Patmore and Ors and Independent Indigenous Advisory Committee
[2002] AATA 962
•18 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 962
ADMINISTRATIVE APPEALS TRIBUNAL )
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No T2002/124-144,147,148,
150,151,153-157,159-174,
177,179,180-182,184-198,
200-202,204,207,208,211-231
233,235-240,245,247,248,
250-252,255-259,262-265,
267,268,271-278,280,282-283
GENERAL ADMINISTRATIVE DIVISION )
Re BRUCE WILLIAM PATMORE, SHERYN DENISE WILLIAMS, GARRY KEITH COWEN, DESMOND THOMAS BERRY, KAYE MCPHERSON, DAVID ARMSTRONG, SANDRA STALKER, MAXWELL RAY BERRY, BRIAN REGINALD FISHER, TODD MATTHEW FISHER, ROBERT HENRY ARMSTRONG, ANTHONY LEIGH STALKER, PETA NICOLE STALKER, ADAM GARY WILSON, DIANE MAREE WILSON, KYLIE MAREE WILSON, CRAIG SCOTT PRICE, VICKI LOUISE BROWN, LEONA ELIZABETH BROWN, LAURENCE JOHN WELLS, COLLEEN RUTH OSBORNE, KIMBERLEY ANN WELLS, DAVID ANDREW COURTNEY, ANNIE BENSON, WILLIAM ALLEN RADFORD, DANIEL JOHN BROWN, ANDREA KATHLEEN BOLAND, BADEN ROSS BONE, RICHARD JAMES BONE, DOROTHY JEAN BISHOP, SALLY ANNE WHITTON, GARRY MORRIS LUNSON, ANNETTE JAY LUNSON, MARIANNE WATSON, CHARLES RAYMOND WOLF, KIM POTTER, LYNDON NEIL POTTER, KIRSTY LAUREN DALCO, ANNE COLLINS, AMANDA JANE PEARN, WAYNE ANTHONY TURNBULL, KEVIN PAUL WOLF, DWAYNE HEADLY WOLF, VANESSA LEE WOLF, JOHN EDMUND CLARK, MILAN CARELESS, LILLIAN LOUISE CARELESS, WILLIAM GORDON LOCKLEY, JILL MARY DOUGLAS, VIVIAN ARTHUR CARELESS, LESLIE ROY DICK, DAMIAN ROBERT HEALD, DAVID TASMAN HEALD, GRAEME SAMUAL HEALD, GRACE HEALD, GEORGE PETER COWEN, DAVID WESLEY BLEATHMAN, ANN FLORENCE BLEATHMAN, TREVOR ILIFFE BLEATHMAN, VIOLA GRACE BLEATHMAN, LAUREN ELISE BLEATHMAN, DARCEY JAMES BLEATHMAN, VIOLA GRACE CHARLTON, NICOLE LEE COURTNEY, MALCOLM LOYDD COURTNEY, MICHAEL WILLIAM HARVEY, PAUL REX TURNBULL, NATALIE SARAH SCOTT, CHRISTOPER WILLIAM LYNCH, STEPHEN ALBERT TRINGROVE, NORMA CLAIRE CASEY, ARTHUR REGINALD PRIEST, ALAN HENRY WOLF, MILFORD LEWIS BONES, REGINALD KILBY, OLIVE DIANE POSTMA, PETER CHRISTOPHER DELPHIN, SHAREE GAIL BURGESS, EDNA CHRISTINE STOCKS, ANTHONY JOHN FRANCIS BROWN, BETTY SHEPPARD, NICOLE MAY SHEPPARD, DARRELL EDWIN BONE, JOHN COLEMAN, ADAM ROSS BONE, ANTHONY MICHAEL BONE, ROBERT LEE BONE, KAREN JOY BONE, CHERYLE ANNE BONE, JULIE ANN FLETCHER, ROBERT THOMAS BRADLEY, CLAIRE FRANCES BRADLEY, LEIGH ROBERT BRADLEY, MATHEW PETER CARR, PHILLIPPA CLAIRE OAKFORD, ANDREA CATHERINE OAKFORD, DEBRA CLAIRE OAKFORD, KATHLEEN RUBY CARR, TANYA MAREE CARR, KYLIE LEE WOOLLEY, KATHLEEN E SMITH, TASMAN JOHN HEALD, ANTHONY JOHN QUILLIAM, GRACE MARYANNE HARDY WOLF, ROBERT HENRY FIGG, RAYMOND KEITH GREEN,TREVOR RAYMOND RADFORD, ROBERT WILLIAM THORP, JAY-DARREN THORP, JODI-LEIGH THORP, JUSTIN DREW THORP, JANA LOUISE THORP, FRANCES ANN VUCICA, IVAN ANTE VUCICA, CHERYL ANN LAMBERT, KAREN MAREE WHALAN, BOE HENRY WHALAN, ALBERT LAURENCE HOWARD, GEORGE HENRY JAMES, HARTLEY JOHN MANNIE,NOEL RAYMOND CLIFFORD, FAY IRENE CLIFFORD, PHILLIP GEORGE DENNIS RYAN, KEVIN HAROLD RUSHTON, ROSEMARY HALTON, LESLIE LEON COULSON, PENELOPE MICHELLE MCDONALD, SANDRA GENEINE MEDCRAFT
Applicants
And INDEPENDENT INDIGENOUS ADVISORY COMMITTEE
Respondent
DECISION
Tribunal Justice Garry Downes, President Deputy President Stephen Estcourt, QC Deputy President Don Muller
Date 18 October 2002
Place Hobart
Decision The Tribunal finds that the applicants are persons of the Aboriginal race of Australia. The decision under review is set aside and there is substituted a decision that the objection to the inclusion of the applicants on the Provisional Roll of Indigenous Electors for the 2002 Tasmanian Regional Council elections is rejected.
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CATCHWORDS
ABORIGINES – Elections. Aboriginal and Torres Strait Islander Commission Regional Council Elections. Objections to inclusion of certain applicants on the electoral roll. Whether each applicant is a person of the Aboriginal race of Australia and therefore entitled to inclusion on the electoral roll.
ABORIGINES – Descent. Objections to the aboriginality of certain applicants. Factors relevant to identification as an Aboriginal person. Application of test. Weight to be given to evidence of self-identification and community recognition.
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 4, 101 and 113
Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 Pt 8
Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1
Gibbs v Capewell (1995) 54 FCR 507
Shaw v Wolf (1998) 83 FCR 113
The Matter of Marianne Watson (No.2) [2001] TASSC 105
REASONS FOR DECISION
Justice Garry Downes, President
Deputy President Stephen Estcourt, QC
Deputy President Don Muller
In addition to establishing the Aboriginal and Torres Strait Islander Commission ('ATSIC') the Aboriginal and Torres Strait Islander Commission Act1989 ('the Act') also established regional councils. Tasmania is one of the regions where a regional council is elected. Elections for the Tasmanian Regional Council are due to take place on 12 November 2002.
Section 113 of the Act confers power on the Minister to make rules prescribing the manner in which Regional Council Elections are to be conducted. Section 113(2)(a) of the Act confers power on the Minister to make rules for 'the use of an Electoral Roll or voter cards to establish an entitlement to vote or to make a record of the persons who have cast votes.'
A special part has been inserted in the Aboriginal and Torres Strait Islander Commission (Regional Council Election Rules) 1990 ('the Rules') to provide for the 2002 Tasmanian Regional Council Elections. The Rules make detailed provisions relating to the compilation of an Indigenous Electors Roll. These proceedings are concerned with a number of claims to be included on that Roll.
During the hearing of the proceedings a challenge was made to the validity of the Rules. On the day the challenge was notified we referred the question of law which arose to the Federal Court of Australia pursuant to s 45 of the Administrative Appeals Tribunal Act1975. A Full Court of the Federal Court sat in Hobart the following day to determine the question of law. The Court found that the challenged parts of the Rules were valid. The hearing of the reference delayed the hearing in the Tribunal for one day.
By virtue of s 101 of the Act a person can only vote in a regional council election if that person is an 'Aboriginal person or a Torres Strait Islander'. Section 4 of the Act provides that 'Aboriginal person means a person of the Aboriginal race of Australia.' The provisions of Part 8 of the Rules are accordingly concerned, so far as aboriginality is concerned, with the compilation of a roll of persons 'of the Aboriginal race of Australia'.
Rule 145 required ATSIC to invite applications for enrolment on the Indigenous Electors Roll. Persons wishing to be included on the Roll were required to complete an indigenous enrolment form. Rule 146 provided that within 28 days of the closing date for enrolment the Australian Electoral Commission must create a Provisional Roll.
Rule 156 provided for the Minister to appoint nine indigenous persons to a committee to be called the Independent Indigenous Advisory Committee (the Committee). The Committee was required to elect a chairperson. The present chairperson is Clive Mansell. The members are Leonie Dixon, Michael Graham, Edward Gower, Lennah Newson, Ila Purdon, Rachel Quillerat, Sharon Dennis and Greg Lehmann.
After creating the Provisional Roll the Electoral Commission was required to give it to the Committee. Rule 147 required the Committee to make the Provisional Roll available for public inspection. Rule 148 permitted Australian citizens who were at least 18 years of age and who held "an honest belief that an applicant enrolled on the provisional roll [was] not an Indigenous person" to object to the inclusion of any person on the Provisional Roll. Subrule 148(2) required an objector to set out reasons why the objector held the honest belief that the person was not an indigenous person.
'Indigenous person' is defined in the Rules to mean an 'Aboriginal person or Torres Strait Islander' and therefore relevantly means 'a person of the Aboriginal race of Australia'. Although it is entirely possible that a Torres Strait Islander might live in Tasmania and seek to be enrolled in the Tasmanian Regional Elections, with one possible exception, there are no applicants claiming to be Torres Strait Islanders in the matters listed before us.
Subrule 148(6) of the Rules precluded the Committee from considering an objection if the objection did not contain reasons or if it was considered by the Committee, on reasonable grounds, to be frivolous or vexatious. If the Committee decided to consider an objection it was required to notify the applicant that an objection had been made and furnish the name of the objector. The Committee was required to 'ask the applicant to make a submission in relation to the objection, in the form required by the Committee, within 21 days of the date of the notice' (subr 148(9)(b)).
Rule 149 provided that a submission in response to a request for submissions under subr 148(9) "must provide evidence that the applicant is an Aboriginal person or a Torres Strait Islander." Rule 150 provided that if the applicant did not make a submission within time the Committee must accept the objection. If, on the other hand, a submission under subr 148(9)(b) was made in time the Committee was required to consider the objection and the applicant's submission. By subr 151(3) the Committee was authorised, where it believed that there was insufficient evidence, to ask the applicant to provide further information. Subrule 151(5) directed the Committee as to how it should consider objections and applicants submissions in the following terms:
'151 Consideration of objection – if applicant has made a submission(5) After considering the objection, the applicant's submission and any information provided under subrule (3):
(a)if the Committee is satisfied, on the balance of probability, that the applicant is an indigenous person, the Committee must reject the objection; and
(b)if the Committee is satisfied, on the balance of probability, that the applicant is not an indigenous person, the Committee must accept the objection.'
Rule 153 required the Committee to notify applicants of its decisions and of the reasons for the decisions. The Committee was also required to notify the Minister, the objector and the Electoral Commission. If the Committee accepted the objection the Electoral Commission was obliged to remove the applicant's name from the Provisional Roll.
Subrule 151(6) required the Committee to make its decisions "on or before the date on which nominations for the poll opened." The Electoral Commission is required by subr 154(1) to create the Roll after receiving notice of the Committees decision in relation to each objection. Rule 18 of the Rules provides for the day of nomination for the poll. For the 2002 Tasmanian Regional Council Elections that day is fixed at 15 days before the day fixed for the poll. The day fixed for the poll being 12 November 2002, the day of nomination for the 2002 Tasmanian Regional Council Elections is Monday 28 October 2002. The rules do not contain any provision governing how long nominations for the poll must be open. The Electoral Commission apparently considers that nominations should be open for some 5 working days. That would mean that nominations should open on Tuesday 22 October 2002. That day is accordingly the last day upon which the Committee would be authorised to make its decisions under sr151(6) of the Tasmanian Election Rules. However, it is obviously desirable for the final decisions to be made earlier.
14.Rule 166 permits an application to this Tribunal for review of 'a decision of the Committee under subr 151(5) to accept an objection.' No appeal is permitted from a decision to reject an objection under subr 151(5)(a) or from a decision to accept an objection under r150. In hearing applications for review under r 166 we will be considering for ourselves what is the correct or preferable decision in each application. If we differ from the decision of the Committee we will substitute our decision for the Committee's decision. Although different views might be held it seems to us that, because the Tribunal's decisions under subr 151(5) of the Rules will ultimately be substituted for the Committee's decisions it will be appropriate for the Tribunal to make its decisions within the same time constraints as were imposed upon the Committee pursuant to subr 151(6). In the light of our analysis of the timing above it follows that the last day upon which this Tribunal should give its decisions is 22 October 2002.
