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Gunn, Libby --- "De Rose v State of South Australia" [2004] IndigLawB 17; (2004) 5(30) Indigenous Law Bulletin 14


De Rose v State of South Australia

Federal Court of Australia – Full Court

[2003] FCAFC 286

Justices Wilcox, Sackville, and Merkel

16 December 2003

by Libby Gunn

The Full Court’s joint decision in De Rose v State of South Australia was primarily concerned with the meaning of “connection” under s 223(1)(b) Native Title Act 1993 (Cth) (the NTA). The Full Court held that the original finding that the appellants “abandoned” their connection to the land was erroneous. The correct question does not involve and assessment of the reasonableness of the appellants’ decision to leave the claim area but whether, by the traditional laws acknowledged and traditional customs observed, the appellants have a connection with the land and waters within the claim area. The Full Court also made significant comments regarding the link between a “society” and the laws and customs which the claimants follow.

Background

The appellants applied for a determination of Native Title in relation to land presently held within the boundaries of three pastoral leases that comprise the De Rose Hill Station (the Station). The area is in the far north west of South Australia and is within a large area of land known as the Western Desert region. The appellants are generally from the Pitjantjatjara and Yankunytjatyara peoples, not from one cohesive society. Each of the appellants claim to hold native title rights and interests over the claim area according to the traditional laws and customs of the Aboriginal peoples within the Western Desert Bloc. In particular, the appellants claim their rights and interests by virtue of their status as Nguraritja (custodians) which involves rights and responsibilities for specific places within the claim area. The respondents are the State of South Australia and the Fullers, the Pastoral Leaseholders of the Station.

At first instance, the appellants failed in their application due to the finding that they had not maintained their connection with the claimed land as required by s 223(1)(b) of the NTA. The Full Federal Court found that the ultimate first instance judgement was inconsistent with the Primary Judge’s findings of fact.

The Full Court

Section 223(1)(a): the status of Nguraritja

The Primary Judge found that Peter De Rose and other appellants were Nguraritja according to the laws and customs of the Western Desert Bloc. This finding was based on evidence of Peter de Rose and other appellants as to their knowledge of the claim area, and the demonstrations of songs, dances and ceremonies at particular sites. His Honour found that this satisfied the requirement of s223(1)(a) that rights and interests be possessed under traditional laws acknowledged and traditional customs observed.

The respondents submitted in the first instance and on appeal that the transmission of Nguraritja had to be by biological descent, claiming this was the pre-sovereignty transmission method. However, the Full Court supported the Primary Judge’s finding that population shifts occurred both pre and post-sovereignty and that the traditional laws and customs of the Western Desert Bloc recognised the various modes of transmitting the status of Nguraritja, including to newcomers (at 242).

No need for “cohesive” local group

The Primary Judge erred in considering the lack of a cohesive society as adversely affecting the appellants’ claim. His Honour viewed the ‘individual’ nature of the rights and responsibilities of Nguraritja as indicative of a current lack of community. However, the Full Court noted (at 275) that it was never part of the appellants’ case that persons who are Nguraritja for the claim area ‘constituted a discrete cohesive society or community at any given time’. The Full Court held that the system of traditional laws and customs on which the appellants relied were those acknowledged and observed throughout the Western Desert region, not within a discrete and cohesive community. It is the broader Western Desert Bloc which provided for the rights and interests of Nguraritja and which had a continuous existence since sovereignty.

The Full Court’s comments clarify the High Court’s findings in Yorta Yorta[1] (at 50). Specifically the Full Court distinguished between the broader society, which possesses and governs the system of laws and customs, and the individuals or smaller sub-groups within that broader society who may hold native title rights and interests according to that society’s laws and customs.[2] The two need not necessarily represent the same bounded group; the possessor/s of native title rights and interests need only be a recognised individual or sub-group of the broader society still in existence.

Section 223(1)(b) – consider “connection” not “abandonment”

The Primary Judge found that the appellants had “abandoned” their connection with the claimed area, thus not satisfying s 223(1)(b).

Primary judgement contrary to Ward and Yorta Yorta

In finding that the appellants had “abandoned” their connection with the claimed area, his Honour was critical of Peter De Rose’s failure to discharge his responsibilities as Nguraritja. However, his Honour did not consider the manner in which the responsibilities were required to be discharged according to traditional law and custom, erroneously relying on his own assessment of Peter De Rose’s conduct (at 320).

