9 Implementing the High Court’s jurisprudence

FEDERAL COURT OF AUSTRALIA, 2005

The decision in De Rose v South Australia [No. 2] (2005) (De Rose [No. 2]) concerned a pastoral property, De Rose Hill, in the far north-west of South Australia.¹ A group of Indigenous people asserted native title over the lease area as Nguraritja, or traditional owners, for the land. The case at first instance was heard by a single judge of the Federal Court. Justice O’Loughlin determined that any physical or spiritual connection to the land by the applicants had been abandoned and had led to a breakdown in the observance of traditional customs that was fatal to their application.²

The decision was alarming both because the applicants had been present on the property until relatively recently, in the previous twenty years or so, and because they had a strong understanding and observance of law, customs and language of the wider Western Desert. The judge seemed to take a unique view of the legal concept of ‘connection’ and of the threshold for abandonment that could have set a dangerous precedent for native title cases throughout Australia.

The applicants sought a determination of native title based on their status as Nguraritja for the area and places within the pastoral station. Many applicants referred to themselves as Yunkunytjatjara; others referred to themselves, or their parents, as Pitjantjatjara or Antikirinya. The evidence of the Indigenous witnesses that the claimed area fell within Yunkunytjatjara country was accepted.³ The claimant group was part of the Western Desert society and followed the laws and customs of the broader community. The evidence of movements of Pitjantjatjara people into the region was accepted as part of the traditional population movement throughout the Western Desert region.

The claim was not made as a communal claim, on behalf of a particular ‘people’ in the sense of a discrete system of laws. Nor did the applicants claim individual rights and interests. The judge, therefore, approached the claim as one in which the claimants were asserting some form of group rights.⁴ This led the judge into a number of errors.

CONNECTION TO LAND

The applicants explained that the boundaries of the station were not the limits of their country, as the relationships and bases from which to assert connection under Western Desert law allow personal connections to extend throughout the region. The judge agreed that the arbitrary fixing of boundaries for the purpose of defining a claim area should not be an impediment. But the judge seemed to remain confused as to why the claimants had chosen De Rose Hill as the boundaries for the claim.⁵ In trying to attach some particular significance to the station, his Honour experienced some difficulty determining the relationship to the land apart from the attachment to particular sites.⁶

Connection to the claimed area was demonstrated through personal association — whether through birth, long-term residence, knowledge or inheritance — and acceptance by the community as Nguraritja. Perhaps influenced by this, the judge failed to look at the broader system of law and custom and, instead, concentrated on the individual personal claims of each of the witnesses to their status as Nguraritja and their personal links with the station over their lifetimes.⁷

Two of the witnesses were born on De Rose Hill station; many worked or lived there for part of their lives, some for substantial periods. Most had left some time previously, with the last of the stockmen leaving the station in 1978. Occasional access for hunting had continued but there was substantial evidence of intimidation and discouragement of Indigenous people in having access to the property since that time. The judge drew the extraordinary conclusion that twenty years was a substantial period of absence, which had resulted in a failure to observe the law and custom that connected the applicants to the claim area. The breakdown in law and custom identified by the judge as a result of the lack of access was highly localised and referred primarily to observing laws and customs in relation to the physical landscape of the claim area.

The judge accepted that the absence of a physical connection to the land was not fatal to a claim, as native title could be sustained by a non-physical connection that is maintained through the acknowledgment and observance of traditional law and customs.⁸ But the judge applied an idea of non-physical connection as being a ‘spiritual’ one, in the sense of requiring religious observance of ceremony and responsibility for the sites of significance within the pastoral station.

Justice O’Loughlin acknowledged that the claimants were actively engaged in cultural activities outside of the claim area. The judge accepted that witnesses had substantial knowledge of the sites on the claim area and activities associated with those sites — they knew and were able to perform the ceremonies, stories, dances and songs of the Tjukurpa (law) for the area. His Honour went so far as to acknowledge that such knowledge went a long way towards satisfying the Court that there was a relevant connection, but he also expressed the view that ‘[t]he physical activities that would have been tangible evidence of a spiritual connection to the claim area occurred long ago’.⁹ He concluded that, ‘[s]ave for some occasional hunting trips, not one witness … has attended to any religious, cultural or traditional ceremony or duty on De Rose Hill in almost twenty years’.¹⁰

The judge was unconvinced that the laws and customs were being handed down to younger generations. Nor did his Honour appreciate that the native title process would be used by knowledge holders to pass on information. The judge saw it as too late — the damage had been done; twenty years was too long.¹¹

Apart from the absurdity of the timescale applied by the judge, his findings in relation to the absence of physical connection fly in the face of established High Court views. Failure to maintain physical connection to one part of a claim area does not defeat a claim as a whole. Failure to access an area over a relatively short period in a community’s history should not have been treated differently merely because the claim was over a discrete part of the traditional country. The observance of law and custom in the broader region was relevant to the inquiry as to the maintenance of law and custom that sustained the community’s entitlement under traditional law to the claim area and therefore to recognition of native title.

Justice O’Loughlin’s reasoning also appears to be inconsistent with the findings of the High Court in Western Australia v Ward (2002) (Ward) that suggested that failure to exercise a right does not constitute an abandonment of the right.¹² These issues raise the question as to whether a different result would have been reached if the claim had been made by Yunkunytjatjara over the whole of their traditional territory as a communal claim. Such a claim may have been more familiar to the Court but obviously inappropriate to the claimants. There is a danger to be avoided in native title jurisprudence of judges developing a vision of what a native title claim should look like.

SOCIAL AND POLITICAL LIFE

In relation to social and political identity, Justice O’Loughlin found that there was no evidence of an organised community centred around the claim area. The judge found no evidence of a coherent social group since the departure from the station and no clear direction for plans to use the country if native title was recognised. He assessed the connection to the De Rose Hill station as focused on ‘European style work practices’ and that social interaction was dominated by that work.¹³

The judge stated that the evidence in relation to customary practices was ‘not impressive when compared with the information that has been collected by early ethnographers’.¹⁴ His Honour discussed practices in relation to body piercing and scarring, circumcision, particular magical, mystical and spiritual practices, infant betrothal and post-birth practices that were no longer carried out in the area. While no doubt these practices were part of a dynamic normative system, none of these was an essential right or interest asserted or law or custom in relation to land that was relied upon to establish native title.¹⁵ This was a peculiar romantic fascination with ‘tribalism’ and a refusal to accept aspects of economic and political life as part of ‘Aboriginal life’. His Honour stated, for example, that work and children’s education were ‘non-Aboriginal factors’ in making decisions about residence.¹⁶ The judge appeared highly critical of the applicants because their culture and laws had not held them to the claim area.

This essentialising of Indigenous peoples’ relationship to land as ‘spiritual’ served to undermine their rights to the land as a proprietary interest. It also undermined the historical importance of opportunities to combine employment with the maintenance of connection to traditional country in ameliorating the impacts of dispossession.

The judge’s perception that the applicants were not ‘forcibly removed’ (absent some extreme action on the part of the state or the leaseholders) did not give due weight to the impact of land and employment policies. The impact of the grant of pastoral leases on Indigenous peoples’ sense of ownership over the land should not be understated. Until at least the decision of the High Court in Wik Peoples v Queensland (1996) (Wik),¹⁷ this land was considered the pastoralists’ land. The removal of employment options on pastoral leases was part of the process of dispossession.