Judgment Delivery - Transcript of Video

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

WILCOX, SACKVILLE and MERKEL JJ
8 JUNE 2005
ADELAIDE


[Justices Wilcox, Sackville and Merkel walk to the bench, bow, and sit down.]

Court officer: The Full Court of the Federal Court of Australia is now in session. Please be seated.

Associate: De Rose and others and the State of South Australia.

Justice Wilcox: The statement that I am about to read is not the judgment of the Court. It is intended as a summary and to provide information. The full reasons are in a document which will be published very shortly.

A group of Yankunytatjara and Pitjantjatjara people claim a native title determination over 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’).

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

[View of Judges’ bench]

(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.

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.

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.

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.

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.

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.

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.

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 section 223(1) of the Native Title Act.

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.

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.

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 section 223(1) of the Native Title Act. 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.

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.

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.

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 section 223(1) of the Native Title Act 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 the land.

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 Native Title Act and the corresponding State legislation (the Native Title (South Australia) Act 1994 (SA)).

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 or any other constructed stock watering point on the claim area.

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.

I now propose to read the formal Court Order and the determination and Orders of the Court.

The Court makes the following determination of native title:

1. Native title exists in relation to the land and waters covered by Crown Lease Pastoral No. 2133, Crown Lease Pastoral No. 2138A and Crown Lease Pastoral No. 2190A (‘the determination area’).

2. The persons who hold the group rights comprising native title are the Aboriginal persons who are Nguraritja according to the relevant traditional laws and customs of the Western Desert Bloc people as are applicable to the determination area because for each of them:

(a) it is his or her country of birth; or

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

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

(d) he or she possesses geographical and religious knowledge of the determination area;
and such person is recognised as Nguraritja by the other Nguraritja.

3. The nature and extent of the native title rights and interests in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters of the determination area in accordance with the Nguraritjas’ traditional laws and customs being:

(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;

[View of bar table.]

(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;

[View of Bench]

(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.

4. The rights recognised by paragraphs 3(a), (c) and (d) are traditional rights exercised in order to satisfy personal, domestic, or communal needs, but do not include any commercial use of the determination area.

5. The native title rights and interests do not confer possession, occupation, use and enjoyment of those lands and waters on the native title holders to the exclusion of others.

6. Native title rights and interests do not exist in respect of those parts of the determination area being:

(a) any house, shed or other building or airstrip; or

(b) any constructed dam or any other constructed stock watering point.

The areas described by 6(a) and (b) comprise the land on which the improvements have been constructed prior to the date hereof and include any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements referred to therein.

7. Native title rights do not exist in minerals as defined by section 6 of the Mining Act 1971 (SA) or petroleum as defined by section 4 of the Petroleum Act 2000 (SA).

8. Native title rights and interests are subject to and exercisable in accordance with the valid laws of the State and the Commonwealth, including the common law.

9. The nature and extent of other interests to the determination area are:

(a) the interests created by Crown Lease Pastoral No. 2133, Crown Lease Pastoral No. 2138A, and Crown Lease Pastoral No. 2190A;

(b) the interests of the Crown in right of the State of South Australia under the leases that are identified in para (a) hereof;

(c) the interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown pursuant to the Pastoral Land Management and Conservation Act 1989 (SA) or other statutes or otherwise in the exercise of its executive power;

(d) the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

10. Subject to paragraph 6, the relationship between the native title rights and interests in the determination area that are described in paragraph 3 and the other rights and interests that are referred to in paragraph 9 (‘the other rights and interests’) is that:

(a) the other rights and interests co-exist with the native title rights and interests;

(b) the existence of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other rights and interests; and the other rights and interests and the doing of any activity required or permitted to be done by or under the other rights and interests prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

The Court makes the following further orders:

11. The native title is not to be held in trust.

12. An Aboriginal corporation, the name of which must be provided within 12 months of the date of this order, is to:

(a) be the prescribed body corporate for the purposes of section 57(2) of the Native Title Act 1993 (Cth); and

(b) perform the functions mentioned in section 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

13. Liberty to any party to apply on 14 days’ notice to a single judge of the Court as to the identification of the Aboriginal corporation referred to in the preceding paragraph.

14. The first and second respondents pay the appellants’ costs of the appeal.

15. The parties have liberty to file submissions within 21 days seeking a different costs order to that made in Order 14.

16. If submissions are filed in accordance with Order 15, Order 14 be stayed until further order of the Court.

I formally publish the reasons for the decisions of the Court. There are some bound copies of the Orders and the Reasons. That is done because the Court appreciates that this is a document of some significance to the appellants who may wish to have it for their own record purposes, and so put in that form.

So those are the determination of Orders made by the Court and that concludes the proceedings this morning.

Court officer: All stand please. The Court is now adjourned.

[Justices Wilcox, Sackville and Merkel stand and bow and walk out of the court room.]