The decision by a group of Aboriginal political activists to sue Andrew Bolt in the Federal Court for racial vilification is a surprising one that may backfire in ways they hadn’t expected.
The case itself cannot avoid examining closely what constitutes Aboriginal identity. The minute that question is opened for serious discussion there are awkward political issues that follow. In fact, with a constitutional amendment currently being flagged by the Gillard government, this case may provide an opportunity to bring the vexed question of Aboriginal identity out into the open. Moreover, depending on the outcome of the case, it could provide a green light for the emergence of many more claimants who other Aborigines regard as completely phoney.
According to the statement of claim lodged in the court on September 7, law firm Holding Redlich is acting on behalf of a group of Aboriginal persons who want Bolt’s employer, the Melbourne Herald Sun newspaper, to remove from its website two articles he wrote in April and August 2009. They also want the court to restrain Bolt from writing similar material in the future. The articles at issue said that certain white-skinned people identified themselves as Aborigines and were representative of “a whole new fashion in academia, the arts and professional activism … For many of these fair Aborigines, the choice to be Aboriginal can seem almost arbitrary and intensely political”. Pat Eatock, acting on behalf of herself and six others (including former ATSIC chair Geoff Clark), said the applicants “were offended, insulted, humiliated or intimidated” by Bolt’s writings. Their lawyer, Joel Zyngier of Holding Redlich, who is acting pro bono, told the Melbourne Age newspaper:
We see it as clarifying the issue of identity—who gets to say who is and who is not Aboriginal. Essentially, the articles by Bolt have challenged people’s identity. He’s basically arguing that the people he identified are white people pretending they’re black so they can access public benefits.
As well as being a critical test of the extent of freedom of speech now permitted in this country, one observation worth making is that the offence for which Bolt is being sued is far from unique to his columns. Aboriginal activists have themselves been making the same accusation for a long time now, at least for the past five decades. Indeed, within Aboriginal politics and Aboriginal cultural disputes this has been one of the most commonly made allegations used against rivals. The language in which this debate has been conducted among Aborigines has always been far more offensive than anything in Bolt’s columns. Yet no Aboriginal person has ever faced court for this offence.
In 2001, after the Commonwealth government announced it would tighten eligibility for the right to vote in elections for the Aboriginal and Torres Strait Islander Commission, the head of the Tasmanian Aboriginal Centre, Michael Mansell, declared there were “more phoney than real Aborigines in Tasmania, and more than half the voters in the 1996 ATSIC election were not Aboriginal”. According to the Canberra Times, Mansell added:
With the coming of ATSIC, we got stuck with people trying to rort the system. Saying you’re Aboriginal is the password into ATSIC and its money. It’s happening all over Australia, though Tasmania has had one of the sharpest increases.
The newspaper continued:
Mr Mansell estimated that under the proposed system, about 60 per cent of Tasmanian “Aborigines” would be rejected, and nationally up to 70,000 self-proclaimed Aborigines would be denied their claimed descent.
Mansell and his colleagues had previously gone to the Federal Court to stop these “phoney” Aborigines from voting in ATSIC elections. They said their opponents were simply white people identifying themselves as Aborigines in order to gain access to greater welfare benefits and to make claims for land rights.
Mansell’s political objective in these statements was to deny any status to rival Tasmanian groups who were challenging his control of the substantial state resources provided to Aboriginal organisations. Although he was unsuccessful in a Federal Court action to deny the rival Lia Pootah community a vote in ATSIC elections, he did manage to prevent them voting for the Tasmanian Aboriginal Land Council, an organisation run by his cousin, and the principal source of the wealth of his establishment.
