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  • 22 Rights in Society – from discrimination to intellectual property
  • Indigenous Law
  • Who is an Indigenous person?
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In this chapter Expand current chapter list below

Who is an Indigenous person?

Firstly, it is important to note that the appropriate use of  language is an area of sensitivity. The Aboriginal Lands Act 1995 (Tas) and other legislation use the term ‘Aboriginal person’. In other contexts, it is important to use terms chosen by Aboriginal Australians and Torres Strait Islanders.

The Aboriginal Lands Act 1995 (Tas) defines an Aboriginal person as someone who can establish they have Aboriginal ancestry, self-identification as an Aboriginal person and communal recognition by members of the Aboriginal community (s3A). This is the same definition as accepted by the High Court of Australia in the 1983 ‘Tasmanian Dam Case’.

In 1996 two members of the Aboriginal Tasmanian community challenged the Aboriginal identity of 11 of the 34 candidates for the election of the Tasmanian Regional Aboriginal Council. The case was dealt with by the Federal Court (Shaw & James v Wolf & Ors [1998] FCA 389). The court held that Aboriginal descent was essential but ‘self-identification’ and ‘communal recognition’ could be relevant factors in any particular case. It also held that in this particular case it was up to the challengers to prove that the candidates were not Aboriginal. The challenge was largely unsuccessful, and the decision has little practical effect in most areas particularly as the onus of proof and standard of proof made it practically impossible for the applicants to establish their case.

Generally the onus is on the person seeking to have their status recognised as an Indigenous Australian. What proof is required varies with circumstances.

Page last updated 28/02/2022

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