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[2025] HCA 12
appellant. Appeal allowed. The relevant Full Court order was set aside, and the primary judge's order dismissing the Arabana No 2 Application was ordered to be set aside. The proceeding was remitted for...
The High Court did not decide that the Arabana hold native title over the Oodnadatta Overlap Area. It decided that the claim had been assessed using too narrow a test. The majority said the law does not require proof of physical acts on the claimed land if the relevant traditional laws and customs establish a connection in another way, including spiritually. Because the primary judge focused heavily on physical activity in the area, the dismissal was set aside and the case sent back for reconsideration.
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2,230 words · generated 03/10/2026
The case concerns an Arabana native title claim over the “Overlap Area”, approximately 150 km² around Oodnadatta in South Australia. The area includes the township, the Oodnadatta Common, the airport and land held by the Aboriginal Lands Trust ([5]). It lies beside land over which the Arabana had already obtained a native title determination in 2012.
6 cited instruments linked from this judgment.
The Arabana had initially included part of the area in a land-rights claim filed in 1993. After the Native Title Act 1993 (Cth) was enacted, that proceeding was discontinued. In 1998 the Arabana made a large native title claim over adjoining country. The Federal Court made a determination in 2012 recognising Arabana native title over that area, subject to specified extinguishment exceptions. The Overlap Area was left out because a proposed transfer to the Aboriginal Lands Trust was contemplated but never occurred ([6]).
The Arabana lodged the claim now in issue in 2013. Walka Wani groups also claimed parts of the same area, and the claims were joined ([7]-[9]). The primary judge accepted that the Overlap Area was Arabana country at effective sovereignty and that the Arabana then held native title rights and interests under their traditional laws and customs. But his Honour concluded that the Arabana had not established maintenance of their connection with the area ([10], [37]).
The Full Court dismissed the Arabana appeal by majority. It separately rejected the Walka Wani claims, and that part of the Full Court decision was not appealed ([12]). The Arabana appealed to the High Court on two grounds. The High Court allowed the first ground, concerning the correct application of s 223(1), and did not need to decide the second ground about the legal significance of the 2012 determination ([13], [101]).
The result is important but limited. The High Court did not make a native title determination for the Overlap Area. It set aside the dismissal and remitted the matter so the Federal Court could reconsider whether to make a determination under s 225 ([102]-[103]).
The majority’s reasoning turns on the wording and structure of s 223(1). The provision requires rights and interests possessed under traditional laws and customs, under s 223(1)(a), and a connection with land or waters “by those laws and customs”, under s 223(1)(b) ([18]). The Court described these as two inquiries: identify the traditional laws and customs and the rights and interests possessed under them, then identify whether those laws and customs connect the claimants to the area ([19]).
The statutory word “connection” does not itself prescribe physical presence or conduct. The majority reasoned that the character of the connection depends on the laws and customs in question. Where those laws and customs make connection depend on physical acts in the area, evidence of those acts may be important. But where the laws and customs allow connection to be established in another way, physical acts in the claim area may not be necessary ([22]).
The majority relied on the approach in Western Australia v Ward: s 223(1)(b) is not simply a test of how claimants use or occupy land. A lack of evidence of recent use does not, by itself, require the conclusion that there is no relevant connection ([23]). It also approved the relevant principle from Bodney v Bennell: displacement and the impracticability of maintaining a traditional physical presence do not necessarily mean that a community has lost its connection, which may persist at a spiritual or cultural level ([24]).
South Australia argued that a spiritual connection could be sufficient only if there were an “explicable reason” for the absence of physical practice, such as lack of access or intimidation. The majority rejected that qualification. It found no textual basis for limiting connection to a physical one unless claimants could explain why it was otherwise. It stated that a spiritual connection may suffice without qualification ([26]).
Applying that construction, the majority identified a recurring flaw in the primary judge’s assessment. The judge repeatedly asked whether witnesses had carried out acts of acknowledgment or observance in the Overlap Area. That approach risked treating local physical activity as indispensable, rather than deciding whether the Arabana, by their traditional laws and customs, had a connection with the area ([53]-[55]).
The majority did not hold that every fact relied on by the Arabana proved connection. It held that the evidence had to be assessed under the right question. Witnesses’ knowledge that Oodnadatta was Arabana country, their knowledge of Arabana law and custom, and their broader cultural connections could be relevant, even if not expressed through frequent physical activity in the precise area ([62], [65], [69]). Similarly, hunting, teaching, site protection, funerals and social gatherings were not automatically sufficient, but could not properly be discounted simply because the trial judge had not found that they were performed in a particular traditional form or with a specific local purpose ([88]-[97]).
The majority also considered the 2012 Arabana Determination relevant evidence. The primary judge had reasoned that the necessary continuity of connection to the Overlap Area had to be established by evidence in the present proceeding and treated the earlier determination as not being evidence of connection “in” the Overlap Area. The High Court said that connection under s 223(1)(b) is by laws and customs; where those laws and customs recognise collective rights to Arabana country, evidence concerning adjoining country may bear on connection to the Overlap Area. The 2012 determination and material relied on for it were before the primary judge and were capable of being evidence under s 86 ([83]-[85]).
The Court nevertheless left important factual work for the remitter. It noted that the primary judge had not made sufficiently detailed findings about the contemporary content of Arabana traditional laws and customs ([49]-[50]). The decision therefore corrects the legal method without resolving the evidentiary question or declaring native title to exist.
Before Stuart, the authorities cited in the judgment established that s 223(1)(b) requires a connection “by” traditional laws and customs, and that the content of those laws and customs is central. Ward had rejected a simple equation between connection and recent use or occupation, but the plurality in that case expressly left open when a spiritual connection would be enough ([23]; see also Steward J’s discussion at [109]-[110]). Earlier Federal Court decisions had accepted that connection might subsist at a spiritual or cultural level despite impracticability of physical presence ([24]-[25]).
The High Court majority in Stuart gives a direct answer to the unresolved point: a connection for s 223(1)(b) need not be physical, and a spiritual connection may be sufficient without a separate requirement to explain why physical practices did not occur ([22], [26]). That does not remove the need to identify the relevant traditional laws and customs or to prove that the connection is “by” them. Nor does it turn cultural or spiritual belief, considered in isolation from the statutory framework, into a free-standing native title right. The majority’s reasoning remains anchored in the two inquiries under s 223(1) ([19], [53]).
The judgment also confirms that evidence of physical conduct remains relevant, but its legal role depends on context. Use of land may reveal the kind of connection created by traditional laws and customs; absence of recent use does not dictate the opposite conclusion ([23]). The legal inquiry is not replaced by a checklist of activities in the claim area.
The opinions within the Court should be distinguished. Steward J considered that the statutory concept requires physical connection through the holding and exercise of usufructuary rights, and that spiritual, religious or cultural links alone cannot satisfy it ([107]-[120]). That is a separate view, not the majority holding. Jagot J agreed that the Arabana appeal should succeed, and placed particular emphasis on the conceptual effect of the 2012 determination and the finding that the Overlap Area was Arabana country at sovereignty ([178]-[186]). The majority’s express disposition, however, rested on the error in the primary judge’s application of s 223(1).
At [22], the majority says: “The nature of the ‘connection’ will depend on the ‘laws and customs’.” In plain English, a court must first understand how the group’s traditional laws and customs relate people to country. It cannot assume that every group’s connection must be demonstrated in the same physical way.
At [26], the majority states that a spiritual connection may be sufficient “without qualification”. This rejects a rule that claimants must first show some external obstacle to physical practice. It does not remove the need to connect the claimed relationship to the relevant traditional laws and customs.
At [53], the Court says the question is whether there is a connection with the claim area “by [the] laws and customs”. This is the central practical direction in the judgment. Physical acts within the boundary may be evidence, but the legal test is broader than whether such acts occurred.
At [83]-[85], the Court explains that the 2012 Arabana Determination and supporting material could be relevant evidence. In plain terms, an earlier determination about adjoining country was not automatically decisive, but neither could it be disregarded merely because the later claim concerned a different geographic area.
At [101]-[103], the Court makes clear what it did not decide. It allowed the appeal, set aside the dismissal and remitted the proceeding. The Federal Court must still consider whether the evidence supports a determination and, if so, the rights and interests to be recognised.
The decision is most directly relevant where a native title claim is assessed on the basis that claimants must prove physical acts of acknowledgment or observance inside the precise claim boundary. It is also relevant where a group’s laws and customs may connect people to country collectively, spiritually or culturally, while evidence of recent physical use is limited.
The case illustrates circumstances in which broader evidence may need careful consideration: an accepted connection to adjoining country; an earlier native title determination for the same group; evidence that the claimed area is regarded as part of the group’s country; and historical displacement or demographic change affecting physical presence ([83]-[85], [99]). The judgment does not establish that any one of those features is enough. Their significance depends on the particular traditional laws and customs and the evidence in the proceeding.
Evidence discussed included witness accounts of being taught that Oodnadatta was Arabana country; knowledge of Arabana laws, moieties and Ularaka; use of local natural resources; site protection; visits for funerals and social gatherings; and a map recording country boundaries ([56]-[77], [88]-[97]). The High Court’s point was not that those matters necessarily prove connection, but that the primary judge’s physical-acts focus affected how their relevance was assessed.
The case should not be read as eliminating the continuity inquiry. The claimants still have to establish that the present rights and connection arise under traditional laws and customs within s 223(1), with the continuity principles described in Yorta Yorta ([20]-[21]). The judgment addresses the nature of connection, not a general exemption from proof.
The judgment supplied for this analysis is dated 9 April 2025. It contains no discussion of later court treatment of Stuart, so no claim can be made from this material about how subsequent courts have applied, distinguished or limited it.
The judgment itself describes the earlier authorities it uses. It applies the two-inquiry approach associated with Ward and Yorta Yorta, approves the relevant proposition in Bodney v Bennell, and discusses Federal Court decisions recognising that connection may persist despite limited physical presence ([19]-[25]). Those are authorities considered by the High Court, not later treatment of Stuart.
For professional research purposes, the distinction between the majority and Steward J’s separate reasoning is particularly important. The majority holds that spiritual connection may suffice without qualification under s 223(1)(b), while Steward J advances a physical-connection view ([26], [105]-[120]). The judgment’s binding ratio is the majority’s; the contrary view should not be presented as the Court’s rule.
First, the remitter must determine the contemporary content of Arabana traditional laws and customs and whether, by those laws and customs, the Arabana have a connection with the Overlap Area. The High Court expressly identified insufficient findings on that first inquiry ([49]-[50]). It did not decide the ultimate factual question.
Second, the evidentiary weight of different forms of spiritual or cultural connection remains fact-dependent. The Court says such a connection may suffice, but its existence and relationship to the relevant traditional laws and customs must still be established in the case before the court ([22], [26], [53]).
Third, the judgment does not decide how much weight the 2012 Arabana Determination should ultimately carry, or whether it can support a finding of connection to the Overlap Area on its own. The Court held only that it was relevant evidence and that the primary judge’s error affected its assessment ([83]-[85], [101]).
Fourth, the High Court did not resolve the Arabana Applicants’ second appeal ground as a separate ground. Nor did it decide the precise scope of any native title rights and interests in the Overlap Area. Those matters remained for the Federal Court on remitter ([101]-[103]).
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ
AARON STUART & ORS APPELLANTS
AND
STATE OF SOUTH AUSTRALIA & ORS RESPONDENTS
Stuart v South Australia
[2025] HCA 12
Date of Hearing: 6 & 7 November 2024
Date of Judgment: 9 April 2025
A1/2024
ORDER
Appeal allowed.
Set aside order 3 of the orders of the Full Court of the Federal Court of Australia made on 14 August 2023, and in its place, it be ordered that order 1 of the orders made by the Federal Court of Australia on 21 December 2021 in relation to Action SAD 38/2013 be set aside.
The proceeding be remitted in accordance with the reasons of the High Court of Australia.
Each party bear its own costs of the appeal.
On appeal from the Federal Court of Australia
Representation
S B Lloyd SC with A L Sibree and L J A Herweijer for the appellants (instructed by Camatta Lempens Pty Ltd)
T N Golding KC with W V Ambrose for the first respondent (instructed by Crown Solicitor's Office (SA))
V B Hughston SC with T L Jowett SC for the second to fifth respondents (instructed by South Australian Native Title Services Inc)
R J Webb KC for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
Submitting appearances for the sixth, seventh and eighth respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Stuart v South Australia
Native title rights – Where Arabana people applied for determination of native title under Native Title Act 1993 (Cth) – Where Arabana people held native title over area of land abutting claim area – Whether primary judge correctly construed and applied definition of "native title" in s 223(1) – Whether "connection" with land or waters for purposes of s 223(1)(b) must be established by physical acts of acknowledgment or observance – Relevance of native title determination in respect of land abutting claim area.
Words and phrases – "acknowledgment or observance", "by those laws and customs", "connection", "continuity", "cultural connection", "effective sovereignty", "land or waters", "native title", "native title rights and interests", "physical acts", "physical connection", "religious connection", "sovereignty", "spiritual connection", "traditional laws and customs".
Native Title Act 1993 (Cth), ss 13, 82, 86, 94A, 223, 225.
GAGELER CJ, GORDON, EDELMAN, GLEESON AND BEECH-JONES JJ. This appeal concerns a claim under the Native Title Act 1993 (Cth) by the appellants, on behalf of Aboriginal people who both identify and are recognised as "Arabana"1 ("the Arabana Applicants"). They claim that they hold native title over an area of approximately 150 km2 in the vicinity of the township of Oodnadatta in South Australia ("the Overlap Area").2
In this Court, the Arabana Applicants contend, by their first ground of appeal, that a majority of the Full Court of the Federal Court erred in upholding the primary judge's approach to applying the definition of "native title" in s 223(1) of the Native Title Act. This ground of appeal should be upheld, and the appeal allowed.
To hold native title within the meaning of s 223(1) of the Native Title Act, the claimant Aboriginal peoples or Torres Strait Islanders must relevantly have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them (s 223(1)(a)); and they must have a connection with land (or waters) by those traditional laws and customs (s 223(1)(b)). As will be explained, while the primary judge correctly identified the principles to be applied, his Honour erred in his application of those principles by focussing on whether there were physical acts of acknowledgment and observance of traditional laws and customs in the Overlap Area which demonstrated "connection", rather than asking the broader question of whether the Arabana, by their traditional laws and customs, have a "connection" with the Overlap Area.
It was common ground that, if the appeal was to be allowed on this basis, the proceeding should be remitted to the Full Court of the Federal Court to consider whether a determination under s 225 of the Native Title Act should be made. As the matter is to be remitted for determination in accordance with these reasons, it is necessary for these reasons to deal with the facts and background in some detail.
