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September/October 2002 **May/June 2002 arch/April 2002 **May/June 2002 /No.3/2002 September/October 2002 No.5/2002 The NativeNative Title Title Newsletter Newsletter is published is published on a bi-monthlyevery second basis. month. The newsletterThe Newsletter includes in- a Contents summarycludes a summaryof native of title native as titlereported as reported in the News from the Native Title press.in the Althoughpress. Although the summary the summarycanvasses can-me- Research Unit 2 diavasses from media around from around Australia, Australia, it itis is not intended to be an exhaustive review of de- Features velopments. De Rose v State of South Australia 2 The Native Title Newsletter also includes Mediation of native title in Queensland contributions from people involved in – a Torres Strait Experience 7 native title research and processes. Views ex- Wilson v Anderson 9 pressed in the contributions are those of the authors and do not necessarily reflect the Martu determination 12 views of the Australian Institute of Aborigi- Conference reports 15 nal and Torres Strait Islander Studies. Native title in the news 18 Applications 21 Notifications 22 Recent publications 22 Native Title Research Unit publications 23 The Newsletter is also available in ELECTRONIC format. This will provide a FASTER service for you, and will make possible much greater distribution. If you would like to SUBSCRIBE to the Native Title Newsletter electronically, please send an email to [email protected], and you will be helping us provide a better service. Electronic subscription will replace the postal service, please include your postal address so we can cross check our records. The same service is also available for the Issues Papers series. WorldwidePromoting knowledge and understanding of Australian Indigenous cultures, past and present NEWS FROM THE NATIVE TITLE RESEARCH UNIT New Visiting Research Fellow De Rose Hill appeal Stuart Bradfield has joined the Native Title The Yankunytjatjara people will lodge an Research Unit as a Visiting Research Fellow. appeal with the full bench of the Federal Court over their native title claim over the Stuart spent the last two years teaching in De Rose Hill cattle station. Appeal papers the politics department at Macquarie Uni- will be lodged with the court before the versity. Before that he was a visiting PhD deadline of November 22. Dr Lisa Strelein student with the Indigenous Governance has written commentary about the decision program at the University of Victoria, Brit- in the Features section, below. ish Columbia, researching the British Co- lumbian treaty process. Stuart’s thesis, which will be submitted in January, looked at the establishment of a treaty relationship as a New Issues Paper means of resolving the question of Aborigi- The NTRU has published Issues Paper vol- nal status in this country, with some com- ume 2 number 18, ‘Diaspora, Materialism, parison with contemporary developments in Tradition: Anthropological Issues in the Re- Canada. cent High Court Appeal of the Yorta Yorta’, by James F Weiner. Dr Weiner inspects While at the NTRU, Stuart will investigate some of the appeals made to tradition and the emerging culture of agreement making continuity of tradition in the High Court surrounding the native title process. In par- appeal of the Yorta Yorta native title case. ticular, he is interested in the possibility of agreement/treaty making as a vehicle for Current and previous Issues Papers from expanding native title outcomes for claim- the Land, Rights, Laws: Issues of Native Title ants, particularly with reference to issues of series are posted on the NTRU webpage. self-government, and the recognition of You can also subscribe to the Issues Paper other inherent Aboriginal rights. mailing list through the form on our website or by contacting the Native Title Admini- stration Officer on 02 6246 1161. FEATURES De Rose v South Australia [2002] this had led to a break down in the obser- FCA 1342 (1 November 2002) vance of traditional customs that was fatal to their application. by Lisa Strelein, NTRU The decision is alarming because of the ap- The decision in the De Rose Hill case con- plicants’ presence on the property up until cerned a pastoral property in the far north- relatively recently when access became more west of South Australia. A group of Abo- problematic, and their strong acknowledg- riginal people asserted native title over the ment of law, customs and language of the lease area as Nguraritja, or traditional own- Western Desert. However, the Judge ers, for the land. The case was heard by a seemed to take a unique view of the legal single Judge of the Federal Court. concept of ‘connection’ and the threshold for abandonment that sets a dangerous Justice O’Loughlin determined that