This kind of disputation is not confined to Tasmania. Throughout ATSIC’s existence from 1990 to 2005, legal aid and pro bono lawyers supported Aboriginal legal challenges to its elections. In 1993, one candidate, the Charleville Aboriginal Legal Service chairman Lyle Capewell was publicly accused of not being Aboriginal. In 2002, ATSIC councillor Wayne Baker, a member of the Goolburri Regional Council in southern Queensland, was said by other councillors to be not Aboriginal, despite his claim to be descended from the indigenous Cooma people. According to the Australian, the chairman of the Cooma Aboriginal Land Corporation said, “No one has ever considered him part of our mob.” Two of his cousins also told the newspaper that their great-grandmother, from whom Baker claimed Aboriginal descent, was a white woman of Irish and English ancestry.
Aboriginal identity has well-known legal and financial implications. Since the nineteenth century, Australian parliaments have made laws and regulations directed specifically at Aboriginal people. Today, in terms of access to public money and assistance, being an Aborigine is a positive benefit. Hence governments have an interest in being able to clearly identify genuine from bogus claimants. However, if the Bolt case sets a precedent that prevents others from publicly identifying false Aborigines, the racial vilification laws will have some unintended consequences. They may actually help perpetuate fraudulent claims.
For instance, in December 2000, the Brisbane Courier-Mail reported complaints by Aboriginal activists in the Wide Bay district of Queensland about more than 100 locals of Sri Lankan descent who had received millions of dollars worth of benefits, including housing loans, business loans, study grants, employment preferences and legal assistance by posing as Aborigines. One of these imposters was charged with illegal fishing. He responded by claiming his right under the Native Title Act and persuading Aboriginal Legal Aid to defend him. He eventually lost the case when prosecutors demonstrated he had no Aboriginal ancestry. It is unlikely that this exposé would ever have been made in the first place had the threat of racial vilification been in the minds of those who blew the whistle.
Disputation over real and fake Aboriginality has been an issue since the rise of radical Aboriginal politics in the 1960s. At that time, the people running the political agenda and enjoying the most publicity were tertiary-educated part-Aborigines from the southern cities. In northern and central Australia, the minority of part-descent people who had a mission education were identified quite distinctly from those of full descent. In 1975, the missionary-cum-anthropologist Theodor Strehlow wrote of central Australia:
None of the institution-trained part aboriginals were hence regarded as belonging to the full-blood population, and their “land rights”, if any, were at best illusionary in the eyes of the full-blood aboriginals.
Indeed, the full-blood Aborigines did not regard anyone but themselves as genuine. They especially resented it when part-descent, left-wing radicals professed to speak on their behalf. In 1968, when part-Aborigine Charles Perkins started a public debate about how Australia needed a Black Power movement like that of the United States, full-blood Aborigines in the Northern Territory put him in his place. The Melbourne Herald quoted Clancy Roberts, a full-blood man from Roper River, saying:
We don’t want Black Power and we don’t want people advocating it for us—especially people who are not aboriginals.
David Daniels, a full-blood member of the Nunggubuyu people, said of Perkins:
He is not a full-blood Aboriginal. He can’t know how full-blood aboriginals think and feel—but I can tell him we don’t want Black Power.
Indigenous identity in education and the arts
More recently, Aborigines of part descent have themselves made a similar distinction within their own ranks between the bogus and the authentic. This has been especially apparent in the arts and in tertiary education where serious charges about the legitimacy of a number of people posing as Aborigines have long been made.
In the tertiary education system, for some decades now prospective students who claim an indigenous background are accepted as such without any further checking, thereby gaining admission to university courses they would not otherwise qualify for. Moreover, some people appointed to academic positions reserved for Aborigines have been subjected by other Aborigines to vociferous public denunciations about their eligibility, as the example of Greg Lehman in Tasmania in John Izzard’s article in this edition records.
For someone to be accepted as an indigenous artist, writer or cultural performer, who is thereby eligible for grants and awards unavailable to non-indigenous people, there are no rigorous tests. Claims of Aboriginality are taken at face value and the onus is on those who are suspicious of such claims to challenge them, obviously at considerable risk to themselves from potential defamation suits or, depending on the outcome of the Bolt case, charges of racial vilification.
