De Rose v State of South Australia [2003] FCAFC 286

FEDERAL COURT OF AUSTRALIA

De Rose v State of South Australia [2003] FCAFC 286

NATIVE TITLE - claim for determination of native title over claim area comprised of pastoral leases granted under State legislation - appellants claim to hold native title rights and interests as Nguraritja (custodians) under the laws and customs of the Western Desert Bloc - Primary Judge found that some of the appellants had abandoned the connection they previously had with the claim area and dismissed the claim on the ground that the appellants failed to satisfy him that they now have any connection with the land and waters within the claim area - whether the Primary Judge erred in failing to address the question of whether, by the traditional laws acknowledged and traditional customs observed by the people of the Western Desert Bloc, the appellants have a connection with the land and waters within the claim area for the purposes of s 223(1)(b) of the Native Title Act 1993 (Cth) - consideration of consequences of pre-sovereignty and post-sovereignty indigenous population shifts in relation to the claim area -whether the group of persons claiming native title rights and interests was required to be a discrete society or community - whether State legislation, by extending the terms of the relevant pastoral leases, effected the grant of pastoral leases and thereby extinguished any native title rights and interests in relation to the claim area.

WORDS AND PHRASES - "native title rights and interests", "rights and interests... possessed under the traditional laws acknowledged and the traditional customs observed", "connection with the land or waters"

Native Title Act 1993 (Cth), ss 4, 10, 13, 14, 15, 19, 23A, 23B, 23C, 23D, 23E, 23F, 23G, 23H, 23I, 61, 223, 223(1)(a), 223(1)(b), 225, 226, 228, 229, 239, 248, 248A, 248B, 251B, 253, Pt 2 Div 2, Div 2B

Native Title Amendment Act 1998 (Cth), Table A Sch 5 cll 5, 6, 24

Racial Discrimination Act 1975 (Cth), s 10

Native Title (South Australia) Act 1994 (SA), s 31, 32, 32C, 33, 36F, 36I, Pt 6 Div 3, Div 5

Pastoral Land Management and Conservation Act 1989 (SA), s 47, Sch cl 5

Native Title (South Australia) (Validation and Confirmation) Act 2000 (SA)

Wik Peoples v Queensland (1996) 187 CLR 1 cited

Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28 followed

Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191 cited

Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244; [2001] FCA 45 cited

Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538; [2002] HCA 58 followed

Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 cited

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

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 distinguished

Re Waanyi People's Native Title Application (1995) 129 ALR 118 cited

Re Southern Rhodesia [1919] AC 211 cited

Wilson v Anderson (2002) 190 ALR 313; [2002] HCA 29 cited

Chelsea Investments Pty Ltd v Federal Commissioner of Taxation (1966) 115 CLR 1 cited

Radaich v Smith (1959) 101 CLR 209 cited

Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 cited

Donellan v Read (1832) 3 B & Ad 899; 110 ER 330 cited

Re Savile Settled Estates [1931] 2 Ch 210 cited

Stedman (Agent for Olgade Pty Ltd) v Shaw (1970) 91 WN (NSW) 190 cited

Re Bruce; Brudenell v Brudenell [1932] 1 Ch 316 cited

Re Arkwright's Settlement; Phoenix Assurance Company Ltd v Arkwright [1945] Ch 195 cited

Wirral Estates Ltd v Shaw [1932] 2 KB 247 cited

Jenkin R Lewis Ltd v Kerman [1971] Ch 477 cited

Pascoe-Webbe v Nusuna Pty Ltd (1985) 3 BPR 9620 cited

RM Berndt, "The Concept of "the Tribe" in the Western Desert of Australia" (1959) 30 Oceania 81

DA Vachon, "Political Consciousness and Land Rights Among the Australian Western Desert People," (1982)

RM Berndt "Tribal Migrations and Myths Centering on Ooldea, South Australia" (1941) 12 Oceania 1

AP Elkin, "Kinship in South Australia" (1939) 10 Oceania 196

Woodfall's Law of Landlord and Tenant (1978 -)

Halsbury's Laws of England (4^th ed Reissue)

DE ROSE & ORS v STATE OF SOUTH AUSTRALIA

S 253 of 2002

WILCOX, SACKVILLE & MERKEL JJ

ADELAIDE (BY VIDEO-LINK FROM SYDNEY AND MELBOURNE)

16 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 253 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PETER DE ROSE, OWEN KUNMANARA, PETER TJUTATJA, JOHNNY WIMITJA DE ROSE, MICHAEL MITAKIKI, RINI KULYURU, PUNA YANIMA, JULIE TJAMI, SADIE SINGER AND WHISKEY TJUKANKU

APPELLANTS

AND:

STATE OF SOUTH AUSTRALIA

FIRST RESPONDENT

DOUGLAS CLARENCE FULLER AND R D FULLER PTY LTD

SECOND RESPONDENTS

JUDGES:	WILCOX, SACKVILLE AND MERKEL JJ
DATE:	16 DECEMBER 2003
PLACE:	ADELAIDE (BY VIDEO-LINK FROM SYDNEY & MELBOURNE

THE COURT DIRECTS THAT:

1. Not later than 31 January 2004, the parties attend a conference in Adelaide, to be convened and conducted by a Registrar of the Court, for the purposes of considering in the light of the reasons of the Court, expressed today:

(a) what issues remain for determination; and

(b) the findings and evidence upon which any of the parties wish to rely, that are relevant to such issues.

2. The Registrar who convenes the said conference shall:

(a) convene and conduct such further conferences of the parties as may be desirable for the identification and resolution of the outstanding issues and the identification of additional evidence; and

(b) give directions for the filing of such further written submissions as may be necessary.

3. All matters of costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 253 OF 2002