APPLICATIONS
A large number of persons applied to be enrolled in the 2002 ATSIC Regional Council Elections. Many of these applications were objected to. The Electoral Commission and the Committee processed the applications and objections in accordance with the provisions of the Rules. In consequence, a number of decisions relating to the applications, and the objections they attracted, were made by the Committee at the end of August and into September 2002. A number of further decisions have since been made.
These decisions resulted in some 55 applications for review being made to the Tribunal by Tuesday 24 September 2002. On that day the applications were listed for directions before Justice Downes. It emerged during that hearing that a number of the applications involved common features which would enable groups of applications to be heard together. It also became apparent that there would be some evidence common to all the applications. Justice Downes accordingly directed that all applications should be listed for hearing on Monday 30 September 2002. Further applications filed after the directions hearing were also listed on that day and others have been listed since.
ISSUESThe question before us as to each of the applicants is whether that applicant is an Aboriginal person. That question is expanded by the definition in the Act to whether each applicant is a person of the Aboriginal race of Australia.
The enquires we must undertake begin with the question: what is required for someone to be 'a person of the Aboriginal race of Australia'? In this enquiry we are not without assistance. There are a number of decisions of Australian courts dealing with the question.
In the Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 Deane J said, at p. 274:
'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 Aboriginal.'
His Honour recognised three characteristics which go to assist in identifying those who are members of the Aboriginal race of Australia. The three characteristics are:-
1. Aboriginal descent.
2. Self identification as an Aborigine.
3. Recognition as an Aborigine by the Aboriginal Community.
These three characteristics are now well accepted as providing indications of aboriginality. The three fold test was adopted by Drummond J in the Federal Court in Gibbs v Capewell (1995) 54 FCR 507, by Merkel J in the Federal Court in Shaw v Wolf (1998) 83 FCR 113 and most recently by Cox CJ in the Supreme Court of Tasmania in The matter of Marianne Watson (No.2) [2001] TASSC 105. It is accepted that the phrase "Aboriginal race of Australia" used by the Parliament in the Act has the same meaning as it has in ordinary speech (Gibbs v Capewell (supra) at p507; Shaw v Wolf (supra) at p. 17; cf. The Tasmanian Dam Case at pp. 273, 274). It is also clear that the weight to be given to the three factors will vary in different cases. A person who has a parent who is a full blood Aborigine will need to point to little or no self identification or community acceptance. Persons with remote descent from a full blood Aborigine will ordinarily need to demonstrate real self identification as an Aborigine and substantial community recognition.
HISTORYBefore we begin to look at the claims of the applicants before us, it is important that we should set out something of the general factual background relating to what is often called European settlement in Australia but may more accurately be described as British colonisation. In compiling this account we have been assisted by Lyndall Ryan, The Aboriginal Tasmanians, 2nd edn, Allen & Unwin, Sydney, 1996. Professor Ryan also gave evidence before us. We will not expressly acknowledge each proposition drawn from Professor Ryan's work but we freely acknowledge our indebtedness to her for the following account. Where we do cite the work for particular propositions the page numbers will appear in brackets.
At the time the British first began to have contact with Aborigines in what is now known as Tasmania, at the very beginning of the 19th Century, there were probably between 3,000 and 4,000 (p. 14) and may be as many as 5000 or even more (her evidence) Aborigines living there. Setting aside early contacts with European navigators from countries other than the United Kingdom the contact began with sealers who commenced visiting Tasmania and, more particularly the North Coast and the Bass Strait Islands, from 1800. They were followed shortly thereafter by convicts and those bringing them to Tasmania and by agriculturists and pastoralists.
The history of events in Tasmania from the beginning of the century until 1876 when the person conventionally regarded as the last living full blood Tasmanian Aborigine, Truganini, died, provide a sad and regrettable chapter in Australia's history. The Aborigines were dispossessed of their land. Those who resisted were often killed. Those who survived were rounded up and taken to places with which they were not familiar and where they were not allowed to live according to their practices of thousands of years. Their diet was changed. They succumbed to illness. Most of them died. Whether or not Truganini was the last full blood Aborigine to die is not so important. What is important is that from about that time no full blood Aborigines remained in Tasmania.
There have been suggestions that bands of Aborigines survived in remote areas without being located by the colonists. If that were so, there may have been full blood Aborigines in Tasmania longer than has commonly been accepted. However, we do not think this is likely. There are certainly no lost bands existing now. If they ever did exist they would have been discovered. The interest in and publicity concerning the passing of the last of the full blood Aborigines (pp. 214-220) shows that the discovery of a full blood Aborigine after that time would have come under considerable notice. This never happened. Moreover, to be relevant to the matters before us it would have been necessary for members of such lost bands ultimately to have intermarried with persons with European origins. There is no evidence of that.
This does not, however, mean that at the time of the death of the last full blood Aborigine there were no descendants in Tasmania of full blood Aborigines. There was a well documented group of descendants of Aborigines who lived in the Bass Strait Islands. They were the offspring largely of marriages and relationships between sealers and Aboriginal woman. Their names are well known. They include the names Armstrong, Beedon, Brown, Everett, Kelly, Mansell, Maynard, Proctor, Rew, Riddle, Smith, Thomas and Tucker (pp. 223, 227, 228). The descendants of these persons are accepted as Aboriginal Tasmanians. This group lived on a number of islands in the Bass Strait in a community which depended very much upon an Aboriginal life style, although heavily influenced by the ways of the sealers. The group lived in different but related communities for many years on the Bass Strait Islands. The descendants of this group have little difficulty in showing that descent. Accordingly, they are able to demonstrate descent as part of the three fold test we have referred to. Because they have been accepted as Aboriginal Tasmanians for a long time and still retain contacts within their communities they are also generally able to satisfy the second and third requirements.
Accordingly, the descendants of these groups are largely not present in the applicants before us. Nevertheless, it is important to note that although the members of this group are easily able to demonstrate a line of Aboriginal descent it is still true to say that the extent of Aboriginal descent which they can demonstrate can be quite limited. It may be as limited as demonstrating descent from one identified full blood Aborigine through a number of generations. Such a claim to Aboriginal descent is mathematically a claim to a small percentage of Aboriginality in terms of genetic make up. In Australia, however, where there is both self identification and community acceptance, a remote line of indigenous descent has not proved to be disqualifying to a claim to membership of the indigenous race. A parallel can been seen in non Aboriginal Australians who claim their origins are, for example, in Scotland when the truth is that only one of sixteen great great grandparents came from there.
While the Bass Strait families and their descendants are accepted as Aboriginal Tasmanians it does not follow that there are no other Aboriginal Tasmanians. The fact that the Bass Strait Islanders aboriginality is well documented does not mean that there are not other Aboriginal groups although the documentation is not so good. Indeed, it would be highly improbable that there are not a number of Tasmanians who have Aboriginal descent. However, it may be more difficult for such persons to show Aboriginal descent than for the descendants of the Bass Strait Island families. The descendants of Fanny Cochrane Smith and Dolly Dallrymple Briggs are generally accepted as Aboriginal although neither of them were Bass Strait Islanders. They are examples of aborigines who lived on the Tasmanian mainland and whose lines of descent are reasonably well known. There is no reason to suppose that there are not a number of other lines of descent.
There was contact between the British and Europeans who came to Tasmania and the Aborigines right from the beginning. Not only did these foreigners seek out Aboriginal women (pp. 92, 117, 175, 176, 179 and 208) but they were also assisted in achieving their purposes by Aboriginal men (p. 162). There was co-habitation between sealers, stock-keepers, timber getters and no doubt others with Aboriginal women. This was particularly so in the North West (p. 35). Undoubtedly these associations would have produced children. There are records of many Aboriginal children living with settlers (p. 75 and p. 79). No doubt there were Aboriginal children of the half blood also living with settlers. There was an orphan school at Hobart which was attended by Aborigines (pp. 74, 200, 205 and 208). Aborigines of the half blood were released to the wider European community (p. 210). All in all it is really quite obvious that there must now be in Tasmania descendants from Aborigines who associated with the settlers between 1800 and 1876. The problem is how these persons can discover that line of descent in the absence of written records. To our mind there can be no doubt of the fact. The question is how individual persons can demonstrate such descent.
We note that there do not need to be a great many persons born from associations between Aboriginal women and European men to lead to a number of descendants in Tasmania today. On our calculations, with generations of 25 years and each having three children, one Aborigine could account for 2,187 descendants after seven generations.
The problems that such persons have in showing descent have not previously gone unremarked. It has been pointed out that there was a long period of time in which asserting Aboriginal descent was against interest (Shaw v Wolf (supra) at 121). It is only comparatively recently that pride in Aboriginal descent has become prominent. Accordingly, demonstrating Aboriginal descent can be difficult. The best way of demonstrating descent is through Births, Deaths and Marriages records. However, this has proved in many cases not to be possible. It is important to note that recording membership of a race is not a purpose of Births, Deaths and Marriages records. It is one thing to show descent but quite another to show descent from someone of a defined race. An acceptable substitute for historical and archival records can, however, be family history and tradition. A long held family tradition of Aboriginal descent with a credible basis can provide evidence of Aboriginal descent. There is, of course, no perfect proof of descent. Even public records contain error. Accordingly, Merkel J said, in Shaw v Wolf (supra) 'evidence as to the process by which self identification and communal identification occurs can be logically probative of descent' (p. 120). He also said (p. 122):
'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.'
We accordingly approach the matters before us on the following two assumptions:
1.It is probable that there are in the wider Tasmanian community persons who have a degree of Aboriginal descent although there are no public records which support their claim.
2.Self-identification and community recognition of applicants as Aborigines, particularly where there is evidence of a family history or tradition of Aboriginal descent passed on orally, can provide evidence of Aboriginal descent.
We would even go so far as to say that there may be genuine cases of Aboriginal descent which conflict with public records. We think it would be wrong to approach these matters on the basis that public records are the only definitive way of determining Aboriginal descent. Even where public records tend to deny Aboriginal descent a sufficiently persuasive case may still be capable of being made out.
THE INDEPENDENT INDIGENOUS ADVISORY COMMITTEEThese are applications for merit review of the decisions of the Committee. We are not required only to intervene when an error of law is exposed. It is our task to now make the correct or preferable decision (where there is more than one acceptable alternative) with respect to each of the applicants. We must look at the evidence afresh. We will, of course, approach the decisions of the Committee with respect since they were appointed as representatives of the indigenous community. We will think carefully before departing from their conclusions. However, where we conclude that the correct or preferable decision is different to the decision to which the Committee came we must substitute our decision.
A feature of the decision making of the Committee appears to us to have been the placing of very substantial weight upon the public record. In nearly all of the reasons for decision with which we have been provided relating to the applications before us the Committee has decided against the applicant on the sole ground that the applicant has not shown any Aboriginal descent and more particularly on the Committee's concluding this from enquires by the Archives Office of Tasmania. This was notwithstanding the fact that the Archives Office did not offer any opinions about aboriginality, but simply expressed views about the records it had access to and what might reasonably be deduced from them. It will appear from what we have said above that archival evidence can be of great value in determining Aboriginal descent but we do not think that the absence of archival evidence of Aboriginal descent, or even the presence of archival evidence of lack of Aboriginal descent, is conclusive. Accordingly, it seems to us that in coming to its conclusions relating to most of the applicants the Committee has not gone as far as it might have gone in addressing the question of whether the applicant was able to show, on the balance of probabilities, that the applicant was descended from at least one full blood Aborigine.
The result is that the Committee may have accepted objections which it should have rejected. However, it is these applicants who are given a right to apply to the Tribunal for review of the Committee's decision.
THE HEARINGSWe have heard evidence from 66 witnesses, most of them applicants. We have also heard a lot of archival evidence. This included background evidence from the Tasmanian State Archivist, Ian Pearce. In addition, Robyn Eastley, from his office, gave evidence relating to the claim of many applicants. The State Archives Office had given advice to the Committee in connection with the claims of the applicants. Ms Eastley carried out most of the investigations on behalf of the Archives Office. These investigations related to an examination of the archival evidence which might cast light upon lines of descent identified by applicants.
The problem with archival evidence is that it can prove a line of descent but is unlikely to disprove it. Further, as we have already mentioned, archival evidence is not generally of assistance as to race. This is particularly so of a time when, as in the present case, indigenous persons were not accorded the same status as others and are therefore less likely to be recognised and identified in official records.