The Overlap Area comprises the township of Oodnadatta, the Oodnadatta Common, the Oodnadatta Airport and an area held by the Aboriginal Lands Trust ("the ALT") established under the Aboriginal Lands Trust Act 1966 (SA). Oodnadatta is about 160 km south of the Northern Territory border. The whole of the Overlap Area is bounded by areas in respect of which determinations of native title under the Native Title Act have been made in favour of a number of native title claim groups, including the Arabana.3
The Arabana first made a claim for land rights over a large area in the far north of South Australia by a writ filed in this Court on 22 May 1993. That claim included part of the Overlap Area. That proceeding was discontinued after the enactment of the Native Title Act. Then, in 1998, the Arabana lodged a claim that they hold native title under the Native Title Act over an area of approximately 68,823 km2 abutting the eastern and southern boundaries of the Overlap Area. On 22 May 2012, the Federal Court made a determination for the purposes of s 225 of the Native Title Act in respect of that claim which recognised, apart from areas where native title had been extinguished,4 the native title of the Arabana over the claimed area ("the 2012 Arabana Determination"). The Overlap Area was not included in that claim because the first respondent, the State of South Australia, had proposed to transfer much of the area to the ALT but this never eventuated.
Having obtained the 2012 Arabana Determination, on 1 March 2013, the Arabana Applicants lodged a claim under the Native Title Act ("the Arabana No 2 Application") that they hold native title in relation to the Overlap Area, an area abutting the area the subject of the 2012 Arabana Determination. The Arabana No 2 Application is the subject of this appeal.
On 12 April 2013, the Walka Wani5 made a claim that they held native title over part of the Overlap Area, being the town of Oodnadatta, the Oodnadatta Airport, a racecourse and some land immediately surrounding those areas ("the Walka Wani No 1 Application"). On 14 September 2018, the Walka Wani then made a second claim over the remainder of the Overlap Area that was not covered by the Walka Wani No 1 Application ("the Walka Wani No 2 Application"). In combination, the areas which were the subject of the Walka Wani No 1 Application and the Walka Wani No 2 Application were exactly the same as the area the subject of the Arabana No 2 Application.
On 26 September 2018, the Federal Court ordered, pursuant to s 67 of the , that the Arabana No 2 Application, the Walka Wani No 1 Application and the Walka Wani No 2 Application be dealt with in one proceeding.
"A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraph (b) and (c) (taking into account the effect of this Act); and
...
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests."
When the Federal Court makes a determination of native title, the Court order must set out the details of the matters in s 225.17
"Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia." (emphasis added)
The immediately relevant elements in the definition in s 223(1) of "native title" and "native title rights and interests" are based on this Court's decision in Mabo v Queensland [No 2],19 and have remained constant since the Native Title Act was passed.20
The question in any given case is a question of fact that requires not only the identification of the laws and customs said to be traditional laws and customs but, "no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs".21 The outcome of these inquiries may well depend on the same evidence as is used to establish connection of the relevant peoples with the land or waters because the connection required by s 223(1)(b) is a connection with the land or waters "by those laws and customs".22 Thus, there are two inquiries required by s 223(1): first, identification of the traditional laws and customs and the identification of the rights and interests possessed under those traditional laws and customs and, second, identifying the connection with land or waters by those laws and customs.23
In Members of the Yorta Yorta Aboriginal Community v Victoria, the plurality explained the two inquiries in these terms:24
"... account must no doubt be taken of the fact that both pars (a) and (b) of the definition of native title are cast in the present tense. The questions thus presented are about present possession of rights or interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.
... the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs."
"... demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated ... The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood ... ?"
That passage illustrates why it is necessary to identify the laws and customs at present for the purposes of s 223(1)(a), separately from the laws and customs at the time of sovereignty, because the specific or precise content of the laws and customs will not necessarily be the same as those at sovereignty.
The connection required by s 223(1)(b) is between Aboriginal peoples or Torres Strait Islanders and land or waters. Because the "connection" for the purposes of s 223(1)(b) is to be "by [the] laws and customs", it does not need to be a physical connection with the claim area. The nature of the "connection" will depend on the "laws and customs". That is, if the laws and customs demonstrate that connection with the relevant land and waters is generally by undertaking physical acts of acknowledgment or observance within the area of those land and waters, then establishing a connection may depend on whether such acts were performed. But equally, if the laws and customs demonstrate that connection may be established other than by physical acts of acknowledgment or observance within the relevant area, then such acts may not be necessary to demonstrate "connection".
As the plurality explained in Western Australia v Ward:26
"In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a 'connection' with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a 'connection' of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection."
As the passage explains, s 223(1)(a) and (b) are intrinsically linked: ascertaining "connection" for s 223(1)(b) requires identifying the content of the traditional laws and customs for s 223(1)(a). Subsequent decisions of the Federal Court applying this approach have explained how the absence of acts of physical acknowledgment or observance within the claim area does not preclude a conclusion that the native title claimants have a relevant "connection" to that area.27
"It is well accepted that an effect of European settlement on Aboriginal communities was often enough to render it impracticable for them to maintain a traditional presence on substantial parts of their respective lands. However, it is equally accepted in decisions of this Court that such impracticability does not necessarily mean that the surviving members of such a community have not substantially maintained their connection with their land ... It may have subsisted at a spiritual and/or cultural level ..."
Put in different terms, establishing "connection" requires identifying the nature of the laws and customs by which that "connection" arises but proving that "connection" may not depend on evidence of physical acts of acknowledgment or observance in the claim area.
The Commonwealth invited the Court to, contrary to a submission put by South Australia, expressly endorse the statement of principles set out by O'Bryan J in the decision below.30 The Court should do so. That statement is consistent with the principles set out above and, relevantly, emphasises that "connection" for the purposes of s 223(1)(b) need not be physical and may be spiritual.
South Australia contended that "spiritual" connection could only be sufficient if there were "explicable reasons" for not observing and practising the traditional laws and customs on the claim area, such as that the claimant group "cannot get access to the area" or "are intimidated". That submission cannot be accepted at the level of principle. There is no textual basis for reading "connection" in s 223(1)(b) of the Native Title Act as limited to "physical" connection unless there is some "explicable" reason for the connection to be other than physical. All that s 223(1)(b) requires is that there is "a connection"; a "spiritual" connection may be sufficient, without qualification.
It was common ground that, although sovereignty was claimed in 1788, effective sovereignty had not occurred in the Overlap Area for a substantial time after 1788.34 "Effective sovereignty" is a practical measure by which a court may establish the position of Arabana society and the Overlap Area at the time of actual sovereignty.35 The primary judge accepted the opinions of the experts called by the Arabana (Dr Lucas36 and Dr Stockigt37) and the State (Dr Sackett38 and Mr Gara39) "that effective sovereignty occurred ... in the period 1872-73".40 It was also common ground that effective sovereignty did not mean that there was a collapse at that time of Aboriginal law and custom in the region.41
The primary judge accepted, as appropriate, the summary of the classical Arabana society as defined by the following "key features" of Arabana society set out by Finn J in the 2012 Arabana Determination, namely:42
"(i) [a] system of kinship and marriage, underpinned by the practice of exogamy and the avoidance of incest, which was central to defining relationships between Arabana people, and between Arabana people and the land. This classical Arabana kinship system was characterised by ‑
(a) a classificatory kin system which attributed kin terms to classes of relationships and in turn predicated normative behaviour between those classes of relationships;
(b) two exogamous matrilineal moieties known as Mutherri (Matthurie) and Kararru (Kirirawa) as well as by exogamous totemic divisions which regulated marriage and were significant in some ceremonial responsibilities; and
(c) preferential marriage rules which were indicated in the classificatory kin system and which oriented marriage (and ceremonial) relationships;
(ii) division into small localised groups with particular association with certain areas within Arabana country. Some members of those smaller groups would come together for ceremony, trade and major decision making;
(iii) [a] distinct language comprising a number of closely related dialects; and
(iv) [a] male initiation process that included the Wilyaru ceremony."
As the primary judge explained, the appropriateness of the summary by Finn J was "supported by the report of Dr Fergie and Dr Lucas prepared in 2011 in support of the then Arabana claim" (which resulted in the 2012 Arabana Determination) and the reports of Dr Lucas prepared in connection with "the present claim".43
Although the Federal Court is generally bound by the rules of evidence in native title proceedings,44 s 86 of the Native Title Act expressly provides for the Federal Court to receive into evidence the transcript of evidence in any other proceedings before the Court and draw any conclusions of fact from that transcript that the Court thinks proper45 and also adopt any decision or judgment of the Court.46 As the primary judge explained, his Honour relied upon the reports prepared and relied upon for the 2012 Arabana Determination, the 2012 Arabana Determination and also the reports of Dr Lucas prepared in connection with the application – the Arabana No 2 Application – that was being determined.
The primary judge then referred to the subsequent report of Dr Lucas filed in the Arabana No 2 Application, which indicated that the Arabana Applicants "are descendants of the Arabana people who were found by the Court in 2012 to be native title holders according to the laws and customs of the Arabana",47 and quoted Dr Lucas' conclusion that:48
"• the applicants are members of a society ('Arabana') that is defined by systematic principles of membership entailing normative prescriptions, this system being defined by way of recognised mechanisms of descent and filiation;
• the applicants are descended from Arabana antecedents, according to principles of filiation recognisable as traditional or as having been derived from a traditional system;
• this is a system by which identity as Arabana people is acknowledged by a body of persons united in their observation of law and custom ('a society');
• this system allows identified families to be traced back to other families, local groups or key individuals in the ethnohistorical record; and
• this system articulates the relationship of people to places by way of inherited rights and interests that derive from, or are transformations of, the traditional system of land tenure."
These propositions, derived from Dr Lucas' first report that he had filed in the Arabana No 2 Application, were then elaborated on by the primary judge in particular respects.49
First, in Arabana society, each man inherits a totemic name from his father, an area of country with which this totem and a culture hero were associated, a myth relating to the story of the culture hero and its travels, and a ceremony to ensure the propagation of the totem species. The primary judge explained that a "person's relationship with this patrifilially inherited complex of land, myth and mura is called Ularaka" and that the associated ceremonies had to be performed by men belonging to that Ularaka and thus owning it but that "they were assisted by their sisters' sons (Marduka) who were referred to as 'bosses'".50 Second, the term Ularaka also has the extended sense of referring to sites, associated stories, ceremonies and objects, all of which were inherited through men. Third, "[r]ights in country, in the form of estates, were also apportioned (and sometimes named) by way of Ularaka" and the "[f]athers' brothers (who usually shared the same Ularaka as a man's father) were the principal teachers of the knowledge".51
Fourth, Lakes Group people such as the Arabana are divided into matrilineal descent lines called Mardu which have associated with them a particular totemic species, such as the emu. Fifth, people are not permitted to marry someone from their own moiety but, as the moieties cross over the regional clan divisions, marriages were commonly between people of different local groups. Sixth, in addition to inheriting his father's Ularaka, a man also has secondary rights passed down from his mother in her Ularaka, its rituals and associated sites, known as Abalga. That is, men and women inherit Ularaka and Abalga.52
Seventh, Dr Lucas described the Arabana principles of traditional tenure involving a complex set of interactions between inheritance, knowledge and place. As the primary judge recorded, "[p]ersons may have unique and multiple rights arising from their birth place or from their mother's or father's mother's birthplace. Rights in land in Arabana society are found in the membership of particular groups of people and in the entailments of those groups in complementary relationships and responsibilities for country. People shared in their group's land and by virtue of their membership in their father's patrifilial group () and their mother's group ()." Unlike the Western Desert people, the Arabana do not acquire "ownership" rights in land merely by being born on it or by acquiring ceremonial seniority. As the primary judge put it, "groupings of people linked by affiliation ... could be said to own and hold ritual responsibility for particular areas of land surrounding / sites".
The primary judge concluded that the ethnographic-historical evidence "overwhelmingly"58 and "strongly"59 supported the conclusion that the Overlap Area was Arabana country at the time of effective sovereignty. The primary judge formed this view on the basis of the evidence of many people who had spent sustained periods in the region and who were familiar with the Arabana or the Arrernte,60 including Giles,61 Robert Hogarth,62 Byrne,63 Stirling,64 Spencer and Gillen,65 Tom Hogarth,66 the Berndts,67 TGH Strehlow,68 Hercus69 and Shaw and Gibson.70 The primary judge also relied on the evidence of those who obtained information from a range of informants within the region,71 including Howitt72 and Mathews.73
In particular, his Honour placed "significant weight" on the works of TGH Strehlow and Hercus.74 TGH Strehlow had conducted detailed anthropological fieldwork with the Arrernte people and published a number of maps showing Arrernte boundaries (which were consistent with the claim that the Overlap Area was Arabana country at the time of effective sovereignty). Hercus was "one of Australia's most senior and authoritative linguists" who "conducted extensive field work in the Oodnadatta region", with Arabana being "one of the principal languages on which she worked". The primary judge surveyed her work, which showed the location of the languages she discussed, and which indicated that Oodnadatta and its surrounds were within Arabana country. The primary judge's view of the evidence was consistent with the opinion of the ethnographic-historical material taken by the Arabana's and South Australia's experts: Dr Lucas (for the Arabana) and Dr Sackett and Mr Gara (for South Australia).
The primary judge concluded that the weight of the linguistic evidence which his Honour accepted pointed to Arabana having been the language of the Overlap Area at effective sovereignty.83 His Honour preferred the evidence of Dr Stockigt,84 who was the Arabana's linguistic expert,85 to that of Dr Black, who was the Walka Wani's linguistic expert.86 The primary judge considered that Dr Stockigt had "undoubted expertise" in the specialised field of linguistics.87 Among other things, Dr Stockigt had conducted linguistic fieldwork in Alice Springs with Mr Strangways, one of the Arabana's witnesses.88 The primary judge described Dr Stockigt's opinions as "well researched" and "well‑reasoned" and considered that "her evidence revealed a deep knowledge of the subject matter" and that she had "delved more deeply into source materials" than Dr Black.89
Having identified and examined vocabularies and word lists compiled by the early white explorers, ethnographers and anthropologists,90 pastoral run sheets, maps and other sources,91 Dr Stockigt "concluded 'beyond reasonable doubt' that at effective sovereignty ... Arabana language belonged to country to the south of the Macumba River, including the Overlap Area"92 and "formed the opinion 'on the balance of probability' that the language belonging to Oodnadatta and the Overlap Area was Arabana".93
That there has been some transformation of the Arabana society and some change in the particular detail of its traditional laws and customs since sovereignty was not in dispute. The primary judge identified103 the transformations of some of the detail of the Arabana traditional laws and customs that had occurred since sovereignty and then addressed those transformations by setting out parts of the evidence of Dr Lucas and Dr Sackett.104 As explained, his Honour found their opinions were "generally soundly based and reasoned" and supported by other evidence.105
In relation to Dr Lucas, the primary judge stated that Dr Lucas "considered that the depopulation of the Arabana had made it 'demographically and practically impossible' for them to continue the exercise of [their] traditional rights and interests in the Overlap Area in their full traditional scope".106 The primary judge then set out the following paragraphs of Dr Lucas' report:107
"[251] In my opinion it is likely that the surviving Lakes Aboriginal population (including Arabana, Wangkangurru and Dieri groups) was progressively insufficient to ensure the persistence of ularaka and marduka relations (both as structures of everyday social life and as the basis of ritual groupings that were their expression). Traditionally, the presence of each was necessary for telling the stories, singing the songs, using the objects and doing ceremony for land (which ultimately sustained the relationship amongst all these integral elements). The extinction or non-viability of either ularaka or marduka groups likely threatened the particular 'proximate title' relationship of each to particular estates of land defined in terms of their ularaka identity (see Sutton 2005:116). Rituals requiring the complementarity of ularaka and marduka roles (and therefore the expression of each in terms of rights and responsibilities) ceased with depopulation and the increasing presence of non‑Aboriginal people (pastoral workers, fettlers, etc.) throughout the region.
