FEDERAL COURT OF AUSTRALIA

De Rose v State of South Australia (No 2) [2005] FCAFC 110

PETER DE ROSE and OTHERS v STATE OF SOUTH AUSTRALIA and OTHERS

SAD 253 of 2002

WILCOX, SACKVILLE and MERKEL JJ

ADELAIDE

8 JUNE 2005

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a summary to accompany the judgment that is to be delivered today.  However, it must be emphasised that the summary forms no part of the judgment.  The only authoritative statement of the Court’s reasons is the judgment itself. 

This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.  The published reasons for judgment and this summary will be available on the internet at www.federalcourt.gov.au

8 June 2005

De Rose v State of South Australia (No 2) [2005] FCAFC 110

1.                  A group of Yankunytatjara and Pitjantjatjara people claim a native title determination over De Rose Hill Station (‘the claim area’).  The claim area is located in the far north west of South Australia, in the eastern part of a large area of Australia often described as the Western Desert.  The claim area is subject to three pastoral leases granted at various times to the second respondents or interests associated with them (‘the lessees’).  The first respondent is the State of South Australia (‘the State’).

2.                  The claim was made under the Native Title Act 1993 (Cth) (‘NTA’).  The major issue in the case has been whether the claimants are able to satisfy the definition of ‘native title’ in s 223(1) of the NTA.  This subsection requires claimants to show that:

(a)                under the traditional laws acknowledged and customs observed by the Aboriginal peoples, they possess native title rights and interests in the claim area;

(b)               the Aboriginal peoples, by their laws and customs, have a connection with the claim area; and

(c)                the rights and interests are recognised by the common law of Australia.

3.         The claimants do not say that they have exclusive rights over the claim area.  They recognise that their rights can only co-exist with those of the lessees and must give way in the event of inconsistency.  They contend, however, that they have satisfied the definition of ‘native title’ and therefore they are entitled to a determination that they have non-exclusive rights over the claim area.

4.         The traditional laws and customs relied on by the claimants are those of the Western Desert Bloc.  The claimants say that under the traditional laws and customs of the Western Desert Bloc they are Nguraritja (traditional custodians or owners) for the claim area.  They say that under the laws and customs of the Western Desert Bloc they have rights and responsibilities in relation to the claim area and nearby country. 

5.           The lessees and the State dispute the claim.  They argue, among other things, that the claimants have not maintained their association with the land and have not acknowledged traditional laws and observed traditional customs sufficiently to demonstrate that they now have native title rights and interests in the claim area.

6.            Like many native title claims, this one has had a very long history.  The claim was first made to the National Native Title Tribunal on 9 December 1994.  The claim was not resolved by mediation and an application was filed in this Court on 1 November 1996.  The trial took place over sixty-eight hearing days between June 2001 and February 2002.

7.         On 1 November 2002 the trial Judge delivered a judgment dismissing the claim.  His Honour found that the claimants, and the other persons on whose behalf they claimed native title, had failed to prove that they maintained a connection to the area, by the traditional laws and customs acknowledged and observed by them.  His Honour found that while some claimants once had a relevant connection with the claim area, they had abandoned that connection.  However, the trial Judge, recognising that there might be an appeal, very helpfully recorded the form of determination that he thought would be appropriate if the claimants ultimately succeeded on an appeal.

8.                  The claimants did appeal and the appeal was heard in May 2003.  In a judgment delivered on 16 December 2003 the Full Court (as presently constituted) allowed the appeal.

9.                  The Full Court held that the conclusions reached by the trial Judge were affected by certain errors of law.  In particular, the Full Court held that the trial Judge had attributed too much importance to the absence of evidence that the claimants constituted a cohesive community or group.  The Full Court also held that the trial Judge had erred by applying the wrong test for determining whether the necessary ‘connection’ with the claim area had been shown to exist for the purposes of s 223(1) of the NTA.

10.              In the ordinary course, the Full Court would have remitted the case to the trial Judge to make any necessary additional factual findings. However, since the trial Judge had by that time retired, the Full Court considered that the appropriate course was for the parties to identify the remaining issues in dispute and for the Court to hold a further hearing to allow those issues to be fully argued.

11.              At the suggestion of the Full Court, a Registrar held a number of conferences with representatives of the parties.  In consequence, the remaining issues were narrowed and refined.  The parties filed extensive additional written submissions and a further hearing took place on 13 and 14 December 2004 in Adelaide.

12.              In view of the way in which the appeal has been conducted, the critical question is whether the claimants have shown that at least one of the people said to be Nguraritja for the claim area satisfies the requirement of s 223(1) of the NTA.  In this judgment, we address this question by re-examining the findings made by the trial Judge and, to some extent, the evidence given at the trial.

13.              We have considered, in particular, the evidence relating to Peter de Rose, one of the claimants.  Peter de Rose was born under an ironwood tree on the track of the Kalaya (emu) Tjukurpa (Dreaming) on or very close to the claim area.  For many years, with some interruptions, Peter de Rose lived and worked on the claim area.  However, he left the area in 1978, shortly after the death of his half brother.  After that time, Peter de Rose visited the claim area from time to time.   He also chose a homeland at Railway Bore because he wanted to be close to his country.

14.              The evidence showed that Peter de Rose had passed through the various ceremonial stages of life under Western Desert law and custom.  He, like others, acknowledged and regarded himself as bound by the rules for determining Nguraritja for particular country.  The evidence established that the concept of Nguraritja itself is recognised by the Aboriginal witnesses and is central to the rights and responsibilities of people under the laws and customs of the Western Desert Bloc.  Peter de Rose and others had been taught traditional laws and customs by those responsible for imparting that knowledge.  He regards himself as Nguraritja for the claim area.

15.              Taking into account the factual findings and the evidence as a whole, we have concluded that Peter de Rose possesses rights and interests in relation to the claim area under the traditional laws and customs of the Western Desert Bloc acknowledged and observed by him.  We have also concluded that the effect of the traditional laws and customs is to constitute a ‘connection’ between Peter de Rose (and any others who are Nguraritja for the claim area) and the claim area itself.  Accordingly, we have decided that, subject to questions of extinguishment, the requirements of s 223(1) of the NTA have been satisfied.  In other words, the claimants have established that those who are Nguraritja for the claim area have native title rights and interests over that land.

16.              The judgment also addresses the questions of extinguishment of native title over parts of the claim area and the form of the determination that should be made.  This involves a consideration of complex provisions in the NTA and the corresponding State legislation (the Native Title (South Australia) Act 1994 (SA)). 

17.              We have concluded that native title rights and interests have been extinguished over those parts of the claim area on which improvements have been constructed in accordance with rights conferred by the leases.  The improvements covered by this ruling include any house, shed or other building, airstrip, constructed dam and any other constructed stock watering point on the claim area.

18.              The Court will make a determination that non-exclusive native title exists over the claim area, except for those particular locations on which the improvements have been constructed and in respect of which native title rights and interests have been extinguished.

Adelaide

8 June 2005