As we listened to applicant after applicant, day after day, outlining to us what they had been told by grandfathers and great grandfathers, aunts and great aunts, about their family history and tradition of aboriginality, followed usually by evidence of archival records and of the contents of births deaths and marriage registers, it became clearer and clearer to us that the really probative evidence of aboriginal descent was the oral histories and traditions and not the archival material. This evidence always seemed, according to the research and efforts of the archivists, to point away from aboriginality. The credible family evidence we listened to day after day could not all be wrong. Indeed, it could not even mostly be wrong. In the end we decided that very little of it was wrong.
There was apparently a proposal that the Rules should require descent to be proved by records and documents. However, that proposal was ultimately abandoned. We are accordingly only guided by the legislative definition of aboriginality which is that a claimant must be a 'person of the Aboriginal race of Australia'. It is, of course, well established that descent, identification, and recognition are aspects of aboriginality. However, even taking account of those elements there is no requirement to find any actual line of descent nor to identify any full blood aborigine from whom the descent is traced. This is confirmed by the statements that evidence as to the processes by which identification and recognition occurs can be evidence of descent. Contrary to what is perhaps a popularly held belief we need do no more than make properly based and reasoned findings of Aboriginality. The bases and reasoning may be assisted by identification of a line of descent but that is by no means essential to the ultimate finding.
We have observed above that there are well accepted lines of descent from the Bass Strait Island families. In consequence, none of the applicants before us had such a line of descent. Accordingly, we have not looked at archival records relating to these families. Given the complexities and problems in demonstrating a line of descent solely from archival records without resort to oral history and tradition it occurs to us that strict proof of these well accepted claims to aboriginality might be very difficult.
There were 1298 applications by Tasmanians to be included on the Indigenous Electors Roll. No objection was made to 140 applications. These applicants were automatically enrolled. Of the remainder about 300 were enrolled because the Independent Indigenous Advisory Committee considered that the objections were frivolous or vexatious. The Committee ruled that about 180 other persons whose applications were objected to were Aboriginal persons. Of the remaining 678 there were about 234 who did not file supporting evidence with the Committee, as they were obliged to do. The Committee was required by the legislation to leave them off the Roll. The Committee accordingly found that about 444 applicants were not Aboriginal persons. The applications for review came from these persons.
The first of the applications was not filed with the Tribunal until 6 September, 2002. The last of the more than 130 applications which were subsequently lodged was not filed until 11 October 2002, well after the hearings had commenced.
The Tribunal, commenced its hearings in Hobart on Monday 30 September 2002. It sat every working day thereafter until the hearings were concluded on Wednesday 16 October 2002. The hearings were spread over two-and-a-half weeks. On one evening the Tribunal travelled to Smithton in North West Tasmania so that it could hear the evidence of applicants living in the area the following day. The Tribunal's decisions relating to the applications are being given two days after the hearings concluded.
The issues raised in these matters are important. They raise difficult questions. They depend upon complex factual issues which are different in every case. We have been called upon to decide 130 cases in the time that could easily be devoted to each of them.
We would have appreciated the opportunity to devote more time and space in our reasons both to the general discussion of the issues and the analysis of each application. However, in the end, our task is to decide who shall be included on an electoral roll for one election. If we do not give our decisions now they will have no utility because they will be too late. We must recognise, however, that our reasons will suffer from the speed and urgency with which they have been produced. We are in no doubt as to the correct result in every case but we must recognise that the recording of our fact finding and reasons is not as thorough and complete, and possibly not as accurate, as it would have been if we had had more time.
Subrule 151(5) of the Rules required the Committee, as part of its deliberations, to consider "the objection, the applicant's submission, and any other information provided" in response to a request from the Committee. In addition to the evidence before us, which is substantial, it is also appropriate for us to look at this information. It is all before us in the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
Unfortunately, however, we have found the bulk of the objections to be singularly unhelpful. Our attention has been drawn to no objection which could be said to be properly reasoned and to no objection supported by evidence of any kind. Taking the first application to be filed, namely the application of Bruce William Patmore, as a random example we note that there were two objections. The first was from Cranston Royce Mansell. His reason, as set out by the Committee in a letter to Mr Patmore, was as follows:
'You are not of his race. He is a well known Tasmanian Aboriginal and has the right to question Aboriginality.'
The other objection was from Christopher Mansell. His objection related to 45 pages of names attached to the form of objection. The reason he gave was:
'None of the named persons is an indigenous person'.
A feature of the objections was that a few people made multiple objections. One of these was Douglas Maynard. In each case his objection was in the following form, as set out by the Committee in communications to the applicants:
'He does not know you. He is an Aboriginal Elder man and has a right to question Aboriginality.'
It is not surprising that the form of these objections both irritated and angered a number of applicants. In their applications a number of applicants questioned the presumptuousness of objectors challenging people they did not know without any evidentiary basis. For all the objectors knew they may have been objecting to full blood aborigines who had come to Tasmania from the Australian mainland. Obviously, the objections did not assist us in our task.
It is to be hoped that any system worked out for the future requires something more from objectors than simply asserting that the objector does not know the applicant and questions aboriginality on that basis alone.
As will appear from the reasons given below we have accepted the claims of nearly all of the applicants who sought review of the decisions relating to them from the Tribunal. We note, however, that the result of these appeals is merely to add an additional 130 voters to a roll which already contains 620 names.
THE APPLICATIONS
The Challis/Linton Group
T2002/124 Bruce William Patmore
T2002/127 Desmond Thomas Berry
T2002/129 David Armstrong
T2002/130 Sandra Stalker
T2002/131 Maxwell Ray Berry
T2002/134 Robert Henry Armstrong
T2002/135 Anthony Leigh Stalker
T2002/136 Peta Nicole Stalker
T2002/137 Adam Gary Wilson
T2002/138 Diane Maree Wilson
T2002/139 Kylie Maree Wilson
T2002/215 Peter Christopher Delphin
T2002/216 Sharee Gail Burgess
T2002/240 Kylie Lee Woolley
A large group of applicants claim descent through a child of William Challis who was born in about 1817. The mother was said to be aboriginal. It was originally claimed that the mother was a Sarah Linton (nee Mace) who apparently married William Challis. The Register of Births in Hobart for 1854 records the birth of an unnamed female child to 'William Challes…Sawyer' and 'Sarah Challes formerly Linton' on 6 February 1854. The birth was registered on 20 February 1854. The records of the Anglican Parish of St. David in Hobart for 1854 show that a child 'Emma Chalis Linton', whose parents were 'William and Sarah Chalis' of Port Cygnet, was baptised on 16 October 1854. The child is shown as having been born on 6 April 1854. The father's occupation is shown as 'Sawyer'.
The differences in the spelling of the surname and of the date of birth are symptomatic of many errors and differences in the early records of Tasmania. These problems are not assisted by the fact that all the records were kept in handwriting. The handwriting can be difficult to read. It is also apparent that there was a relatively low level of literacy at the time. The contents of many entries in the records are affirmed by a mark rather than a signature. Of nine entries on the page of the Register of Births in Hobart, referred to above, five are affirmed by the making of a mark. The low level of literacy inevitably accounts for different spellings of the same names.
It has now been established that Sarah Challis (Linton/Mace) was a convict. She was not aboriginal or part aboriginal. However, as will appear, the discovery of that fact did not alter the long history of belief in aboriginal descent in many persons who could trace their ancestry to the person known as Emma Challis Linton. Nor did it alter the fact, which will also appear, that photographs of persons in the line show the presence of dark skin colour and other aboriginal features. The applicants now suggest that the person known as Emma Challis Linton was not the natural daughter of William and Sarah Challis but an aborigine adopted by them.
Emma Chalis Linton married Richard Cowen. She was the mother of Emma Cowen who married William Berry. Emma Berry had three children relevant to these proceedings. First, she was the mother of Percy Berry and grandmother of Desmond Berry (an applicant). Secondly, she was the mother of George Berry and grandmother of Maxwell Ray Berry (an applicant) and Vera Berry. Vera Berry married Horace Delphin. Vera Delphin was the mother of Peter Delphin (an applicant) and the mother of Jennifer Woolley and grandmother of Kylie Woolley (an applicant) and the mother of Dianne Vera Burgess and grandmother of Sharee Burgess (an applicant). Thirdly, Emma Berry was also the mother of Iris Freda Berry who married William Armstrong. Iris Armstrong was the mother of David John Armstrong (an applicant), the grandmother of Sandra Stalker (nee Armstrong) (an applicant) and the great grandmother of Anthony Stalker (an applicant) and Peta Stalker (an applicant). Iris Armstrong was also the grandmother of Diane Wilson (nee Armstrong) (an applicant) and the great grandmother of Adam Wilson (an applicant) and Kylie Wilson (an applicant). Iris Armstrong was also the mother of Robert Henry Armstrong (an applicant).
Emma Cowen (nee Challis Linton) was also the mother of Charles Watkin Cowen, the grandmother of Cyril Sydney George Cowen, the great grandmother of Marion Patmore (nee Cowen) and the great, great grandmother of Bruce Patmore (an applicant).
The first person who gave evidence for this group was Sandra Stalker. She said she had known she was aboriginal since she was six or seven years old. She said her father had always told her she was aboriginal. She said she knew her great grandmother who was very dark.
We are satisfied from her evidence and the way she gave it that Mrs. Stalker identifies as aboriginal. She is also involved with a number of Aboriginal Community organisations. They include the Aboriginal Student Support and Parent Awareness Group (ASSPA) with which she has had considerable involvement. Her children were also involved with ASSPA.
Counsel for the respondent Independent Indigenous Advisory Committee did not separately raise any issues before us as to either self identification or community recognition. However, evidence on these topics can provide evidence of descent and so it was plainly relevant before us. We note, however, that counsel for the respondent did not put separate submissions to us on these issues and concurred in a number of applicants not being called to give evidence before us. In the absence of issues relating separately to self-identification and community recognition we can approach these issues with less critical scrutiny than we might otherwise undertake. We may more readily draw inferences. As counsel for the respondent put to us the making of the applications before the Tribunal is itself evidence of self-identification. The material furnished to the Committee by applicants virtually uniformly contains certificates of recognition and acceptance. The Tribunal approached its task on the basis that it must find self-identification and community acceptance although the respondent's attitude made the task somewhat easier.
Mrs. Stalker gave evidence about her children which satisfies us as to self identification and community recognition although the evidence is not strong. Nevertheless, Mrs. Stalker has made out a clear case on both these issues and if she is qualified it would be surprising if her children, who have made applications for review to the Tribunal, were not.
We come to the same conclusions relating to self identification and community recognition with respect to Mrs. Stalker's sister, Diane Wilson and her children, Adam Wilson and Kylie Wilson.
Mrs. Stalker gave evidence that her father, David Armstrong, both identifies as aboriginal and enjoys community recognition. He is a member of the Committee of the Indigenous Tasmanians Aboriginal Corporation (ITAC). His brother, Robert, is a member of ITAC. Robert Armstrong was recognised for a loan through ATSIC. We are satisfied as to Robert Armstrong as well.
Mr. David Armstrong gave evidence. He knew his grandmother, Emma Berry. He said she was very dark, with aboriginal features. 'She looked like an aboriginal'. She used to say her family were 'blackfellows'; they were 'Tasmanian Aboriginal'.
Mr. Armstrong told the Tribunal that his grandmother was known as 'Fan Berry' or 'Black Fan Berry'.
Many of the applicants in the Challis Linton Group produced a photograph of Fan Berry. This photograph exhibits dark skin colour. The colour is so pronounced that it could not be found in someone of purely European background, even if suntanned. Fan Berry also exhibits signs of other aboriginal features, but they are not so pronounced. Fan Berry could not be the daughter of Emma Challis Linton and Richard Cowen if they were both European.
Another witness called in connection with the Challis Linton Group was Helen Chapman. She is a sister-in-law of Sandra Stalker. She was not an applicant. She is, however, a library technician and has done research on the Challis Linton lines of which her children are members. She gave evidence that the line began with an aborigine named Mangalantia who she thought was the mother of Emma Challis Linton. She thought that Emma Challis Linton was called 'Little Black Maggie'. Another witness, May Salter, gave some support to this claim but no witness was able to point to any probative basis for the assertions.
Bruce Patmore said he knew his grandfather, Cyril Sydney George Cowen, well. Cyril Cowen told Mr. Patmore that while his father was fighting in the First World War he went to live with his grandmother. She was Emma Cowen (nee Challis). Mr. Patmore's grandfather spoke to him about this period. He told him that Emma Cowen smoked a pipe. He said she was very dark. This was how Mr. Patmore heard of his aboriginality. It was apparently a standing joke that the family was not aboriginal because it was so obvious that they were! This evidence was supported by a statement by Mr. Stanley Cowen, a great grandson of Emma Cowen (nee Challis) who knew her. Mr. Patmore produced a statement by Enid Dillon, who is a respected Tasmanian Aboriginal and a great granddaughter of Fanny Cochrane Smith, that Emma Challis was aboriginal.
