De Rose v South Australia (No 2)

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Citation: De Rose v South Australia (No 2) (2005) 145 FCR 290

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 264 [3.106] or here.


Background Facts

  • A group of indigenous people claimed native title over De Rose Hill Station in the ‘Western Desert’ region of northwest South Australia.
  • The Second Respondents [the Fullers] held pastoral leases.
  • They claimed that under traditional arrangement, they were the owners of the claim area. They said that under their traditional laws and customs, they have rights and responsibilities in the area relating to Dreamtime stories and ritual knowledge.
  • One claimant, Peter De Rose, was said to be the spiritual leader. He claimed he was born in the area around 1949, and that he lived there until 1978, leaving upon the death of his brother. He occasionally returned to hunt.

Legal issues

  • Native title
    • The meaning of ‘connection’ in s 223(1)(b) of the Native Title Act 1993.
    • The meaning of ‘traditional’ in s 223(1)(a) of the Native Title Act 1993.



  • S 223(1)(b): 'connection' is not physical and has nothing to do with how the people use or occupy the land or waters.
  • It means connection as defined by the traditional laws and customs of that area. In other worse, whether, according to the traditional aboriginal law of the area, they have maintained a connection with the area.
    • However, the length of time during which members of the community or group have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed.
  • There is a 3 step process of identifying this:
    1. Ascertain the traditional laws and customs of the area (ie, area specific);
    2. Characterisation of the effect of those laws and customs;
    3. Determination whether the characterisation constitutes a connection between the claimants and the claim area.
  • In this case, 'The evidence amply supported the proposition that, whatever the degree of acknowledgement or observance of traditional laws and customs by the appellants themselves, Western Desert society had continued to exist since sovereignty and the traditional laws and customs of that society had been acknowledged and observed substantially uninterrupted throughout that period.'[1]
  • Therefore, they satisfied s 223(1)(b).


  • S 223(1)(a): The subsection does not require continuing physical connection (occupation or use) of the land, connection is dealt with in s 223(1)(b), and that section also doesn't require a physical connection but rather one through laws and custom.
  • Rather, the 'traditional' aspect means that "the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters."
    • This does not require the claimants to prove that they continuously discharged all of their responsibilities under the traditional laws and customs.
    • However, there could be particular responsibilities required in their traditional laws and customs that they must discharge or otherwise fail to satisfy s 223(1)(a).


  1. (2005) 145 FCR 290, [8].
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