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 (4th 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