Case: De Rose v State of South Australia (2003) 133 FCR 325
Outcome: distinguished
applicant also refers to the decision of the Full Court in De Rose v State of South Australia (2003) 133 FCR 325 (" De Rose ") at [273]-[283]. It submits that the decision establishes that there is no requirement that different families within a group maintain contact with each other in order to be subject to a common body of laws and customs. To the extent that the applicant relies upon the decision in De Rose for that proposition, it has misunderstood that decision. It concerned a claim by persons described as "Nguraritja" to native title pursuant to the traditional laws and customs of a larger group known as the "Western Desert Bloc". The relevant laws and customs were not those of the Nguraritja but those of the Western Desert Bloc. It is clear that the Court considered that there was such a society which had enjoyed continuous existence and vitality since sovereignty and had traditional laws and customs. The case is of no assistance for present purposes. In any event, I accepted in my earlier reasons that it is not necessary that the apical ancestors be shown to have been members of the one pre-sovereignty society. However, if descent from three apical ancestors is the basis for membership of the claim group, then there must be some connection between them and the relevant pre-sovereignty society from which the claim group asserts that it has derived its native title rights and interests. In my earlier reasons I observed that the applicant had criticized the delegate for seeking to find a society of which the three apical ancestors were the members, asserting that it was not essential to the applicant's case that the existence of such a society be established. That criticism may not have accurately identified the delegate's reasoning. As I understand his reasoning it was that evidence that three women, who may have met or known each other, could not, without more, constitute a society, particularly given the absence of any identified men. I suspect that just as the applicant misunderstood the delegate's reasoning, the delegate may have misunderstood the applicant's claim. The latter misunderstanding may have been the result of the extreme lack of clarity with which it is expressed and the fact that, in order to identify it, it is necessary to trawl through various parts of the application and the affidavits. My understanding of the applicant's claim as to the traditional nature of the claim group's laws and customs is primarily that they are presently acknowledged and observed, coupled with assertions that they have been passed down from generation to generation by the claim group, and that the claim area was, prior to first European contact, that of the Gudjala people, a description which the claim group also applies to itself. Some evidence from Mr Hagen generally supports these assertions. He also says something about the named apical ancestors and a little about Aboriginal laws and customs. I will return to his report at a later stage. There is a substantial amount of evidence in the affidavits and the report concerning current laws and customs which, it is asserted, are "traditional", but little of it relates to rights and interests in land and waters.