The Wanda Koolmatrie hoax demonstrated how slack is the ethnic gatekeeping in the contemporary arts industries. In 1994, Bruce Sims of Magabala Books, a firm generously supported by both West Australian and Commonwealth government arts grants, published Wanda Koolmatrie’s autobiographical novel, My Own Sweet Time. The book won the 1995 Nita May Dobbie Award for a first novel by a woman, the New South Wales Education Department’s Board of Studies put it on the reading list for the high school English curriculum, and it made the short list of the 1996 New South Wales Premier’s Award for Literature. In 1998, Leon Carmen announced that Wanda Koolmatrie did not exist and he was the book’s real author. He had perpetrated the hoax to protest the fact that work he submitted under the name of a young black woman could win literary awards, but when he had submitted novels under the name of a middle-aged white man, he could not even get published.
In the 1990s, when Sally Morgan’s book My Place (1987) became one of Australia’s best-selling books, it generated a response among Aboriginal critics that ranged from envy to outright hostility. Morgan grew up in suburban Perth not knowing that her grandmother was of Aboriginal descent. The book tells of her discovery of this ancestry and her journey back to Western Australia’s north-west to find her distant Aboriginal relatives. In an article in the journal Australian Historical Studies (April 1993), the Aboriginal political activist Jackie Huggins denied the book described the experience of an authentic Aboriginal person:
I read the first three chapters and thought I was reading the life of a middle-class Anglo woman. I could not identify anything which told me Morgan was an Aboriginal person except the part about our common Aboriginal Study Grant. From my perspective, instead of a “Who Dun It?” it is a “Who Are You?” …
As a Black writer I could not understand nor find a path through this maze of Anglified hyperbole. Overall there is little which indicates the writing and story of an Aboriginal …
Morgan’s statement that “We had an Aboriginal consciousness now” implies that her journey back to her people had not only validated her Aboriginalness but had given her automatic status also. She more than anyone else would realize that this is not the reality, as Aboriginality cannot be acquired overnight. It takes years of hard work, sensitivity and effort to “come back in”. Forgotten people will tell you so. The debt has to be repaid in various ways. It’s a socialized learned pattern of behaviour and while the blood and spirit are fixed categories, there are protocols and ethics to adhere to when “becoming Aborigines” again.
Huggins denied that genetic inheritance was sufficient to make someone an Aborigine:
Of course genetic inheritance does not only determine identity in an Aboriginal society as there are other inescapable and compounding factors which influence “being” Aboriginal. For instance, acceptance by the community in which one lives and being actively involved to alleviate the disadvantaged positions of Aboriginal people per se. Solely swallowing the genetic cocktail mixture does not constitute “being” Aboriginal as so many Johnny-come-latelies would have whites believe.
At the time, these sentiments were obviously not regarded as vilification. They were acceptable not only to Huggins but to those responsible for their publication, which included the journal’s editors, historians Stuart Macintyre and Marian Aveling, and its publishers, the Department of History at the University of Melbourne. All would appear to have been involved in a fairly severe challenge not only to the Aboriginal identity of Sally Morgan but also to that of her mother and siblings, who were all born in suburban Perth and never grew up in an Aboriginal community but who today advertise on the internet their descent from the Palkyu people of the eastern Pilbara.
Today, Morgan and her family are prominent members of the Aboriginal establishment and make six-figure earnings from their identity. Sally Morgan is Professor in the Graduate Research School and Director of the Centre for Indigenous History and the Arts at the University of Western Australia; her sister Jill Milroy is Dean and Winthrop Professor in the School of Indigenous Studies at UWA; her other sister is Professor Helen Milroy, Director of the Centre for Aboriginal Medical and Dental Health at UWA and a member of the Indigenous Implementation Board of the Western Australian Department of Indigenous Affairs. Their mother Gladys Milroy also writes books for indigenous school children, edited by Sally and subsidised by the School of Indigenous Studies at UWA.
