Merkel v Merkel - The Justice and the Advocate
In late April 1998, Tasmanian Aboriginal woman, Ms Debbie Oakford had found herself in Federal Court before Justice Ron Merkel.
Ms Debbie Oakford appears before Justice Ron Merkel in Shaw v Wolf in 1998
She was there as a respondent in the case of Shaw v Wolf because the petitioners, two prominent members of the Tasmanian Aboriginal community, had challenged her eligibility to stand as a candidate in the Hobart ATSIC Regional Council elections.
The challenge to Oakford’s legitimacy was brought under the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC) (’the Act’) which states that, to be an eligible candidate for election, a person must be: ’a person of the Aboriginal race of Australia.’
The petitioners argued that Oakford was not an Aboriginal person for the purposes of the Act, because she was not a descendant of an Aboriginal person. They based their submission on what Merkel J termed the, ’traditionally accepted theory of the genealogy of Aboriginal Tasmanians.’ [Ref 1]
In her defence, Oakford had submitted what she thought was a detailed and accurate family tree that traced her believed Aboriginal ancestry,
’... through her father’s family back to Wottecowidyer, a daughter of the Aboriginal chief Mannalargenna; she also traces her mother’s family back to Teekoolterme, another daughter of Mannalargenna. ’ - [Ref 2]
Unfortunately for Oakford, her family tree proved to be wrong.
Evidence presented by Ms Robyn Eastley, the Senior Archivist in the Archives Office of Tasmania, ’...indicated that ... Ms Oakford’s version of her family tree may not be consistent with the historical records.’
Further family tree evidence provided in affidavit by a Ms Sculthorpe, based on historical records, raised, ’a persuasive case against the family tree put forward by Ms Oakford.’
In consequence, Merkel J, concluded:
”In my view, Ms Oakford’s material is inadequate to support her assertion that she is descended from Thomas Thompson, the son of Wottecowidyer. Her material does not support the suggestion that Thomas Thompson had a daughter Grace Brown. She has also produced no material to support the other aspects of the family tree in respect of which the petitioners’ [Ms Sculthorpe] material raises significant doubt.
In these circumstances I am satisfied that the Petitioners have established that it is improbable that Thomas Thompson, the son of Wottecowidyer, had a daughter Grace Brown who was Ms Oakford’s ancestor. There is also some doubt whether the Grace Brown Ms Oakford identifies as her ancestor was the daughter of Thomas Thompson Brown and Elizabeth Williams.
As a result I am satisfied, applying the Briginshaw principle [see below], that on the balance of probabilities the petitioners have established that Ms Oakford has no Aboriginal ancestry deriving from her father’s ancestors.” - (ibid., our emphasis)
Merkel J also assessed the presented evidence for Ms Oakford’s claims on her mother’s side and came to a similar conculsion,
“Having carefully considered all of the material and applying the Briginshaw principle, I am satisfied that the petitioners have also established on the balance of probabilities that Ms Oakford does not have Aboriginal descent deriving from her mother.”
The Court had accepted that Ms Oakford genuinely self-identified as an Aboriginal person, and found no reason to reject her evidence that she enjoyed some community recognition.
However, on the evidence and cross-examination, the petitioners had established that Ms Oakford had no Aboriginal ancestry deriving from either her father’s, or her mother’s, family tree.
The consequence of this was that Ms Oakford could not convince the court that she satisfied what former High Court Chief Justice Robert French has referred to as, ’statutory Aboriginality’ - the ’legal dimension’ of what it means to be Aboriginal - which is considered relevant during certain court proceedings [Ref 3].
There is a need in some circumstances for ’defining in a legal sense’ who is, and who isn’t, Aboriginal, notwithstanding how uncomfortable, personal and indeed ‘racist’ these enquiries might appear to be to some people.
Deliberations over a period of many decades concerning what constitutes ‘statutory Aboriginality’ has led us to where we are today, to the generally accepted - by the wider community, by government departments and apparently by most Aboriginal and Torres Strait Islander peoples themselves - Three-part (tripartite) ‘working definition’ of Aboriginality, viz:
An Aboriginal or Torres Strait Islander is a person
- of Aboriginal or Torres Strait Islander descent
- who identifies as an Aboriginal or Torres Strait Islander and
- is accepted as such by the community in which he [or she] lives.
