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

FEDERAL COURT OF AUSTRALIA

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;

(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

FEDERAL COURT OF AUSTRALIA

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

NATIVE TITLE - application for a determination - Pastoral Leases containing reservations of rights in favour of Aboriginal people - whether the grant of Pastoral Leases extinguished native title - s 223 of the Native Title Act 1993 (Cth) - whether rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed - whether the claimants ever had a connection with the claim area - whether the connection has been abandoned.

EVIDENCE - application for a determination of native title - subs 82(1) of the Native Title Act 1993 (Cth) - when should the Court order that it is not bound by the rules of evidence.

Act, 1834 (4 and 5 William IV c. 95) ss 3, 4, 6, 8, 9, 17-19

The South Australia Act, 1842 (5 and 6 Vict c. 61)

Native Title Act 1993 (Cth) ss 61, 64, 82, 84, 222-225, 228, 229, 237, 248A, 248B, 249C, 251B

Evidence Act 1995 (Cth) ss 62, 63, 73, 74

Racial Discrimination Act 1975 (Cth) ss 9, 10

Federal Court Rules O 78 rr 1, 4

Pastoral Land Management and Conservation Act 1989 (SA) s 47, transitional provisions cls 5, 6

The Native Title (South Australia) Act 1994 (SA) ss 32, 33, 36F

Pitjantjatjara Land Rights Act 1981 (SA)

Pastoral Act 1893 (SA)

Pastoral Act 1936 (SA)

Aboriginal Heritage Act 1988 (SA)

Mabo v Queensland (No 2) (1992) 175 CLR 1 applied

Cooper v Stuart [1889] 14 App Cas 286 not followed

Fejo v Northern Territory of Australia (1998) 195 CLR 96 applied

Jones v Dunkel (1959) 101 CLR 298 applied

The Wik Peoples v The State of Queensland (1996) 187 CLR 1 applied

Western Australia v Ward (2002) 191 ALR 1 applied

Ward v State of Western Australia (2000) 159 ALR 483 cited

Western Australia v Ward (2000) 99 FCR 316 considered

Commonwealth of Australia v Yarmirr (2001) 184 ALR 113 applied

Western Australia v The Commonwealth (1995) 183 CLR 373 cited

Kogolo v Western Australia (2000) 102 FCR 38 followed

Subramaniam v Public Prosecutor [1956] 1 WLR 965 applied

Milirrpum v Nabalco (1971) 17 FLR 141 cited

Daniel v Western Australia (2000) 178 ALR 542 cited

Lardill v Queensland [2000] FCA 1548 cited

Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 considered

Semple v Noble (1988) 49 SASR 356 cited

Commonwealth of Australia v Yarmirr (2001) 184 ALR 113 applied

Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 cited

Mason v Tritton (1994) 34 NSWLR 572 applied

Yanner v Eaton (1999) 201 CLR 351 considered

Members of the Yorta Yorta Aboriginal Community v State of Victoria (2000) 110 FCR 244 followed

Commonwealth of Australia v Yarmirr (1999) 101 FCR 171 considered

Kanak v National Native Title Tribunal (1995) 61 FCR 103 cited

R v Van Der Peet (1986) 137 DLR (4^th) 289 cited

Hayes v Northern Territory (1999) 97 FCR 32 considered

Anderson v Wilson (2000) 97 FCR 453 considered

Wilson v Anderson (2002) 190 ALR 313 cited

Delgamuukuw v British Columbia (1997) 153 DLR (4^th) 193 cited

Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] FCA 1606 cited

Coe v Commonwealth (1993) 118 ALR 193 applied

Risk v National Native Title Tribunal [2000] FCA 1589 cited

Ngalakan People v Northern Territory of Australia [2001] FCA 654 cited

Russell v Bissett-Ridgeway [2001] FCA 848 cited

NB Tindale, Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution. Limits and Proper Names (Canberra: Australian National University Press, 1974).