Mr. Patmore was the first of a number of applicants who gave evidence of having learned and practised what they understood to be aboriginal cultural ways. This usually involved hunting, gathering and fishing. In many cases this evidence was not directly related to the practices of aborigines in Tasmania prior to the nineteenth century, but it was evidence of traditions, not uncommon also in Europeans, being handed down. The fact that applicants were anxious to tell us about these activities was as important as what they said.
Mr. Patmore plainly identifies as an aboriginal. He has identified since 1973. He is involved with the Liapootah Aboriginal Community. We are satisfied as to self identification and community acceptance.
Desmond Thomas Berry supported the claim of his cousin, Maxwell Roy Berry, his nephew Peter Delphin, and his great nieces, Kylie Woolley and Sharee Burgess.
Fan Berry was Mr. Desmond Berry's grandmother. He knew her. He said this:
"Well, she was a very dark woman and her skin had – very dark round the eyes, rather a thick set woman, moved very quickly, knew – she knew all the things about her - what they meant and all that sort of thing and she had an affinity with animals and this sort of thing. She was a marvellous woman, she really was."
Mr. Berry is the senior elder with the Liapootah Community. He has helped aboriginal children. We are satisfied as to self identification and community recognition although we accept that in Mr. Berry's case the evidence is not strong. Mr. Berry also gave evidence about other persons he represented. The evidence touched upon self identification and community acceptance. Again it is not strong but we are satisfied by it.
There is some published support for the claims of the Challis Linton Group. It appears, in part, in Robyn Friend, We Who Are Not Here (1992). This is not, of course, a publication dependent on source materials. The copy furnished to us is signed by Rodney Dillon, the son of Enid Dillon. The Dillon family features prominently in the book. Sarah Linton or Sarah Linton Mace is referred to on p. 34 as 'a tribal Aboriginal'. Fan Berry is frequently referred to. 'Magalantia' is also referred to, but as 'the name of Sarah's tribal group' rather than as the name of a person.
It is not possible to solve the riddle of who Emma Challis Linton was. We do not need to. The totality of the Challis Linton evidence satisfies us that the applicants in the line are of aboriginal descent. The family histories and the evidence about Emma (Fan) Berry is too persuasive. Perhaps Fan Berry's grandmother was an aborigine named Mangalantia. Perhaps she was not. Perhaps Emma Challis was a natural daughter to William Challis with an aborigine. Perhaps she was an adopted aborigine or part aborigine. It does not matter. We are satisfied that in this line there is aboriginal blood. Each of the applicants have shown aboriginal descent. In the end a finding of aboriginality is a balancing exercise involving descent, identification and recognition. Evidence on the second and third matters can be evidence of the first. When we undertake the ultimate weighing exercise in accordance with the findings we have made above, we find that each of the applicants in the Challis Linton line have made out their case.
We accordingly find as to:
Bruce William Patmore
Desmond Thomas Berry
David Armstrong
Sandra Stalker
Maxwell Ray Berry
Robert Henry Armstrong
Anthony Leigh Stalker
Peta Nicole Stalker
Adam Gary Wilson
Diane Marie Wilson
Kylie Marie Wilson
Peter Christopher Delphin
Sharee Gail Burgess
Kylie Lee Woolley
that they and each of them are persons of the Aboriginal race of Australia.
The Flinders Island Group
T2002/143 Laurence John Wells
T2002/147 Kimberley Ann Wells
T2002/173 John Edmund Clark
These three applicants claim to be descended from Mary Ann Tatnell and George Nichols who were, it is said, both Aboriginal Tasmanians of the Pydairrerme Tribe. Additionally, Mr Clark claims to be descended through the Clark/Hyatt families whose ancestors were members of the Neunnone Tribe.
In his closing submissions, Mr Bowen, counsel for the Committee accepted that both Mr Wells (and by inference, his daughter, Kimberley) and Mr Clark had strong oral histories and personal identification and acceptance, but submitted that (in so far as the claimed descent from Mary Ann Tatnell was concerned) this may be based on a long standing but false premise of descent.
As to acceptance it should also be said in the case of Mr Clark that his claim to be an indigenous person was supported by evidence from Mrs Enid Dillon.
The real dispute in these applications in so far as the Tatnell/Nichols line of descent is concerned is as to the true identity of Mary Ann Tatnell.
The best evidence that Mr Clark and Mr Wells can advance is that, respectively his father and grandmother on the part of Mr Clark and his mother on the part of Mr Wells passed down to them their family tradition and aboriginal heritage going back to Mary Ann Tatnell.
The evidence of the Archives Office of Tasmania is that Mary Ann Tatnell was not an aboriginal person as had been asserted by the work known as the "Mollison Genealogies", but rather a Mary Ann Tatnell who was born at Richmond in 1846 to white parents, Charles and Ann Tatnell.
The evidence continues that the record of Ann Tatnell's marriage was witnessed by a Stephen White, that he and Anne were brother and sister and that they were children of Stephen White and Margaret (Peggy) White (nee Vass) who was a half-caste Portuguese from Bombay.
From the archival record there would not appear to be any doubt that Stephen and Margaret White arrived with their five children in Hobart on 19 June 1832 aboard the barque Rubicon. But to accept that Ann Tatnell was nee White of that family requires a deal of speculation.
Apart from the dates, which we have considered, and the question of skin colour, the only conceivable connection is that someone named Stephen White was a witness to Ann Tatnell's marriage. The records do not show the names of the five children who arrived with their parents on the Rubicon.
Whether or not the Mollison Genealogies are correct or in error as to their support for the claim of Mr Clark and Mr and Ms Wells descent from a Mary Ann Tatnell having aboriginal blood, we are not satisfied that the suggested descent of Mary Ann Tatnell from Margaret (Peggy) White (nee Vass) is sufficiently well made out as to negate or contradict the strong oral histories of these applicants.
Additionally, in the case of Mr Clark, his claim to descent through the Clark/Hyatt families is uncontradicted.
In view of Mr Bowen's acceptance of the strong personal identification and community acceptance of Mr Wells and Mr Clark, and the fulsome evidence of this in the material provided by each of them, we are more than satisfied of these matters. We also take into account the closeness of the relationship between Mr John Wells and Ms Kimberley Wells.
For the reasons we have given in the general parts of these reasons and for the reasons just given, we find as to:
Laurence John Wells
Kimberley Ann Wells
John Edmund Clark
that they and each of them are persons of the Aboriginal race of Australia.
The Potter Group
T2002/157 Dorothy Jean Bishop
T2002/163 Charles Raymond Wolf
T2002/164 Kim Potter
T2002/165 Lyndon Neil Potter
T2002/166 Kirsty Lauren Dalco
T2002/167 Anne Collins
T2002/170 Kevin Paul Wolf
T2002/171 Dwayne Headly Wolf
T2002/172 Vanessa Lee Wolf
T2002/174 Milan Careless
T2002/177 Lillian Louise Careless
T2002/180 Jill Mary Douglas
T2002/181 Vivian Arthur Careless
T2002/189 David Wesley Bleathman
T2002/190 Ann Florence Bleathman
T2002/191 Trevor Iliffe Bleathman
T2002/192 Viola Grace Bleathman
T2002/193 Lauren Elise Bleathman
T2002/194 Darcey James Bleathman
T2002/195 Viola Grace Charlton
T2002/202 Christoper William Lynch
T2002/207 Norma Claire Casey
T2002/211 Alan Henry Wolf
T2002/212 Milford Lewis Bones
T2002/214 Olive Diane Postma
T2002/250 Grace Maryanne Hardy Wolf
T2002/274 Noel Raymond Clifford
T2002/275 Faye Irene Clifford
A number of applicants claim descent from an "islander Aboriginal woman", named Pleenperrener, also known as Mother Brown. It is said that Pleenperrener and James Brown were the parents of Mary Ann Brown who was taken to Launceston in 1818 after her father died and there lived with a Nathanial Lucas. Thereafter, it is contended, in around 1827 Mary Ann was adopted by a couple from Hobart, William Leach and Mary Burn, was raised by them as Mary Ann Leach, and ultimately married Thomas Potter in 1836.
The archival evidence is that records show that a Mary Ann Brown ("a half caste") married a William Proctor in Hobart in 1832, and that a John Smith of Gun Carriage Island was a witness to the marriage. Further records show that William Proctor later petitioned the Governor stating in his petition that he and his wife returned to Gun Carriage Island and lived there with his wife's mother "one of the Aboriginal tribe". There are no archival records as to a Mary Ann Leach and the documents which relate to the death of Mary Ann Potter state she was born in Hobart and not one of the Bass Strait Islands.
The conclusions reached by the Archives Office of Tasmania are that it would not be possible for the Mary Ann Brown who married William Proctor to be the same person who married Thomas Potter, and that there is no reason to suppose that Mary Ann Leach was an aboriginal person.
Of the archival evidence it should be observed that it is underpinned by the proposition that there was only one half-caste, Mary Ann Brown, yet on the totality of the evidence before us that was an extremely common name and such a proposition cannot be sustained.
The applicants answer the archival evidence by reliance on a letter which became known in these proceedings as the 'Paul Potter letter'. This letter, dated 29 November 1981 was written by a Mr Paul Potter, now deceased, in response to an enquiry by Mrs Viola Grace Bleathman who was enquiring into her ancestry.
Mr Paul Potter, the grandson of Mary Ann and Thomas Potter, recounted in the letter that his grandmother was the daughter of an Aboriginal woman and a sealer who had drowned in Bass Strait.
The letter states, relevantly:
'Potters Cottage
James Street,
Bicheno 29.11.81
Dear Mrs Bleathman
Mr Paul Potter has requested me to reply to your letter to him of the 4th.
I am a nurse and visit him each week.
His eyes are failing him and he seldom writes letters nowdays. Mr Potter was happy to hear from you and is able to relate to you the information you require regarding your fathers ancestor. His grandfather, Captain Thomas Potter was not an aboriginal, he was born in England, and died long before Mr Potter was born. However Mary Ann Potter was the daughter of an aboriginal woman and a sealer, she was born on Hunter Island, the sealer's name was James Brown, he drowned in Bass Strait, so far as Mr Potter remembers the mothers name was Fonsy.
Mary Ann was brought to Tasmania by a man name Lucas, she was reared by William Leach (also a seaman) and his wife as their own child, and they named her Mary Ann and educated her. Thomas and Mary had 10 children, John William was Paul's grandfather his father was Thomas Potter who married Rachael Leach.
Mr Potter was born 2.8.1898 at Bicheno, he remembers his grandmother quite well, she died in 1910 when he was 12 years old, she was in her nineties, he says he remembers asking why her skin was brown and his white.'This account is in part supported by a reference in The Friendly Mission by NJB Plomley to a half-caste girl (aged nine years) living with a Nathanial Lucas in Launceston in 1827.
Whilst it is true that the 'Paul Potter letter' was apparently lost and accounts of it re-emerging vary, and it is correct that there is no evidence as to its provenance, there is equally no evidence from which an inference could properly be drawn that the document is not authentic.
We find that the letter is genuine and taken together with the evidence of the various members of the 'Potter Group' who gave evidence as to the oral history of their ancestry and their self and community identification it provides potent proof of descent.
All of this evidence was unchallenged and was neither negated nor contradicted by other specific evidence. (We have already stated our views as to the general evidence at paragraphs 26 to 33 of these reasons for decision.) All of this evidence we have critically reviewed, but in the result we do not find any significant internal inconsistency or inherent illogicality about it as a body of evidence. Accordingly, we are persuaded on the whole of the material before us that the members of this group have demonstrated their aboriginality. Although not all of the group gave evidence, we are satisfied in all cases and where appropriate we have taken into account the relationship of those persons who gave evidence to those who did not.
For the reasons we have given in the general parts of these reasons and for the reasons given above we find as to:
Dorothy Jean Bishop
Charles Raymond Wolf
Kim Potter
Lyndon Neil Potter
Kirsty Lauren Dalco
Anne Collins
Kevin Paul Wolf
Dwayne Headly Wolf
Vanessa Lee Wolf
Milan Careless
Lillian Louise Careless
Jill Mary Douglas
Vivian Arthur Careless
David Wesley Bleathman
Ann Florence Bleathman
Trevor Iliffe Bleathman
Viola Grace Bleathman
Lauren Elise Bleathman
Darcey James Bleathman
Viola Grace Charlton
Christoper William Lynch
Norma Claire Casey
Alan Henry Wolf
Milford Lewis Bones
Olive Diane Postma
Grace Maryanne Hardy Wolf
Noel Raymond Clifford
Faye Irene Clifford
that they and each of them are persons of the Aboriginal race of Australia.
