FEDERAL COURT OF AUSTRALIA

De Rose v State of South Australia [2002] FCA 1342

JUDGMENT SUMMARY

SG 6001 OF 1996

O'LOUGHLIN J

1 NOVEMBER 2002

ADELAIDE

SUMMARY OF REASONS FOR JUDGMENT GIVEN ON 1 NOVEMBER 2002

In this litigation, ten Aboriginal men and women sought a determination of native title over the land that comprises De Rose Hill Station, a cattle property in the far north-west of South Australia. They submitted that, in making their application, they were acting for themselves and for the other Aboriginal people who claim that they are Nguraritja for the land. Nguraritja is the Yankunytjatjara and Pitjantjatjara word for those who are said to be the traditional owners of land. Their application was opposed by the State of South Australia and by the pastoralists, Mr Doug Fuller and RD Fuller Pty Ltd, the family company of Doug’s son Rex. Rex is the manager of De Rose Hill Station.

The Court heard evidence from twenty-six Aboriginal people, twenty-one of whom asserted that they were Nguraritja for the land. Linguistic, archaeological, historical and anthropological evidence was also received in support of their application. The Court attended at thirteen sites on or near the Station which were said to be sites of particular significance to those who were claiming native title. Evidence was given at those sites explaining the significance of the location. In doing that, songs were sung, dances were performed and the importance of the Tjukurpa (that is, the Dreamings) was narrated. However, the evidence that was taken on location was, for the most part, taken in closed session and cannot be disclosed in open Court. In addition to the site visits, the better part of one day was spent, at the request of the Fullers, travelling around the Station examining the nature of the improvements that they have made to the property in the fifty-seven years in which they have operated the Station.

I was satisfied that a determination of native title was potentially available to the claimants. I was satisfied that it had not been extinguished by historical events and, in particular, that it had not been extinguished in 1989 when the State Government introduced the Pastoral Land Management and Conservation Act.

Only two of the twenty-six Aboriginal witnesses were born on De Rose Hill Station and it was argued against the interests of the claimants that only Aboriginal people who are born on the land can be regarded as Nguraritja for that land. I do not agree nor do I agree that the claimants must establish a biological descent from those who occupied the land at the time of Sovereignty. I have concluded that I should accept the evidence that a person may become Nguraritja for any one of the four reasons that were identified by Mr Craig Elliott, the anthropologist who gave evidence on behalf of the applicants. Those reasons, in relation to a particular person and a particular piece of land, are as follows:

(a) the land is his or her country of birth;

(b) he or she has had a long-term physical association with the land;

(c) he or she possesses an ancestral connection to the land; or

(d) he or she possesses geographical or religious knowledge of the land;

and, in addition to those four criteria, the person is recognised as Nguraritja by the other Nguraritja.

However, there is an obligation on the claimants to satisfy the Court that they possess communal, group or individual rights and interests under traditional laws acknowledged and traditional customs observed by them and that by those laws and customs they continue to retain a connection with the land and waters that are the subject of their claim. That connection need not be a physical connection. A spiritual connection can be sufficient.

The claimants have submitted that the Aboriginal people, who are said to be Nguraritja in respect of the land that makes up De Rose Hill Station, still maintain a spiritual and physical connection with the land.

A great number of the Aboriginal witnesses were, at some stage of their lives, employed on the Station. The men worked with the stock and the women, in latter times, did domestic work. But over the years, for various reasons, they have left the Station to work or live at other places. There has been no Aboriginal contact of substance and no physical connection with the Station since 1978 when the last of the Aboriginal stockmen left the property.

As I have said, a spiritual connection to land can still be used to identify a retention of native title and I accept that many of the Aboriginal witnesses have claimed that they have retained some affinity with the land. However, their actions belie their words. The occasional hunting of kangaroos, whilst no doubt traditional, stands out in isolation. No other physical or spiritual activity has taken place in the last twenty or so years. The claimants have lost their spiritual as well as their physical connection and, because of that loss, there has been a break down in the acknowledgment of the traditional laws and in the observance of the traditional customs; that breakdown is fatal to their application. It must be dismissed.

I have made no order as to costs. Should any party wish to apply for costs in respect of the trial or any part of it, they are to make their application within fourteen days of this date. For that purpose there will be liberty to apply.

The announcement that I have just made is not intended as anything other than a summary of some of the more important aspects of the Court’s decision. It is not intended to be a substitute for the reasons of the Court or to be used in any later consideration of the Court’s reasons.

The full text of the judgment and this summary is available at www.fedcourt.gov.au