[252] With smaller numbers of people coming together at limited sites (Oodnadatta, Anna Creek, Finniss Springs, Gudnumpanha, Marree, etc.) and the separation of small local groups from their ritual centres, it seems probable that landed interests devolved into a broader 'underlying' title held by those survivors who continued to identify as descendants of Arabana people (see Sutton 2003: 116‑18). What these subsequent generation people emphasise is the collective right of Arabana people to Arabana land, on the basis of filial connections (through men or through women) to known ancestors who they also believe to be Arabana people who had rights in Arabana land. Arabana people with specific kin-based identities connect with what they understand to be Arabana 'country' as a whole. This, in my opinion, is the contemporary expression of underlying title."
The primary judge recorded that Dr Sackett supported Dr Lucas' conclusion that the development Dr Lucas had described in [252] of his report was "but an adaptation to changed circumstances".108
"The Evidence indicates that there has clearly been some transformation in some of the characteristics of the 'classical' Arabana society as described above since sovereignty. The traditional customs and laws concerning social organisation and group membership have transformed since settlement, as a consequence of the demographic pressures of radical depopulation and displacement from estates. Similarly, classical marriage rules (such as the requirement that marriage partners be of the opposite matrilineal moieties and the regulation of marriage by reference to totemism) are no longer observed or even remembered by younger claimants.
However, it is the opinion of the experts that
... the Arabana system of kinship and marriage has ... evolved since sovereignty in ways that are founded in and consistent with the classical system. Kinship relations, and their normative expression, continue to structure all aspects of Arabana life. Exogamy, and its consequence the offence (or taboo) o[f] incest, continues to be a fundamental principle in Arabana custom and law and is reflected in the normative system.
The Evidence supports the opinion of the experts that the classificatory kinship system remains a key feature of contemporary Arabana custom and law. This was also apparent to the State officers who participated in the field trip. Under this system, terms (both in Aboriginal English and the Arabana language) equivalent to brother/sister, daughter/son, aunt/uncle and grandparent/grandchild are extended to include wider ranges of collateral relatives. Siblings, first cousins and second cousins in English kin terminology, for example, are all 'classified' as brother/sister in Arabana kinship terminology and are addressed as such.
In the opinion of the experts, the kinship classifications bring with them normative obligations and expected behaviours, such as responsibility, nurturing, discipline and teaching from the older relatives to the younger, as well as respect from the younger to the older. There was evidence of other normative behaviours predicated on kinship, including the practice of children being 'brought up' by relatives (generally classificatory parents or grandparents) other than their biological parents, the obligations of a man's wife towards his (classificatory) brothers, and the view that (classificatory) sisters can share their husbands.
The evidence suggests that the classical system of landholding by localised groups based on patrafilial Ularaka (ie traditional stories) is no longer observed. Contemporary Arabana people consider that all of Arabana country belongs to Arabana people generally. Nevertheless, the evidence demonstrates that some individuals or families are recognised as having special knowledge of and responsibility for particular areas and their Ularaka, including related songs.
In the context of negotiations for a consent determination, the State could properly accept that the changes in traditional rules of succession to country that accommodate both patrifilial and matrifilial descent, and succession to the country as a whole (as distinct from particular parts of the country) have their basis in traditional law and custom. For these purposes, the State accepts that the pre-sovereignty normative society has continued to exist throughout the period since sovereignty, notwithstanding an inevitable adaptation and evolution of the laws and customs of that society."
In contrast to the detailed findings of Finn J made in the context of the 2012 Arabana Determination,112 the primary judge did not make sufficient findings about the contemporary content of the traditional laws and customs of the Arabana. In sum, the primary judge identified the traditional laws acknowledged and customs observed by the Arabana at sovereignty,113 that there had been a transformation of those laws and customs since sovereignty,114 and that "the depopulation of the Arabana had made it 'demographically and practically impossible' for them to continue the exercise of [their] traditional rights and interests in the Overlap Area in their full traditional scope",115 such that the contemporary laws and customs of the Arabana were an adaptation to changed circumstances.116
The primary judge importantly recognised that the contemporary laws and customs of the Arabana include a broader "underlying" title held by those who continue to identify as descendants of the Arabana, the collective right of the Arabana to Arabana land on the basis of filial connections (through men or women) to known ancestors whom they also believe to be Arabana who had rights in Arabana land, and that "Arabana people with specific kin-based identities connect with what they understand to be Arabana 'country' as a whole".117 However, the primary judge did not make sufficient findings about the nature and content of the contemporary traditional laws and customs of the Arabana.118
In assessing the second inquiry in relation to the Arabana No 2 Application, the primary judge framed the inquiry as "whether ... the Arabana ... establish, in accordance with s 223(1)(b) of the [Native Title Act], that their [native title rights and interests] extend to the Overlap Area and if so, whether they have continued to be possessed by the current [Arabana society] in accordance with an acknowledgement of their ... traditional laws and an observance of their ... traditional customs".121
The proper approach to s 223(1)(b) is to ask whether there is a "connection" with the claim area "by [the] laws and customs" for the purposes of s 223(1)(a). This does not necessarily require that there be physical acts of acknowledgment or observance in the claim area. If, as here, the laws and customs include that the Arabana have a collective right to Arabana country, "connection" may arise from knowledge of the Overlap Area as Arabana country, together with "spiritual" or "cultural" connection to Arabana country that is not necessarily demonstrated by acts of "acknowledgment" or "observance".
Two aspects of the Arabana's case should be considered in this second inquiry: the lay evidence and the ten matters relied upon by the Arabana. Upon considering those two aspects, the primary judge found that it was the "relative absence of acknowledgement of traditional law and observance of customs by which a connection by the Arabana to the Overlap Area is maintained which [was] fatal ... to the Arabana claim".122
Aaron Stuart,124 the lead applicant, was born in 1968 in Port Augusta and said that he is an Arabana man through his father and grandfather. His grandfather, Laurie Stuart, was a senior Arabana man, being an Arabana Wilyaru, the highest level of initiation in the Arabana.125 Mr Stuart gave evidence to the effect that the initiation of Arabana men ceased in the mid-1950s and neither he nor any of his contemporaries has been initiated.126 Mr Stuart also gave evidence that as a child he visited Oodnadatta with his grandfather, camping on a claypan to the south of the town and that his grandfather taught him the law for Oodnadatta.127 From when he was about 18 years old, when he lived in Oodnadatta for a couple of years, he said that there were people who identified as Arabana living in Oodnadatta; and that Nelly Stuart, Uncle Yundu Spider and Uncle Billy Bailes had spoken to him in Arabana.128
In relation to the extent of Arabana country, Mr Stuart gave evidence that his grandfather and his father had each given him accounts about the extent to which Arabana country extended to the north;129 Janet Bailes and Nelly Stuart had told him that Oodnadatta was Arabana country;130 and Brian Marks (who represented the Arabana Wilyaru at a meeting in Pimba in 1984 or 1985 and whose father was an Arabana man) had described Oodnadatta to him as "Arabana Wadlhu", namely Arabana country.131 His evidence was that "every Arabana person has rights to Arabana country and that one did not have to go through Wilyaru Law to have those rights".132
Mr Stuart gave evidence of an occasion in Oodnadatta on which his grandfather, Laurie Stuart, had growled at Uncle Clarrie and his brother Deannie who were wearing red headbands. Mr Stuart's evidence was that his grandfather said "you pull that off, you're in Arabana country, you're in Wilyaru country". Mr Stuart's evidence was that his grandfather had the right to say it because he was the Wilyaru man there. His grandfather explained that the red headbands – made of hair and ochre twined around – are worn only for ceremony and are not to be worn to intimidate or scare people. Mr Stuart said that Audrey Stuart had been present and had not challenged Laurie Stuart's statement concerning Oodnadatta being Arabana land.
"However, he has lived in Oodnadatta for only relatively short periods, the longest as a Community Police Constable and that was over 20 years previously. While he gave evidence of the Ularaka he had been taught, he did not convey a sense of connectedness with the Overlap Area through these Ularaka. His evidence concerning use and protection of the Overlap Area was not extensive."
Each of those observations incorrectly focussed on whether there were physical acts of acknowledgment and observance of the traditional laws and customs in the Overlap Area, rather than connection of the Arabana by their traditional laws and customs with the Overlap Area. It would have been relevant to the assessment of "connection" that Mr Stuart had been told, including by his grandfather, that Oodnadatta was Arabana country, and that there was evidence of Mr Stuart's connection with traditional Arabana law and custom, including by reason of the fact he knew the Arabana moiety system and Ularaka. Whether Mr Stuart's evidence, properly assessed, demonstrated "connection" for the purposes of s 223(1)(b) is to be determined on remitter.
Sydney Strangways said, and it was not disputed, that – having been born in July 1932142 – he is the oldest Arabana person alive.143 Mr Strangways gave evidence that he had been told that Oodnadatta was Arabana country by many people.144 Between the ages of five and 12, he had gone with his family to Oodnadatta three to four times per year, staying for up to two weeks at a time and staying with his maternal aunt, who would take him and his siblings out to collect bush tucker.145 He gave evidence about a number of matters related to Arabana law and custom, including that he had been taught Arabana law by his father and uncles who were Wilyaru men,146 Arabana initiation ceremonies (which had taken place until the 1950s),147 and he had been taught about Arabana Ularaka.148 He gave evidence about a number of the Arabana Ularaka including the owl Ularaka,149 the Kangaroo Ularaka, the Urumbula Ularaka,150 the Swallow Waterhole and the Thunpili Ularaka.151 He also gave evidence about the Arabana moiety system, saying that it regulates Arabana society, how the Arabana interact socially as well as the rules of marriage.152 He also described burial and Sorry Business rituals.153
Mr Strangways' evidence spanned four days of the trial.154 The primary judge accepted Mr Strangways' evidence with "confidence", describing him as a "singularly impressive witness, being honest, knowledgeable, articulate, insightful and responsive to the questions". His Honour said that Mr Strangways had a "good deal of knowledge concerning Arabana law and custom", had "deep cultural knowledge of Arabana culture and law and gave several instances of his compliance with it" and engaged "in a lot of teaching".
"It is fair to say that the actual contact which Mr Strangways has had with the Overlap Area has been limited. Since living in Alice Springs, it has been his practice to travel onto Arabana land three or four times per year but generally his visits to Oodnadatta have occurred when he passes through to his preferred camping spot at Algebuckina (which is within the area of the 2012 Arabana Determination). In the past, he did stop to see his friend (the deceased C Warren) but more recently has stopped only for refreshment. He does not stop at any sites of significance. That is to say, Mr Strangways did not give evidence of any specific continuing connection with the Overlap Area. That connection was left to inference from his connection to Arabana country more generally*.*"
Again, those observations incorrectly focussed on whether there were physical acts of acknowledgment and observance of the traditional laws and customs in the Overlap Area, rather than connection of the Arabana by their traditional laws and customs with the Overlap Area. The latter question, which is to be determined on remitter, will take into account Mr Strangways' evidence about the connection of the Arabana, by their traditional laws and customs, with the Overlap Area.
Dr Arbon was 69 years old when she gave evidence. She is an Arabana woman born in Alice Springs who has had a substantial career in tertiary education. She obtained a PhD in 2007. Dr Arbon has never lived in Oodnadatta or on Arabana land. Her mother, Shirley Arbon, was an Arabana woman born in Oodnadatta in 1934. Dr Arbon's grandmother, Myra Hodgson, was also an Arabana woman. Her great-great grandmother was Lili Strangways, Mr Strangways' grandmother.160
Dr Arbon first visited Oodnadatta during a family holiday when she was aged 14 to 15 and her mother told her and her siblings then that Oodnadatta was Arabana country.161 Dr Arbon next visited Oodnadatta in about 1998 when she was part of a family group who went to visit country and other family. Dr Arbon has made subsequent visits to Oodnadatta, in the order of 13 to 15, each for no more than one or two days. Her mother taught her about Arabana bush tucker and the children have also had similar training further north. Dr Arbon agreed that she had limited knowledge of the Arabana two moiety system but knew that the moieties were named Mathari and Kararru. She did not claim to have evidence about the Arabana kinship system more generally, for example, about the moiety sub-lines or totems, or of the animals associated with the totems. Nor did she claim knowledge of the principles by which the Arabana acquire interests in land.162
However, Dr Arbon had been actively involved in the revival of Arabana language over the last two or three years. She said that she had commenced pursuing learning Arabana about 25 years ago but had done so more actively in the last five years as part of the Mobile Language Team. Dr Arbon said that she had been taught that the Arabana claim heritage through the female line.163
The primary judge stated:164
"Although Dr Arbon is clearly actively interested in Arabana language and culture, and she was an honest and reliable witness, I thought that her knowledge of Arabana traditional law and custom was limited, as was her knowledge of significant sites in and around Oodnadatta. It did not suggest a connection with the Overlap Area through acknowledgement and observance of traditional law and custom. It did suggest an attempt to establish connection with Oodnadatta, but with difficulty because of the absence of knowledge."
Those observations proceed on the basis it was necessary for the evidence to demonstrate "acknowledgement and observance" of traditional law and custom by acts taking place in Oodnadatta. For this reason, the fact that Dr Arbon had been told that Oodnadatta was Arabana country and her knowledge of Arabana bush tucker and language were not sufficiently considered as relevant to "connection".
Leonie Warren was born in Leigh Creek in November 1971. When she was still a baby, she was taken to live at Finniss Springs and remained there until she was four or five years old. Her family moved to Port Augusta when she was aged six or seven.165
Ms Warren said that she first visited Oodnadatta when she was aged 14 or 15 when the family went to visit her brother Greg. As a teenager, she visited Oodnadatta three or four times. When she was 17 or 18, she moved with her partner, Stanley Wingfield (who identified with the Arabana and Kokatha), to live in Oodnadatta and did so for approximately six and a half years. She named Arabana people living in Oodnadatta at the time.166
Ms Warren said that she knows only a few words of Arabana but does recognise it when she hears it spoken. When Ms Warren was living in Oodnadatta, they occasionally camped in the area around Oodnadatta. The places at which they camped included Algebuckina, Alberga, around Hamilton, and on the claypan on the Oodnadatta Common. They would catch kadnis (lizards), perenties (a type of lizard) and kangaroo for food. A number of people – Nana Nel and Yundu Spider (Peter Amos's father) – used to say that Oodnadatta was Arabana country.167
Since leaving Oodnadatta, Ms Warren has returned three or four times a year, for funerals, to visit her brother or to attend the gymkhanas. Her children have been taught hunting by Greg Warren and others on the Oodnadatta Common.168 Ms Warren described Arabana people living in Oodnadatta as including Bobby Warren and his family, Alan Warren and his family, Lyle Warren, Maxine Marks and her family and Christine Hunt and her family. Ms Warren also described collecting bush foods around Marree and Finniss Springs. She said that she loves camping and taking the children out to do so. She has been attending Arabana language courses. It is important to Ms Warren that the Arabana language be revived.169
The primary judge regarded Ms Warren as a truthful and reliable witness. However, his Honour appeared to dismiss her evidence as not demonstrating "connection" on the basis that "she had relatively little knowledge of Arabana traditional law and custom".170 Again, at the very least, the matters his Honour took into account in assessing connection were incomplete. For example, it is not clear that the primary judge considered Ms Warren's evidence of hunting for lizards and kangaroos in assessing whether she had a "connection" with the Overlap Area by law and custom.