The Cowan/Bone Group
T2002/126 Garry Keith Cowen
T2002/155 Baden Ross Bone
T2002/156 Richard James Bone
T2002/159 Sally Anne Whitton
T2002/168 Amanda Jane Pearn
T2002/169 Wayne Anthony Turnbull
T2002/188 George Peter Cowen
T2002/200 Paul Rex Turnbull
T2002/204 Stephen Albert Tringrove
T2002/221 Darrell Bone
T2002/280 Leslie Leon Coulson
A number of applicants claim their aboriginal descent from two female aboriginal ancestors, Jane Stevens and Mary Ann Cowen (also known as Ann).
The principal witness for this group was Baden Ross Bone. Mr Bone traces his ancestry through both of his paternal grandparents. On his grandmother's side he identifies his aboriginal ancestor as Jane Stevens. On his grandfather's side he identifies his great-grandmother, Mary Ann Cowen (also known as Ann) as being a "half-caste" Aborigine.
Mr Bone said his father was Richard Edwin Bone, who was the son of James Bones and Lucy Isabel Berry. Edwin Bones was the son of James Bones and Mary Ann Cowen. Mary Ann Cowen was the illegitimate daughter of Thomas Cowen and an Aboriginal woman apparently named Mary and was born two years before Thomas Cowen's marriage to one Mary Blease. Mr Bone's grandmother, Lucy Isobel Berry, was the daughter, it is said, of Richard Timbs and Jane Stevens, an Aboriginal woman.
The family tree provided to us in this group of applications shows the lines of descent of each of the claimants in the group. There does not appear to be any dispute as to the lineage of the various applicants except for the crucial matter of the aboriginality of Mary Ann Cowen and Jane Stevens.
Mr Bone's evidence was that he had known since his childhood of his aboriginality. He said it was spoken of to him by his grandfather, Edwin Robert Bones, who talked about his mother being part aboriginal and also spoke at length to him about his wife Lucy Berry who was aboriginal going back through the 'Black Berrys' to Richard Timb's marriage to an aboriginal woman, Jane Stevens. Mr Bone had always thought of his grandmother as 'black'. This evidence was corroborated by the evidence of Beryl Denny who said she remembered her great grandmother "Granny Bone" part of the 'black Cowen family'.
Mr Bone relies on a reference in the publication We Who Are Not Here prepared by Robyn Friend for the Huon Municipal Association in 1992. There is a piece about a person who said their mother was a 'Miss Bone' and that their great grandmother was Ann Cowen. The relevant footnote reads:
'A Mary Anne Cowen, later Mrs James Bone, is recorded in the register of births as the daughter of Thomas Cowen and Mary Bleeze, both convicts. Mary Anne's birth is shown as being two years prior to the registration of the Cowen-Bleeze marriage but there is no record of baptism until well after the birth of a second child.
Of the six children registered as offspring of the Cowen-Bleeze marriage, two, the eldest, Mary Anne, and the youngest, Matilda Anne, are identified as Aboriginal by oral tradition, Mary Anne as Granny Bone and Matilda Anne as Aunt Til (Challis).
It is possible that Aboriginal children assigned to or taken by Thomas Cowen were "adopted" into the Cowen family.
As early as 1819, Sorell, in a proclamation, referred to the abduction of native children by settlers (NJB Plomley – "The Aboriginal/Settler Clash in Van Dieman's Land 1803-1831). These "missing" children would simply have disappeared into the community, their Aboriginality unrecorded.
Another suggested possibility is that Thomas Cowen, who was in the district some years before the advent of his marriage to Mary, cohabited with an Aboriginal woman before and perhaps during his marriage and that the children of both women were simply registered as children of the marriage.
There are certainly families known as the black Cowens and families known as the white Cowens still living in the district and there may well be a white Anne as suggested by the text. However the Aboriginality of Granny Bone as evidenced by her grandchildren and great-grandchildren within the text is, to the Aboriginal community and to this writer, beyond doubt.'Mr Bone also produced photographs of two of the sons of Richard Timbs and Jane Stevens and of Mary Ann Cowen's son, Edwin Robert Bones and his wife, Jane Stevens' granddaughter Lucy Berry. We consider these photographs demonstrate elements of aboriginal features, in particular that of darkness of colour.
The archival evidence shows that Mary Ann Cowen was baptised in Hobart as the daughter of Thomas Cowen, a sawyer of Trial Bay and Mary Cowen nee Blease, a convict who arrived on the America. Mary Ann was born, according to the baptism record and Thomas and Mary's marriage record, two years before they married.
As to Jane Stevens the archival evidence is that it is believed 'that it is most likely that the Jane Stevens who married Richard Timbs in 1841 is the Jane Stevens who arrived as an immigrant, aged 20 on the ship Sarah in February 1835.'
The archival evidence in both cases is persuasive but it is not determinative.
In the case of Mary Ann Cowen, the oral history is so strong as to an aboriginal line of descent that the historical record poses more questions than it answers. It cannot explain the features of Edwin Robert (Ned) Bones if Mary Ann Cowen was white and of white parents, much less can it account for Edwin Bones telling the applicant Baden Bone that Edwin's mother Mary Ann Cowen was part aboriginal or the description of her as very dark skinned by her great granddaugther Beryl Denny. It is quite possible that those facts are accounted for by Mary Ann Cowen being a part aboriginal child taken in by Thomas Cowen and his wife some years before they themselves married.Equally in the case of Jane Stevens, the archival record could not account for the strong oral history or Lucy Berry's appearance if indeed she is the same Jane Stevens. If it was the same Jane Stevens, it may at that point in the colony's history have been odd that arriving at the age of 20 as a free settler, when men greatly outnumbered women, she would not marry for six years.
In the end result, we prefer the evidence of the oral history of descent which coupled with the uncontested evidence of self-identification of the applicants and the evidence of their community acceptance in both the s 37 documents and the material tendered before us persuades us as to the aboriginality of the applicants.
For the reasons given in the general parts of these reasons and for the reasons given above, we are satisfied as to the aboriginality of the applicants in this group. Not all gave evidence, but we have had regard to the individual s 37 documents and to evidence given about them by others as well as considering where appropriate the relationships involved.
Accordingly, for the reasons given in the general parts of these reasons and for the reasons given above we find as to:
Garry Keith Cowen
Baden Ross Bone
Richard James Bone
Sally Anne Whitton
Amanda Jane Pearn
Wayne Anthony Turnbull
George Peter Cowen
Paul Rex Turnbull
Stephen Albert Tringrove
Darrell Bone
Leslie Leon Coulson
that they and each of them are persons of the Aboriginal race of Australia.
The Nelly Wanda (Bone) Group
T2002/223 Adam Ross Bone
T2002/224 Anthony Michael Bone
T2002/225 Robert Lee Bone
T2002/226 Karen Joy Bone
T2002/227 Cheryle Anne Bone
T2002/251 Robert Henry Figg
Nelly Wanda is said to be a Queensland Aboriginal who was born in 1883 and died in 1903. She is the great grandmother of Mr Baden Bone's wife Karen Joy Bone nee Lovell.
Of the people in this group, Adam Ross Bone, Anthony Michael Bone and Robert Lee Bone are the children of Baden and Karen Bone and thus have claims through two lines of descent. Cheryle Anne Bone is Karen Bone's sister and Robert Henry Figg is Karen Bone's uncle.
It is said that Nelly Wanda was brought to Tasmania from Queensland when she was 9 years old by a ship's captain named Lucas who, it is said, dealt in 'human trade'. Nelly was sold as a house servant and died at the age of 19 in childbirth.
Karen Bone's grandmother, Margaret Figg nee Templeman, survived her mother and known as 'Black Maggie' went on to raise seven children born to her and her husband, Clyde Crawford Figg. One of these children was Yvonne Figg, the mother of Karen Bone nee Lovell. Her husband was William A Lovell.
Mrs Bone's oral family history related to us by her husband, Baden Bone was not challenged and no evidence of any description contradicts it.
We are satisfied after a review of the material relied upon by all applicants that the oral history of descent withstands scrutiny. It is not inherently illogical or internally inconsistent and we accept it.
Mr Bowen fairly and properly acknowledged in his closing submissions on behalf of the Committee that there was nothing offered by the Committee to contradict the assertions of descent made.
The evidence given by Baden Bone on behalf of the members of this group as to self-identification and community acceptance, taken together with the evidence of the relationships between the claimants and the material going to those issues found in the individual s 37 documents is uncontested, and satisfies us in each case as amply reinforcing the oral evidence of descent. Given that those issues were not separately agitated in these proceedings we are satisfied as to the aboriginality of each of the claimants.
Accordingly, for the reasons given in the general parts of these reasons and for the reasons given above we find as to:
Adam Ross Bone
Anthony Michael Bone
Robert Lee BoneKaren Joy Bone
Cheryle Anne BoneRobert Henry Figg
that they and each of them are persons of the Aboriginal race of Australia.
The Cunningham Group
T2002/247 Tasman John Heald
T2002/265 Cheryl Ann Lambert
Cheryl Ann Lambert and Tasman John Heald have the same great grand parents, namely George Blake and Helen Blake (nee Cunningham). Ms Lambert's grandmother, Pearl, and Mr Heald's grandfather, Cecil Blake, were sister and brother, being the children of George and Helen Blake.
Ms. Lambert's brother, Dale Lambert, gave evidence to the Tribunal that he remembered his grandmother, Pearl Lambert (nee Blake). He said that she was 'a fairly big lady, fairly dark-skinned, very broad nose and thick jaw expression'. He believed that she definitely had an aboriginal appearance. He said that his grandmother had told his father that his great, great grandmother was Margaret Cunningham and that she was an aboriginal.
Ms Lambert's other brothers, Roger and Peter Lambert, told the Tribunal that they had been commercial mutton-birders for over 30 years. They said that they have been accepted throughout the area of Circular Head as aboriginals all their lives. They have been known as the 'blackfellow Lamberts'. They said that their father and grandfather before them were also mutton birders on the islands off the North West Coast of Tasmania.
Tasman John Heald gave evidence that he has clear memories of his grandfather, Cecil Blake. He said that Cecil Blake was a very dark man who had been a champion footballer. Both of his grandparents told him that his family had aboriginal ancestry. Mr Heald said that when he was a boy, groups of aboriginals from Launceston and the Bass Strait islands would come to his home to stay. He remembers that they and their women folk were not allowed into the local hotels and they were not allowed to use the public toilets because of their colour.
The archival records trace the ancestry of Ms Lambert and Mr Heald back to a Margaret Cunningham through their great, great grandparents, Edward Cunningham who married Elizabeth Kennedy, on 1 December 1829. Edward Cunningham's mother was described in the record as Margaret Cunningham, a servant. The records do not show whether or not Margaret Cunningham was an aboriginal, nor do they show where she came from.
The Tribunal accepts the uncontradicted evidence of Ms. Lambert's brothers and Mr. Heald that the oral history of their family indicates that they have an aboriginal ancestor, that they identify themselves as aboriginal and that they are recognised by the aboriginal community as aboriginals.
Accordingly, for the reasons given in the general parts of these reasons and for the reasons given above we find as to:
Tasman John Heald
Cheryl Ann Lambert
that they and each of them are persons of the Aboriginal race of Australia.
The Grace Brown Group
T2002/228 Julie Ann Fletcher
T2002/229 Robert Thomas Bradley
T2002/233 Mathew Peter Carr
T2002/238 Kathleen Ruby Carr
T2002/239 Tanya Maree Carr
The Grace Brown/Alice Thomas Group
T2002/231 Leigh Robert Bradley
T2002/235 Phillippa Claire Oakford
T2002/236 Andrea Catherine Oakford
T2002/237 Debra Claire Oakford
The Alice Thomas Group
T2002/230 Claire Frances Bradley
There are two groups which seek to trace aboriginal ancestry to a family tree which appears on p. 55 of Felton, Aborigines in Tasmania: Living with the Land Book Five: Resisting and Adapting which was published by the Tasmanian Department of Education and the Arts. Two lines of descent are claimed. The Grace Brown Group and the Alice Thomas Group claim through one of them. The Grace Brown/Alice Thomas Group claims through both of them. The line published in Living with the Land begins with Trarlerwe-largenna, who was the father of Manalargenna, who was the father of Wote-cowidyer and Nimerana or Teekoolterme. The published line concludes with (relevantly) Thomas (born about 1822) the son of Wote-cowidyer and James Thompson (the Grace Brown line) and James (born about 1843) the son of Nimerana and John Thomas (The Alice Thomas line).
Grace Brown was the daughter of Thomas Thompson Brown (said to be Thomas the son of Wote-cowidyer) and Elizabeth Williams. Grace Brown was the mother of Ruby Pritchard, the grandmother of Olive Palmer and the great grandmother of Robert Thomas Bradley (an applicant) and Kathleen Carr (nee Bradley) (an applicant). Robert Thomas Bradley married Claire Olbrich and is the father of Debra Oakford (nee Bradley) (an applicant) and Leigh Bradley an applicant) and is the grandfather of Phillipa Oakford (an applicant) and Andrea Oakford (an applicant). Those claiming under Robert Thomas Bradley are also claimants through the Alice Thomas line. Kathleen Carr (nee Bradley) is the mother of Julie Carr, Matthew Carr and Tanya Carr (all applicants).
