Case: De Rose v South Australia [2002] FCA 1342
Outcome: referred to
The following observations were made by the trial judge concerning airstrips and roads in De Rose v South Australia [2002] FCA 1342 (at [558]), the proceedings culminating in De Rose (No 2) : ...I do not see how improvements such as fences and roads would wholly, or even partially, extinguish native title; they are clear examples of improvements which are capable of joint use. Airstrips represent a particular problem because of issues of safety. Because of that factor, I would deny the claimants all rights of access with a buffer zone of 500 metres. In respect of airstrips and their buffer zones, native title has been extinguished. 159 This reasoning must, of course, be tested against the approach determined by the Full Court in the appeal from that judgment. It is doubtless true that many of the native title rights arising in this matter (except, perhaps, the right to live and camp including to erect shelters) can be exercised on land on which an airstrip or road has been constructed. While it is possible that the exercise of those rights might conflict with the use of an airstrip or road (for example, hunting on the airstrip or road when a plane is landing or vehicle passing by), it could reasonably be expected that such circumstances would be rare. However, as I apprehend the reasons of the Full Court in De Rose (No 2) , based, as they were, on High Court authority, it is important to focus ultimately on the competing and potentially inconsistent rights of pastoralists (and their exercise) and native title right holders and not merely on whether land can be used simultaneously by both in exercise of those rights. 160 If I was satisfied on the evidence that the trap yard airstrips and pastoral roads were constructed, in the sense discussed by the Full Court in De Rose (No 2) , in exercise of rights conferred by the leases, then it would appear to follow from the reasons of the Full Court, that their construction in exercise of those rights probably extinguished all native title rights on the land on which they were constructed. However, the evidence to which I was referred does not enable me to conclude that there was such construction. If it be the fact (and this is not established one way or the other by this evidence) that the trap yard airstrips were nothing more than naturally flat land cleared of vegetation and the roads were nothing more than navigable land over which vehicles have continuously driven, then probably neither could be said to have been constructed. If it be the fact (and this is not established one way or the other by this evidence) that either the trap yard airstrips or the pastoral roads (or some of them) had been graded and formed then it may be possible to say they have been constructed in exercise of rights conferred by the lease. Given the paucity of the evidence I am unable to conclude that native title rights have been extinguished on land on which trap yard airstrips and pastoral roads presently exist on the claim area. 161 The next issue concerns land adjacent to the improvements. The applicants conceded that where native title had been extinguished on land due to the construction of an improvement on that land, native title would also be extinguished on adjacent land, the exclusive use of which was necessary for the enjoyment of the improvement. The applicants proposed a regime, to be incorporated in the determination, which involved identifying the land adjacent to improvements in general terms and the creation of a liberty to apply: to establish the precise location of the boundaries of land on which the improvements referred to at Schedule D to this determination have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements. 162 The Pastoralists contended that such an order should be expressed consistently with [166] of De Rose (No 2) , not by reference to "exclusive use", and similarly, that the reference to the buffer zone or adjacent areas in the determination should be expressed in the same way. Where the evidence permitted a finding about the adjacent area needed to permit enjoyment of the improvement, the Pastoralists submitted that that should be reflected in the determination though they appeared to accept that, as an alternative, findings could be made in the reasons for judgment identifying the adjacent area in relation to those improvements addressed by the evidence.