Mr Dodd was born in 1940 at Finniss Springs Mission Station. Mr Dodd regarded himself as Arabana because of his mother, his grandmother and his great grandmother.171
Mr Dodd referred to a large group of people travelling from the west attending a ceremony on Anna Creek Station in the 1960s which led to the cessation of Arabana initiations. When the decision was made to close down initiations, there were corroborees at Port Augusta, Marree and Curdimurka, and Arabana ceremonial objects were taken to Oodnadatta for care by custodians he identified as Tommy O'Donaghue, Jack Parrott, Tom Brady, Paddy Jones and Tommy Parrott.172 Mr Dodd said that the Arabana law which applies in Oodnadatta and at Hookey's Hole is the same as that which applies at Marree and that it is the whole group of Arabana people within Arabana society who have rights to the whole of Arabana country.173
Although the primary judge regarded Mr Dodd as an honest and generally reliable witness, his Honour concluded that Mr Dodd's evidence "did not establish any strong continuing connection of the Arabana with the Overlap Area".174 This finding appeared to be largely informed by the fact that "Mr Dodd agreed that he had not spent lengthy periods in Oodnadatta in the 1970s, 1980s and 1990s".175 Again, Mr Dodd's evidence may still have been relevant to "connection" because he regarded Arabana law as applying in Oodnadatta and gave evidence that Arabana people within Arabana society have rights to the whole of Arabana country.
The error in the approach adopted by the primary judge is readily explained by the nature of the ten matters relied upon by the Arabana Applicants, many of which focussed upon physical connection. However, that does not detract from the statutory task presented by s 223(1)(b).
South Australia contended that the Arabana Applicants could not succeed in this appeal because they were bound by their "forensic decisions" to rely on the ten matters. The majority of the Full Court below essentially accepted this argument. Their Honours accepted South Australia's submission to the Full Court that "the reasons of the primary judge must be considered in the particular context of how the Arabana expressed their connection in their pleading", stating that "it has not ... been shown that the primary judge mischaracterised the case presented to him" and that "[i]t was for the Arabana to demonstrate how the connection arose by their traditional laws and customs, which only they could explain".177
While the manner in which the Arabana Applicants framed their case may explain why the primary judge erred in the manner his Honour did, it cannot affect this Court's conclusion as to whether or not the primary judge erred. The ten matters are now to be considered.
This is the second ground of appeal in this case. The 2012 Arabana Determination expressly determined: that native title exists in relation to the 2012 Determination Area178 (save for specified exceptions as a result of extinguishment), an area abutting the eastern and southern boundaries of the Overlap Area (Order 2); under the relevant traditional laws and customs of the Arabana, the native title holders comprise those living Aboriginal people who both self-identify as Arabana and who are recognised as being Arabana by other Arabana people based on filiation (including by adoption) from an Arabana parent or grandparent or long term co-residence with Arabana people on Arabana country, and who satisfy certain other requirements (Order 5); the nature and extent of the native title rights and interests of the Arabana in relation to the 2012 Determination Area (Orders 6 to 9); and that the native title rights and interests are subject to and exercisable in accordance with the traditional laws and customs of the native title holders (Order 9(a)).
The 2012 Arabana Determination was a consent determination made under s 87 of the Native Title Act.179 Finn J explained why the requirements of s 223(1) were satisfied and, in doing so, expressed confidence in the basis on which the State had come to the view that there should be a determination of native title. In particular, Finn J considered that the State could properly accept: that "the pre‑sovereignty normative society has continued to exist throughout the period since sovereignty, notwithstanding an inevitable adaptation and evolution of the laws and customs of that society";180 that there was "[s]ubstantial evidence" provided of the continuing connection of members of contemporary Arabana society by their laws and customs with a substantial part of the claim area through their laws and customs;181 and ultimately, that the steps taken by the State to satisfy itself of the matters in s 223 as they related to the Arabana claim were "rigorous" and "could properly satisfy it that there was a credible basis for the Arabana's application".182
In that context, the primary judge's finding that "the requisite continuity of connection of the Arabana in the Overlap Area in accordance with traditional law and custom must be established by the evidence in these proceedings" revealed two errors. First, the primary judge considered that the 2012 Arabana Determination could not be sufficient evidence of "connection", as it was not evidence of "connection" "in" the Overlap Area. Second, the primary judge did not consider the 2012 Arabana Determination to be "evidence in these proceedings".
In making his determination, the primary judge proceeded "on the basis that people who have resided in Oodnadatta and who were named as Arabana by Arabana [lay] witnesses and by [Dr] Lucas are, or were, Arabana".187 However, the primary judge stated that there was "no evidence those Arabana who continue to live in Oodnadatta do so because they are Arabana, or that they continue to observe Arabana law and custom, or that their manner of living derives from, or is influenced by, or reflects an acknowledgement or observance of, Arabana traditional law and custom".188 His Honour referred to this as "an absence of physical presence".189 As has been explained, his Honour did not make specific or detailed findings about contemporary Arabana law and custom. As the Arabana Applicants submitted, this was based on a premise that there were contemporary Arabana laws and customs that specified a "manner of living" for the Arabana to demonstrate connection by their laws and customs, when no such finding had been made. To the contrary, the Arabana Applicants made submissions before this Court that there was evidence of some witnesses to the effect that they felt connected to and comfortable living in Oodnadatta because it was their inherited country and, in that sense, their mere living in Oodnadatta showed their connection by their laws and customs. Accordingly, these findings erroneously assume the content of contemporary Arabana traditional laws and customs and then, separately and interrelatedly, incorrectly assume that there is a need for evidence of physical connection with the Overlap Area.
The primary judge's further finding that the "younger cohort of Arabana witnesses did not indicate any familiarity with the principles in Arabana law and culture by which persons acquire rights and interests in Arabana land or with the secondary rights passed down from mothers"190 also assumes that connection by traditional law and custom requires the younger cohort to have familiarity with the principles in Arabana law and culture by which persons acquire rights and interests, when there was no finding by his Honour that this was essential or otherwise reflective of connection by Arabana traditional law and custom.
The primary judge found that there was "some evidence of the use of the natural resources of the Overlap Area in contemporary times but it was not extensive".191 His Honour referred to the evidence of lay witnesses concerning camping in the Overlap Area and making use of the bush resources as well as the Dr Fergie and Dr Lucas report prepared for the 2012 Arabana Determination.192 His Honour concluded this matter by stating that "[h]unting and gathering of food is a recognised [native title right and interest] but the evidence that this was done in traditional ways or for traditional purposes was limited. In some respects, the evidence of Leonie and Joanne Warren and of Aaron Stuart was the strongest evidence of continuing physical connection by Arabana People."193
Although his Honour acknowledged that there was evidence of physical connection by the Arabana, his Honour appeared to discount evidence of hunting and gathering of food in the Overlap Area as not demonstrating "connection" because there was limited evidence this was "done in traditional ways or for traditional purposes", notwithstanding that his Honour had made no finding that Arabana law and custom provided that hunting and gathering of food be done in some "traditional" way or for "traditional" purposes.
The primary judge accepted the Arabana Applicants' submission that the Arabana have a clear knowledge of the boundaries of their country and have regularly articulated and taught their children that Oodnadatta is Arabana country. The primary judge considered that this proposition was supported by a map marked at a meeting in 1996 at Marree as well as the evidence of some of the lay witnesses that they were told by their elders and others that Oodnadatta is Arabana country but found that there was "very little evidence concerning the witnesses' knowledge of the extent to which Arabana country extends to the west of Oodnadatta, ie to the western extent of the Overlap Area".205 The making of the 1996 map, by a process of consultation among the senior men and the entry of their names or signatures on the map as evidence of their agreement as to the boundaries of Arabana land, and in a way which recognised the Overlap Area as within Arabana country, was addressed at length by the primary judge.206
The primary judge's consideration of this matter does not itself reveal error. However, it raises a question as to the primary judge's focus on physical acts of acknowledgment and observance in the Overlap Area in circumstances where his Honour accepted that Oodnadatta is Arabana country and that, under contemporary Arabana law and custom, there is a collective right of the Arabana to Arabana country as a whole.
The focus on the need for physical connection adopted by the primary judge is evident in the final section of the judgment that deals with the Arabana No 2 Application headed "General",211 which commences with his Honour stating that "[l]ooked at more generally, a number of matters were absent from the Arabana evidence concerning connection".212
The primary judge acknowledged that there was "of course a connection with the Overlap Area which arises from having been taught that ... one is Arabana and that Oodnadatta is Arabana country".213 However, the broader context of the reasoning indicates his Honour did not regard this as sufficient because of his focus on the need for physical acts of acknowledgment or observance "in" the Overlap Area. The reasoning must also be read in the broader context of the primary judge having accepted that: the Arabana are a society that has continued to observe and acknowledge the pre‑sovereignty laws and customs of the Arabana, under which native title rights and interests were and are still possessed and by which they have connection to the land and waters of the 2012 Determination Area;214 the laws and customs of the Arabana, while different in some respects from their classical laws and customs, are still properly characterised as being "traditional" in the relevant sense;215 the Arabana Applicants, as members of the Arabana, are the descendants and/or successors of the Arabana who at sovereignty held rights and interests in relation to the Overlap Area;216 these laws and customs have been observed and acknowledged substantially uninterrupted since pre‑sovereignty times by the Arabana (including their forebears);217 and the laws and customs are of a kind that are capable of generating, and did generate, rights and interests in the land,218 being rights and interests originally held by the Arabana at sovereignty and now held by the current members of the Arabana.219
For those reasons, ground one of the appeal should be allowed. It is therefore unnecessary to consider ground two of the appeal concerning the Full Court's treatment of the 2012 Arabana Determination.220 As the above reasons reveal, the primary judge's incorrect application of s 223(1) of the Native Title Act affected his Honour's assessment of the significance of the 2012 Arabana Determination.
Order 3 of the Full Court of the Federal Court made on 14 August 2023 should be set aside and, in its place, it should be ordered that Order 1 of the orders made by the Federal Court of Australia on 21 December 2021 in relation to Action SAD 38/2013 be set aside.
The proceeding should be remitted to the Full Court of the Federal Court, or if the Full Court determines to remit it to a single judge of the Federal Court for that Court, to consider making a determination under s 225 of the Native Title Act as to whether the Arabana hold native title rights and interests in relation to the Overlap Area.
Each party will bear its own costs.221
STEWARD J. Section 223(1) of the Native Title Act 1993 (Cth) ("the NT Act") defines the meaning of "native title" and "native title rights and interests". Relevantly, one of the requirements of that definition is that "Aboriginal peoples or Torres Strait Islanders" have a "connection" with "land or waters" by their traditional laws and customs (s 223(1)(b)). An issue in this appeal is whether a spiritual, religious or cultural connection with land or waters satisfies s 223(1)(b). For the reasons which follow, a spiritual, religious or cultural connection with land is not the type of connection with which s 223(1)(b) is concerned. Rather, native title, as recognised by the common law of Australia, is concerned with physical connections to land or waters.
In this matter, the appellants (who are Arabana peoples) have nonetheless demonstrated that the trial judge,222 and the majority of the Full Court of the Federal Court of Australia,223 had erred in deciding whether a sufficient physical connection with what has been called the "Overlap Area" had been established. Accordingly, this matter must be remitted back to the Federal Court.
Section 223(1) commences by stating that "native title" (or "native title rights and interests") means communal, group or individual "rights and interests" of Aboriginal peoples or Torres Strait Islanders in relation to land or waters. The reference to "rights and interests" is to an ability to do physical things in relation to identified land or waters. It is a reference to "rights and interests" which may comprise, in some way, a lawful capacity to enter, occupy, use or control particular land or waters. That is what the common law recognises and protects. And the common law supplies remedies which are concerned with such physical uses of land or waters. That is also the concern of the statutory rights conferred by the NT Act.
Section 223(1) goes on to specify three attributes of "native title" (or "native title rights and interests"). The first, set out in s 223(1)(a), is that the "rights and interests" must be possessed "under" the traditional laws acknowledged and traditional customs observed by the relevant Aboriginal peoples or Torres Strait Islanders. The second, set out in s 223(1)(b), is that the relevant Aboriginal peoples or Torres Strait Islanders must "have a connection" with the particular land or waters "by those laws and customs". The third, set out in s 223(1)(c), is that the "rights and interests" are "recognised" by the common law. In each case, the "rights and interests" are proprietary rights and interests. It is those "rights and interests" which are the pivotal and defining feature of native title as recognised by the common law.
In Western Australia v Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ described the function of s 223(1)(b) in the following terms, but otherwise refrained from explaining what sort of "connection" is mandated by it:224
"In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a 'connection' with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a 'connection' of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by 'connection' by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient."
"In particular, we need express no view on when a 'spiritual connection' with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice."
"[N]ative title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual".
For the purposes of s 223(1)(a), it is those usufructuary rights and interests which must be possessed under traditional laws and customs which are acknowledged and observed by the Aboriginal peoples or Torres Strait Islanders. For the purposes of s 223(1)(b), it is "by" those laws and customs that relevant Indigenous Australians must have a connection with particular land or waters for the purposes of s 223(1). It is through an examination of the usufructuary rights and interests which are possessed and which are contained in, or comprised by, the traditional laws and customs that one seeks to discern a relevant connection with land or waters. That examination necessarily does not focus upon an examination of traditional spiritual, religious or cultural beliefs; they are not the type of "rights and interests" with which s 223(1) is concerned; those "rights and interests" are proprietary in nature, although they may otherwise well reflect strongly held underlying spiritual, religious or cultural beliefs.
It follows that the connection which is the subject of s 223(1)(b) is one that must manifest itself by the holding and exercise of usufructuary physical rights and interests over particular land or waters.
Whilst there are certain decisions of the Full Federal Court which support a non-physical connection with land or waters being sufficient for the purpose of s 223(1)(b),231 respectfully that proposition is not correct for the foregoing reasons. Such decisions are also inconsistent with the reasoning of Callinan J in Ward, who did – unlike Gleeson CJ, Gaudron, Gummow and Hayne JJ – address this issue. McHugh J agreed with Callinan J in Ward, save in one respect which is not relevant to the present matter.232
As to whether a "purely spiritual or religious connection" would suffice for the purposes of s 223(1)(b), Callinan J reasoned that the common law could only protect native title rights and interests that involved "physical presence on the land, and activities on the land associated with traditional social and cultural practices".233 It did not protect aspects of any spiritual connection. His Honour thus said:234
"In the light of these considerations, and the fact that s 223 is in terms designed largely to enact the common law as it was formulated in Mabo [No 2], I do not think that a religious connection with the land, in the absence of an actual physical presence, can give rise to native title rights in relation to the land. In my opinion, it would be illogical to conclude that it did. To do so would be to accept that the mere handing down of ritual knowledge and the performance of traditional practices (so far as practicable) in an urban environment thousands of kilometres from the claimed area by Aborigines who perhaps had never seen the land (for several generations) could nonetheless form the basis of a connection enabling those Aborigines to exclude all others from that land. It follows that the reasoning of Beaumont and von Doussa JJ in this regard should not be accepted. There must be a continued physical presence on the land in controversy before the relevant connection can arise under s 223(1)(b) of the Native Title Act."
