the Matter of Marianne Watson (No 2)
[2001] TASSC 105
•27 August 2001
[2001] TASSC 105
CITATION:In the Matter of The Aboriginal Lands Act 1995 and In the Matter of Marianne Watson (No 2) [2001] TASSC 105
PARTIES: ABORIGINAL LANDS ACT 1995, In the matter of
and
WATSON, Marianne (No 2)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 40/2001
DELIVERED ON: 27 August 2001
DELIVERED AT: Hobart
HEARING DATE: 6 August 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Aboriginals - 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.
Gibbs v Capewell (1995) 128 ALR 577; Shaw & Anor v Wolf & Ors (1999) 163 ALR 205, followed.
Aust Dig Aboriginals [5]
REPRESENTATION:
Counsel:
Appellant: Applicant in person
Respondent: T J Ellis SC
Solicitors:
Appellant:
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 105
Number of paragraphs: 15
Serial No 105/2001
File No LCA 40/2001
IN THE MATTER OF THE ABORIGINAL LANDS ACT 1995
AND IN THE MATTER OF MARY ANNE WATSON (NO 2)
REASONS FOR JUDGMENT COX CJ
27 August 2001
This is an appeal under the Aboriginal Lands Act 1995 ("the Act"), s10(6), against the acceptance by the Chief Electoral Officer of objections to the appellant's 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 the Act, s8. The procedure for preparing the Roll and determining objections to it is referred to in my ruling published on 23 July 2001 ([2001] TASSC 81). The crucial question is whether or not the appellant has demonstrated that she is an Aboriginal person within the meaning of the Act. That term is defined in s3 as having the meaning given to that expression for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 of the Commonwealth. The Commonwealth Act in turn defines an "Aboriginal person" as "a person of the Aboriginal race of Australia".
I have said that the crucial question is whether or not the appellant has demonstrated that she is an Aboriginal person within the meaning of the Act. In my view, the onus of proving the appellant's eligibility to be entered on the Roll lies upon her. The Act, s8, requires the Chief Electoral Officer to prepare the Roll which is to contain the names of persons who are entitled to vote at an election of members of the Aboriginal Land Council of Tasmania. Entitlement to be placed on the Roll is spelt out in s9(1), which provides:
"9 ¾ (1) A person is entitled to have his or her name entered on the Roll if the person –
(a) is an Aboriginal person; and
(b) resides in the electoral area in respect of which the person applies to have his or her name entered on the Roll; and
(c) has attained the age of 18 years."
Section 9(2) provides that the requirements in s9(1)(b) and (c) shall be taken to be satisfied in certain eventualities such as the presence of the person's name on the State roll or by other means of verification. The very fact that proof of such requirements is facilitated is an indication that there is some obligation on a person seeking to be placed on the Roll to prove his or her entitlement thereto. The third (and in this case, crucial) requirement is that the person be an Aboriginal person (s9(1)(a)). Section 9(3) obliges the Chief Electoral Officer to prepare guidelines concerning eligibility on the basis of being an Aboriginal person.
The guidelines prepared by the Chief Electoral Officer are as follows:
"Guidelines for enrolment on the ground of Aboriginality
Section 9(3) of the Aboriginal Lands Act 1995 requires the Chief Electoral Officer to prepare guidelines concerning the eligibility of a person to be placed on the Electoral Roll, based on whether that person is, or is not, an Aboriginal person.
The following guidelines have been developed by applying (as the Act requires) the ATSIC meaning of the term 'Aboriginal person', and incorporating with it the criteria identified by the Federal Court of Australia in Gibbs v Capewell & Others and reaffirmed in Shaw & James v Wolfe [sic] & Others.
Evidence of eligibility required
To satisfy the requirements for enrolment the person must generally be able to show -
• Aboriginal ancestry; and
• self‑identification as an Aboriginal person; and
• communal recognition by members of the Aboriginal community
Where the Chief Electoral Officer is satisfied that Aboriginal ancestry has been clearly demonstrated, further evidence of self‑identification and communal recognition may not be required.
