De Rose v State of South Australia [2002] FCA 1342

De Rose v State of South Australia [2002] FCA 1342

The applicants failed to establish, on the evidence, that they maintained the requisite connection with the claim area by traditional laws and customs, as required by s 223 of the Native Title Act 1993 (Cth); any such connection has been abandoned and there is an absence of both physical and substantial spiritual connection by the claim group, so native title does not exist in the claim area.

Jurisdiction
Australia
Judgment Date
01 November 2002
Procedural Posture
Application for a Determination of Native Title / Final Judgment After Trial
Outcome
Application for a determination of native title dismissed
Legal Topics
['extinguishment of Native Title' 'connection Under S 223 Nta' 'pastoral Leases and Native Title' 'traditional Laws and Customs' 'burden of Proof' 'continuity of Connection' 'group and Individual Rights' 'evidence in Native Title Claims']
['native Title' 'property Law' 'aboriginal and Torres Strait Islander Law'] ['extinguishment of Native Title' 'connection Under S 223 Nta' 'pastoral Leases and Native Title' 'traditional Laws and Customs' 'burden of Proof' 'continuity of Connection' 'group and Individual Rights' 'evidence in Native Title Claims']

Case Brief

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Procedural Posture

Application for a Determination of Native Title / Final Judgment After Trial

Legal Issues

  1. 1 ['Whether native title exists in relation to the claim area under s 223 of the Native Title Act 1993 (Cth)' 'Whether the grant of pastoral leases extinguished native title' 'Whether applicants established connection with the claim area by traditional laws and customs' 'Whether continuity of connection has been maintained' 'Effect of past and partial extinguishment and operational inconsistency']

Ratio Decidendi

The applicants failed to establish, on the evidence, that they maintained the requisite connection with the claim area by traditional laws and customs, as required by s 223 of the Native Title Act 1993 (Cth); any such connection has been abandoned and there is an absence of both physical and substantial spiritual connection by the claim group, so native title does not exist in the claim area.

Court Disposition

Application for a determination of native title dismissed

Orders

  • ['The application for a determination of native title be dismissed' 'There be liberty to apply']