The foregoing reasoning is plainly correct.
It is also consistent with the conclusion of all of the judges in Ward, save for Kirby J in dissent, that a right to maintain, protect and prevent the misuse of cultural knowledge could not constitute native title. Gleeson CJ, Gaudron, Gummow and Hayne JJ said that such a possible right went "beyond the content of the definition in s 223(1)".235
Callinan J emphasised that the statutory context is of "rights and interests in or with respect to land, and not knowledge about or reverence for [land], no matter how culturally significant that knowledge or reverence might be to those who possess it".236 Callinan J thus wrote:237
"The existence of that cultural significance does not mean that the bare knowledge and reverence of themselves can constitute a native title right or interest in relation to land within the meaning of the Act. Physical presence is essential. The Full Court was therefore correct to hold that any rights to maintain, protect and prevent the misuse of cultural knowledge could not be the subject of the determination of native title."
In that respect, four contextual matters should be noted.
First, the Overlap Area is a relatively very small parcel of land that forms part of a much larger claim of native title made by the Arabana people over land in South Australia. Save for the Overlap Area, that land was the subject of a successful consent determination made by the Federal Court (Finn J) in 2012: Dodd v South Australia.238 The Overlap Area comprises only approximately 0.2% of that larger claim.239
Second, it was accepted that at effective sovereignty the Overlap Area was Arabana land.240 Thus, it formed part of the original claim for land rights made by the Arabana people in 1993. That claim was then discontinued following the enactment of the NT Act.241 A new claim was then made in 1998 for native title. That claim excluded the Overlap Area because South Australia had indicated that it intended to transfer the Oodnadatta Common (within the Overlap Area) to an Aboriginal Land Trust, which in turn proposed to lease that land to the Dunjiba Community Council (being the council comprised of the residents in Oodnadatta). The Arabana, recognising that the Dunjiba were by then more representative of Oodnadatta's residents, did not wish to oppose that transfer. For whatever reason, however, that transfer never took place.242
Third, the land which comprises the entire claim, including the Overlap Area, is largely arid in nature, save for the town of Oodnadatta itself. In Dodd, Finn J described the land the subject of that native title claim in these terms:243
"The land is largely arid. Natural springs occur throughout the determination area as an outflow of pressurised water from the artesian basin below. The majority of springs form mounds of deposited sediment and carbonated material, of varying width and height, and some springs are soaks which spread out over the land without enclosing banks. These mound springs and soaks supported Aboriginal occupation of this area pre-sovereignty and form an integral part of the Arabana cultural landscape."
The largely arid nature of the land is important in determining the sufficiency of physical uses of the land that will support a finding that a connection has been maintained for the purposes of s 223(1)(b).
The fourth and final contextual feature, which largely contributed to the conclusion of the trial judge and that of the majority of the Full Federal Court, is that since effective sovereignty, the Western Desert and Arrernte people have migrated into the Oodnadatta region coupled with "the movement away from Oodnadatta of many Arabana".244 The causes of this movement included disease, and the safety, rations and employment provided by the stations at Anna Creek, Stuart's Creek and Finniss Springs.245 The issue for characterisation is whether this movement southwards and eastwards away from the Overlap Area was sufficient to extinguish the Arabana's traditional connection with that parcel of land.
The trial judge stated that the issue for determination, and thus for characterisation, was "whether [the Arabana] have established that they have continued to possess the rights and interests in the Overlap Area under the traditional laws acknowledged and traditional customs observed by them and have thereby maintained connection with the Overlap Area".246 In that respect the Arabana relied on 10 matters which it was submitted indicated the continuity of their connection with the Overlap Area in accordance with their traditional laws and customs (described below).247 Analysing those 10 matters, the trial judge concluded that it "is the relative absence of acknowledgement of traditional law and observance of customs by which a connection by the Arabana to the Overlap Area is maintained which is, in my opinion, fatal to the Arabana claim".248
With respect, the error of characterisation made by the trial judge was to state the issue of "connection" as being essentially confined to the Overlap Area. In the context of the Arabana's accepted title to 99.8% of its country, that narrow approach was mistaken. The better view is that the issue for determination is whether the diminished nature of the Arabana's links to the Overlap Area constituted the extinguishment of their connection to that parcel of land. That issue can only here be determined in a context which includes that this parcel had previously only formed a very small part of accepted traditional Arabana country. For that purpose, it would be wrong to require, in an application of s 223(1)(b), substantial connections throughout, and right across, a country which is largely arid in nature. Inferentially, within the entire Arabana claimed area, those connections, of necessity, may be stronger or weaker depending on a range of factors. But a claim for native title is not necessarily defeated in part, given the nature of the land in question, where in that part the connections are only weak. It is sufficient if there is a connection or connections with a substantial part of the claim area. This was what Finn J found in Dodd as follows:249
"Substantial evidence was provided of the continuing connection of members of contemporary Arabana society by their laws and customs with a substantial part of the claim area through their laws and customs ... It was the opinion of the experts, amply supported by the evidence, that contemporary connection to country by Arabana people continues to be governed by laws and customs, including those which go to authority, gender and knowledge of the physical and cultural geography of the claim area, including Ularaka."250
Ostensibly, the consent finding set out above, concerning "a substantial part of the claim area",251 might have applied equally to the Overlap Area as it did to the 99.8% of the land accepted as Arabana country in 2012.
The same error of focussing on the quality of the claimed physical connection to the Overlap Area, without proper regard to the greater part of the now accepted Arabana claim for native title, was, with great respect, made by the majority of the Full Federal Court below. That majority thus reasoned as follows:252
"The conclusion of the primary judge that the requisite connection with the Overlap Area had not been proven did not involve a denial that the Arabana are a group of Aboriginal people united in a body of traditional laws and customs that continues to have vitality today and that gives rise to NTRI in neighbouring land. The undeniable connection with the neighbouring land by those laws and customs did not constitute proof that the Arabana continued to maintain a connection with the Overlap Area by those same laws and customs. The primary judge had regard to the 2012 Arabana Determination as relevant, as identified earlier in these reasons. However, his Honour did not err in failing to find that it provided the complete answer to the disputed questions before him (noting that no such submission had been made)."
"(a) they are the same group of people who were recognised in the 2012 Arabana Determination and that they form part of a group of societies known as the 'Lakes Cultural Group', which extends from South‑west Queensland to Spencer Gulf in South Australia;
(b) from both the date of sovereignty and effective sovereignty, the Overlap Area has been wholly within their 'traditional country' and it was not shared country;
(c) the claimants in their application, who are the descendants or successors of the native title holders at sovereignty, have continued to occupy the Overlap Area since those times, and continue to acknowledge and observe the traditional laws and customs connected to the Overlap Area;
(d) the traditional laws and customs are the same as those recognised in the 2012 Arabana Determination;
(e) the [native title rights and interests] which they claim are non‑exclusive rights;
...
(g) the preponderance of the reliable anthropological and ethnographic evidence supports their claims."
"I have accepted these matters but the requisite continuity of connection of the Arabana in the Overlap Area in accordance with traditional law and custom must be established by the evidence in these proceedings."
With respect, the foregoing impermissibly downplayed the importance and relevance of what was decided in Dodd.
The second of the 10 matters relied upon was the continuity of the Arabana people living in Oodnadatta.256 This link is weak. There did not appear to be many such people living in Oodnadatta, but the trial judge did accept that "people who have resided in Oodnadatta and who were named as Arabana by Arabana witnesses ... are, or were, Arabana".257 However, there was no evidence that presently these people resided in Oodnadatta "because they are Arabana, or that they continue to observe Arabana law and custom, or that their manner of living derives from, or is influenced by, or reflects an acknowledgement or observance of, Arabana traditional law and custom".258 With respect, that observation illustrates the incorrectly narrow approach of the trial judge. What should have been asked is not why such people live specifically in Oodnadatta, but why they more generally live in traditional Arabana country. The trial judge was otherwise correct to conclude that connection is not lost simply because a person feels precluded from remaining on their country.259
The third of the 10 matters was continued use of the natural resources in the Overlap Area.260 The trial judge found that there was some evidence of this, but that it was "limited".261 Nonetheless, his Honour accepted the account of a number of Arabana witnesses who camped and hunted in the Overlap Area, and another who ate "bush tucker".262 The Arabana otherwise agreed that this evidence of the use of natural resources was "only a fragment" of what would have been available in former times.263 The establishment of the township of Oodnadatta and the railway to Alice Springs may in part explain the diminution in use of natural resources, together with the issue of migration. However, whilst evidence of the use of natural resources was limited, such usage has nonetheless continued. The question is whether, when considered as part of the entire Arabana claim, it can be concluded that native title to this small part has been extinguished because usage had reduced greatly.
"A number of Ularaka, many of which have previously been recorded by earlier researchers, is in evidence. The Evidence indicates considerable contemporary knowledge by members of the claim group of the 'Ularaka', that the 'Ularaka' has been a feature of Arabana law and custom since a time prior to sovereignty, and that the contemporary knowledge and practices of members of the claim group indicates the evolution of these traditions in a manner consistent with Arabana law and custom."
"[An Arabana witness] gave evidence of the Ularaka associated with Hookey's Hole involving the turkey, sand frog, river frog and emu. He said that he had learnt the turkey Ularaka (for which he did not give an Aboriginal name) from his father and grandfather, Nana Laurie. He also said that he had learnt the Kadni (frilled neck lizard) and Karlta (sleepy lizard) Ularaka from his father and Nana Laurie. In addition, [the Arabana witness] described the Arabana Thunpillil Ularaka associated with Mount O'Halloran (for which he said the Arabana name is Kati Thunda and an Ularaka Kuarkeriee concerning two snakes."
The fifth of the 10 matters concerned the protection of Ularaka sites.269 This was addressed by the trial judge in a number of sub-topics. The first of these sub-topics concerned the appointment of custodians to protect Arabana sites. However, any such custodians had long been deceased.270 So much may be accepted, but the trial judge also observed that Arabana sacred objects are otherwise no longer retained "in or about the Overlap Area".271 This is, again, too narrow an observation; it would not necessarily be fatal to the Arabana claims over the Overlap Area if sacred objects are otherwise kept on the larger portion of Arabana land.
The next sub-topic concerned the holding of ceremonies. It was conceded that there is an absence of evidence of ceremonies in the Overlap Area.272 However, that evidence should have been considered in the context of the Arabana land in total. In that respect, Finn J accepted the following in Dodd:273
"Whilst Wilyaru and other ceremonies no longer occur on Arabana land, Evidence shows that Arabana people still meet regularly on country for important communal events such as annual reunions, funerals and special birthdays, as well as rodeos, races and bronco brandings. In the opinion of the experts, these communal gatherings remain an important element of Arabana custom and law and provide an important context in which 'proper' Arabana behaviour is practised, monitored and transmitted between generations. It provides a forum in which membership of Arabana society is activated, maintained and policed."
The next sub-topic concerned site inspections and monitoring. Again, evidence about this concerning the Overlap Area was "sparse",274 but not non-existent. One Arabana witness gave evidence of site clearing for a mining company at a site on the Overlap Area which was "directed to the protection of the Ularaka".275 This evidence should have been considered in the context of the finding of Finn J in Dodd set out above.
Another sub-topic concerned the dissemination and teaching of appropriate site information and the keeping of certain information confidential. Again, the evidence about this concerning the Overlap Area was very limited.276 However, it still should have been evaluated in the light of the following finding by Finn J in Dodd:277
"There is substantial evidence that senior members of the group are familiar with the traditional Ularaka and the normative rules related to those Ularaka, such as the gender specific sites, the songs with which various sites are associated, and requirements as to when and by whom and in whose presence those songs can be sung, as well as the responsibility for looking after significant sites."
The other sub-topics considered by the trial judge under this fifth matter did not demonstrate any other connection with the Overlap Area.
The sixth of the 10 matters was whether there had been continued acknowledgement and observance of other traditional laws and customs in the Overlap Area.278 This included attendance at funerals; only one witness said they had returned to Oodnadatta for this purpose. Another gave evidence of participation in "Sorry Business" as a young man in the Overlap Area. Another matter considered here by the trial judge concerned control over important Arabana sites. However, there was very little evidence about the need for permission to visit particular sites within the Overlap Area. One witness simply said that a non-Arabana person needed permission to visit two particular sites, but this was not apparently enforced.279 But, again, whilst this evidence was thin, it nonetheless should have been evaluated in the context of the findings in Dodd, which did, for example, refer to the holding of funerals on Arabana land280 and to the protection of sites.281
The seventh of the 10 matters concerned the continuing internal and external association of traditional relationships to the Overlap Area.282 The trial judge accepted that the previously mentioned connections involved an "implicit assertion by the Arabana of their traditional relationship to the Overlap Area"283 but that, again, actual evidence of this was "limited".284 This included teaching children that the Oodnadatta region is Arabana country, a matter which had been explained to a number of Arabana witnesses by their parents.285 Otherwise it was noted that only one witness had visited Hookey's Hole to check it for cultural and environmental purposes, but that these visits were in connection with his activities in education in Aboriginal law and culture generally rather than with specific reference to the Arabana.286 But again, this evidence should have been considered in the light of Finn J's findings in .
"It is to be expected that the extent of the knowledge held by each of the senior men as to the boundary of Arabana country varied, according to their own experience and interest. Nevertheless, their very seniority and their senior membership of peoples who lived in close proximity to the Arabana suggest that it was likely that they had, at the least, general knowledge of the bounds of Arabana country. It is also appropriate to take into account that each was informed of the purpose of making the markings on the Map and (I find) were aware that it was intended for use in an application for native title."
The foregoing was said to be only "some evidence" of the Arabana people's knowledge of the boundaries of their country, with the trial judge doubting claims for the land west of Oodnadatta.290 With great respect, in a case about the boundaries of native title, this map is more than "some evidence".
The ninth of the 10 matters addressed the fact that ceremonial life did not take place on the Overlap Area.291 But that finding should have been considered together with the finding by Finn J, set out above, about the Arabana people who still meet regularly on country for important communal events such as annual reunions, funerals and special birthdays, as well as rodeos, races and bronco brandings.
The final of the 10 matters concerned the continuity of Arabana people's social connections with Oodnadatta.292 The trial judge accepted that Arabana people visit the town to meet relatives and on social occasions. However, the evidence that this occurs as a manifestation of Arabana law and custom was said to be "sparse".293 But Finn J found in Dodd that these social occasions, whilst not derived from traditional Arabana customs, such as rodeos, were nonetheless important to Arabana culture. As noted above, experts in Dodd agreed that these events provide "a forum in which membership of Arabana society is activated, maintained and policed".294
This appeal exemplifies the grave difficulties that arise from a determination of the exact boundaries of native title in the context of an arid country, a nomadic existence and necessary immigration of peoples over time.