Please read the specific guidelines below for each of these criteria.
Aboriginal ancestry
A person must be able to provide authentic evidence that shows a direct line of ancestry linked back to traditional Aboriginal society.
Documentary evidence is generally required ¾ the form of a verifiable family tree, or archival or historical documentation that links a person to a traditional family or person.
•Photographic evidence or family folklore alone will not normally be sufficient to prove Aboriginal ancestry.
•Where a person is chiming their Aboriginal ancestry from outside Tasmania, proof of descent must be available from the other area of Australia concerned.
Self‑identification
In addition to showing Aboriginal ancestry a person must generally be able to demonstrate genuine self‑identification as an Aboriginal person.
Communal recognition
In addition to showing Aboriginal ancestry and genuine self‑identification as an Aboriginal person, a person must generally be able to demonstrate communal recognition or acceptance by members of the broader Aboriginal community.
This means that a person must be known by other Aboriginal people in the local community and show a link to Aboriginal ancestry through either their own or their family's acknowledgment of their Aboriginal ancestry and their involvement with that local community.
The 'local community' in this context can be taken as a geographic area in which there are family groups and extended family groups who have associated with each other and recognised each other's Aboriginality. In some situations the 'local community' may have statewide coverage.
In practical terms it will generally be required -
•For a person to obtain three signatures from recognised members of the Aboriginal community; and
•That these three community members be able to acknowledge that person's or family's identification as Aboriginal within that community; and
•That the signatories not be from the immediate family group of the person seeking confirmation and be from family groups who are accepted members of the broader Aboriginal community.
It would not usually be sufficient for confirmation of communal recognition to come from an Aboriginal organisation alone, without separate support from local families and community members. However evidence of communal recognition may be considered from one or more Aboriginal organisations alone, if the basis of the evidence can be properly demonstrated."
The full citations of the two cases in the Federal Court of Australia referred to above are Gibbs v Capewell (1995) 128 ALR 577 and Shaw & Anor v Wolf & Ors (1999) 163 ALR 205.
Section 10(1) obliges the Chief Electoral Officer to enter on the Roll the names of all Aboriginal persons who have lodged a properly completed enrolment form with that officer. In many cases, it is to be anticipated that such persons will be on the State roll already and hence will satisfy the requirements of s9(1)(b) and (c). The requirement of Aboriginality in the first instance must be determined by the Chief Electoral Officer who will either accept such evidence of Aboriginality as the person applying for enrolment supplies in accordance with the guidelines and will enter the name on the Roll, or will not do so if he is not satisfied of Aboriginality. In either event, the determination is tentative in the sense that it may be challenged by the applicant if he or she is not included on the Roll, or by an objector if the applicant is included on the Roll. Any challenge to this tentative determination is to be decided by the Chief Electoral Officer who, by virtue of s10(4) is entitled to request the advice of such persons as he considers necessary. Any person aggrieved by the decision may appeal by way of rehearing, as explained in my ruling of 23 July 2001 (supra). The whole process is one whereby the claim of an applicant to eligibility is assessed and reviewed. Throughout, in my view, the onus remains on the appellant to demonstrate his or her Aboriginality.
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). That was, in effect, the position in Gibbs v CapewellI and in Shaw & Anor v Wolf & Ors (supra). In the latter case, Merkel J pointed out, at 214, that as the proceedings before him by way of petition in accordance with the Commonwealth Act, Sch 4, required that the petitioners set out in the petition the facts relied upon by them, that the respondents to be parties, and that the court try the petition, the implication of the provisions in Sch 4 was that the trial of the petition was to be conducted as an adversarial civil proceeding. In those circumstances, he held that the onus was on the petitioners to prove the allegations of the petition so far as they were not admitted, citing Blundell v Vardon (1907) 4 CLR 1463 at 1468. However, having regard to the scheme of the Act, I am of the view that the onus of proving her eligibility remains on the appellant.