Alice Thomas was the daughter of John Thomas (said to be James the son of Nimerana) and Margaret Webber. Alice Thomas was the mother of Frederick Olbrich and the grandmother of Claire Bradley (nee Olbrich) (an applicant). Claire Olbrich married Robert Thomas Bradley and is the mother of or grandmother of the four applicants listed above.
Debra Oakford gave evidence. She said that her father, Robert Thomas Bradley, was known as Tom and was called 'Abo Tom' or 'black Tom'. When she was about ten years old she asked her father why this was. He told her they were Aboriginal people. He said 'Old Tom Brown was as black as your hat.' This was a reference to Thomas Thompson Brown the father of Grace Brown.
In the Alice Thomas line Mrs Oakford gave evidence that her mother told her about her aboriginality. Her mother said she had got her information from her father Frederick Olbrich's two aunts, Margaret and Grace Olbrich, who were spinsters.
Mrs Oakford gave extensive evidence about the family's oral history of aboriginality from both lines and about the oral lines of descent. The time available to us to prepare these reasons just does not give us time to set this evidence out.
We are entirely satisfied as to the oral history of both lines. There is no reason for us not to accept it. As usual the challenge comes from archival records. There is nothing to show definitively that Thomas Thompson Brown was the son of Wote-cowidyer nor that James Thomas was the son of Nimerana. Indeed, there is reason to doubt that they were. However, also as usual, this evidence does not negate aboriginality whether through the claimed lines or from some other source. We are satisfied as to aboriginal descent from the oral history and related evidence.
With the concurrence of counsel for the respondent no other applicant in these groups gave evidence. Had the other applicants in these groups given evidence, along with other applicants who did not give evidence, it is highly unlikely that the evidence would have concluded before the deadline for the decisions. There would certainly have been no time for deliberation or preparation of reasons.
We have the documents that were before the committee for each applicant, as well as the evidence of Mrs Oakford. On the basis of all this evidence we are satisfied as to descent, identification, and recognition for each applicant.
For the reasons given in the general parts of these reasons and for the reasons given above we find as to:
Julie Ann Fletcher
Robert Thomas Bradley
Mathew Peter Carr
Kathleen Ruby Carr
Tanya Maree Carr
Leigh Robert Bradley
Phillippa Claire Oakford
Andrea Catherine Oakford
Debra Claire Oakford
Claire Frances Bradley
that they and each of them are persons of the Aboriginal race of Australia.
The Maryann Bird Group
T2002/256 Robert William Thorp
T2002/257 Jay-Darren Thorp
T2002/258 Jodi-Leigh Thorp
T2002/259 Justin Drew Thorp
T2002/262 Jana Louise Thorp
Robert William Thorp is the father of Jay-Darren Thorp, Jodi-Leigh Thorp, Justin Drew Thorp and Jana Louise Thorp. Robert Thorp gave unchallenged evidence that he and his children all identify as aboriginals, and Mr Bowen in his closing submissions fairly and in our view correctly conceded that Mr Thorp has acceptance as an Aboriginal person.
Robert William Thorp says that his Aboriginal ancestor was Mary Ann (Palawa) Bird who was born in about 1825 and married a George Phillips. Mr Thorp's parents were William Ansell-John Thorp and Vera Mary Cordwell. His grandparents were John Herbert Thorp and Mary Anne Rebecca Phillips. His great grandparents were Alfred Ernest George Phillips and Rebecca Mansfield. Alfred Ernest George Phillips was the son of Mary Ann Bird.
Mr Thorp said he had been taught from the time he was four years old that he had aboriginal blood and heritage. He was taught this by his parents, his grandparents and his great grandparents.
Mr Thorp was seven or eight when his great grandfather Alfred died and he remembers him telling him that he goes back to 'old black blood'.
After his great grandfather died, Mr Thorp's grandmother Mary Ann Rebecca told him that his aboriginality went back to Mary Ann and that she was an Aboriginal lady who George Phillips had married. His grandmother who Mr Thorp described as 'very, very dark' told him 'not to go spreading it around the district'.
Mr Thorp said his grandmother told him that she remembered Mary Ann who taught her to hunt and gather, and that Mary Ann always cooked outside on an open fire even though she had inside facilities for cooking.
The archival evidence is that there was no record of the birth or baptism of Mary Ann Bird, but according to her death certificate she was born in Hobart in 1826. It is suggested that 'she is most likely' the daughter of Samual Bird and Lucy Pickett who married in Hobart in 1823, Samual Bird being a free settler and his wife the daughter of a respectable settler late of New South Wales.
It is possible that the archival evidence is correct, but in our view the oral history handed down directly by those with living memories is so strong that it is more probable than not that the Mary Ann Bird described by her son and her granddaughter was an Aboriginal person.
Mr Thorp gave evidence that his children all identify as aboriginal persons. Indeed his daughter Jana was taught by Mr Thorp's grandmother Mary Ann of her aboriginality.
Given the closeness of the relationship between Mr Thorp and the other applicants in this group, we take Mr Bowen's concession as to Mr Thorp's community acceptance to carry over to them.
For the reasons we have given in the general parts of these reasons and for the reasons given above we find as to:
Robert William Thorp
Jay-Darren Thorp
Jodi-Leigh Thorp
Justin Drew Thorp
Jana Louise Thorp
that they and each of them are persons of the Aboriginal race of Australia.
The David Temple/Charlotte Bryant Group
T2002/267 Karen Maree Whalan
T2002/268 Boe Henry Whalan
T2002/277 Kevin Harold Rushton
Kevin Harold Rushton is the father of Karen Maree Whalan (nee Rushton). Karen Maree Whalan is the mother of Boe Henry Whalan. The claim made on behalf of these applicants is that Kevin Rushton has aboriginal ancestry through the line of his mother, Coralie Rushton (nee Honner), and her mother Minnie May Honner (nee Temple), who was married to James William Honner.
Evidence was given by Peter Berton Whalan, husband of Karen Maree Whalan that Kevin Rushton was raised by his grandparents, James and Minnie Honner. Kevin Rushton remembers his grandmother as being a very dark woman. Minnie Honner (nee Temple) told the family that she thought her colour came 'through the Bryant line'. Minnie's mother was said to be Charlotte Temple (nee Bryant). Charlotte's father was James Bryant.
Coralie Rushton told the family that she could remember an uncle of hers, George Temple, whom she said had 'dark skin and talked like an aborigine'. Karen Whalan remembers her great uncle Darcy whom she said had dark skin.
It is claimed that Mary and Charles Brown were the parents of Elizabeth Brown who married James Monk. The marriage is recorded in the District of Hobart on 24 November 1842.
Elizabeth Brown was the mother of Mary Ann Monk, the grandmother of John Henry Palmer, the great grandmother of Alice Maud Ruth Palmer and the great, great grandmother of Faye Louise Grant. Faye Louise Grant is the mother of Annette Joy Lunson (an applicant) and Rosemary Halton (an applicant),
Archival evidence does not support the claim that Elizabeth Brown who married James Monk was the daughter of an aborigine named Mary. The applicants claim that Elizabeth Brown is "Eliza" daughter of Charles and Mary Brown baptised in Hobart on 20 September 1828. Charles Brown is shown as a Corporal in the Fortieth Regiment. However, it really is speculation as to who this Eliza was. The applicants say she was the daughter of an aborigine. The archival evidence asserts that she probably was the daughter of a wife of the Corporal who later left the colony with her husband and child.
Mr Lunson gave evidence that his wife's family were called 'the black Palmers'. Mrs Lunson's and Mrs Halton's father used to mock his children 'very, very lovingly' about their aboriginal heritage. Mr Lunson told us Faye Louise Smart had 'very very strong Aboriginal characteristics'. So did Alice Maud Ruth Palmer. There was a lane in the country near where the Palmer family lived called 'Black Palmers Lane.' Mr Lunson remembered stories of aboriginality as far back in the line as John Henry Palmer.
We have evidence that both Mrs Lunson and Mrs Halton identify as Aborigines. They associate with Aboriginal persons and have contact with Aboriginal Associations.
These are not strong cases. However, on balance, we find as to:
Gary Morris Lunson
Annette Joy Lunson
Rosemary Hatton
that they and each of them are persons of the Aboriginal race of Australia.
Single Applicants
T2002/144 Colleen Ruth Osborne
Colleen Ruth Osborne claims her descent from a Harry Burgess, her great great grandmother who she claims was a Tasmanian Aboriginal.
She said that her maternal grandmother Hilda Rachel Ladysmith Watts told her she remembered Harry Burgess and said that she was frightened of him because he was a 'blackfella' and she used to say of him 'have you got your nulla nulla with you'.
Although she said her parents and grandparents were made to feel ashamed of their aboriginal roots the applicant first identified as Aboriginal in about 1978 when she was 30 years old. Whilst she had not been vilified her sister had been called a 'half-caste' at school.
Ms Osborne produced a photograph of four generations of males commencing with her father. We consider the photographs show that her great, great grandmother demonstrates elements of aboriginal features.
The archival evidence suggests that a Harry Burgess arrived as an immigrant on the Royal Saxon in 1843. It does not, however, demonstrate that this was the Henry Burgess from whom Ms Osborne claims descent.
Ms Osborne's evidence was that she continues to identify as an aboriginal and regularly visits her birthplace at Circular Head and Jack Smith's Harbour South of Temma on the West Coast of Tasmania where her father went on his annual hunting trips.
Ms Osborne has contributed to the Aboriginal Community by the voluntary giving of her time to ASSPA .
As evidence of community recognition the applicant tendered a number of certificates including certificates from ATSIC in 1994, ITAC in 1996, the Deloraine Aboriginal Culture Association and the Circular Head Aboriginal Corporation in 2001.
Ms Osborne's evidence was not challenged or contradicted by any specific evidence and we have no reason not to accept it, limited though it may be.
We accordingly find that Colleen Ruth Osborne is a person of the Aboriginal Race of Australia.
T2002/182 Leslie Roy DickLeslie Roy Dick says that it was always known in his family that his great grandmother was of aboriginal descent. His great grandmother was Annie Gertrude House nee Boskell. She told Mr Dick that she was aboriginal. She told Mr Dick that her mother, Margaret Ellen Boskell nee Leonard, was an adopted part aboriginal child. Mr Dick tendered a number of photographs. These included two photographs of Annie Gertrude House. We consider these photographs demonstrate elements of aboriginal features. This evidence was not challenged and we see no reason not to accept it. The archival evidence did not show any birth or baptismal records of Margaret Ellen Leonard. The first documentary evidence of her existence is a record of her marriage to Mathew Boskell on 25 August 1873. The applicant's evidence was that Margaret Ellen Leonard was raised as a sister to Isabella Leonard whose birth was recorded. This evidence came from A Salute to Their Courage: The Muir Anthony Story by Margaret Muir. This provides support for the claim that Margaret Ellen Leonard was part aboriginal because her adopted aboriginal status may account for the absence of any record of her birth.
We are satisfied, from his evidence and the manner in which he gave it, that Mr Dick plainly identifies himself as aboriginal. Mr Dick's uncontradicted evidence was that he was recognised by the aboriginal community as aboriginal. He tendered a number of certificates including certificates from the Circular Head Aboriginal Corporation and the Indigenous Tasmanian Aboriginal Corporation, showing recognition and acceptance as an aboriginal Tasmanian.
We accordingly find that Leslie Roy dick is a person of the Aboriginal race of Australia.
T2002/201 Natalie Sarah ScottNatalie Sarah Scott says that she has always believed that Mary Ellen Madden nee Travis, her great grandmother was an Aboriginal. This is what she was told by her mother and other members of her family. She says that she was told that her great grandmother was descended from Brigida or Bridget Fox who was an adopted Aboriginal child of Bernard and Mary Fox.
Ms Scott tendered a photograph of her mother and herself which may show that her mother has some signs of aboriginal features. Ms Scott gave evidence that she had been called names suggesting she was of aboriginal descent throughout her life.
The archival evidence is consistent with Brigida Fox being a natural child of Bernard and May Fox, but does not establish this.
There can be no doubt that Ms Scott identifies as aboriginal. She produced a certificate of recognition and acceptance from the Circular Head Aboriginal Corporation. We are satisfied by this evidence.
Accepting that the archival evidence does not disprove aboriginality, we accept the unchallenged evidence of Ms Scott as to the family history which has been passed down to her. Of course, it is not necessary for us to make a finding that Brigida Fox either was or was not an adopted aboriginal child. It is not impossible that Ms Scott's family were in error in thinking that Brigida Fox was aboriginal, but that there is nevertheless aboriginal descent from some other person. 295. We need only to find aboriginal descent as a fact without having to find its precise source. In the case of Ms Scott we are satisfied that aboriginal descent is shown by the family history and corroborating evidence referred to above.