If the Overlap Area claim were a distinct and independent application for native title, divorced from any other claim, then the reasoning of the trial judge would be plainly correct. The Arabana's physical connections with this small parcel of land are indeed limited and would not have justified a determination of native title. But, for the foregoing reasons, that is not the correct analysis. The Overlap Area claim should more properly be seen as part of the original claims made in 1993 and 1998 over Arabana land and in the broader context of Arabana history, including the agreed boundaries drawn on the 1996 map and, above all, in light of the consent determination in Dodd. The quality of the limited connections found by the trial judge should have been evaluated in that context. In that respect, it may well be found that the limited or weak connections with the Overlap Area can be seen as being equivalent to what are no doubt other parts of the accepted Arabana land which also exhibit links which are equally limited or weak. It may be that when aggregated with the larger Arabana land, it still can be said of the Overlap Area, as Finn J said in Dodd, that there remains a substantial connection with a part of the claimed area.
I agree with Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ that this proceeding should be remitted to the Full Court of the Federal Court, or if the Full Court so determines remitted to a single judge of the Federal Court, for that Court to consider making a determination under s 225 of the NT Act that the Arabana hold native title rights and interests in relation to the Overlap Area. I also agree with their Honours that each party should bear their own costs.
JAGOT J.
Aboriginal peoples and Torres Strait Islanders claiming native title rights and interests in relation to land or waters must navigate the narrow channel between the Scylla of establishing their connection with the land or waters by their traditional laws and customs at the time of the British acquisition of sovereignty over Australia in 1788 and the Charybdis of establishing the continuity of their connection with the land or waters by those traditional laws and customs at the time of determination of their claim. When two different groups of Aboriginal peoples claim native title rights and interests in relation to the same land or waters, the greatest risk is the foundering of both claims.
In this case, the claim of the Walka Wani Group295 foundered on the requirement of establishing their connection with the land by their traditional laws and customs at the time of sovereignty. In contrast, the claim of the Arabana People foundered on the requirement of establishing the continuity of their connection with the land by their traditional laws and customs at the time of determination of their claim. The Arabana People alone applied for and obtained special leave to appeal to this Court. Accordingly, the order of the Full Court of the Federal Court of Australia dismissing the claim of the Walka Wani Group remains unchallenged in this Court. The challenge is solely that of the Arabana People to the Full Court's order dismissing their appeal against the primary judge's dismissal of their claim.296 As will be explained, the Arabana People's challenge should succeed.
To understand the circumstances confronting the primary judge and the Full Court it is necessary to identify that there was no dispute before them about the meaning of ss 223(1) and 225 of the Native Title Act 1993 (Cth) ("Native Title Act"). It is convenient to set those provisions out immediately as they dictated the outcome of the claims of both the Arabana People and the Walka Wani Group and dictate the outcome of this appeal in favour of the Arabana People. The provisions are in these terms:
"223 Native title
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia."
"225 Determination of native title
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others."
The parties proceeded below on the basis that for either the Arabana People or the Walka Wani Group to obtain a determination that their claimed native title existed in relation to the claimed land they had to establish, first, their connection with the claimed land by their traditional laws and customs at the time of sovereignty and, second, the continuity of their connection with the claimed land by those traditional laws and customs at the time of determination of their claim. The Arabana People, having failed before the primary judge, again failed before the Full Court on the second requirement. The Walka Wani Group, having succeeded before the primary judge, failed before the Full Court on the first requirement.
As will be explained, the case confronting the courts below involved the operation of the "tide of history"297 in which there were undoubted significant effects on the Arabana People and the Walka Wani Group from European settlement, but also, based on the primary judge's unchallenged findings, significant effects on both the Arabana People and the Walka Wani Group from environmental pressures before and after European settlement — particularly drought — causing a substantial southward migration of the ancestors of members of the Walka Wani Group towards and into the traditional country of the Arabana People.
To understand why the primary judge erred in his approach to the claim of the Arabana People it is necessary to provide some further details of the legal context in which their claim was to be determined.
"The dispossession of the indigenous inhabitants of Australia was not worked by a transfer of beneficial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists."
A consequence of the analysis described above is that the common law's capacity to recognise native title rights and interests in relation to land is confined.
As explained in Commonwealth of Australia v Yunupingu:305
"Native title is 'not an institution of the common law'. That is to say, 'native title rights and interests are not created by and do not derive from the common law'. ...
'Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory'. 'The nature and incidents of native title' are 'ascertained as a matter of fact by reference to those laws and customs'. The underlying existence of the traditional laws and customs ascertained as a matter of fact is accordingly 'a necessary [but not a sufficient] pre-requisite for native title'."
"... recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act [the Native Title Act] are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are 'recognised' in the common law."
"... is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, 'traditional' in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty."
"... acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned. ...
... continuity in acknowledgment and observance of the normative rules [ie the traditional laws and customs] in which the claimed rights and interests are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.
In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification 'substantially' is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs."
"Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."
"... demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?"
The Arabana People are part of what is known as the Lakes Cultural Group, a culturally distinct grouping of Aboriginal peoples which extends from south‑west Queensland to Spencer Gulf in South Australia.312 The Walka Wani Group comprises two sub-groups: the Lower Southern Arrernte and Yankunytjatjara/Antakarinja Peoples. The Lower Southern Arrernte belong to the Arandic group of Aboriginal peoples.313 The Yankunytjatjara/Antakarinja, in contrast, are "Western Desert Bloc" peoples.314 The "Western Desert Bloc" refers to the Aboriginal peoples of the Western Desert, which is a vast area in central Australia extending from the northern part of what is now the State of South Australia across much of the Northern Territory and Western Australia.
The claimed land is referred to as the Overlap Area. It is a small area of less than 150 km2 comprising the township of Oodnadatta Common, the Oodnadatta Airport, and an area held by the Aboriginal Land Trust under the Aboriginal Land Trust Act 1966 (SA). A determination that native title exists was made over areas to the north, to the south and to the east of the Overlap Area in respect of the native title of the Arabana People in 2012315 (the "2012 Arabana Determination"). A determination that native title exists was made over areas to the west and north of the Overlap Area in respect of the native title of the Yankunytjatjara/Antakarinja People in 2006316 (the "2006 Yankunytjatjara/Antakarinja Determination"). Two determinations that native title exist were made in 2011 over areas to the north and north-east and to the north-west of the Overlap Area in respect of the native title of the Lower Southern Arrernte and Yankunytjatjara/Antakarinja Peoples317 (the "Eringa No 1 Determination") and the Lower Southern Arrernte, the Luritja/Yankunytjatjara and the Wangkangurru Peoples318 (the "Eringa No 2 Determination").
The historical reality that the displacement of many Aboriginal peoples from their traditional lands resulted not from the British acquisition of sovereignty over Australia in 1788 but from the fact of subsequent occupation and use of those lands and associated grants by the Crown of rights in those lands to Europeans is reflected in the primary judge's reasons. The primary judge recorded that it was "common ground that the relevant date for sovereignty is 1788. It was also common ground that effective sovereignty had not occurred in the Overlap Area for a substantial time after 1788".319 By "effective sovereignty" the primary judge meant the time at which European people regularly encountered and recorded evidence of the occupation or use of land by Aboriginal people. Although that date might have been many decades after 1788, without evidence to the contrary, the generally available inference is that the patterns of Aboriginal peoples' occupation and use of land from 1788 to the time of "effective sovereignty" remained largely the same.320 Consistently with this approach, the primary judge recorded that "[a]ll parties accepted that the Court may draw the inference that the position at sovereignty was the same as it was at effective sovereignty".321
The primary judge found that "effective sovereignty" did not occur in the Overlap Area until 1872–1873. At that time the Peake and Charlotte Waters pastoral stations were established to the south and north of the Overlap Area and the construction of the Overland Telegraph Line between 1870 and 1872 brought hundreds of workers to the area, as well as people travelling along the Line, leading to the first sustained contact between the Aboriginal peoples of the area and European peoples.322 The primary judge recorded that it was "common ground that effective sovereignty does not mean that there was a collapse at that time of Aboriginal law and custom in the region".323
Based on a wealth of evidence, the primary judge found that:324
"... the ethnographical‑historical evidence overwhelmingly supports the conclusion that the Overlap Area was Arabana country at the time of effective sovereignty."
"There was considerable evidence in the trial, and it is a widely held (but not unanimous) view of anthropologists that there has been a gradual south‑easterly migration of the Yankunytjatjara/Antakarinja people and that, while this had been occurring before effective sovereignty, it accelerated thereafter. The evidence suggested that this migration had included movement into the Overlap Area and had prompted a southerly migration by the [Lower Southern Arrernte]. It also suggested a movement of the Arabana away from the Overlap Area.
The causes of the general south‑easterly movement included drought, the degradation of food and water sources, the establishment of ration depots as sources of food, the effect of disease, the 'attractions' of the European settlements and employment opportunities."
(a) 1896: "[U]tter demoralization has set in amongst the Urrapunna [Arabana] and Arunta [Arrernte] where they come together, they were, during the construction of the Railway, in the hands and under the influence of something like 1500 Navvies … Many of them died from typhoid and other diseases and now they are setting aside their ancient tribal laws and marrying anyhow".326
(b) 1919: Influenza had "almost completely annihilated resident [Aboriginal] groups".327
(c) 1937: "The answer [to the significant depopulation of Aboriginal peoples] lies in the rapid and continuous drift of the natives from the Reserve within the last few years. One might be tempted to label it a flight or a rout rather than a mere drift".328
(d) 1939: "The Aranda [Arrernte] system [of kinship] belongs to Central rather than South Australia, just as the southern branch of the Aranda tribe does. Some of its local groups apparently spread down the Finke[329 at some point time in the past, probably not very long ago. ... the Aluridja people [of the Western Desert Bloc] moving south, displaced a portion of the Arabana tribe from the Oodnadatta district, so in between these two movements of people, the Aranda spread down the Finke south of Horseshoe Bend and Charlotte Waters and so across into South Australia".330
(e) 1987: "... there is both documentary (European) and oral (Aboriginal) evidence that the forefathers of many present day Oodnadatta residents gradually invaded the country from the west, forced by droughts and internecine conflicts".331
(f) 1989: "The worst blow for the status of women's cultural knowledge in the Lake Eyre Basin was the arrival from about 1900 onwards of large numbers of people of Western Desert origin ...".332
(g) 1989: "Since Basedow's day Antikarinya people have gradually taken over the Oodnadatta area, and in the 1960s there were many of them even in the heartland of Arabana country at Anna Creek. Today there is not one single person of predominantly Arabana descent at Oodnadatta and only one at Anna Creek. The majority of the remaining Arabana people live outside their own traditional country at Marree and Port Augusta".333
"Coupled with the migration of Western Desert and Arrernte people into the Oodnadatta region was the movement away from Oodnadatta of many Arabana. This seems to have been caused in part by the depredations of disease, especially the Spanish Flu in the early 1920s, the attraction of Anna Springs Station at which the Arabana seem to have been welcome, and the later establishment of Finniss Springs Station at the southern end of Lake Eyre by John Dunbar Warren in 1915 to which he had taken a number of Arabana. With respect to this movement, Lucas concluded his analysis of the population figures recorded by Basedow by saying that they suggested 'a retreat of Arabana from the northern extent of their country, towards to the safety, rations and employment provided by the stations at Anna Creek, Stuart's Creek and Finniss Springs'. Mr Strangways said that Finniss Springs Station had become the centre of the Arabana nation."
"... whether either or both the Arabana and the Walka Wani establish, in accordance with s 223(1)(b) of the [Native Title Act], that their [native title rights and interests] extend to the Overlap Area and if so, whether they have continued to be possessed by the current societies in accordance with an acknowledgement of their respective traditional laws and an observance of their respective traditional customs."
There would have been no problem with the primary judge having confined his inquiry to s 223(1)(b) of the Native Title Act in circumstances where the 2012 Arabana Determination had been made. The 2012 Arabana Determination necessarily determined that, at that time: (a) the Arabana People had native title rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them; and (b) the Arabana People, by those laws and customs, have a connection with the land the subject of the 2012 Arabana Determination, being land to the immediate north, the south and the east of the Overlap Area. There being no suggestion of any material change to the circumstances of the Arabana People after 2012, the primary judge would have been correct to consider that the only issue for determination in respect of their claim was whether, as required by s 223(1)(b), the Arabana People had proved that by those laws and customs, they have a connection with the Overlap Area.
The primary judge's formulation of the relevant question, however, is an amalgam of both s 223(1)(a) and (b) of the Native Title Act. This framing of the question does not represent a mere one-off infelicity of phrasing, but the imposition on the Arabana People's claim of an incorrect conceptual framework.
The conceptual error involves the terms of s 223(1) of the Native Title Act and the fact of the 2012 Arabana Determination. The key circumstances are that: (1) the primary judge had found that at sovereignty the Arabana People had rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them and, by those laws and customs, the Arabana People have a connection with the Overlap Area; (2) the 2012 Arabana Determination determined that the Arabana People have native title rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them, and the Arabana People by those laws and customs have a connection with the land the subject of the 2012 Arabana Determination, being land to the immediate north, the south and the east of the Overlap Area; (3) the native title claim group for the Arabana People's claim to the Overlap Area is identical to the description of the Arabana People recognised in the 2012 Arabana Determination; and (4) the native title rights and interests claimed by the Arabana People in relation to the Overlap Area are the same as those in the 2012 Arabana Determination.
In these four critical circumstances, the relevant question was only that arising under s 223(1)(b) of the Native Title Act. That is, in these circumstances, the relevant question was not whether the Arabana People possessed native title rights and interests in accordance with an acknowledgement of their respective traditional laws and an observance of their respective traditional customs which extended to the Overlap Area; it was whether by the traditional laws and customs determined by the 2012 Arabana Determination to be the traditional laws acknowledged, and the traditional customs observed, by the Arabana People by which the Arabana People did have a connection with the land to the north, south and east of the Overlap Area, they also had a connection to the Overlap Area.
