Case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: discussed
In the case of a claim of communal or group rights or interests, s 223(1)(a) requires the claimant community or group to establish that they have those rights and interests under traditional laws acknowledged and traditional customs observed by that community or group , and it is not sufficient that other Aboriginal peoples acknowledge and observe the traditional laws and customs. This does not mean, however, that such a claim can succeed only if every member of the community or group is shown to acknowledge and observe the relevant traditional laws and customs. The question is one of fact and degree to be determined on the circumstances of each case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (' De Rose (No 2) FCAFC ') at [57]-[58]. Accordingly, not only, as noted earlier, must the sustaining 'society' continue to acknowledge and observe the laws and customs: if the native title claim group is not that society but only part of it, that group must also acknowledge and observe them. Whether it does so again raises questions of fact and degree. (17) The requirement that the rights and interests be 'in relation to land or waters' (s 223 (1)) is not satisfied by a right formulated as 'a right to maintain, protect and prevent the misuse of cultural knowledge': Ward HCA at [57] [61] (joint judgment). (18) It is not a necessary element of the 'connection' to which s 223(1)(b) refers that the claimants presently physically occupy, visit or use the claim area, or have done so in the recent past: Ward HCA at [62] [64] (joint judgment). Their Honours stated ([64]): doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection . Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by "connection" by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the "connection" that must be shown to exist. In particular, we need express no view on when a "spiritual connection" with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice.' (my emphasis) It is possible for Aboriginal peoples to observe traditional laws and customs during periods when they have not, for one reason or another, maintained a physical connection with the claim area, but the length of the time of non-use or non-occupation may, depending on the circumstances, have an important bearing on whether traditional laws and customs continue to be acknowledged and observed: De Rose (No 2) FCAFC at [62]. I have, in fact, found to be more applicable to the facts of the present Claims, the following passage from another Full Court judgment in the more recent case of Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 at [80] : ..., the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw . In De Rose v South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts.' (my emphasis.) facts in De Rose