The appellant has produced evidence of her descent from Ellen Janet Bessell, also known as Baker, who was born in 1888 and died in 1959. She is the great-grandmother of the appellant. She married Arthur George Henry Johnson in 1904 and had 11 children, including the applicant's grandfather, George Walter Johnson. George Johnson was the father of Valda Jean Johnson, who married Edwin Albert Gee and they are the parents of the appellant. The appellant is convinced that her great-grandmother "Ellen" was of Aboriginal descent, but historical records failed to prove the fact. Ellen was described in her birth certificate as the daughter of John Bessell and Edith Bessell formerly Harris. The appellant disclaims any Aboriginality in John Bessell and acknowledges doubt as to the Aboriginality of Edith Harris. There is no record of Edith Harris' birth or death, the only record of her being the birth certificate of Ellen. Any suggestion that Edith is of Aboriginal descent is totally unsupported by any evidence at all. The appellant, however, advances a theory that Ellen's mother was not Edith Harris, but Ada Amelia Baker formerly Harris, who is shown as her mother on Ellen's marriage certificate to Arthur Johnson. To further complicate matters, Ellen's father is shown as John Baker, not John Bessell. Some confirmation of Ellen's mother being Ada Amelia Harris comes from the fact that the latter's obituary refers to a daughter, Ellen, among her other living children at the time of her death on 8 June 1928. The appellant opines that Ada Amelia Harris, being described as aged 73 years 11 months at the time of her death, was born in 1855 and was the daughter of a Scottish convict named Janet Jamieson, who married Henry Harris in 1851 and subsequently Enos Robins in 1863. This opinion comes from the fact that the informant of the birth of a known son of Ada Amelia, one Charles Thomas Baker (born 1890), was Janet Robins, therein described as the child's grandmother. The paternal grandmother being Anne Bessell formerly Johnson, the appellant concludes that Janet Robins must be the maternal grandmother and that is further confirmed by the information relating to her marriage to Robins. However, it is not claimed by the appellant that Janet Jamieson's first husband was Aboriginal, nor that Robins was, even if he were the father of Ada Amelia. At best, the appellant speculates that Janet Jamieson had a child by an unknown Aboriginal on the Bass Strait Islands in 1855, that being early in an 11 year period where there are no records of her whereabouts or activities, whereas records between 1847 and 1852 and subsequent to her second marriage in 1863 show a number of activities, including some brushes with the law. There being a family tradition (to which I will return) that Ellen's family had come from "the Islands" in an open boat, the appellant contends that there is a possibility that Janet Jamieson was on one of the Bass Strait Islands in that 11 year period. With respect, it has to be said that this theory is speculative in the extreme and without any supporting evidence, documentary or otherwise. Whether Ellen was the daughter of Edith Harris or Ada Amelia Harris and the granddaughter of Janet Jamieson, there is no evidence of any connection with an Aboriginal person, let alone one who has been identified.
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. In Gibbs v Capewell (supra) at 585, Drummond J said:
"Proof of communal recognition as an Aboriginal 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".
In Shaw v Wolf (supra), Merkel J acknowledged that "evidence as to the process by which self identification and communal identification occurs can be logically probative of descent" (at 212). Referring not only to the lack of documentary records but also to the reticence of some families of Aboriginal descent to publicly acknowledge that fact due to the racism, perceived or actual, of the rest of the community, he said at 213:
"In these circumstances Aboriginal identification often became a matter, at best, of personal or family, rather than public, record. Given the history of the dispossession and disadvantage of the Aboriginal people of Australia, a concealed but nevertheless passed on family oral 'history' of descent may in some instances be the only evidence available to establish Aboriginal descent. Accordingly oral histories and evidence as to the process leading to self-identification may, in a particular case, be sufficient evidence not only of descent but also of Aboriginal identity."