(a) Aaron Stuart's evidence "concerning use and protection of the Overlap Area was not extensive" and "did not convey a sense of connectedness with the Overlap Area"343 — in circumstances where there was evidence from Aaron Stuart that: (i) he spoke Arabana in their home and was taught Arabana law and culture by his father Rex and grandfather Laurie;344 (ii) Laurie Stuart taught him the law for Oodnadatta;345 (iii) he had been told by Arabana people that Oodnadatta was Arabana country;346 and (iv) there had been an occasion in Oodnadatta in which Laurie Stuart had growled at Uncle Clarrie and his brother Deannie who were wearing red headbands. He had said "you pull that off, you're in Arabana country, you're in Wilyaru [high and strong men's law connected with the initiation of men which had ceased in the 1950s or 1960s] country".347
(b) "[T]he actual contact which Mr [Sydney] Strangways has had with the Overlap Area has been limited ... That is to say, Mr Strangways did not give evidence of any specific continuing connection with the Overlap Area. That connection was left to inference from his connection to Arabana country more generally"348 — in circumstances where there was evidence from Sydney Strangways that: (i) between the ages of five and 12 (he was 87 at the time of the hearing before the primary judge), "he had gone with his family to Oodnadatta 3–4 times per year staying with Jack and Sarah Hele for up to two weeks or so at a time. Sarah Hele took in him and his siblings to collect bush tucker";349 (ii) while living in Alice Springs, Mr Strangways would come to Arabana country two to three times per year, usually staying at Algebuckina;350 (iii) he had been taught Arabana law by his father and uncles, who were Wilyaru men;351 (iv) he described the Arabana moiety system, saying that it regulates Arabana society, how the Arabana interact socially as well as the rules of marriage. He described burial and Sorry Business rituals. He also gave several instances of his continued compliance with Arabana traditional law and custom;352 and (v) he had been told that Oodnadatta was Arabana country by many people and said it was for Arabana people to protect sites by visiting them, by issuing permission to those other people who may wish to visit them and to keep other Aboriginal people away.353
(c) Reginald Dodd's evidence "did not establish any strong continuing connection of the Arabana with the Overlap Area"354 — in circumstances where there was evidence from Reginald Dodd that: (i) when Arabana initiations ceased in the 1960s Arabana ceremonial objects were taken to Oodnadatta for care by custodians;355 (ii) he started going to Oodnadatta in the mid‑1950s for race meetings. He also said that when he started working on the railways, he was told by old women in Oodnadatta that they were looking after the places of cultural significance to his mother, grandmother and great grandmother;356 and (iii) the Arabana law which applies in Oodnadatta and at Hookey's Hole is the same as that which applies at Marree and that it is the whole group of Arabana people within Arabana society who have rights to the whole of Arabana country.357
Fifth, there was also evidence before the primary judge that the "whole of the Overlap Area is within the boundaries of the Arabana [that was] marked by the senior men on the 1996 Map"358 and Dr Lucas considered that "the depopulation of the Arabana had made it 'demographically and practically impossible' for them to continue the exercise of traditional rights and interests in the Overlap Area in their full traditional scope"359 but that they "continued their connection to the Overlap Area by their ongoing visits, the utilisation of resources as of right, and the teaching of cultural significance to younger generations".360 In this latter regard, it is sufficient to refer to the observation in Yorta Yorta that while "the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content", the "statutory questions are directed to possession of the rights or interests, not their exercise".361
Sixth, the primary judge said that while he accepted what the 2012 Arabana Determination established "in relation to the immediately adjacent land, including the finding that rights to Arabana country are held, under the Arabana system of law and custom, by Arabana society as a whole, with Arabana People and families having localised attachments, and that under Arabana rules, rights in land are based on filiation from known Arabana Persons", the "requisite continuity of connection of the Arabana in the Overlap Area in accordance with traditional law and custom must be established by the evidence in these proceedings".362 The whole of the evidence in relation to the 2012 Arabana Determination was tendered in the proceedings in relation to the Overlap Area.363 This included an expert report of Dr Fergie and Dr Lucas which contained evidence of the importance of attendance at events on Arabana country for the observance, monitoring and transmission of Arabana traditional laws and customs including bronco branding and stock events in, amongst other places, Oodnadatta. Consistently with his Honour's approach to the other evidence, the primary judge considered that "the evidence that this occurs as a manifestation of Arabana traditional law and custom is sparse".364 Other evidence capable of sustaining a finding of continued connection with the Overlap Area was similarly characterised by the primary judge as "not extensive", "limited", or "sparse". Further, the primary judge said Mr Strangways' "acknowledgement of Arabana traditional law and observance of Arabana traditional custom in relation to the Overlap Area is now of a spiritual rather than practical kind". The weight of these characterisations of the evidence indicates that the primary judge was searching for evidence of physical acts on the Overlap Area involving an acknowledgement of the Arabana People's traditional laws and an observance of their traditional customs. That is not what s 223(1) of the Native Title Act requires and, in the circumstances of this case, caused error in the primary judge's analysis of the significance of the 2012 Arabana Determination.
The Arabana are part of the Lakes Cultural Group, which the Arabana contend extends from South West Queensland to the Spencer Gulf in South Australia. ↩
The phrase "Overlap Area" was adopted in the Court below because there were competing claims over the area. Only the Arabana Applicants now claim native title over the Overlap Area. ↩
Dodd v South Australia [2012] FCA 519; Yankunytjatjara/Antakarinja Native Title Claim Group v South Australia [2006] FCA 1142. See also King (on behalf of the Eringa Native Title Claim Group) v South Australia (2011) 285 ALR 454; King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v South Australia [2011] FCA 1387. ↩
Dodd [2012] FCA 519 at [70]. ↩
The Walka Wani comprise two groups: the Lower Southern Arrernte, who belong to the Arandic group of Aboriginal peoples, and the Yankunytjatjara/Antakarinja, who are Western Desert people. ↩
Stuart v South Australia (Oodnadatta Common Overlap Proceeding) [No 4] ("Stuart (PJ)") [2021] FCA 1620 at [842]. ↩
Stuart (PJ) [2021] FCA 1620 at [916]. ↩
Stuart (PJ) [2021] FCA 1620 at [1051]. ↩
Stuart (PJ) [2021] FCA 1620 at [410], [537]. ↩
Stuart (PJ) [2021] FCA 1620 at [842].
Stuart
South Australia [2025] HCA 12
(2011) 285 ALR 454
(2023) 299 FCR 507
(1992) 175 CLR 1
(2008) 167 FCR 84
(2002) 213 CLR 1
(2002) 214 CLR 422
(2005) 145 FCR 290
(2018) 261 FCR 183
(2021) 287 FCR 1
(2010) 204 FCR 1
(2015) 325 ALR 213
(2019) 269 CLR 1
(2021) 397 ALR 397
(1971) 17 FLR 141
(2013) 305 ALR 452
(2000) 99 FCR 316
(2001) 208 CLR 1
(1998) 195 CLR 96
Appeal allowed. The relevant Full Court order was set aside, and the primary judge's order dismissing the Arabana No 2 Application was ordered to be set aside. The proceeding was remitted for consideration of whether to make a determination under s 225 of the Native Title Act. Each party bears its own costs of the appeal.
On 21 December 2021, the primary judge dismissed the Arabana No 2 Application on the basis that, while the forebears of the Arabana possessed native title rights and interests in the Overlap Area at sovereignty under the traditional laws acknowledged and customs observed by them,6 his Honour was "not satisfied that the Arabana [had] established the maintenance of their connection with the Overlap Area in accordance with the traditional laws acknowledged and traditional customs observed by them".7 His Honour concluded that the Walka Wani had non‑exclusive native title rights and interests in the Overlap Area.8
The Arabana Applicants appealed to the Full Court of the Federal Court on two bases. The first ground of appeal was to the effect that the primary judge "erred in finding ... that the Arabana had not established the maintenance of their connection with the Claim Area". The second ground of appeal was to the effect that the primary judge "erred in finding ... that the [Walka Wani] possessed [native title rights and interests] in the Claim Area at effective sovereignty". In relation to the first ground, the Arabana Applicants submitted that the primary judge, having correctly found that the Overlap Area was "Arabana country" at the time of effective sovereignty,9 and that the Arabana had native title rights and interests in the Overlap Area at effective sovereignty,10 erred in finding that the Arabana had not established the maintenance of their connection with the Overlap Area.11
On 14 August 2023, the Full Court of the Federal Court (Rangiah, Charlesworth and O'Bryan JJ)12 upheld the Arabana Applicants' second ground of appeal in relation to the Walka Wani No 1 Application and the Walka Wani No 2 Application and dismissed the Walka Wani claims for a determination of native title over the Overlap Area.13 The Walka Wani did not seek special leave to appeal that part of the decision of the Full Court in this Court. The Arabana Applicants' first ground of appeal in relation to the Arabana No 2 Application was dismissed by majority (Rangiah and Charlesworth JJ, O'Bryan J dissenting).14 That part of the decision is the subject of this appeal.
In this Court, the Arabana Applicants have two appeal grounds. First, they contend that the majority erred by failing to find that the primary judge had not correctly construed and applied the definition of native title in s 223(1) of the Native Title Act when dismissing the Arabana No 2 Application. Second, they contend that the Full Court erred by treating all aspects of the 2012 Arabana Determination as being geographically specific and, in particular, failing to find that the determination in the 2012 Arabana Determination that the Arabana continued to acknowledge and observe the traditional laws and customs of the Arabana at sovereignty was a determination that should have been applied to the Arabana in the Overlap Area.
In this Court, in addition to the Arabana Applicants and the first respondent (the State of South Australia), the second to fifth respondents (the Walka Wani respondents) filed written submissions and made oral submissions.15 The Attorney-General of the Commonwealth of Australia ("the Commonwealth") intervened pursuant to s 84A(1) of the Native Title Act in relation to the proper construction of s 223(1) of the Native Title Act and in relation to the legal effect and significance of prior native title determinations made by consent.
By the hearing, the parties and the Commonwealth were largely in agreement about the proper construction of, and the legal principles to be applied in respect of s 223(1) of, the Native Title Act. The principal issue was whether the primary judge correctly applied s 223(1) of the Native Title Act, and those principles, when his Honour dismissed the Arabana No 2 Application. As these reasons will explain, the answer to that question is "no". The appeal should be allowed and the proceeding should be remitted to the Full Court of the Federal Court (or if the Full Court decides to remit it to a single judge of the Federal Court, for that Court) to consider whether to make a determination under s 225 of the Native Title Act that the Arabana hold native title rights and interests in relation to the Overlap Area and, if so, the nature and extent of those native title rights and interests.
It is necessary to address the proper construction of s 223 of the Native Title Act, and the legal principles underpinning the "connection inquiry" in s 223(1)(b), before turning to identify the findings made by the primary judge and then the way in which the primary judge erred in the application of those principles in considering the Arabana No 2 Application.
Mr Stuart also gave evidence that he was taught aspects of Arabana law by his grandfather, "but not at all levels". His grandfather had not told him about Wilyaru law which is "a high law ... very strong law" but had, shortly before his death, told him some aspects of the Wilyaru law, even though it was prohibited, so that the knowledge would not be lost. Mr Stuart's evidence was that despite not going through Wilyaru law himself, which the primary judge understood to be initiation, he had learnt it from his father, grandfather, uncles and aunties.134 Mr Stuart's evidence was that his grandfather had taught him that Arabana law is Wilyaru law and that Wilyaru law is held by particular persons, that his grandfather was a person who could "point the bone" and that he had taught Mr Stuart the process. Mr Stuart's evidence was also that his grandfather had been opposed to him being initiated on Anangu Pitjantjatjara Yankunytjatjara Lands.135
In relation to the Arabana moiety system,136 Mr Stuart said he had been taught by his father, his grandfather and his grandmothers on both sides. He identified the two moieties – Kararru and Mathari – describing himself as Kararru and his daughters as Mathari. Mr Stuart said that, after the birth of one of his granddaughters, he had buried a small piece of the umbilical cord the "other side [of] Alberga" as a means of "putting [his] female side from [his] daughter Beralda back into [his] land, like a ceremony". The primary judge recorded that the burial was not in the Overlap Area.137
Mr Stuart said that he had learnt of Arabana Ularaka138 from his parents, grandparents, uncles and aunties. Mr Stuart declined to talk about a woman's Ularaka. He gave evidence about four Ularaka connected with Hookey's Hole – the turkey, Warrakatti-Kari (emu), Yaltya (the smaller frog) and Tidnnamara (the sand frog). He said that he had learnt the turkey Ularaka from his father and Nana Laurie, his grandfather, as well as the Kadni (frilled neck lizard) and Karlta (sleepy lizard) Ularaka. In addition, he described the Arabana Thunpillil Ularaka associated with Mount O'Halloran (Kati Thunda) and an Ularaka Kuarkeriee concerning two snakes.139
The primary judge regarded his evidence as "generally reliable".140 However, the primary judge stated:141
However, the primary judge stated:159
On the first error, as explained, "connection" must be by laws and customs, so connection with an adjacent area may be evidence of connection "by laws and customs" where, as here, the laws and customs emphasise a collective right of all Arabana people to Arabana land, and there is evidence that Oodnadatta is regarded by the Arabana as Arabana country.
On the second error, the 2012 Arabana Determination as well as evidence on which it was based were before the primary judge and were significant. As has been explained,184 s 86 of the Native Title Act relevantly and expressly provides for the Federal Court to receive into evidence the transcript of evidence in any other proceedings before the Court and draw any conclusions of fact from that transcript that the Court thinks proper185 and also to adopt any decision or judgment of the Court.186 The 2012 Arabana Determination and the reports prepared and relied upon for that Determination were therefore evidence of and relevant to the question of connection.
In that context, the question was whether the Arabana's contemporary traditional laws and customs constitute a "connection" of the Arabana with the Overlap Area.
The fourth of the 10 matters concerned continuity of learning, respecting and teaching the Ularaka.264 The Ularaka comprises the dreaming, knowledge, stories, songs, ceremonies, and traditions of the Arabana people. Once again, the trial judge found that evidence about this was "limited".265 But the evidence he limited himself to was the teaching of Ularaka "concerning the Overlap Area".266 With great respect, that inquiry was too confined. The question should have been whether there was continuity of the teaching of Ularaka across the Arabana's traditional country, including the Overlap Area, or whether there had been a distinct cessation of such teaching in the Overlap Area, in contrast to the rest of the Arabana land. In that respect Finn J accepted the following in 2012:267
The eighth of the 10 matters concerned knowledge of the boundaries of Arabana country.287 The Arabana contended that they had always considered the Overlap Area as being part of Arabana land. They relied upon a map made in 1996 which reflected this. This map had been prepared by senior Arabana, Yankunytjatjara, Kokatha, Southern Arrernte and Lower Southern Arrernte men for the purposes of the native title claim then proposed by the Arabana.288 The trial judge found:289
The materiality of the conceptual error to the primary judge's reasoning is exposed in several ways.
First, the primary judge consistently focused on the need for proof of continued possession by the Arabana People of native title rights and interests "in accordance with an acknowledgement of their respective traditional laws and an observance of their respective traditional customs" in respect of the Overlap Area, not whether by the traditional laws and customs determined by the 2012 Arabana Determination to be the traditional laws acknowledged, and the traditional customs observed, by the Arabana People by which the Arabana People did have a connection with the land to the north, south and east of the Overlap Area, they also had a connection to the Overlap Area.337
Second, having found that the Overlap Area was Arabana country at the time of sovereignty — meaning that at that time the Arabana People had rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them and that by those laws and customs, the Arabana People had a connection with the Overlap Area — the primary judge did not give effect to the true significance of the 2012 Arabana Determination. Instead, the primary judge considered the earlier determinations including those of the sub-groups within the Walka Wani Group together as meaning that facts fundamental to those determinations could not be called into question in the proceeding before his Honour.338 So much may be accepted. But once the primary judge found that the Overlap Area was Arabana country at the time of sovereignty the 2012 Arabana Determination took on a unique significance. The primary judge said that while the 2012 Arabana Determination could not be ignored and it would be "natural for the Court to have regard to matters bearing on the Arabana connection in the larger area", the same reasoning would apply to the earlier determinations in favour of the sub-groups of the Walka Wani Group.339 That is, the primary judge, having found the Overlap Area to be Arabana country at sovereignty, continued to treat all of the earlier determinations relating to the land adjoining the Overlap Area as of equal and therefore of limited significance.