any precedent for native title cases throughout physical or spiritual connection to the land Australia. by the applicants had been abandoned and Native Title Newsletter No. 5/2002 2 The applicants Connection to the claimed area was demon- The applicants sought a determination of strated through personal association, native title based on their status as Ngu- whether through birth, long term residence, raritja. Many applicants referred to them- knowledge or inheritance, and acceptance by selves as Yunkunytjatjara others referred to the community as Nguraritja. Perhaps in- themselves, or their parents as Pitjantjatajra, fluenced by this, the Judge's examination of or Antikirinya. The evidence of the Abo- connection in the broader region through- riginal witnesses was accepted that the out which the system of law and customs claimed area fell within Yunkunytjatjara was acknowledged to operate was minimal, country.1 The claimant group are part of the with focus instead on the personal claims of Western Desert society and follow the laws each witness to status as Nguraritja and per- and customs of the broader community. sonal links with the station over their life- The evidence of movements of Pitjantjatjara time.[206] people into the region was accepted as part of the traditional population movement Two of the witnesses were born on De Rose throughout the Western Desert region. Hill station, many worked there or lived there for part of their life, some for sub- The claim was not made as a communal stantial periods. Most had left some time claim, on behalf of a particular ‘people’, in ago, with the last of the stockmen leaving the sense of a discrete system of laws. Nor the station in 1978. Occasional access for did the applicants claim individual rights and hunting had continued but there was sub- interests. The Judge therefore approached stantial evidence of intimidation and dis- the claim as one asserting some form of couragement of Aboriginal people accessing group rights.[320] This led the Judge into a the property since that time. number of errors. The Judge drew the extraordinary conclu- Connection to land sion that twenty years was a substantial pe- The applicants explained that the bounda- riod of absence which had resulted in a ries of the station were not the limits of failure to observe the law and custom that their country, as the relationships and bases connected the applicants to the claim area. from which to assert connection under The breakdown in law and custom identi- Western Desert Law allow personal con- fied by the Judge as a result of the lack of nections to extend throughout the region. access was highly localised and referred pri- The Judge agreed that the arbitrary fixing of marily to the observance of laws and cus- boundaries for the purpose of defining a toms in relation to the physical landscape of claim area should not be an impediment. the claim area. However, the Judge seemed to remain con- fused as to why the claimants had chosen The Judge accepted that the absence of a De Rose Hill as the boundaries for the physical connection was not fatal to a claim, claim.[203] In trying to attach some par- that native title could be sustained by a non- ticular significance to the station, his Hon- physical connection maintained through the our experienced some difficulty determining acknowledgment and observance of tradi- the relationship to the land apart from the tional laws and customs.[377] However, the attachment to particular sites.[331] This is Judge applied an idea of non-physical con- despite the Judge's acceptance of the evi- nection as being a ‘spiritual’ one, in the dence that these sites comprise part of a sense of requiring religious observance of larger totemic geography of which De Rose ceremony and responsibility for the sites of Hill is but one part. significance within the pastoral station. The Judge acknowledged that the claimants 1 Although early ethnographic maps show it as An- were actively engaged in cultural activities tikirinya country. [297-9] Native Title Newsletter No. 5/2002 3 outside of the claim area. His Honour ac- treated differently merely because the claim cepted that witnesses had substantial knowl- is over a discrete part of the traditional edge of the sites within the claim area and country. The observance of law and custom activities associated with those sites – they in the broader region was relevant to the knew and were able to perform the ceremo- inquiry as to the maintenance of laws and nies, stories, dances and songs of the Tju- customs which sustained the community’s kurpa for the area. His Honour went so far entitlement under traditional law to the as to acknowledge that such knowledge claim area and therefore to recognition of would have gone a long way toward satisfy-
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