Case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: considered
The reasoning can be said to be as follows. The native title rights are held by the Worimi people. The custodian and protector is the eldest son in a family, although this is not an exclusive right because, for example, women are custodians of the women's site; it is not suggested that Worimi's father's mother was the sole female custodian. There is no evidence of a basis in traditional law and custom as to the restricted class of persons who hold native title rights or individual rights or of the restriction to Worimi and his family. It is Worimi's own deduction that others whom he acknowledges would have such native title rights cannot have them because they fail to acknowledge that such rights exist over the Land. A claim group, however, may exist for the purposes of s 223(1) of the Act where only a part of the community have acknowledged and observed traditional laws and customs ( De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 at [58] ). 44 In De Rose (No 2) at [57] the Full Court said that a claimant group whose members have never acknowledged or observed traditional laws and customs cannot succeed in a claim for native title rights and interests merely because other Aboriginal peoples have acknowledged and observed the relevant traditional laws and customs, even if by those laws and customs observed by others, the claimant group "possessed" native title rights. The Court observed that the position would be similar where a native title claim is made by one or more individuals who do not assert a communal or group claim. Here, on the basis of Worimi's evidence, traditional law and custom identifies Worimi people other than Worimi and his family as "possessing" rights and interests in the Land, not least Worimi women. Worimi's evidence is that at least some of those persons have not been taught about the Land; they do not acknowledge and observe the relevant laws and customs. They do not, by the laws and customs described by Worimi, have a connection with the Land. That would preclude them from succeeding in a claim (s 223(1)(b); De Rose (No 2) at [56]). 45 Worimi concludes that those persons who denied native title did not know of the traditional laws and customs that established it. Worimi's assertion is that he and his family hold native title rights within the meaning of s 223(1)(a) and (b) of the Act. He does not suggest that, by traditional law and custom, native title rights were only "possessed" by his family (s 223(1)(a)) or that they "hold" exclusive to them the common or group rights and interests comprising the particular native title claimed (s 61(1)). 46 De Rose (No 2) discussed the fact that a group that does not fulfil the requirements of s 223(1)(a) and (b) cannot succeed in a native title claim. This included a group that possessed the rights and interests under traditional laws and customs but did not, by those laws and customs, have a connection with the land. The native title claimant group must establish rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that community or group (at [58], original emphasis). Here, Worimi's evidence is that his claim group, himself, his wife and the daughters to whom he has passed the laws and custom, is not the totality of the group which possesses the rights and interests under traditional laws and customs. That group is the Worimi people, or Garuahgal people; the descendents of Mary Mahr. At the least it includes Worimi's mother Beryl Dates senior; his sister Debbie Dates and those of Debbie Dates' children to whom she has imparted knowledge of traditional laws and customs as specified in the first application.