Talk:Love v Commonwealth

Torres Strait Islanders

When the justices made this decision, did they make it apply to all Indigenous Australians (including Torres Strait Islanders) or only Aboriginal Australians? Because in modern usage, Aboriginals and Torres Strait Islanders are viewed as distinct groupings, and the Wikipedia article for Aboriginal Australians is not about Torres Strait Islanders. Revoran (talk) 11:33, 14 February 2020 (UTC)

I'm not qualified to give legal advice, but everything I've read so far refers to Aboriginal people only. I'm guessing that it might take a separate ruling to apply to Torres Strait Islanders, if it were ever tested in court. Laterthanyouthink (talk) 11:48, 14 February 2020 (UTC)

That's OK, thanks anyway :) Revoran (talk) 12:36, 14 February 2020 (UTC)

Hi again Revoran. After responding last night, I had further thoughts on this, remembering that Eddie Mabo was a Torres Strait Islander man, and then this morning read Stan Grant's article, in which he writes "Justice Gagelar was concerned that elements of this case "come perilously close to an assertion of Aboriginal and Torres Strait Islander sovereignty…" ". So I have just had a quick skim of the whole judgment and, searching on "Torres", found quite a few mentions, including this (referring to the defendants): "Their argument is that, as persons of Aboriginal or Torres Strait Islander descent who identify with and are acknowledged as members of Aboriginal or Torres Strait Islander communities, they fall within the unique constitutional category of "non-citizen non-aliens" ". It probably needs a lawyer to advise correctly, but my impression now is that they do seem to be referring to the whole category of Indigenous Australians, and that this judgment should therefore apply to Torres Strait Islander people in a similar position as well. (I'm not sure whether this would need another court case, or whether Home Affairs/Immigration would change their procedures based on the outcome of this judgment - but judging by Dutton's response, they'll find another way to deport people.) Laterthanyouthink (talk) 01:14, 15 February 2020 (UTC)

The High Court only refers to the facts of the case that is before them, so they only considered the position of the 2 men and their connection to land in northern NSW & southern Queensland & would not expressly refer to any other first nations people. It is the reasoning that will apply to other people in similar situations and there is nothing to suggest that there will be any less importance for people from the Torrest Strait. It seems unlikely that there will be large numbers of first nations people who are not Australian citizens, but nobody seems to know for sure. Important to the decisions of the majority was the status of Love as a holder of native title rights & it is their recognised connection to the land that means native title holders cannot be alien, hence the reference to the Mabo 3 part test - which of course originates from the connection the Meriam people had to the land & the sea in the Torres Strait. A good article on that connection being central to the decision is: McAvoy, Tony. "High court's 'alien' decision is not surprising – but it won't be the end of the story". The Guardian.. --Find bruce (talk) 10:51, 16 February 2020 (UTC)

Thanks for that, Find bruce. Yes, it would be surprising to find many more people finding themselves in similar positions, and the Torres Strait Islander population is much smaller than the Aboriginal. I also meant to add that the Mabo decision may have been the first time it was mentioned in court (I don't know), but as I discovered when working in the Australian Aboriginal identity article, the tripartite definition was established by the federal government in 1978, according to the ABS, although ALRC says the 80s. Laterthanyouthink (talk) 13:03, 16 February 2020 (UTC)