In the 1980s, the Commonwealth Department of Aboriginal Affairs proposed a definition of an Indigenous Australian as a person of Aboriginal or Torres Strait Islander descent who identifies as Aboriginal or Torres Strait Islander and is accepted as such by the community in which he or she lives. In short, three elements, in very simplistic terms: you have some Aboriginal blood, you identify as one, and you are accepted by your mob.
It is a most detailed, yet at the same time a most vague, definition of an ethnicity. It is imprecise, largely subjective, and doesnâ€™t make much sense if it were applied elsewhere, in similar circumstances.
For example, my motherâ€™s fatherâ€™s motherâ€™s mother was Austrian â€“ von Fall, I believe â€“ which makes me one sixteenth Austrian (Austrian-Australian?). I donâ€™t, though I could, identify as Austrian, and I could conceivably find some people in Austria (perhaps my very distant relatives, if any still survive) who would accept me as Austrian. But would I really be Austrian if the other fifteen sixteenth of me are not? Itâ€™s all rather meaningless, and arcane, in a how-many-angels-can-dance-on-the-head-of-a-pin sense. This sort of obsessive biology sometimes reminds me of the Nazi quest to prove racially â€œpureâ€ heritage, in the case of SS members going back two centuries. Nowadays it does not seem to matter anywhere else except in the context of Indigeneity. There are many reasons for that exception, none particularly elevating. For example, it allows you to assume a victim status as a complainant under the Racial Discrimination Act. Also, unlike hundred or even fifty years ago, Aboriginal heritage is nowadays considered quite fashionable, perhaps even more than having convict forbearers.
Over the years, judges in particular have tried to refine and clarify the Departmental definition. In 1990, in Attorney-General (Cth) v Queensland, Spender J argued that â€œnon-trivialityâ€ of Aboriginal descent is sufficient in itself to establish Aboriginality, without however defining what is non-trivial. Would my one sixteenth Austrianness be trivial or non-trivial? Five years later, in Gibbs v Capewell, Drummond J posited that mere self-identification and community acceptance, without a genetic link, (for example through adoption) are not sufficient. However, in 1998, in Shaw v Wolf, Merkel J argued that
Given the history of the dispossession and disadvantage of the Aboriginal people of Australia, a concealed but nevertheless passed on family oral â€˜historyâ€™ 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.
He concluded that â€œIt is unfortunate that the determination of a personâ€™s Aboriginal identity, a highly personal matter, has been left by a parliament that is not representative of Aboriginal people to be determined by a court which is also not representative of Aboriginal people.â€ In other words, Aboriginal people should decide who is Aboriginal. This would be all well and good if it was merely a cultural matter of genealogical interest. But we need a legal definition because Aboriginality has legal consequences, for example in terms of eligibility for special government benefits or affirmative action policies.
In an ideal world, we would be judging person not on the colour of their skin, but the content of their character, or indeed their objective circumstances. If we want to help underprivileged people it shouldnâ€™t matter that some of them are white and some of them are black. Sadly, we donâ€™t live in an ideal world. Instead we live in a seemingly post-racial, enlightened world, which in reality is as obsessed with race and group membership as any an old â€œrace theoristâ€ of the 19th century, measuring skulls, or a Nazi genealogist sifting through centuriesâ€™ worth of birth certificates and parish records.
In some (unfortunate) regards, the Australian definition of Indigeneity seems unduly restrictive with its requirement for descent or the actual genetic link to the pre-1788 inhabitants of the continent. We live in a world of imaginary identities. There are no binarities but only fluid spectrums. If I can identify as a woman based on my subjective, unmeasurable feeling, why canâ€™t I identify as Indigenous? After all, we have been repeatedly told that gender is a social construct, but even more so race, which apparently has no meaningful biological basis to it (see, for example, the very recent â€œA Brief History of Everyone Who Ever Livedâ€ by the British geneticist Adam Rutherford). All truth is subjective, and therefore it follows that all identification must be self-identification.
In the end, I donâ€™t care who or what you choose to identify as. This is well in line with the liberal principle that you should be free to do what you want to do as long as youâ€™re not harming others. You should be free to identify as whoever you want as long as youâ€™re not harming others. But to this lofty statement needs to be added another qualification – â€¦and as long as your self-identification does not bestow on you rights or privileges not available to others.
This is the crux of the matter: thoughts, feelings, actions, can have far reaching consequences, legal and otherwise. And legal system cannot be based on wishes.