RM Berndt and CH Berndt, The World of the First Australians (Canberra: Aboriginal Studies Press, 1999).

GH Manning, Manning's Place Names of South Australia (Adelaide: GH Manning, 1990).

RC Cockburn, South Australia; What's in a name?, 3^rd Ed, (Asciom Publishing, 1990).

Rev WH Edwards, "Patterns of Aboriginal Residence in the North West of South Australia" in Journal of the Anthropological Society of South Australia Vol 30, No 1 (1992), pp 2-32.

NB Tindale, "Results of the Harvard-Adelaide Universities Anthropological Expedition, 1938 - 1939: Distribution of Australian Aboriginal Tribes: A Field Study" in Transactions of the Royal Society of South Australia, Vol 64, No 1 (1990) pp 140-231.

AP Elkin, "Kinship in South Australia" in Oceania, Vol VIII, No 4 (1938), pp 419-452.

RM Berndt, "The concept of 'The Tribe' in the Western Desert of Australia" in Oceania, Vol XXX, No 2 (1959), pp 81-107.

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

NO SG 6001 OF 1996

O'LOUGHLIN J

1 NOVEMBER 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 6001 OF 1996

BETWEEN:	PETER DE ROSE FIRST APPLICANT OWEN KUNMANARA SECOND APPLICANT PETER TJUTATJA THIRD APPLICANT JOHNNY WIMITJA DE ROSE FOURTH APPLICANT MICHAEL MITAKIKI FIFTH APPLICANT RINI KULYURU SIXTH APPLICANT PUNA YANIMA SEVENTH APPLICANT JULIE TJAMI EIGHTH APPLICANT SADIE SINGER NINTH APPLICANT WHISKEY TJUKANKU TENTH APPLICANT
AND:	THE STATE OF SOUTH AUSTRALIA FIRST RESPONDENT R D FULLER PTY LTD AND DOUGLAS CLARENCE FULLER SECOND RESPONDENTS
JUDGE:	O'LOUGHLIN J
DATE OF ORDER:	1 NOVEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application for a determination of native title be dismissed.

2. There be liberty to apply.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

INDEX

Heading	Paragraph No
INTRODUCTION	1
THE WITNESSES	9
THE CLAIMANTS' CASE	29
THE PROPOSED DETERMINATION	39
THE TJUKURPA	52
The Kalaya Tjukurpa - The First Dreaming	53
Malu, Kanlaya and Tjurki Tjukurpa - The Second Dreaming	62
Pakalira Tjukurpa - The Third Dreaming	66
Papa Itari Tjukurpa - The Fourth Dreaming	68
The Seven Sisters Tjukurpa - The Fifth Dreaming	72
THE NGURARITJA	75
YANKUNYTJATJARA COUNTRY	108
ANTIKIRINYA	117
EUROPEAN DEVELOPMENT	145
THE CLAIM AREA	197
Agnes Creek	208
Paxton Bluff North	221
Paxton Bluff South	223
IMPROVEMENTS AND DEVELOPMENTS	225
LEGISLATION	234
THE STATUTORY LEASE?	245
ALLOWANCE FOR ABORIGINAL WITNESSES	249
HEARSAY	260
STAGES OF MANHOOD	272
SNOWY'S ACCIDENT	277
THE DEATH OF BOBBY	284
ETHNOGRAPHERS	292
EXPERT WITNESSES
Associate Professor Cliff Goddard	306
Associate Professor Peter Veth	314
Dr Robert Foster	317
Mr Daniel Vachon	322
Dr John Willis	332
Mr Craig Norman Elliott	347
PROFESSOR KENNETH MADDOCK	368
SITE VISITS	379
Wantjapila and Intalka	384
Ilpalka	391
Wipa	403
Kantja	411
Apu Maru	417
Tiilkatkara	426
DOUGLAS CLARENCE FULLER	430
REX FULLER	463
LOCKED GATES	478
SECTION 223 OF THE NTA	492
EXTINGUISHMENT