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De Rose v State of South Australia (No 2)  FCAFC 110
|Date:||8 June 2005|
|Sub Category:||Litigated Determination|
|Location:||Far Northwest, South Australia, Australia|
|Click this link to search this location with google maps|
|Far Northwest South Australia, Crown Pastoral Leases Nos. 2133, 2138A and 2190A|
|Legal Status:||Registered on the National Native Title Register.|
|Legal Reference:||Federal Court file no.: SAD6001/96; Tribunal file|
|Subject Matter:||Native Title | Native Title - Extinguishment | Pastoral Activities | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|De Rose v State of South Australia (No 2)  FCAFC 110|
Between: Peter De Rose, Peter Tjutatja, Rini Kulyuru, Puna Yanima, Julie Tjami, Sadie Singer and Whiskey Tjukanku (APPELLANTS) AND
State of South Australia, Douglas Clarence Fuller and RD Fuller Pty Ltd (RESPONDENTS)
Judges: Wilcox, Sackville and Merkel JJ
The Full Bench appeal decision of the Federal Court of Australia in De Rose v State of South Australia (No 2)  FCAFC 110 marks the first litigated finding of native title in South Australia and overturns the 2002 finding of O'Loughlin J that the native title claimants had lost their continuous link to the area.
The claim for a determination of native title was made by a group of Yankunytatjara and Pitjantjatjara people 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 was subject to three pastoral leases granted at various times to Douglas Clarence Fuller and RD Fuller Pty Ltd (the second respondents) or interests associated with them.
The central question for the Court was whether the claimants were able to satisfy the definition of 'native title' as set out in s 223(1) of the Native Title Act 1993 (Cth) (NTA) which requires that claimants demonstrate that native title is held under traditional laws and customs, that they have a continuing connection to the claim area, and that the rights and interests are recognised by the common law of Australia.
The claimants in this case did not claim exclusive rights over the claim area. They acknowledged that their rights co-exist with those of the lessees but argued that they had nevertheless satisfied the definition of native title and were therefore entitled to a determination of non-exclusive rights over the claim area. The lessees and the State of South Australia disputed this claim, arguing that the claimants had not maintained their association with the land and had not acknowledged traditional laws and customs sufficiently to demonstrate native title in the claim area.
The Court concluded that Peter De Rose possesses rights and interests in relation to the claim area under the traditional laws of the Western Desert Bloc and which are observed by him. The effect of the traditional laws and customs is such as to constitute a connection between Peter de Rose and any others who are Nguraritja (traditional custodians and owners) for the claim area, and the claim area itself.
The Court also concluded that native title rights and interests had been extinguished over those parts of the claim area on which improvements had been constructed in accordance with rights conferred by the pastoral leases. Such improvements included any house, shed or other building, airstrip, constructed dam and any other constructed stock watering point on the claim area.
The Court therefore made a determination that non-exclusive native title exists over the claim area, excluding those particular locations where improvements had been constructed and in respect of which native title rights and interests had been extinguished.
The Court determined that native title exists in relation to the land and waters covered by the Crown Pastoral Leases Nos. 2133, 2138A and 2190A described as the determination area.
The persons holding the group rights are the Aboriginal persons who are Nguraritja according to the relevant traditional laws and customs of the Western Desert Bloc.
The nature and extent of the native title rights in respect of the determination area are non-exclusive rights to 'use and enjoy the land and waters of the determination area in accordance with the Nguraritjas' traditional laws and customs'. These are:
(a) the right to access and move about the determination area;
(b) the right to hunt on the determination area;
(c) the right to gather and use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to use the natural water resources on the determination area;
(e) the right to live, to camp and to erect shelters on the determination area;
(f) the right to cook on the determination area and to light fires for all purposes other than the clearance of vegetation;
(g) the right to engage and participate in cultural activities on the determination area including those relating to births and deaths;
(h) the right to conduct ceremonies and to hold meetings on the determination area;
(i) the right to teach on the determination area the physical and spiritual attributes of locations and sites within the determination area;
(j) the right to maintain and protect sites and places of significance to Nguraritja under their traditional laws and customs on the determination area;
(k) the right to be accompanied on to the determination area by those people who, though not Nguraritja, are:
(i) spouses of Nguraritja,
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the determination area;
(iii) people who have rights in relation to the determination area according to the traditional laws and customs acknowledged by Nguraritja; or
(iv) people required by Nguraritja to assist in, observe, or record traditional activities on the determination area; and
(l) the right to make decisions about the use and enjoyment of the determination area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by Nguraritja.
The rights recognised are traditional rights exercised for personal, domestic or communal purposes and do not include any commercial use of the determination area. These rights do not confer possession, occupation, use and enjoyment of the lands and waters to the exclusion of all others.
Native title rights and interests do not exist in respect of those areas where improvements such as houses, sheds, buildings, dams airstrips or stock watering points have been constructed. Nor do they exist in minerals as defined in the Mining Act 1971 (SA) or petroleum as defined in the Petroleum Act 2000 (SA).
The native title rights identified are subject to and exercisable in accordance with State and Commonwealth laws including the common law.
The relationship between the native title rights and the other non native title rights in the determination area is that the other rights co-exist with the native title rights which do not prevent any activity required or permitted under other rights or interests. Where the two sets of rights are inconsistent, the non native title rights prevail over the native title rights but do not extinguish them.
The Court further ordered that the native title is not to be held in trust and that an Aboriginal corporation is to be nominated as the prescribed body corporate for the purposes of s 57(2) of the NTA.
|The original claim for native title was lodged in 1994. Mediation between the parties commenced in May 1995 however, as agreement was not reached, the National Native Title Tribunal referred the matter to the Federal Court. |
At first instance, O'Loughlin J dismissed the application on the grounds that the claimants had not satisfied s 223(1)(b) of the NTA with respect to a continuing connection with the land or waters by virtue of their traditional laws and customs.
On appeal, the Full Bench examined whether the claim should be classified as one for communal or group rights, or of individual native title rights and interests; the relationship between responsibility under traditional law and custom for an area and connection to that area; the effect of certain improvements to the area subject to the pastoral leases; and whether a native title right to control access and use of the leased area by other Aboriginal people could be recognised.
Ultimately, the court held that if it were necessary to classify the rights and interests claimed, they were best regraded as group rights and interests.
The claim covered approximately 1,865 square kilometres of land adjacent to the Anangu Pitjantjatara Aboriginal freehold lands some 40 kilometres south of the Northern Territory border.
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