The Real Issue - Aboriginality is still a mystery to most Australians (Part III)
Thoms and Love were two individuals who had their visas revoked by the Minister for Immigration and were being held in detention facilities awaiting deportation. The landmark decision to recognise that Aboriginal Australians, defined by Mabo’s Tripartite Test, could not be considered Aliens had a deeply personal impact on the two plaintiffs at it secured their freedom from detention and right to live in Australia. It was only inevitable that more individuals in similar circumstances would come forward asserting their Aboriginality and demanding their own releases.
It was these cases that followed that put Mabo to the test and further complicated the area.
Webster - A Wathaurong man claiming Yolngu Recognition
Webster was a citizen of New Zealand who sought a writ of habeus corpus in order to secure his release from immigration detention where he had been held as an unlawful non-citizen since his release from prison on 28 January 2020 by reason of his claim to be an Aboriginal Australian and hence not an alien within the meaning of s 51(xix) of the Constitution.
The Minister accepted that Mr Webster did identify as a Wathaurong person for the purposes of the second limb of the tripartite test. However, the Minister argued that this was not sufficient to satisfy the mutuality of recognition that the second and third limbs required. That was because Mr Webster relied on his being recognised as an Aboriginal Australian, not by any Wathaurong person, but through his “cultural adoption” by the “Yunupingu tribe” in Gove, Nhulunbuy in the Northern Territory.
Webster was another landmark case in refining the application of the Tripartite Test, his bid was ultimately unsuccessful, with Federal Court Justice Rares stating:
I reject Mr Webster’s argument that, in applying the tripartite test, a person can be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically.
The essence of the second and third limbs of the test is that the person must be seen as incorporated as a member into a society (or people) because he or she is descended from its common forebears.
In short, Webster clarified the three limbs of the test were intertwined, to be considered an Aboriginal Australian according to Mabo’s Tripartite Test, an individual had to descend and identify with an Aboriginal group who mutually recognised them as a member of said group. This in itself places a lot of people into a questionable status, as like Webster, they may be recognised by an Aboriginal community that is not one from which they descend and/or with which they identify.
Helmbright - A people and their “Traditional Authority”
Like Webster, Helmbright was a New Zealand citizen in similar circumstances, he identified as a Tasmanian Aboriginal man, was provably a descendent of a Tasmanian Aboriginal woman, and was supported in his application by melythina tiakana warrana (Heart of Country) Aboriginal Corporation (mtwAC), an organisation that represents descendants of Aboriginal people living in north-eastern Tasmania at the time of first European settlement.
The major questions in Helmbright differed from Webster, as the argument’s to be determined were:
Whether the Court was bound to define Aboriginality according to the test in Mabo v Queensland, or whether the Court was free to adopt an alternative test, namely the test set out in Commonwealth v Tasmania ( ‘Tasmanian Dam Case’), and
if bound by the test in Mabo, what the content of that test was and whether it included a requirement that a person be recognised by a group which meets the requirements of a ‘Yorta Yorta’ society; and
whether the applicant was an Aboriginal Australian by reference to the appropriate test
Justice Mortimer of the Federal Court decided in the following:
a single judge of the Federal Court is not free to adopt a different test to the one set out in Mabo.
The Mabo test requires ‘biological descent from the indigenous people’ and ‘mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people’ .
Applying the Mabo test as understood in this case, Mortimer J concluded that Mr Helmbright had proven the descent limb and the self-identification aspect of the mutual recognition limb, but had not proven the second aspect of the mutual recognition limb. He had proven that he was recognised by the community mtwAC represents, but had not proven the recognition had been given by ‘elders or others enjoying traditional authority.’
Whether the group had to hold native title, which the Minister attempted to argue should be the case - the ‘Must Hold Native Title Approach’ was also considered. Her Honour held that the holding of native title was merely contextual, not definitional. In other words, it was not a requirement to identify as Aboriginal that can prove membership of a native title holding group, the important concept was the existence of elders or others enjoying traditional authority derived from traditional law and custom.
Essentially a group’s law and custom may not be sufficiently observed/practised to establish native title rights, but still may be sufficiently there to possess ‘traditional authority’ that can recognise the group’s members.
However, following Helmbright, another difficult question arises: What about people who identify with the Aboriginal group they descend from, but said group does not have a ‘traditional’ authority?
Join us in Part IV where we will try and bring it all home and answer the hard questions:
Will Mabo be the only definition?
What about Aboriginal group’s who don’t meet the Mabo definition?
How does this ultimately affect Aboriginality?