The Full Court followed Ward [3] holding that s 223(1)(b) of the NTA ‘requires the Primary Judge to identify the content of the traditional laws acknowledged and customs observed and to inquire whether the effect of those laws and customs constituted a “connection” between the appellants and the claim area’ (at 313), stating:

If the traditional laws and customs of the Western Desert Bloc continued to recognise Peter De Rose, for example, as Nguraritja for the claim area notwithstanding his ‘failure’ for a significant time to observe his responsibilities in relation to sites on the land, that would be a powerful indication that the effect of those traditional laws and customs was to constitute a connection between Peter De Rose and the claim area...[I]f the traditional laws and customs of the Western Desert Bloc no longer recognised Peter De Rose as Nguraritja or, although acknowledging that status, regarded him as deprived of his rights and responsibilities in relation to the claim area, that would be a powerful, perhaps determinative, indication that by the laws and customs he did not have a connection with the claim area.

The Full Court held that the consideration of “abandonment” rather than “connection” was an erroneous method of determining whether s 223(1)(b) was satisfied. His Honour’s approach was contrary to the High Court’s direction in Yorta Yorta not to use the term “abandoned” as it indicates a personal judgement on the reasonableness of leaving the claim area (at 312).

Conclusions inconsistent with findings on individual appellants

Furthermore, the Full Court found that the Primary Judge’s ultimate finding was inconsistent with his Honour’s findings on the individual appellants (at 336). The Primary Judge placed too much emphasis on the absence of physical contact with the claim area after 1978, and too little emphasis on the evidence of the appellants’ continued spiritual links to the land (at 316), including continued assertions of rights and responsibilities over the land (at 318). In particular, the Full Court placed weight on his Honour’s finding that Peter De Rose had a detailed knowledge of the customary concepts of Nguraritja and Tjukurpa (the Dreamings for country), and had been involved in establishing a homestead at Railway Bore, very close to De Rose Hill Station, because he wanted a homeland close to his country (at 318, 319). These facts indicated to the Full Court a continuing spiritual connection.

Reasons for leaving can indicate continued spiritual connection

The Primary Judge found that the reasons for the appellants’ leaving the land were not compelling, but rather were economic choices. The Full Court emphasised that the economic reasons for leaving the land do not preclude a continued spiritual connection with the land (at 328).

Although the reasons for not maintaining a connection are irrelevant if “connection” under s 223(1)(b) is lost, the Full Court held reasons as to why claimants have not maintained a physical association can be useful in determining whether a spiritual connection, sufficient for the requisite “connection” under the NTA, still exists (at 326). The Full Court found that the appellant’s genuine fear of the Fullers, whether reasonable or not, was a valid reason for not maintaining a physical connection to the land, and that a spiritual connection could still exist on the facts. That is, the existence of other economic reasons for leaving the claimed area do not negate the fear felt by the appellant’s which prevented them maintaining physical contact with the land.

Findings of fact support successful claim

The Primary Judge’s finding that being Nguraritja satisfied the requirement of s 223(1)(a) (the applicants possess rights and interests under traditional laws and customs), but that the appellants failed to satisfy the “connection” requirement of s 223(1)(b), was found to be inconsistent. The Full Court thought that his Honour’s findings of fact are more correctly interpreted as satisfying both s 223(1)(a) and (b) of the NTA. That is, that the detailed evidence supporting the finding that the appellants are Nguraritja was sufficient to satisfy the requirement of connection to the claimed area under s 223(1)(b). The Primary Judge’s ultimate decision could only be correct, considering the findings of fact, if his Honour found that the appellants failed to satisfy s 223(a). However, the Full Court seemed clear that the detailed facts supported the requisite “connection”.

The Full Court supported the Primary Judge’s finding that on the interpretation of the relevant statutes – NTA, Native Title (SA) Act 1994 and Pastoral Land Management and Conservation Act 1989 – extinguishment had not occurred.

The Full Court delivered a judgement effectively in favour of De Rose and the other appellants. The parties were ordered to reconsider the issues in dispute on the basis of these findings; the practical implications of the findings are not as yet known.

Libby Gunn is the acting Assistant Coordinator of the Women’s Domestic Violence Court Assistance Scheme and Redfern Legal Centre.


[1] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December 2002).

[2] This was discussed by Martin, D ‘A brief note on the de Rose Hills judgement and what is to be understood as a society’, unpublished, (14 January 2004).

[3] Western Australia v Ward [2002] HCA 28 (8 August 2002).


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