Yet Huggins directed her most vitriolic comments at people of Aboriginal descent like this who passed over into white society and whose books were given “an act of passing” that allowed them to be paraded through the literary world in ways acceptable to white people:
The act of passing is a horrendous crime in Aboriginal circles and places of knowing. Most Aboriginal people never ceded their identity no matter how destructive, painful or bad the situation was. We vindictively remember those who have passed and (unlike whitefellas and largely those who study us) can never forget nor forgive these traitors.
A similar dispute took place in Western Australia in 1997 over the status of the acclaimed writer and literary critic Mudrooroo (born Colin Johnson). After his sister publicly claimed their descent was not Aboriginal but from a father of African-American background who migrated to Australia, the co-ordinator of the Dumbartung Aboriginal Corporation, Robert Eddington, denounced Mudrooroo’s claim to Aboriginality and to being one of the Nyoongah people:
His deception is an example of the on-going and continued spiritual colonization of our people … a continuation of genocide … Unless you’ve got Aboriginal blood, you can’t claim to be Aboriginal.
The Aboriginal academic Rosemary van den Berg of Curtin University added:
I ask you, where does that leave the indigenous people, the Nyoongar people, whose cultural identity he has stolen and made use of for his own ends? … Are we to let this imposter make fools of us? What can we, as Nyoongars and as Aborigines do, especially when this man’s white wife is legitimately called Mrs Nyoongah. It is a farce and an insult to my people, the Nyoongars of the south-west of Western Australia.
In response, Mudrooroo said those Nyoongah people who repudiated his ancestry were speaking in the violent accents of Western racism that culminated in Nazism.
It hardly needs saying that the terminology used throughout these literary debates—“horrendous crime”, “traitors”, “spiritual colonization”, “genocide”, “imposter”, “farce and insult”, “racism”, “Nazism”—is far more intimidating than anything subsequently written by a non-Aboriginal author. Those who drafted the various Australian racial vilification acts clearly never intended they would be used against Aboriginal offenders. In practice, no prosecution has ever been launched against an Aborigine. In other words, the laws of racial vilification are themselves racially selective.
The origins of Aboriginality
One of the more thoughtful contributors to this debate has been the Aboriginal activist and academic Marcia Langton. In an article in the socialist journal Race and Class in 1994, she argued that Aboriginality was not determined simply by self-identification or even use of an Aboriginal language or membership of a kinship system. Aboriginality, she argued, is created by the history and social relationships of those involved. “It arises from the intersubjectivity of black and white in a dialogue.” Langton emphasises that Aboriginality is not a fixed thing but something created from, and shifting with, the relationships involved. She writes:
“Aboriginality” arises from the subjective experience of both Aboriginal people and non-Aboriginal people who engage in any intercultural dialogue, whether in actual lived experience or through a mediated experience such as a white person watching a program about Aboriginal people on television or reading a book.
Before white settlement, Langton argues, there was no Aboriginality in the sense used today. The term “Aboriginal” and the implications of the concept only began to take shape in Australia after colonisation. “Before contact, there were Yolngu, Pitjantjatjara, Walpiri, Waka Waka, Guuge Yimidhirr, or whatever the ‘Gadigal’ or ‘Eora’ actually called themselves.”
In pre-contact times, across the Australian continent the original inhabitants lived in small groups, not much bigger than extended families. They normally regarded those outside their own clan as strangers and enemies. It was only long after white settlement, in some cases more than a century later, that the original inhabitants came to regard themselves as having common interests, experiences and identity. In particular, the establishment of missions, reserves and special legislation in the early twentieth century provided the institutional infrastructure in which a consciousness of being Aboriginal arose. Later, the news media provided a means of communication that rapidly spread this new sense of identity across the country. In other words, Langton is right to argue that white people were necessarily involved in creating the historical circumstances and awareness of being “Aboriginal”.