Unfortunately for Debbie Oakford, Merkel J decided that if it can be shown that a claimant’s belief in their own Aboriginal ancestry or descent, no matter how sincerely and deeply believed, is based on a mistaken, inaccurate, or even a false or fabricated, reading of the historical and genealogical records, then that person’s claim to Aboriginal descent will not stand up legally.
As the ABC Four Corners program recorded at the time, Ms Oakford was deeply disappointed.
But the applicants were not fully happy with Justice Merkel’s full decision either. Despite the applicants defeating Ms Oakford’s claim to Aboriginality, Merkel J nonetheless found that the case against the other nine, perhaps equally mistaken, claimants failed because, in the example of Mr Courto for instance,
“I am not satisfied on the material before me that the petitioners have established, on the balance of probabilities, that Mr Courto does not have any Aboriginal ancestry.
Neither the respondents nor the petitioners’ account is supported by formal archival records. In the absence of any written historical records as to the parents of Eliza Dare, the only historical material before me is the acknowledged family “rumour” or account of the father of Eliza Palmer being an Aboriginal blacksmith. The petitioners’ view that her father did not have any Aboriginal ancestry is also, essentially, a matter of hypothesis.
Although the Drysdale article identifies two members of the Dare family who deny that Eliza Dare had any Aboriginal ancestry, the “Dare Book” compiled by another relative, of a similar age to the relatives interviewed by Mr Drysdale, indicates that there are other relatives who are of the opinion that Eliza Palmer’s father was Aboriginal. The photograph of Eliza Palmer, which does show that she appears to be a woman of dark skin colour, may offer some support for that opinion.”
In other words, if no credible and convincing genealogical or historical evidence is put forward to dispute a person’s claim to Aboriginal ancestry or decent, then their strongly believed family “rumours” and/or family oral history, as well as contemporary photographs, will most likely suffice to convince a Ron-Merkel-minded judge that their claimed Aboriginality is truthful.
This understanding and legal guidance by Justice Ron Merkel in deciding who is, and who isn’t, Aboriginal, was to have significant repercussions some thirteen years later.
Fast forward to the year 2011 and once again we find Ron Merkel QC in a Federal Court, involved in a case that is all about the meaning of Aboriginality. But this time he is not the judge - rather he is the advocate for the applicant in what would become the notorious Eatock v Bolt case .
At 2:20pm on Monday 28 March 2011, Mr Ron Merkel QC stood in court before Justice Mordecai "Mordy" Bromberg and asked:
MR MERKEL: And your Honour, can I now read the witness statement of Pat Eatock, which is Exhibit A8, at tab 16? [Ref 4, p51ff].
The Applicant Pat Eatock represented by Ron Merkel QC at Eatock v Bolt in 2011
HIS HONOUR: Yes.
MR MERKEL: Pat’s witness statement, she says:
“I am an Aboriginal person with Aboriginal ancestry. My grandmother, Lucy Eatock, was born in Carnarvon Gorge in central Queensland in 1874. This is an Aboriginal birthing place, an Aboriginal women’s place, an Aboriginal commitment place. She was one of the Kirri people.
My grandmother’s mother was an Aboriginal woman called Kitty. My grandmother had a non-Aboriginal father. My grandmother’s father was, I believe, Adam Wakenshaw, although she was raised by his older brother, Alexander Wakenshaw. Adam Wakenshaw was a carter. Carters often had Aboriginal women as slave sex partners or assistants. My grandmother lived with my mother and our family from 1947 until her death in 1950. I have photos of Lucy; she is clearly Aboriginal but not particularly dark.
My grandmother’s husband, my grandfather, was an Aboriginal man, Bill Eatock. They married in 1894. He looked very Aboriginal. I have seen a photograph of Bill; he had a very black face and a long white beard. Bill was from the Woga Woga Waka Waka people from the Queensland coast from Fraser Island to Moreton Bay. Lucy and Bill had nine children, two girls and seven boys, including my father …
My father, Roderick Eatock, was the second youngest of Lucy’s nine children. He was born on the banks of the Darling River in 1909. I have lots of photos of my dad, and photos of some of his brothers. He was dark, much darker than his mum, Lucy. My mother was Elizabeth Stephenson Anderson. She was born in 1909 in Scotland and came to Australia in about 1928…”
Very surprisingly, when Mr N.J. Young QC, counsel for the respondent Andrew Bolt, came to examine Pat Eatock and her witness statement, he appears to have accepted her detailed claims regarding her Aboriginal ancestors at face value - no questions asked, beyond the following short exchange that offered a glimpse of an interesting line of enquiry, but which instead just fizzled out into nothingness:
Mr Young: When was it that you and your sister Joan started to do research on your family history?