As to communal recognition, he said at 213 - 214:
"Some form of communal identification or recognition will often form part of the process leading to self-identification. In determining whether there is communal identification or recognition the court will consider the views held in a relevant Aboriginal, or even the general, community as to whether a person is regarded as an Aboriginal person. That evidence is relevant because in the modern Australian community such recognition is commonly the mode by which a person is identified as a person of the Aboriginal race of Australia. Communal identification may be based on physical, cultural, social or other attributes perceived in a particular community to exist in Aboriginal persons. Although the evidence will usually relate to views held by persons comprising the relevant community it is a communal, rather than personal, recognition that is relevant."
In the appellant's case, there is no evidence of any family oral history of descent from a known Aboriginal person and but little evidence of such a history connecting any ancestor of the appellant with an Aboriginal community. That evidence consists of a statement in an affidavit of the appellant to the following effect:
"Although Ellen Janet Bessell / Baker died several months before I was born I was brought up with the knowledge that she was Aboriginal; that her people had come from 'the Islands'; that they travelled from 'the Islands' in an open boat; and that there was a storm at sea and a man was washed overboard and died."
Her mother Valda Jean Gee, in an affidavit filed herein, swore that she was born in 1930 and lived with her grandmother, Ellen, for a while in 1935. She maintained regular contact with her throughout the 1940s and 1950s. Mrs Gee stated that she was 16 when she "fully realised that my gran-ma was Aboriginal. One had only to look at her and her children". Another grandson of Ellen and Arthur Johnson, John David Wallace, swore an affidavit that when he was seven or eight years old he lived with his grandparents in Launceston and got on well with their son, Geoff, who lived with them. He stated that he could remember asking his Uncle Geoff "why he and grandma (Ellen) looked like they did and he explained that they were Aboriginal". The source of the story about Ellen's people coming from the Islands in an open boat is not revealed by the evidence before me, nor corroborated by any other member of the appellant's immediate or extended family; nor is there any evidence of Ellen or her 11 children and numerous descendants being accepted as being of Aboriginal descent by other families of known Aboriginal descent in the period preceding the appellant's self-identification in about 1983. Since that time, she herself 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. Other members of the community do not accept that she is of Aboriginal descent. In these circumstances, apart from the photographic material, it cannot be said that the process by which the applicant's self-identification and communal identification occurred was logically probative of Aboriginal descent.
Perhaps the strongest piece of evidence on which the appellant's case rests consists of photographs of Ellen, several of her children and grandchildren. It is claimed that Ellen herself and her sons Ernest and Geoffrey Walter, in particular, have Aboriginal facial characteristics and pigmentation. The appellant has filed affidavits by several accepted members of the Aboriginal community, including Ida Amelia West, who stated:
"1 I think that Marianne's photos are of Aboriginal people.
…
4 Because they look like Aboriginal people, I accept that they are.
5 The photos of Ernest Johnson look very like Ronald Summers (father of Ronnie Summers), whose mother was Winnie Mansell."
Mary Frances Mallett's affidavit states that she was born on Cape Barren Island and left when she was 14, 61 years ago. She says:
"2 Marianne Watson has worked with me in education for about 15 years and was accepted by the Aboriginal community then.
3 I met many of Marianne's relatives at her son's funeral and they are definitely Aboriginal people.
4 The photo of Ern Johnson and his mother is very like old Clyde Mansell (uncle of Clyde Mansell from the Aboriginal Land Council of Tasmania) and his mother, Aunty Violet Mansell.
5 The photos are of Aboriginal people."
Mervyn Gower, in an affidavit, states:
"I have viewed the photographic information of Marianne Watson and accept those to be of her family and assume these people to be Aboriginal, as many other families that are accepted as being Aboriginal have previously shown me their photos of their ancestors and the photos Marianne has showed me have similar resemblance to descendants of Aboriginal people that I know."
Edmund Transvaal Thomas, in his affidavit, states:
"1 I Edmund Transvaal Thomas 65 yrs of age, born on Cape Barren Island, of Aboriginal parentage in 1936, am a well known person in the Aboriginal Community and an accepted Aboriginal Elder.
2 I sat with Marianne Watson, when she visited me, and had a look at the photo album she presented, and in my own thoughts these people in the photos that Marianne pointed out to me, definitely have the Aboriginal features, as much as any other Aboriginal people I have seen and met.