Another activist and academic, Gary Foley, has supported a similar position. In 1997, when the Nyoongah people were denouncing Mudrooroo as an imposter, Foley came to his defence using the same argument. Foley wrote:
Mudrooroo has the capacity to survive the “threat” to his identity because he understands what Marcia Langton means when she argues that the cultural and textual construction of “Aboriginality” consists of at least three broad categories that include experience between Aboriginal and Aboriginal (in context of their own world); between Aboriginal and non-Aboriginal in a context where “inherited, imagined representations” infused in the white consciousness dominate the exchange; and the third situation where there can be an actual dialogue between Aboriginal and non-Aboriginal.
This necessarily means there are multiple constructs of Aboriginality occurring daily in the life of a Koori person, and that each construct is determined by a given situation that exists in that particular time and space …
Because there are still numerous Aboriginal people in Australia (including me) who regard Mudrooroo as an Aboriginal person, he knows that rather than oppressing him and creating a “predicament” for him, the attempted confiscation of his identity has in fact liberated him to function as whoever he wants to be … To me Mudrooroo has lived the life of an Aboriginal person, displayed Aboriginal values, and will always be regarded by me as an Aboriginal.
Although this is, in my view, the most credible case for Aboriginal identity on offer, it is unlikely to win immediate support within the Australian community at large, where most people would baulk at the notion that ethnic identity is this malleable and so much the product of culture rather than genes. This is especially so given how very recently some claims for Aboriginal identity originated.
As I argued in The Fabrication of Aboriginal History, Volume One (2002), the political movement among Aborigines in Tasmania was a product of the 1970s and largely of the activism of one man, Michael Mansell. After the Whitlam Labor government began funding Tasmanian Aboriginal legal services in 1973, Mansell built its organisations largely from scratch. Mansell was born and grew up in the city of Launceston but his modern urban background was no inhibition to him identifying with the ancient hunter-gatherers. He became the chief spokesman for Aboriginal land rights and proved very adept at publicising his demands. In 1977 he gatecrashed a reception in Hobart to present a land rights petition to the Queen. He subsequently set up an “Aboriginal embassy” outside the Tasmanian Parliament in Hobart.
Yet at the same time, the less politicised members of Mansell’s own extended family had a quite different view of their identity. In the film by anthropologist Rhys Jones and director Tom Haydon, The Last Tasmanian (1978), two members of the Cape Barren Island community in Bass Strait, who were descended from early nineteenth-century English sealers and their indigenous wives, denied they were Aborigines, One of them, Annette Mansell, who was filmed practising the traditional islander occupation of muttonbirding, said:
I’m not an Aboriginal. I’m only a descendant of one. There are no Aboriginals now. There’s not much in any of us. There’s no tradition in Tasmania with the Aboriginals.
In an article denouncing the film in the Marxist journal Arena in 1978, Michael Mansell focused on these particular comments, which he labelled a “misrepresentation to make a more dramatic story”. They were actually much more than that. They were prima facie evidence that, when the interviews for the film were recorded in the 1970s, members of the Bass Strait island community did not identify themselves as Aborigines. The film revealed that one of the crucial components of Aboriginality, identification as an Aboriginal, was absent at that time.
The absence of Aboriginal identity was recorded in another book written by a member of the islander community, Molly Mallet, a woman who grew up on Cape Barren Island in the 1920s and 1930s. In My Past—Their Future: Stories from Cape Barren Island (2001), Mallet recalled: “We knew we were different but they—our parents—never told us we were Aborigines.”
The author Patsy Adam-Smith had made the same point in the 1960s, well before the current political movement emerged. She visited the Bass Strait islands many times over a twelve-year period and got to know most of the inhabitants for her very sympathetic book Moonbird People (1965). She said that while those she interviewed were well aware of their part-Aboriginal descent, they considered their community a distinct breed of people. They called themselves “straitsmen” and “islanders” and regarded themselves as neither European nor Aboriginal. They had formed a tightly-knit community in the nineteenth century but by the 1960s were abandoning the islands. As soon as their children were old enough, they were sending them to school in Launceston to become mainstream Australians. Adam-Smith concluded:
The race that began only a hundred and fifty years ago on the Furneaux is already dissolving into this pattern of life change, losing its identity, melting into the main stream of Australian community life.