Pat Eatock: That’s two questions.
Mr Young: When was it that you, personally, started to do research on your family history?
Pat Eatock: When I started university, and started studying history, I became very aware of the importance of history, and I did five years of history. And during that process, I studied things like African history and women’s history. And during that, it became also personal history and Aboriginal history.
Mr Young: Yes, I’m just looking for a date, Mrs Eatock. When did you - - -?
Pat Eatock: Well, I started university in 1973, so I suppose around about then.
Mr Young: Yes. All right. And - - -?
Pat Eatock: I did Australian history that year.
Mr Young: Yes. And so it was in the years following 1973 that you started to research your family history, is that correct?
Pat Eatock: Yes, I would say so.
Mr Young: Yes. Now, you suggest that I asked two questions. When did your sister Joan become involved in that process of researching your family history?
Pat Eatock: I’m not really sure.
Mr Young: Well, she did become involved, did she not?
Pat Eatock: She did, and she wrote a book on it [Ref 5].
Mr Young: And sometime after 1973, I take it?
Pat Eatock: Yes.
Mr Young: Now, you and your sister Joan have taken a view, or expressed a view in the family history about your family descent lines, have you not?
Pat Eatock: I’m sorry, I cannot accept responsibility for anything that Joan wrote. We have – we had, while she was alive, we had disagreements about interpretation in very many parts of that book.
Mr Young: Yes, all right. Well, let me ask you this: some of your relatives do not identify themselves as Aboriginal, as you do?
Pat Eatock: That’s right.
Mr Young: They’ve made different decisions about their Aboriginal identity?
Pat Eatock: That’s right.
Mr Young: Nothing further.
As Mr Young sat down, others in the court wondered why he had failed to see the path that the cross-examination should have taken - where were the corroborating written records that Pat had uncovered during her five years of history study to support her belief that ancestors Lucy, Kitty and William (Bill) were Aboriginal? Where was her evidence to support her slanderous ‘sex-slave’ and adoption accusations against Adam and Alexander?
But Mr Young did not see this, or perhaps he did not want to see this - it was a path into the heart of an Aboriginal woman’s claims about her Aboriginal ancestors, and that was a path along which he lacked the courage to tread……and the rest, they say, is history.
Until now.
Very coincidently, it would again be another thirteen years exactly when the public’s mind would be once more prompted to think about who is, and who isn’t, Aboriginal in Australia in the eyes of the law. The legacy of the late Pat Eatock and her testimony were once again to be cross-examined, but this time with the backing of professional genealogical and historical researchers - and a very angry ex-respondent from 2011.
Regular readers of the Dark Emu Exposed website will know where this is leading and all will be revealed tomorrow night, September 12, in Part 2 of the Pat Eatock story.
References
1. Connell, Rachel -"Who is an 'Aboriginal Person'?: Shaw v Wolf" [1998] IndigLawB 49; (1998) 4(12) Indigenous Law Bulletin 20
2. see point 4-Debbie Oakford p37 : Shaw v Wolf [1998] FCA 389; 83 FCR 113; 163 ALR
3. Justice Robert French, ABORIGINAL IDENTITY – THE LEGAL DIMENSION, Australian Indigenous Law Review, Vol. 15, No. 1 (2011), p19
4. Eatock v Bolt - TRANSCRIPT OF PROCEEDINGS, O/N 160844, FEDERAL COURT OF AUSTRALIA, VICTORIA REGISTRY, BROMBERG J, PAT EATOCK and ANDREW BOLT and ANOTHER, MELBOURNE, MONDAY, 28 MARCH 2011, DAY ONE
5. Joan E Eatock, Delusions of Grander, jukurrpa books, Alice Springs, 2003
Further Reading
1. The Wisdom of Justice Ron Merkel in 1998
Justice Ron Merkel wisely invoked the Briginshaw Princliple during his deliberations in Shaw v Wolf [1998],
I have carefully considered these matters and arrived at the conclusion that in the present case the importance and gravity of the consequences flowing from a finding that any of the defending respondents is not an Aboriginal person is a consideration which, using the words of Dixon J in Briginshaw at 362 “must affect the answer to the question whether the issue has been proved” or, in Sodeman at 216, makes it proper to require “greater care in scrutinising the evidence.”