We accordingly find that Ms Scott is a person of the Aboriginal Race of Australia.
T2002/213 Reginald KilbyReginald Kilby says his great grandmother or his great, great grandmother was aboriginal. He says he was told by his mother after he had married and started to have a family that some of his family might be dark. She told him that he had an aboriginal ancestor called Emma. He also said that everybody in Circular Head knew his family had aboriginal descent. Mr Kilby said his mother looks like an aboriginal person.
Searches made by Mr Kilby have discovered the existence of an Emma Stone who was baptised in Hobart on 5 March 1820. The better view appears to be that that Emma Stone was the daughter of immigrants arriving on the David Shaw in October, 1819. However, it is little more than speculation that this Emma Stone is the Emma of whom Mr Kilby's mother spoke.
Mr Kilby was unable to adduce further evidence of descent. He did not have any family photographs. They were destroyed in a house fire.
Mr Kilby identified himself as an aboriginal and gave evidence that his children identify as aboriginals. One of them had won an aboriginal art prize. He tendered a certificate from the Circular Head Aboriginal Corporation of his recognition and acceptance as an Aboriginal Tasmanian.
We found Mr Kilby's evidence of what he was told by his mother to be credible and telling. We accept it. Indeed, it was not challenged. Although there was little corroborating evidence given by Mr Kilby we do not think that the archival evidence relating to the identified Emma Stone leads to the contrary conclusion. We are satisfied by the evidence of self identification and community recognition.
We accordingly find that Reginald Kilby is a person of the Aboriginal race of Australia.
T2002/245 Kathleen SmithKathleen Smith is unable to read or write. She had difficulty in articulating her claim. We were told that her family records had been destroyed and that she had to rely entirely on a claim from oral history. Unfortunately, she was not able to explain to us the basis of her claim.
Colin George Jetson is a retired police officer. He has known Ms Smith's family since 1971. Ms Smith's mother was Lilian Breadmore. Mr Jetson gave evidence that Mrs Breadmore had told him that her family identified as aboriginal. She told Mr Jetson 'we are abos'. She said that the aboriginal line of descent went back through the Rolls family. He said she also mentioned the Collins family. Mrs Breadmore's maiden name was Lilian Elizabeth Rolls. Her mother was Ethel Rolls nee Collins and was a sister to John, George and Charley Collins.
Ethel Rolls was born in 1911. Her father was William John Collins who married Elizabeth Richards in 1912. There is nothing to suggest that either William John Collins or Elizabeth Richards were of aboriginal descent. However, the fact that Ethel Collins was born before her father's marriage leaves open the possibility that Elizabeth Richards was not the mother of Ethel Collins.
Kathleen Smith identifies as aboriginal. She works for an Aboriginal Corporation. She has a certificate of recognition and acceptance from the Circular Head Aboriginal Corporation. Ms Smith's two daughters have attended a homework centre for aboriginal children.
There is no archival evidence which might exclude the possibility of Ms Smith having Aboriginal descent. We find the unchallenged evidence of Mr Jetson to be persuasive. Self identification and community acceptance is established
Accordingly, we find Kathleen Smith to be a person of the Aboriginal Race of Australia.
T2002/254 Darryl Mark SpencerDarryl Mark Spencer claims his descent through his grandmother whom he currently claims to have been an aboriginal named Clara. He lived with his grandmother from an early age.
In his early days at school in Devonport he was tormented by the other children due to his appearance. They called him names such as 'abo', 'nigger' and 'black bastard'. When he told his grandmother about the taunts from the children at school, she told him: 'We are Islanders'. He thought that the term meant Torres Strait Islander.
He gave evidence that he had always regarded himself as an 'Islander', but on an occasion when he was applying for legal aid he was accompanied by his grandmother who said at that time that he was an 'Aboriginal boy'.
On 22 July 2002, Mr Spencer made a Statutory Declaration in which he stated that he was an indigenous person with Torres Strait Islander ancestry.
On 10 October 2002, Mr Spencer's mother, Gwendoline Claire Spencer made a Statutory Declaration in which she stated she had always known her mother and aunt had 'Aboriginal blood'.
Mr Spencer tendered photographs of his grandmother which do not necessarily indicate elements of Torres Strait Islander appearance.
He has identified as an Aboriginal person. He produced certificates of acceptance of Aboriginal heritage from the Mersey Leven Aboriginal Corporation and Benjamin Lillas, solicitor, who has known Mr Spencer for 35 years. Mr Spencer has also been published as an Aboriginal poet.
There is no relevant archival evidence which supports the claim that Mr Spencer is of Aboriginal or Torres Strait Islander descent.
Notwithstanding that the Tribunal is satisfied that Mr Spencer has demonstrated self identification and community recognition as a person of the Aboriginal Race of Australia, that is not necessary under the Act in the case of a person who claims Torres Strait Islander ancestry. In this case the evidence of Mr Spencer and that of his mother, taken together, points to his descent as a Torres Strait Islander.
That evidence as to Torres Strait Islander ancestry was not contradicted by other evidence.
We accordingly find that Darryl Mark Spencer is a Torres Strait Islander.
T2002/140 Craig Scott PriceCraig Scott Price was made aware of his aboriginal ancestry by his aunt, Dianne Price. Ms. Price is married to a half brother of Craig's father. Craig's father, Barry George Price, refuses to discuss the matter of aboriginality with his son.
Ms. Price has researched the family tree and has traced the family line back to Annie May Price, Craig Price's great grandmother, who was well-known in her community as 'black granny Price'.
Annie May Price was formerly Annie May Long who married Thomas George Price on 9 August 1905 at King Street Church. They had eight children, one of whom was George William Price, born on 5 October 1916, grandfather of Craig Price. Another child of the family of Annie and Thomas Price, was Margaret Price born on 28 October 1922 at Nubeena Tasmania, and who died on 2 October 1987 at Franklin. A colour photograph of Margaret Price, shown to the Tribunal, indicated that she had dark skin and aboriginal features. Margaret Price told Dianne that she remembered seeing her grandmother and described her as 'a little old black lady'.
Mr. Price tendered further material said to have been obtained by Dianne Price which indicated that Annie May Long was born on 14 February 1880 in Hobart. Her father was Charles Long who was white. Her mother was Matilda McGrath who was described as an aborigine. There was no challenge, nor any evidence given, to contradict this material. We are satisfied as to self-identification and community acceptance.
We accordingly find that Craig Scott Price is a person of the Aboriginal race of Australia.
T2002/272George Henry JamesMr James documents his ancestry back to his great grandfather, Robert James born in 1821 and says that he has always understood that he was aboriginal and that the aboriginality in his family stemmed from the male.
Mr James was not able to say whether his ancestors were Tasmanian aboriginals or came from mainland Australia. This was never mentioned to him.
Mr James gave uncontradicted evidence of a very strong oral history of aboriginality, very strong evidence of self-identification and community acceptance and produced photographic evidence of members of his family which showed the strongest elements of aboriginal features we observed in any case before us.
Mr Bowen said of this case:
'This has presented a great deal of difficulty for the Committee. The photos are very dramatic and we discussed it with Lyndall Ryan and we thought that a photograph of Joseph Richard James [the applicant's grandfather] … looked more like a mainland aboriginal person or possibly West Indian rather than Tasmanian.'
In his closing submissions Mr Bowen said:
'Mr James had a very strong oral history and photos. There is a slim possibility of his ancestor not being an Australian Aboriginal person.'
We agree, but we find no support in the evidence for that slim possibility. We are satisfied on the whole of the evidence that Mr James line of descent is from an Australian Aborigine.
We accordingly find that George Henry James is a person of the Aboriginal race of Australia.
T2002/162 Marianne WatsonMarianne Watson appeared before us in person. She is unable to point to any precise line of descent other than to suggest that her aboriginal forebears come from the Bass Strait Islands. Mrs Watson's documentary case, much of which has recently been put together, was very thorough, and a credit to her. The evidence she produced of community recognition was as good or better than any other evidence of recognition put before us. If ever there could be a case of descent being proved solely by community recognition this is that case.
Mrs Watson was not, however, without an oral history of descent. Her mother told her that 'grandma was Aboriginal'. Her grandfather, George Walter Johnson, had told her mother 'they'd come from the islands in a boat', 'an open boat', 'It could have been what they call a double ender'. At the time of this conversation George Walter Johnson lived at Lilydale. The family had come from Nabowla near Scottsdale. These are places near the North East corner of Tasmania adjacent to Bass Strait Islands including the Cape Barren Islands and the Furneaux Group. Whatever a speaker might mean in Brisbane or Sydney, or even Hobart, when referring to 'the Islands', we think that the use of the phrase in the place and context in which it was used leads inevitably to the inference that the islands referred to were the Bass Strait Islands, just offshore. Moreover, the reference to an 'open boat' does not suggest a long journey.
Mrs Watson produced comparative photographs of undoubted relatives of hers shown next to known descendants of Bass Strait Island families such as the Beetons, the Mansells and the Thomas's. She also produced a wealth of evidence from indigenous persons showing that they had considered the photographs and that her relatives and the Bass Strait Islanders demonstrated similar racial characteristics which were Aboriginal. To our less trained eyes there seemed much to support this.
As to self identification and community recognition with respect to Mrs Watson there can, as we have said, be no doubt. When we add the oral history she has given us we are satisfied that she has made out her case.
We accordingly find that Marianne Watson is a person of the Aboriginal race of Australia.
T2002/128 Kaye Louise McPhersonKaye Louise McPherson nee Farrell is the daughter of Keith Farrell. His father Joseph Elba Farrell was the son of James Farrell and Emma Wilson. It is said that Emma Wilson was an aboriginal woman.
There is a record of the death of Emma Wilson in 1910, but there is no record of her birth.
The history of Ms McPherson's aboriginal descent is entirely oral.
The best evidence of that descent is from Mr Keith Farrell who is now aged 80 years and the only surviving member of his family line. In his statement Mr Farrell said:
'When I was born in 1922 my grandparents on my fathers side were both dead as were their brothers and sisters. I only ever knew one cousin who lived in Sydney, who I knew as Dolly. My memories are all about my mother's family.…
I was always aware there was a family secret, but being the `baby' and a boy and not really interested I was often left out. My older sisters were aware of the family history more than I was, and so was one of my older brothers.
We knew that there was what was called "bad blood" in the family. My oldest brother was wild and wayward, while my aunt, my fathers sister, also called Dolly, who was considered a great beauty with her "flashing black eyes", was scandalous with her unconventional behaviour, both were considered "black sheep" and this belonged to the Farrell side of the family. My brother Roy's wife would only have one child in case the "bad blood" came out. My father was the only male to marry, one brother Richard, went to WW1, he was shell shocked and he was a hermit living in the bush, Thomas another of my fathers brothers and Harold was not spoken about, although all his sisters married. We were always told that our black eyes and black hair, plus the broad nose and dark complexion were put down to my grandfather Farrell being "black eyed Irish".
The Farrell side of the family were never spoken about. I think they were a shame in the family. My sister Vera said grandfather Farrell used to call footpaths toepaths and spoke with an Irish accent. Vera never mentioned our grandmother even though she knew her. Vera kept up the fiction of the black eyed Irish descent even after my brother showed us the army papers, which described James Farrell as having light brown hair and grey eyes and fair complexion.
It was some years after my mother and father with most of my aunts and uncles, had died that the question of an Aboriginal heritage came up. My sister Vera did not want to know about it and believed the past should stay in the past. The question of the Farrell heritage was not an issue in my family that I ever knew except with my sister. My sister Vera was very bossy and dictated to the family. It was easier to let her have her way than fight her. No-one spoke about the Farrells and I never really cared about family history and never asked any questions. My ancestry was not important to me. It is only in recent years that family histories have become important issues and the secrets of the past are becoming common knowledge. The older relatives would never discuss this part of the family history as it was something that was not discussed, not just in my family but the families of my friends. My grandmothers history was known within the family with my mother and sisters and my mothers sisters but it was something that was never discussed… .
My daughters for a very long time, and my grand children more recently, had been identifying and accepted as Aboriginal before my sister Vera admitted the truth about the Aboriginal heritage from my grandmother Farrell. My sister was very ashamed of this family secret and she wished it to stay hidden. I think it was because she looked so Aboriginal and she hated it.' (Emphasis added.)
Photographic evidence certainly demonstrates that 'Auntie Vera' was very dark skinned.
There is no archival evidence which contradicts the oral history recounted by Mr Farrell and on balance having critically reviewed the material we have before us for illogicalily or inconsistency, we are satisfied having regard to the whole of that evidence that the reference to 'bad blood' and 'black eyed Irish' were, in this family, euphemism's for aboriginal ancestry.