All this suggests that, rather than Aboriginal culture and identity surviving down the generations through the Bass Strait islander community, it had a more modern source. It was not a product of any continuous cultural link to ancient people. Instead, it was invented in Launceston in the 1970s by modern, urban, tertiary-educated political activists like Michael Mansell, in most cases imitating the tactics and using the language of the black civil rights movement in the United States. This example could be multiplied several times over in the southern states of the Australian mainland in the same period. Suburbanites like Sally Morgan, who had grown up and identified with the other white people around them, discovered deep in their past an Aboriginal connection, however distant, and overnight declared themselves to be Aborigines too.
If governments remain determined to give people benefits and to protect them from vilification because they are Aborigines, they obviously need some means of deciding between real and bogus claimants. In at least one earlier dispute, however, a long and expensive case before the Federal Court proved incapable of making such a clear distinction to the satisfaction of Aboriginal litigants.
In the 1997–98 Tasmanian Aboriginal Centre challenge to the eligibility of eleven ATSIC voters, after a two-year hearing that cost $1.2 million and took 1000 pages of affidavits, Justice Ron Merkel accepted as genuine most of the electors in dispute, primarily on the grounds of self-identification and community recognition. He did this even though the Tasmanian Aboriginal Centre argued that the principal community it opposed, the Lia Pootah people, could not prove Aboriginal descent and that any community recognition it bestowed was therefore bogus. Of the eleven would-be voters, Merkel ruled only two ineligible: one man who failed to file his evidence on time and one woman whose family tree was actually disproven by documents her opponents found in the Tasmanian archives.
If the Commonwealth government wants to recognise Aboriginality in the Australian Constitution, this debate cannot be avoided. Those Aborigines like Marcia Langton and Gary Foley who argue for the “fluidity” of Aboriginal identity and who insist that it derives from “a process of dialogue, of imagination, of representation and interpretation” have the stronger argument. The ultimate logic of their position, however, is not something they may welcome. It means Aboriginality is not some natural or objective phenomenon that can be deduced from genes or family descent. It is a historical, cultural and political construct, and a recent one at that.
If this is so, it means that a great many people who now claim to be Aborigines are not members of something that could be called an Aboriginal race or even an Aboriginal ethnic group. It probably also means that those who Aborigines believe to be phoneys are likely to multiply exponentially in the future, at a rate correlating closely with the incentives on offer.
The rational approach to resolving the issue would be to deprive bogus Aborigines of any incentive to make their claims. That would mean abandoning special laws targeted at Aboriginal people, abandoning employment available only to Aboriginal people, and indeed abandoning any other benefit targeted specifically at Aborigines or any other ethnic group. It is not only good policy to make all laws, regulations and government benefits equally available to all Australians who qualify, regardless of race or ethnicity, it should also be obvious to everyone with eyes to see that the track record of special laws and programs, especially those of the “self-determination” era since the 1970s, has been nothing less than a catastrophe for Aboriginal people. Or I should say, apart from a small number of writers, artists, film-makers, academics and political activists of dubious authenticity who have all done very well for themselves, it has been a catastrophe.
Between them, the Andrew Bolt racial vilification case and the constitutional amendment are likely to do nothing more than generate another drawn-out, futile political and debating circus. They will simply open up new fronts for political accusation, disputation, envy and personal resentment little different from the dismal list of examples recorded here. They will do nothing for, and indeed very likely divert attention from, the problems that genuinely face Aboriginal people, especially in the remote communities. They will have no positive outcome of any kind. They will not prevent one case of domestic violence, child sexual abuse, malnutrition, petrol sniffing or foetal alcohol syndrome. They will contribute nothing to Aboriginal health or life expectancy. They will not make one more child go to school to learn to read and write so they can get a job and get off welfare. When will they ever learn?
“The Trial of Andrew Bolt (I): Designer Ethnicity” by John Izzard here…
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