Clause 23 of Sch 4 requires that the Court be guided by the “substantial merits and good conscience of each case without regard to … whether the evidence before it is in accordance with the law of evidence or not.” Clause 23 enables a petitioner to seek to establish a respondent’s ineligibility without that respondent having the protection of the law of evidence which is, essentially, built on principles of fairness. That affords an additional reason for exercising greater care in scrutinising “the evidence.”
In my view, given the serious consequences for the defending respondents of an adverse finding, in the present case, good conscience and principle require that the Court should not lightly make a finding on the balance of probabilities, that any of those respondents is not an Aboriginal person as defined in the Act…”
The Briginshaw principle is the idea that ‘the strength of evidence necessary to establish facts on the balance of probabilities, may depend on the nature of what is sought to be proven’. In particular it holds that cogent or strict proof is necessary to support a judicial finding of serious allegations, such as fraud, sexual assault or anti-discrimination [or, in the case here, claimed Aboriginal ancestry or descent], due to the relative seriousness of those types of civil allegations. It also stresses that the balance of probabilities is the applicable standard of proof in all civil proceedings, subject to statute. (Wikipedia)
These thoughts thus lead us to appreciate the wisdom in Merkel’s J findings in Shaw v Wolf. There he dealt with the issue of the onus and standard of proof to be applied in the cases where there was dispute as to which party was obliged to make the case of Aboriginality or non-Aboriginality. He found that the party making the claim that someone was ’not an Aboriginal person’ had the onus of establishing the proof of that allegation.
Importantly, Merkel J considered, ’the importance and gravity of the consequences flowing from a finding as to whether a person is or is not an Aboriginal person.’
He concluded that, ’it is appropriate to apply the Briginshaw standard to the issue of whether the [claimants] have established that a particular respondent is not an Aboriginal person’.
Merkel J stated that,
”In my view it is clear that the determination of the issues arising in the present case carry significant consequences for each of the individuals concerned. A finding that any of the relevant respondents is not an Aboriginal person, as that term is understood in current Australian parlance, can have a severe and deeply personal impact on the particular respondent’s identity, family and communal relationships and entitlement to participate in programs for the benefit of Aboriginal persons. On the other hand the Act [the now repealed Aboriginal and Torres Strait Islander Commission Act 1989 ] mandates, and there is a public interest in ensuring, that only “Aboriginal persons” as defined vote and stand as candidates at elections held under the Act”.
Consequently, based on Merkel’s J finding, it is a requirement that any alleged family trees of people claiming to be of Aboriginal descent must be constructed to a standard that ‘those skilled in the art’ believe would satisfy the Briginshaw standard. Thus, alleged family trees need to be constructed by a qualified genealogist using information which can come from family members themselves, but always must be corroborated by reference to publicly available genealogical records and archival sources. The findings should be sent to the person under study, the one claiming Aboriginal descent, for their comments and corrections as need be, prior to publishing. Any disclaimers [which will be necessarily required in research work such as this] should be clearly stated, for example regarding the possibility of an unrecorded birth or adoption of an Aboriginal person into the family tree.
2. The Lack of Preparedness of Mr Young in 2011
After watching Mr Young’s cross-examination of Pat Eatock go nowhere, one wonders what Mr Young’s ‘learned friend’, Mr Merkel was thinking, as he sat on the adjacent bench?
One might speculate that perhaps it was something like this:
‘Why hasn’t Young prepared for this? All he needed to do was to get the geneological work done on Pat’s claimed ancestry, which would have certainly raised great doubts about the veracity of her claims. Even I can see that her family story doesn’t look quite right - Has he checked to see if there really were tribes called the “Kirri” and the “Woga Woga Waka Waka”? Where’s Lucy birth certificate? Does it say, ‘Born according to Aboriginal birthing rites, Carnarvon Gorge’?’
‘Who knows - maybe Pat is just making it all up and she is actually mistaken to believe that she has the Aboriginal ancestors that she claims to have? If she isn’t of Aboriginal descent, she probably wouldn’t have any standing as an applicant in this case.
Hasn’t Young read my judgement in Shaw v Wolf ? - “don’t worry about tackling her claimed self-identification and community standing, both of which she obviously has - it’s her descent claims that should be your focus, man. Even your agitated client Mr Bolt, sitting behind you, can see that.”
Fortunately, others with ‘Ron-Merkel-like minds’ were watching and have been thinking ever since. Maybe it is their time now to respond.