Ms McPherson plainly identifies herself as an aboriginal person. She first came to believe she had aboriginal ancestry 30 years ago and came to an acceptance of that and identified herself in public about 15 years ago.
Ms McPherson is active in the Liapootah Aboriginal community into which group she was initiated as an elder because of her cultural knowledge. She has been studying at the Centre for Aboriginal Education for several years and she has worked as a tutor at the Risdon Vale Aboriginal Homework Centre teaching children about their aboriginal culture and heritage.
Ms McPherson has previously been recognised as a member of the Aboriginal community by the Tasmanian Aboriginal Centre Inc. and a letter from the Chairperson of the Risdon Vale Aboriginal Homework Centre states that she has been known as an aboriginal within the Risdon Vale community for over 20 years.
We accept the uncontradicted evidence of Ms McPherson and are satisfied on the balance of probabilities of her aboriginality.
We accordingly find that Kaye Louise McPherson is a person of the Aboriginal race of Australia.
T2002/276 Phillip George RyanPhillip George Ryan is not a Tasmanian aboriginal. He states that he is a Victorian Koori. His people the Taungurung come from the Goulburn Valley. His great grandfather's brother Willie Hamilton was the great grandfather of Evonne Gooloogong.
Mr Bowen accepted in his closing submissions that Mr Ryan had demonstrated strong acceptance in the Victorian Aboriginal community. He plainly self identifies as an aboriginal person. The only question is descent.
Mr Ryan produced a letter from his cousin Glenys Merry. It states:
'To Whom It May Concern
I wish to confirm that Phillip Ryan is from the Franklin family from Yea Victoria, which is in the Taungurung Tribal area. I am a Taungurung Elder and I do the genealogies for the Franklin Family. Hoping this helps to establish Phillip's Aboriginality. If this is not enough please contact me on the above address.
Yours faithfully,
Glenys'The authenticity of the letter was not questioned before us, nor was Ms Merry's status as a tribal elder. We are satisfied as to Mr Ryan's descent.
We accordingly find that Phillip George Ryan is a person of the Aboriginal race of Australia.
T2002/222 John David ColemanJohn David Coleman was born Stanley John Clark on 29 January 1943 at a Salvation Army Home in Launceston. His mother is recorded as Elvie Iris Clark, aged 19 years. There is no record of his father. The informant for the purposes of the birth record is stated to be A. Clark.
The archival records show that Mr Coleman's mother, Elvie Iris Clark, was born on 6 September 1923 at Hastings. Her father was Robert John Clark and her mother was Agnes Mary Clark (probably the A. Clark who was the informant for the record of Mr Coleman's birth).
When Mr Coleman was about three months old he was taken from his mother and made a ward of the State. He was put into a foster home run by Miss Iris Wilson. For some reason, not known to Mr Coleman, Miss Wilson changed Mr. Coleman's name from Stanley John Clark to John David Coleman. He has been known by that name ever since. According to the archival records, Mr Coleman's mother married Clyde John Pelham at Hobart on 26 October 1946. Mr Coleman has not been able to trace his mother.
Mr Coleman stayed at the home run by Miss Wilson until he was about 15 years old. He gave evidence that Miss Wilson used to introduce him to people by saying, 'This is John, he has a touch of the tar brush'. He did not know what the expression 'touch of the tar brush' meant until an older boy came to live at the home. The older boy explained to John Coleman that the expression meant that he was an aboriginal person.
Mr Coleman noticed that when he was at primary school a man who was said to be from the Aboriginal Department came each year to distribute free books to the children from Miss Wilson's home.
In his high school days, Mr Coleman associated with other aboriginal children. They played football together and joined in with each other in other sporting and recreational pursuits. He identified himself as an aboriginal person from a very early age.
Mr Coleman eventually made contact with his mother's elder sister, Liela Clark. Liela Clark lived with Mr Coleman and his wife for about seven years. Mr. Coleman also discovered that his mother had a brother, George Clark.
Mr Coleman attempted to trace his aboriginality through his grandmother, Mary Ann Brackley. His Aunt Liela told him that he should be concentrating on the Clark side of the family. She said, 'Look to the Clarks, they are all very dark'. He eventually discovered that his great grand father Thomas Henry Clark was the brother of Alfred Clark, who was the great grandfather of one of the other applicants in these proceedings, John Edmund Clark.
Nevertheless, Mr Coleman believes that his grandmother, Mary Ann Brackley, was also a person of aboriginal descent. She has been regarded by a number of her descendants as the aboriginal matriarch of the family.
Mr Coleman tendered a number of photographs. He was able to produce a photograph of his mother that he had obtained from a first cousin, a daughter of his Uncle George. The photograph of Mr Coleman's mother shows that he looks remarkably like her. She was certainly dark haired and dark-eyed but not necessarily of aboriginal appearance.
Mr Coleman also produced photographs from newspaper articles about his grandfather, Thomas Henry Clark and his grandmother, Mary Ann Clark (nee Brackley). His grandfather does not appear to have the characteristics of an aboriginal person but his grandmother could well have been part aboriginal.
Mr Coleman called other witnesses who supported his claim that he has identified himself as an aboriginal person for many years and that he has been widely accepted as aboriginal.
The Tribunal accepts the oral history as told by Mr Coleman and is satisfied as to self identification and community acceptance. We accordingly find that John David Coleman is a person of the Aboriginal race of Australia.
T2002/273 Hartley John MannieMr Mannie was another applicant who produced a family tree, but said that he was unable to identify a particular ancestor as aboriginal.
Notwithstanding, he, his father, his grandfather and his great grandfather have always believed and claimed that they are descendants of the aboriginal people from Maria Island. His family have historically been inhabitants of an area which is just across the water from Maria Island.
Mr Mannie's uncles and aunts brought him up and taught him traditional aboriginal methods of hunting and cooking. These are skills he still uses today, and which he has taught his own children who he has brought up as members of the Aboriginal community. They in turn are doing likewise with their children.
It was Mr Mannie's aunt, Una Lane, known as 'Black Barb' who told him they were aboriginal and that her grandfather and grandmother came from Maria Island to Spring Bay and from Spring Bay down to Kellevie where Mr Mannie was brought up.
Mr Mannie said that he has always been known as black in the local community where he was brought up, and he was given the nickname 'Black Stick'. He knew his grandfather who he described as 'a little short black fellow'.
Mr Mannie has little recognition in the Aboriginal community, chiefly because he has not sought it. He does know however, a number of other aboriginal families, he has voted twice before in ATSIC elections, and he has a son and daughter who work for ATSIC. The youngest of his children are involved in ASSPA.
We see no reason not to accept Mr Mannie's unchallenged and uncontradicted evidence. We do accept it.
We accordingly find that Hartley John Mannie is a person of the Aboriginal race of Australia.
T2002/198 Michael William HarveyMichael William Harvey claims his aboriginal descent through Mary Ann Thompson, a daughter of Wottecowidger and a sealer named James Thompson. It is said that Mary Ann married a John Gibson and their child Alice Mary is Mr Harvey's grandmother.
Mr Harvey's father and his grandmother told him that their grandparents [sic] were of aboriginal descent and he was ridiculed to an extent. As a result of no-one in the family spoke about it very much for fear of being labelled 'Abo'.
Mr Harvey said he was taken under his Aunt Zelda's wing when he was a child and he has learned everything he knows about his aboriginality from her.
Aunt Zelda is Zelda Geiger. Her father and Alice Mary Brown were brother and sister.
Ms Geiger gave the following evidence about Mary Ann:
'I met the lady not long before she died, and I was only approximately 8, and she frightened me, because she was so little, so black and she smoked clay stem pipe and she had – her head was, like, swathed in a little tiny bonnet'. (Emphasis added.)
There is support for Mrs Geiger's description in the photograph of Mary Ann tendered in evidence.
The Archives office of Tasmania notes that according to Weep in Silence, a Mary Ann Thompson aged 8 in 1837 was removed from Flinders Island by the Reverend Thomas Dove in February 1839, but later returned and was again removed by M L Smith in September 1841 and by March 1848 was in the service of a Mrs Roope at Macquarie Street, Hobart.
From this the Archives office conclude that 'it does not seem possible that she is the person referred to by Mr Harvey in his documentary evidence'.
We agree, but that does not negate his oral history.
Mr Harvey's self-identification as an aboriginal is clear and he draws his community acceptance through his Aunt Zelda who is recognised by the Mersey Leven Aboriginal Corporation, and who has been known for 40 years as an aboriginal person by a well known aboriginal elder, Roy Maynard, who gave evidence to that effect.
We accept Mr Harvey's oral history of aboriginality, and we are satisfied as to his self-identification and community recognition.
We accordingly find that Michael William Harvey is a person of the Aboriginal race of Australia.
T2002/252 Raymond Keith GreenRaymond Keith Green now lives in Tasmania. He has lived most of his life in Queensland and the Northern Territory. He has worked as a stockman in the area bordering the Gulf of Carpentaria. He has always identified as an aboriginal and when he worked as a 'bull-catcher' he lived with aboriginal people as one of them.
He claims that his father Keith Green had an aboriginal mother, Amy Webb, who was married to Walter Green (the applicant's grandfather). He also claims that Amy Webb's parents were both descended from an aboriginal people, the Darug, who originally occupied the region now called Sydney in New South Wales.
Mr. Green's father, Keith Green, told him from a very early age that he was an aboriginal. Keith Green said that his mother was aboriginal and that his father was a "half-caste".
Mr. Green has also had the benefit of research into the Darug people conducted by James Kohen in 1993. James Kohen produced a publication, The Darug and Their Neighbours, The Traditional Aboriginal Owners of the Sydney Region.
Mr. Green's father, Keith, is listed as a descendant of the original tribal people and so is his grandmother, Amy Susan Webb (born on 15 January 1913). They trace their ancestry back to an aboriginal woman by the name of Maria, who was said to be 'the first child to have been placed in the Native Institution at Parramatta'. Maria's name is the first in the list of admissions. Maria's father is recorded as Yarramundi. Maria married Robert Lock and they had nine children who survived into adulthood. Maria died in 1878 and was buried at St. Bartholomew's Church of England at Prospect. The entry relating to Maria in the burial register states: 'Last of the Blacktown blacks'. According to the research done by Mr. Kohen some of the descendants of Robert and Maria Lock married other members of the Darug people.
The Tribunal has no reason to not accept the evidence of the research by Mr. Kohen.
Consequently, the Tribunal accepts that Mr. Green has at least one aboriginal ancestor and probably has more than one.
We accordingly find that Raymond Keith Green is a person of the Aboriginal race of Australia.
T2002/179 William Gordon LockleyMr Lockley produced a family tree at the hearing of this application, but unlike some other applicants he did not attempt to identify where his aboriginality, handed down to him by way of oral history, actually entered his family line, although he thinks it might have been a Joseph Lovell who was born around 1800.
Mr Lockley's great grandmother told him that they were of aboriginal descent. She was Lavinia Isabella Lockley and had dark skin. It was she who referred to Joseph Lovell as the possible source of aboriginality.
Mr Lockley identifies as an aboriginal and has been accepted in the aboriginal community. He has recognition from ITAC, and from the United Coalition Aboriginal Corporation. He has voted before in ATSIC regional elections. His children have been brought up as aboriginal attending Aboriginal Homework Centre and attending events such as the National Youth Reconciliation Convention.
Mr Lockley's claims were not contested and though his evidence was brief his case was clear. The fact that he cannot point to a person and say 'that is my aboriginal ancestor' does not negate his claim. He has always been told he is an aboriginal person. He identifies as an aboriginal person and is accepted in the community. He has raised his children as aboriginal. We are satisfied that there is no apparent reason not to accept his evidence and we do.
We accordingly find that William Gordon Lockley is a person of the Aboriginal race of Australia.
T2002/244 Peter James ClementsMr Clements did not appear before the Tribunal, notwithstanding that he received the same written notification as all other applicants.
The hearing of these applications attracted significant television and radio attention and the Tribunal would have been justified in concluding that he chose not to appear and to have dismissed his application.
We decided not to take that course, and with Mr Bowen's agreement we indicated that we would deal with his application on the strength of the s 37 documents.
Unfortunately, there is simply insufficient material contained in the papers to reach any other decision than one adverse to Mr Clements.
The s 37 documents do contain certificates of recognition of aboriginality from the Sports Aboriginal Corporation of Tasmania and from ITAC. They also contain a statutory declaration by Mr Clements confirming his own self-identification and acceptance as an aboriginal.
We have not acted in any case before us on material such as that standing on its own, and we do not feel it is appropriate to do so in this case.
Accordingly, the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 404 preceding paragraphs are a true copy of the reasons for the decision herein of:
Justice Garry Downes, President
Deputy President Stephen Estcourt QC
Deputy President Don MullerSigned: .....................................................................................
AssociateDate/s of Hearing 30 September to 16 October 2002
Date of Decision 18 October 2002
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