The Burden Of Proof
Who Is An Aborigine?
From Part 1 of 'The High Court In Mabo' (1995)

Another dimension to the Mabo Edict and the legislation enacted by the Commonwealth Parliament (which appears inevitable) is the nature of title and the burden of proof that will be placed upon claimants who seek to establish native title. The High Court criteria, if rigidly applied, may mean that successful claims are few and far between. The Commonwealth legislation, depending on the way it is interpreted, may provide more rights to Aborigines and Aboriginal groups.

Will the question of "who is an Aborigine?"receive the attention it deserves?

What is the definition of an Aborigine entitled to make claim to native title? The issue predates the Mabo Edict, but the High Court had the option of restricting the scope of their judgement to apply to the Murray Islanders. They did not. They provided a decision which in its scope could be extended to the mainland Aborigines. Therefore if reason, commonsense and assumption of responsibility had moved their minds, they would have addressed that question.

"A person who feels like an Aborigine" seems able to claim the various benefits which are available to Aborigines under existing legislation law. It seems reasonable that if title to land maybe claimed by Aborigines, the claim should be limited to full blood Aborigines and not to those of mixed racial composition.

There is another issue which is related to the question of who is an Aborigine. Many Aborigines voluntarily left their land to seek new horizons and pursue new opportunities offered in cities, towns, farming properties and the missions. They also left because of the lure of material goods, jobs and opportunities. Others left because they wanted to escape the harsh operations of tribal laws and customs. Should these people be entitled to the benefits of Mabo and the legislation which follows it?

There is however the possibility that these issues may not be rigorously examined by the tribunals who make the primary decision. Since what is involved are questions of fact, at the appeal level objections may not be entertained. An appeal court adjudicates on questions of law, not issues of fact.

The crucial issue is whether the Claims Tribunals will scrupulously and fairly scrutinise claims or whether they will be pressurised by the Aboriginal rights lobby. This is related to whether persons with good legal minds or social justice activists will be members of the tribunals.

The proliferation of claims will depend on the way in which the Claims Tribunals operate.