De Rose v State of South Australia [2013] FCA 988

De Rose v State of South Australia [2013] FCA 988

Between:

PETER DE ROSE, HUGHIE CULLINAN, TJARUWA ANDERSON AND KARINA LESTER ON BEHALF OF THE DE ROSE HILL COMPENSATION CLAIM GROUP (APPLICANTS);

STATE OF SOUTH AUSTRALIA (FIRST RESPONDENT);

DE ROSE HILL-ILPALKA ABORIGINAL CORPORATION RNTBC, ICN 4712 (SECOND RESPONDENT); and

COMMONWEALTH OF AUSTRALIA (INTERVENER).

Judge: Mansfield J

Where made: Ilpalka

Determination: Native Title does not exist

Compensation Application

On 9 June 2011, the De Rose Hill-Ilpalka Aboriginal Corporation RNTBC ICN 4712 (RNTBC) filed a Compensation Application (No. SAD 140 of 2011) (First Compensation Application) in which it sought a determination of compensation under s 50(2) of the Native Title Act 1993 (Cth) (NTA) in respect of compensation payable by the First Respondent for certain acts which had extinguished native title in the areas subject to the native title determination in De Rose Hill v South Australia (No 2) (2005) 145 FCR 290 (De Rose Hill Determination) and in areas that had been excluded from the De Rose Hill Determination because native title had been extinguished in those areas. The First Compensation Application was authorised by the De Rose Hill Native Title holders.

On 1 October 2013, the Federal Court of Australia ordered payment of compensation for the extinguishment or impairment of native title rights and interests. This is the first time the Court has made such an order.

In 2005, the De Rose Hill Nguratija People were found to hold native title over parts of the De Rose Hill pastoral lease in the decision De Rose v South Australia (No 2) [2005] FCAFC 110. The De Rose Hill Ngurarita People subsequently made a compensation application under s50(2) of the Native Title Act 1993 (Cth) ('NTA'). s50(2) provides that compensation for the extinguishment or impairment of native title must be on 'just terms.'

'Just terms' and compensation under the NTA The NTA indicates at s51A that compensation is to be capped at the amount payable for the compulsory acquisition of freehold land. This provision is further qualified by s53 which provides that the calculation of compensation payments must be on 'just terms'. The notion of compensatory payment being made on 'just terms' is a reference to s51(xxxi) of the Commonwealth Constitution. s51(xxxi) of the Constitution outlines the constitutional guarantee that where property is compulsorily acquired, compensation must be paid on 'just terms.'

The manner in which 'just terms' is to be calculated has been widely discussed by commentators (see attachments).

Implications of the decision

The Federal Court awarded compensation in favour of the De Rose Hill Nguraritja People, having found that they would have held native title over the areas, but for the extinguishment of those rights and interests. As the decision is a Consent Determination, however, the Court endorsed an agreement between the parties, without considering the relevant principles of valuing compensatory payments. To this extent the decision does not clarify the way in which future applications for compensation should be calculated.

Acts claimed to have extinguished native title

The Applicant claimed compensation for the acts of the State of South Australia which effectively extinguished native title.

The parties agree that these acts are:

1. "The freehold grant made on 20 January 1992 to Noel Coulthard, being Certificate of Title Volume 5422 Folio 657, that was surrendered from the Pastoral Lease No. 2133 pursuant to Partial Surrender No 4583674 on 8 May 1980, and was previously subject to Miscellaneous Lease No 17628 on 29 January 1981;
2. The Stuart Highway that is the surrendered land from Pastoral Lease No. 2133 pursuant to Partial Surrender No 4860713 on 15 October 1981; and
3. The Agnes Creek car park, Lot 31 in Deposited Plan 23552, resumed on 1 November 1996, by way of endorsement on Pastoral Lease No. 2133 pursuant to Certificate of Alteration No. 8250597 dated 20 February 1997."

Native Title Rights and Interests for which compensation is claimed

The decision of De Rose v South Australia (no 2) SAD253/2002 outlined the nature and extent of the native title rights and
interests as the non-exclusive rights to use and enjoy the land and waters of the determination area in accordance with the Nguraritjas' traditional laws and customs. These non-exclusive rights and interests are:
(a) "the right to access and move about the determination area;
(b) the right to hunt on the determination area;
(c) the right to gather and use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to use the natural water resources on the determination area;
(e) the right to live, to camp and to erect shelters on the determination area;
(f) the right to cook on the determination area and to light fires for all purposes other than the clearance of vegetation;
(g) the right to engage and participate in cultural activities on the determination area including those relating to births and deaths;
(h) the right to conduct ceremonies and to hold meetings on the determination area;
(i) the right to teach on the determination area the physical and spiritual attributes of locations and sites within the determination area;
(j) the right to maintain and protect sites and places of significance to Nguraritja under their traditional laws and customs on the determination area;
(k) the right to be accompanied on to the determination area by those people who, though not Nguraritja, are:

(i) spouses of Nguraritja;
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the determination area;
(iii) people who have rights in relation to the determination area according to the traditional laws and customs acknowledged by Nguraritja; or
(iv) people required by Nguraritja to assist in, observe, or record traditional activities on the determination area; and

(l) the right to make decisions about the use and enjoyment of the determination area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by Nguraritja but for the extinguishment of those native title rights and interests".

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