3 Further to the above, I wish to emphasise that these people in the photos are definitely Aboriginal."
Brenda Frances Hodge's affidavit relevantly states:
"1I am an accepted member of the Aboriginal Community.
…
4I firmly believe that Marianne is Aboriginal as she has stated all these years and as demonstrated by her commitment to the Aboriginal Community in working for Aboriginal children and the Aboriginal Community.
5I believe that the photographs in Marianne Watson's family album do reflect her Aboriginality, particularly the photo of Ernest Albert Johnson.
6Marianne's family photos remind me of Cape Barren Island Aboriginal people as printed in the 'Living with the Land' series and 'On Being Aboriginal' series.
7I have seen family photos of sisters, Emily and Karen Burgess, (originally from Cape Barren Island) and see a strong resemblance to Marianne's family photos."
Finally, there is an affidavit from Maxwell Aubrey McKercher, which states:
"1 I lived with Mrs Ellen Janet Johnson for 6 months, 50 years ago, after marrying her granddaughter, Norma Saunders.
2 To my recollection, she was quite dark and I really assumed that she was part Aboriginal.
3 The photos Marianne Watson gave to the Electoral Commission are definitely of Ellen Janet Johnson and her family."
I am satisfied that the persons identified as Aboriginals in the opinion of these deponents are the applicant's great-grandmother, Ellen, and various of her descendants. The question is whether this is sufficient to prove the Aboriginality of Ellen's, and consequently the appellant's, descent.
The Chief Electoral Officer filed an unchallenged affidavit that in order to consider the three objections he received to the appellant's enrolment, he established an advisory committee of eight Aboriginal persons in accordance with his published guidelines, which were to this effect:
"The advisory committee will consist of 8 Aboriginal people and will include ¾
· a representative of the Office of Aboriginal Affairs which is responsible for the administration of the Aboriginal Lands Act 1995.
· persons who are knowledgeable of and widely accepted as being of high-standing within the Aboriginal community.
· persons having particular expertise in the fields of Aboriginal genealogy and history."
He also stated that the members of the committee were the manager of the Office of Aboriginal Affairs, which is a division of the Department of Premier and Cabinet, and is responsible for the administration of the Act, and seven others each of whom had qualities outlined in the guidelines. The names of the members of the advisory committee were made known to the appellant before the committee met. He also called upon the State Archivist, Ian Pearce, and the Senior Archivist of the State Archives, Robyn Eastley, who has expertise in the area of Aboriginal genealogy. On 22 and 23 May, he met with the advisory committee and Mr Pearce and Ms Eastley to consider the objections to the enrolment of the appellant, as well as the objections to the enrolments of certain other people who had been objected to. One committee member did not attend and it was decided to proceed in his absence. Each person was provided with a copy of the reasons given for the objections to the enrolments of the appellant and a copy of the appellant's submission with all the materials she had provided in support of her submission. The objections were as follows:
A"(1) The family records have been examined by a legitimate researcher and shown to be deficient.
(2) The person has no Aboriginal descent.
(3) The community do not accept this person to be Aboriginal."
B"She is known to the TAC but is unable to show authentic documented and objective evidence of Aboriginal ancestry. Additionally, her claim to self-identification is dubious because it is of recent invention and she is not accepted as an Aborigine by the local or broader Aboriginal community."
C"I have documented evidence that casts doubt over the claim of Aboriginality by this person. This documentation has been endorsed by State Archives."
The Chief Electoral Officer's affidavit deposed that:
"11The members of the advisory committee considered the objections and the submission of the Appellant and following their deliberations were firmly and unanimously of the view that the material provided by the Appellant was insufficient to establish that the Appellant was an Aboriginal person.
12During the course of the advisory committee's deliberations with respect to the objections concerning the Appellant, Robyn Eastley informed the committee that in her opinion the genealogical evidence provided by the Appellant as part of her submission did not establish that the Appellant has Aboriginal ancestry."
