01 June 2021


'Traditional Laws Meet Emerging Biotechnologies: The Impact of Genetic Genealogy on Indigenous Land Title in Australia' by Elizabeth Watt, Emma Kowal, and Carmen Cummings in (2020) 79(2) Human Organization comments 

The increasing popularity and availability of genetic testing has the potential to play into debates surrounding forms of Aboriginal and Torres Strait Islander land ownership known as “native title.” This paper draws on research with applied anthropologists working in native title, and a review of descriptions of native title holders in existing determinations, to address three key questions: Are native title holders and claimants interested in using genetic genealogy for claiming native title or resolving membership disputes? If so, can this biotechnology offer them the kind of information they seek? And finally, does the legal framework allow or support its use for these purposes? Our findings highlight the importance of disseminating current information about genetic genealogy among Indigenous Australians and having frank conversations about the opportunities and limits of genetic technologies in this context. 

 The authors state 

On November 8, 2017, the second author of this paper received an unexpected email. It was sent by a lawyer representing three Indigenous citizens of the Australian state of Queensland. They had been dismissed from their roles as cultural officers in the Barada Barna Indigenous Corporation (BBIC) a year earlier. All three were members of one family, who’d been active in the Barada Barna people’s campaign to claim their ancestral lands under the Native Title Act, 1993 (Cth). Shortly after the claim succeeded in 2016, the board of BBIC, the Registered Native Title Body Corporate (RNTBC) set up to hold and manage the group’s native title, suspended their family’s membership — claiming they’d failed to provide evidence of their biological connection to the Barada Barna people. Because group membership was an “inherent requirement” of the cultural officer role, the three were also dismissed from their positions (Roos v. Winnaa Pty Ltd, FWC 3568 [2018]). 

The key questions in the Fair Work Commission case that followed revolved around the origins of the aggrieved family’s ancestor, Kitchener Brown. Authorities had removed Kitchener from Barada Barna land in 1908, along with Barada Barna children that he referred to as his “brothers.” A century later, the descendants of these brothers oversaw the return of Kitchener’s remains to Barada Barna land (Hamilton 2008). However, following the successful native title claim, these presumed relatives changed their position—arguing that Kitchener was in fact an adopted, rather than biological, broth- er. This means Kitchener’s ancestors did not meet the strict RNTBC membership rules, based on the group’s description in their native title determination. To prove otherwise, the Board members had called on Kitchener’s descendants to take DNA tests. They refused, stating the request was “offensive and culturally inappropriate” (personal communication). 

This is where the second author, a medical and cultural anthropologist who has researched the use of genetics in Aboriginal communities since 2007, came in. She was asked to provide an expert testimony about the cultural basis of this re- fusal and whether it was theoretically possible to demonstrate a biological connection between Kitchener’s descendants and their presumed Barada Barna relatives through DNA testing. Ultimately, the testimony was not decisive in the case. The Commissioners found in favor of Kitchener’s family, arguing that the RNTBC did not truly believe they were not rightful members at the time of their dismissal, as their membership had been suspended but not cancelled (Fair Work Commission v. Winnaa Pty Ltd, FWC 3568, C2017/371 [2018]). But the request for expert testimony itself raises broader questions. While there have been informal calls by Aboriginal people to “prove” their identity through DNA tests (Bevilacqua 2002; Noble 2015; Wood 2002), this is the first time (to our knowledge) that such a request has been recorded in a legal case. Is this a sign of things to come? Will the increased availability of genetic ancestry testing in Australia affect Aboriginal people’s access to native title rights in the future? 

In this paper, we address these two broad questions through three smaller ones: Are native title holders and claimants interested in using genetic genealogy for claiming native title or resolving membership disputes? If so, can this biotechnology offer them the kind of information they seek? And does the legal framework allow or support its use for these purposes? To answer these social, scientific, and legal questions, we draw on two primary data sources: a survey of forty anthropologists working in native title and a review of descriptions of native title holders—descriptions that provide the basis for RNTBC membership rules—in 213 of the existing 347 native title determinations. 

Combining and supplementing these two datasets, we offer some insight into the future use of genetics in Aboriginal land claims. Our research suggests that, while there is some interest in using genealogical DNA tests to prove native title, the hopes upon which this interest is built are generally mis- guided. It is highly unlikely that genealogical genetics will offer proof of descent from the original owners for specific regions, and such evidence is not in fact required by courts. But there is a greater—and growing—interest in using these tests to resolve membership disputes, and the scientific and legal scope for this application is potentially much greater. Genetic kinship tests are able to establish biological relation- ships between living people with increasing precision, and the descriptions of native title holders in Federal Court determinations increasingly contain lists of “apical ancestors” (similar to the “base roles” of Native American tribes).