Palmer United Party Senator Jacqui Lambie recently created controversy by claiming in her first speech to Parliament that going back six generations, she is related to the renowned Tasmanian Aboriginal leader Mannalargenna.

Responding to accusations that she had never previously identified herself publicly as an Indigenous person, Senator Lambie said, “I know what’s in my blood”, and offered to take a DNA test to prove her Indigenous ancestry “once and for all”.

No one can tell Senator Lambie or her family how to feel about their heritage, nor the degree of affinity and pride they are entitled to draw from their family history. And Senator Lambie’s stated concern to use her political position to advocate on behalf of Indigenous people is welcome.

However, it is more problematic whether Senator Lambie can do this on the basis that she is herself an “Indigenous person”.

Defining questions

The question of whether Indigenous, racial or ethnic identity could be determined by genetic testing was considered in a landmark inquiry by the Australian Law Reform Commission (ALRC) in 2003, which I chaired and which culminated in the report Essentially Yours: The Protection of Human Genetic Information in Australia.

As we noted in that report, since British colonisation various governments had used no less than 67 classifications, descriptions or definitions to determine who is an Aboriginal person in Australia.

The propriety of using genetic testing and information as an aspect of determining communal identity has arisen previously in Tasmania, following challenges to the eligibility of about 600 people to vote in the 2002 ATSIC elections. This may be unsurprising, given the vexed history of race relations in that state.

The ALRC inquiry followed hard on the heels of the completion of the Human Genome Project in 2000, which concluded that race and ethnicity are social constructs, without a clear genetic foundation. This approach has been reflected in Australia law and practice since at least the early 1980s.

As Justice Gerald Brennan wrote in his leading judgment in Mabo v Queensland (No 2), when it came to native title law the accepted test of whether someone is Indigenous has three parts:

Membership of the Indigenous people depends on biological descent from the Indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

(You can read the full judgment here.)

On this basis, DNA testing can only ever answer (at most) the first of those three qualifications: biological descent, self-identification, and recognition by Indigenous elders. That’s why the ALRC warned against using DNA testing as the sole or primary determinant of Indigeneity.

This does not diminish the fact that DNA testing provides a powerful tool for identifying or dispelling biological links between individuals. That is, in establishing kinship relationships, whether this is for the purpose of determining biological parentage, or linking the individual to a broader community or descent group.

The ALRC heard from genetic counsellors and others about the positive uses of genetic testing in Australia to re-establish links between individuals and their Aboriginal family members that had been severed by adoption, circumstance, or past government policies promoting separation and assimilation (the “Stolen Generations”).

However, this exercise involves the use of genetic testing and information to confirm direct kinship relationships. DNA does not in itself contain any determination of a person’s culture, race or ethnicity — although these things may flow later from the person’s re-integration into their family and community.

Blood rules don’t apply in Australia

The ALRC cast the net widely in looking at the other methods used internationally to determine Indigeneity, including the reductionist “blood rules” used in parts of North America and elsewhere — in which the percentage or fraction of an individual’s “Indigenous blood” determined their rights to live on a reserve, or vote in self-determination elections, or receive certain forms of government designated scholarships or positions.

The ALRC heard in consultations that the three-part definition “works well enough in most circumstances”, and declined to make any recommendation for change.

After looking into the legal definitions of Aboriginality both in Australia and overseas, the ALRC concluded that none of the other tests used internationally resulted in more just, more scientific, or more effective outcomes.

Instead, the ALRC suggested that if change were to take place, these sensitive matters would best be determined by Indigenous people themselves, working through their own communities, institutions and consultative processes.

Further reading

Culture, not colour, is the heart of Aboriginal identity

This week’s Abbott in Arnhem Land series:

Birthing on Country could deliver healthier babies and communities

Welcome to my Country: seeing the true beauty of life in Bawaka

‘PM for Aboriginal Affairs’ Abbott faces his biggest hearing test

Australia’s 7 Up: the revealing study tracking babies to adults

Well-connected Indigenous kids keen to tap new ways to save lives

Indigenous Australia’s rapid rise is shifting money and votes

How crowded homes can lead to empty schools in the bush

Would you risk losing your home for a few weeks of work?

Listen to your elders: inviting Aboriginal parents back to school

Indigenous Australians need a licence to drive, but also to work

Keeping Indigenous teens in school by reinventing the lessons

Explainer: what Indigenous constitutional recognition means