During the course of the advisory committee's deliberations, the Chief Electoral Officer questioned the members of the committee as to whether they were giving consideration to the guidelines on Aboriginality referred to above and assured himself that the committee was giving due consideration to the matters outlined therein. He also questioned them as to whether they were giving consideration to all the material in the submission of the appellant, including the photographic evidence, and he was assured that they were. At the conclusion of its deliberations concerning the appellant, the advisory committee advised him that in its opinion, the objections to the enrolment of the appellant should be accepted, and furnished him with a written memorandum to that effect, signed by each member of the committee present. Having considered the advice of the advisory committee, he decided to accept the objections to the enrolment of the appellant and accordingly communicated his decision to her by letter dated 23 May 2001. He stated that his reason for accepting the objections was that the advisory committee had unanimously advised him that the objections should be accepted and he was satisfied that the committee members had given proper consideration to the appellant's submission and the supporting material she had provided.
The final piece of evidence received in the hearing of this appeal was an affidavit from Gregory Patrick Lehman, which stated:
"1 I am the Assistant Director of the Centre for Aboriginal Education at the University of Tasmania.
2 I am an Aboriginal person and possess a great deal of knowledge of Tasmanian Aboriginal culture, heritage and history gained through birthright, community participation and living life as an Aborigine. I am a descendent of Dalrymple (Dolly) Briggs, a known Aboriginal person whose family tree is well documented.
3 I have skills and experience in research, administration and management.
4 I was a member of the advisory committed formed to advise the Chief Electoral Officer with respect to objections received to the enrolment of Marianne Watson and others on the roll of electors for the Aboriginal Land Council elections which are pending.
5 I recall having regard to the photographs which were part of Marianne Watson's submissions. It was my view and the view of the other members of the advisory committee that while there was a striking resemblance between the persons depicted and Marianne Watson the photographs offered nothing by way of objective evidence to support Ms Watson's claim to be of Aboriginal descent. Neither I nor the other members of the committee concluded that the persons depicted appeared to be persons with Aboriginal ancestry.
Having regard to all the evidence, I am not persuaded on the balance of probabilities that the appellant is "a person of the Aboriginal race of Australia". I respectfully adopt the statement of Drummond J in Gibbs v Capewell (supra) at 584:
"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."
In the present case, there is no documentary evidence of Aboriginal descent, there is no evidence of an oral history connecting the appellant to any historical personage and very little oral history of any connection with an Aboriginal group or tribe, such little history being the rather vague reference to Ellen's people having come from the Islands in an open boat. To my unpractised eye, the photographs are not definitive and according to Mr Lehman's affidavit, neither he nor the other members of the advisory committee considered that the persons depicted were persons with Aboriginal ancestry. Although Mrs West and the other deponents of affidavits filed on behalf of the appellant were of the contrary view and saw resemblances of other Aboriginal persons in some of the appellant's relatives, especially her great uncle Ernest and her great-grandmother Ellen, I have no reason to prefer their view to that of the members of the advisory committee. Darkness of pigmentation is common to the descendants of many different races and is not, on its own, indicative of Aboriginal descent.
I make one further observation. One of the objectors, Ms Sculthorpe, placed some reliance on the fact that the appellant had on a previous occasion sought to establish her Aboriginality through a line of descent from a recognised Aboriginal, Dolly Dalrymple. Archivists established that this line was not made out. The appellant then sought by further research to establish the line which I have indicated above and acknowledged the fact that the Dalrymple connection could not be made out in her application for enrolment. To the extent that the objection might be thought to undermine the credibility of the appellant, I do not think it has any foundation. I am quite satisfied that the appellant genuinely believes in her Aboriginality and in her frustration at being unable to establish it from records, many of which are incomplete or inconsistent, has followed a number of trails which have proved unproductive. I do not consider any criticism of her warranted by the pursuit of different lines of research.
I conclude that the appellant has not established that she is entitled to be enrolled on the Aboriginal Land Council of Tasmania Electors Roll. The appeal must be dismissed.
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