However, while those determinations may have started with equal significance, once it was found that the Overlap Area was Arabana country at the time of sovereignty: (a) the determinations in favour of the sub-groups of the Walka Wani Group in respect of adjoining land could have no relevance to the Arabana People's claim because the Overlap Area was not land to which any sub-groups of the Walka Wani Group had a connection by their traditional laws and customs at sovereignty. Rather, the determinations in favour of the sub-groups of the Walka Wani Group represented the south-eastern most geographical extent of their traditional country at sovereignty, the Overlap Area being outside of their traditional country at sovereignty; and (b) as explained, in respect of the Arabana People's claim, the relevant question narrowed to that under s 223(1)(b) in respect of the Overlap Area. This is why the Walka Wani Group's submission in this Court to the effect that the determinations in favour of the sub-groups comprising the Walka Wani Group continued to be of equal significance to the 2012 Arabana Determination in the determination of the Arabana People's claim is unsustainable. The primary judge's finding that the Overlap Area was Arabana country at the time of sovereignty (unchallenged before the Full Court340) meant that the issue before his Honour reduced to one of the substantial continuity of the connection of the Arabana People with the Overlap Area by the traditional laws and customs which the 2012 Arabana Determination had determined continued to be acknowledged and observed by them and by which they continued to have a connection with the land to the immediate north, south and east of the Overlap Area. If the primary judge had imposed this conceptual framework, as was necessary in the circumstances of this case, the evidence on which the Arabana People relied might have taken on an entirely different complexion from that perceived by the primary judge.
Third, the necessary conceptual framework in this case does not overlook the fact that the 2012 Arabana Determination did not relate to the Overlap Area. It is not to the point that all determinations of native title are geographically specific. Factual findings and inferences are to be made in all relevant circumstances. In this case, the four critical circumstances identified above gave the 2012 Arabana Determination a unique and weighty significance to the resolution of the Arabana People's claim in relation to the Overlap Area. It would be quite unrealistic to reason on the basis that those four critical circumstances were immaterial or unimportant to the factual findings and inferences which were reasonably open in respect of the only relevant question as to whether, by the laws and customs that the 2012 Arabana Determination determined to be the traditional laws acknowledged, and the traditional customs observed, by the Arabana People, by which the Arabana People did have a connection with the land to the north, south and east of the Overlap Area, they also had a connection to the Overlap Area. The primary judge recognised this when he observed that it would be "natural" given the 2012 Arabana Determination to reason from the Arabana People's established continuing connection to their other traditional country to their continuing connection with the Overlap Area.341 His Honour did not so reason because of the equivalence he drew between the 2012 Arabana Determination and the determinations in favour of the sub-groups comprising the Walka Wani Group, an equivalence which could not be sustained after his Honour found that the Overlap Area was part of the traditional country at sovereignty of the Arabana People.
Fourth, once the limited scope of the correct question is identified, it is apparent that the conceptual error must have affected the primary judge's assessment of the evidence on which the Arabana People relied. Six Arabana people gave evidence and 13 Arabana people spoke to an anthropologist who gave evidence, Dr Lucas.342 The primary judge, for example, described and drew inferences from the evidence of these witnesses as follows:
The reasoning of the majority in the Full Court (Rangiah and Charlesworth JJ), in contrast to that of O'Bryan J in dissent in respect of the appeal of the Arabana People, does not confront these problems with the reasoning of the primary judge and the conceptual error they expose. The majority also wrongly approached the case of the Arabana People as if they had to establish every matter on which they relied to establish their continuing connection with the Overlap Area.369
The orders identified by Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ should be made.
Stuart (PJ) [2021] FCA 1620 at [916]. ↩
Stuart v South Australia ("Stuart (FC)") (2023) 299 FCR 507. ↩
Stuart (FC) (2023) 299 FCR 507 at 579 [275]-[276]; see also 579-580 [278]. ↩
Stuart (FC) (2023) 299 FCR 507 at 549 [175], 580 [279], 602 [366]. ↩
The sixth, seventh and eighth respondents filed submitting appearances. ↩
Native Title Act, s 13(1)(a). ↩
Native Title Act, s 94A. ↩
Native Title Act, s 223(2) states that "[w]ithout limiting sub-section (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests". ↩
(1992) 175 CLR 1. See also Bodney v Bennell (2008) 167 FCR 84 at 126 [163]. ↩
Western Australia v Ward (2002) 213 CLR 1 at 66 [17]. ↩
Ward (2002) 213 CLR 1 at 66 [18] (emphasis in original). ↩
Ward (2002) 213 CLR 1 at 66 [18]. ↩
Ward (2002) 213 CLR 1 at 66 [18]. ↩
(2002) 214 CLR 422 at 455-456 [85]-[86] (emphasis added). ↩
Yorta Yorta (2002) 214 CLR 422 at 455 [83] (emphasis in original). ↩
(2002) 213 CLR 1 at 85 [64]. ↩
See, eg, Daniel v Western Australia [2003] FCA 666 at [421]; Neowarra v Western Australia [2003] FCA 1402 at [353]; De Rose v South Australia [No 2] ("De Rose (No 2)") (2005) 145 FCR 290 at 306 [62]; Starkey v South Australia (2018) 261 FCR 183 at 214 [52]; Blackburn v Wagonga Local Aboriginal Land Council (2021) 287 FCR 1 at 46-47 [143]. ↩
(2008) 167 FCR 84. ↩
Bodney (2008) 167 FCR 84 at 129 [172]. See also Akiba v Queensland [No 3] (2010) 204 FCR 1 at 138-139 [546]-[551]; Croft (on behalf of the Barngarla Native Title Claim Group) v South Australia (2015) 325 ALR 213 at 229-230 [71]; Northern Territory v Griffiths (2019) 269 CLR 1 at 38 [22]-[24]; Malone (on behalf of the Clermont-Belyando Area Native Title Claim) v Queensland [No 5] (2021) 397 ALR 397 at 445 [163], [166]. ↩
Stuart (FC) (2023) 299 FCR 507 at 583-584 [290]. ↩
Stuart (PJ) [2021] FCA 1620 at [51]. ↩
Ward (2002) 213 CLR 1 at 66 [18]. ↩
See [20] above. ↩
Stuart (PJ) [2021] FCA 1620 at [64]-[65]. ↩
Stuart (PJ) [2021] FCA 1620 at [65]. ↩
An anthropologist. ↩
A linguist. ↩
An anthropologist. ↩
An historian. ↩
Stuart (PJ) [2021] FCA 1620 at [67]; see also [79]. ↩
Stuart (PJ) [2021] FCA 1620 at [81]. ↩
Stuart (PJ) [2021] FCA 1620 at [101], quoting Dodd [2012] FCA 519 at [35] (emphasis added). ↩
Stuart (PJ) [2021] FCA 1620 at [101]. ↩
Native Title Act, s 82(1). ↩
Native Title Act, s 86(1)(a). ↩
Native Title Act, s 86(1)(c). ↩
Stuart (PJ) [2021] FCA 1620 at [102]; Dodd [2012] FCA 519 at [26]-[29], [33]. ↩
Stuart (PJ) [2021] FCA 1620 at [103]. ↩
Stuart (PJ) [2021] FCA 1620 at [104]-[110]. ↩
Stuart (PJ) [2021] FCA 1620 at [105]. ↩
Stuart (PJ) [2021] FCA 1620 at [106]. ↩
Stuart (PJ) [2021] FCA 1620 at [107]. ↩
Stuart (PJ) [2021] FCA 1620 at [108]. ↩
Stuart (PJ) [2021] FCA 1620 at [109]. ↩
Stuart (PJ) [2021] FCA 1620 at [842]. ↩
See [63]-[65] below. ↩
Stuart (PJ) [2021] FCA 1620 at [842]. ↩
Stuart (PJ) [2021] FCA 1620 at [410]. ↩
Stuart (PJ) [2021] FCA 1620 at [414]. ↩
Stuart (PJ) [2021] FCA 1620 at [412]. ↩
Stuart (PJ) [2021] FCA 1620 at [126]-[127]. ↩
Stuart (PJ) [2021] FCA 1620 at [140]-[147]. ↩
Stuart (PJ) [2021] FCA 1620 at [176]-[181]. ↩
Stuart (PJ) [2021] FCA 1620 at [182]-[188]. ↩
Stuart (PJ) [2021] FCA 1620 at [204]-[231]. ↩
Stuart (PJ) [2021] FCA 1620 at [232]-[240]. ↩
Stuart (PJ) [2021] FCA 1620 at [314]-[317]. ↩
Stuart (PJ) [2021] FCA 1620 at [318]-[324]. ↩
Stuart (PJ) [2021] FCA 1620 at [332]-[352]. ↩
Stuart (PJ) [2021] FCA 1620 at [361]-[365]. ↩
Stuart (PJ) [2021] FCA 1620 at [412]. ↩
Stuart (PJ) [2021] FCA 1620 at [163]-[175]. ↩
Stuart (PJ) [2021] FCA 1620 at [241]-[253]. ↩
Stuart (PJ) [2021] FCA 1620 at [376]. ↩
Stuart (PJ) [2021] FCA 1620 at [318]. ↩
Stuart (PJ) [2021] FCA 1620 at [319]. ↩
Stuart (PJ) [2021] FCA 1620 at [332]. ↩
Stuart (PJ) [2021] FCA 1620 at [333]. ↩
Stuart (PJ) [2021] FCA 1620 at [342]. ↩
Stuart (PJ) [2021] FCA 1620 at [410]. ↩
Stuart (PJ) [2021] FCA 1620 at [86]. ↩
Stuart (PJ) [2021] FCA 1620 at [88]. ↩
Stuart (PJ) [2021] FCA 1620 at [537]. ↩
Stuart (PJ) [2021] FCA 1620 at [426]. ↩
Stuart (PJ) [2021] FCA 1620 at [416]. ↩
Stuart (PJ) [2021] FCA 1620 at [416]. ↩
Stuart (PJ) [2021] FCA 1620 at [416]. ↩
Stuart (PJ) [2021] FCA 1620 at [416]. ↩
Stuart (PJ) [2021] FCA 1620 at [426]. ↩
Stuart (PJ) [2021] FCA 1620 at [430], [432]. ↩
Stuart (PJ) [2021] FCA 1620 at [431], [441]. ↩
Stuart (PJ) [2021] FCA 1620 at [435]. ↩
Stuart (PJ) [2021] FCA 1620 at [437]. ↩
Stuart (PJ) [2021] FCA 1620 at [580]. ↩
Stuart (PJ) [2021] FCA 1620 at [680]. ↩
Stuart (PJ) [2021] FCA 1620 at [680], [682]. ↩
Stuart (PJ) [2021] FCA 1620 at [686]. ↩
Stuart (PJ) [2021] FCA 1620 at [690]. ↩
Stuart (PJ) [2021] FCA 1620 at [747], [750]; see also [772]. ↩
Stuart (PJ) [2021] FCA 1620 at [747]. ↩
Stuart (PJ) [2021] FCA 1620 at [794]. ↩
Stuart (PJ) [2021] FCA 1620 at [87]. ↩
Stuart (PJ) [2021] FCA 1620 at [103], [845]. ↩
Stuart (PJ) [2021] FCA 1620 at [773], [778], [794], [844]. ↩
See [44] above. ↩
Stuart (PJ) [2021] FCA 1620 at [773]. ↩
Stuart (PJ) [2021] FCA 1620 at [773] (emphasis added). ↩
Stuart (PJ) [2021] FCA 1620 at [778]. ↩
Dodd [2012] FCA 519 at [36]-[41] (emphasis added). ↩
See [46] above. ↩
Stuart (PJ) [2021] FCA 1620 at [773]; cf Dodd [2012] FCA 519 at [40]-[41]. ↩
Dodd [2012] FCA 519 at [42], [45]-[50]. ↩
See [29]-[36] above. ↩
See [45]-[46] above. ↩
Stuart (PJ) [2021] FCA 1620 at [773] (emphasis added). See [46] above. ↩
See [46] above. ↩
See [46] above. ↩
See, eg, Stuart (FC) (2023) 299 FCR 507 at 595-596 [338]-[339], 598 [347], 599 [353], 599-600 [355], 600 [359], 601 [363]. ↩
Stuart (PJ) [2021] FCA 1620 at [50]-[51], [847]. ↩
Stuart (PJ) [2021] FCA 1620 at [916]. ↩
Stuart (PJ) [2021] FCA 1620 at [56] (emphasis added). ↩
Stuart (PJ) [2021] FCA 1620 at [914] (emphasis added). ↩
Stuart (PJ) [2021] FCA 1620 at [661]. The evidence of Joanne Warren need not be considered. ↩
Stuart (PJ) [2021] FCA 1620 at [582]-[602]. ↩
Stuart (PJ) [2021] FCA 1620 at [582]. ↩
Stuart (PJ) [2021] FCA 1620 at [591]. ↩
Stuart (PJ) [2021] FCA 1620 at [587]. ↩
Stuart (PJ) [2021] FCA 1620 at [588]-[590]. ↩
Stuart (PJ) [2021] FCA 1620 at [593]. ↩
Stuart (PJ) [2021] FCA 1620 at [589]. ↩
Stuart (PJ) [2021] FCA 1620 at [595]. ↩
Stuart (PJ) [2021] FCA 1620 at [600]. ↩
Stuart (PJ) [2021] FCA 1620 at [601]. ↩
Stuart (PJ) [2021] FCA 1620 at [591]. ↩
Stuart (PJ) [2021] FCA 1620 at [596]. ↩
See [35] above. ↩
Stuart (PJ) [2021] FCA 1620 at [592]. ↩
See [34] above. ↩
Stuart (PJ) [2021] FCA 1620 at [597]-[598]. ↩
Stuart (PJ) [2021] FCA 1620 at [602]. ↩
Stuart (PJ) [2021] FCA 1620 at [602]. ↩
Stuart (PJ) [2021] FCA 1620 at [603]. ↩
Stuart (PJ) [2021] FCA 1620 at [619]. ↩
Stuart (PJ) [2021] FCA 1620 at [618]. ↩
Stuart (PJ) [2021] FCA 1620 at [609]. ↩
Stuart (PJ) [2021] FCA 1620 at [611]. ↩
Stuart (PJ) [2021] FCA 1620 at [612], [614], [616]. ↩
Stuart (PJ) [2021] FCA 1620 at [618]. ↩
Stuart (PJ) [2021] FCA 1620 at [618]: the primary judge referred to the "Owl Uralaka". ↩
Stuart (PJ) [2021] FCA 1620 at [618]: the primary judge referred to the "Urumbula Uralaka". ↩
Stuart (PJ) [2021] FCA 1620 at [618]. ↩
Stuart (PJ) [2021] FCA 1620 at [617]. ↩
Stuart (PJ) [2021] FCA 1620 at [617]. ↩
Stuart (PJ) [2021] FCA 1620 at [603]. ↩
Stuart (PJ) [2021] FCA 1620 at [603]. ↩
Stuart (PJ) [2021] FCA 1620 at [613]. ↩
Stuart (PJ) [2021] FCA 1620 at [622]. ↩
Stuart (PJ) [2021] FCA 1620 at [619]. ↩
Stuart (PJ) [2021] FCA 1620 at [621]. ↩
Stuart (PJ) [2021] FCA 1620 at [623]. ↩
Stuart (PJ) [2021] FCA 1620 at [624]. ↩
Stuart (PJ) [2021] FCA 1620 at [625]. ↩
Stuart (PJ) [2021] FCA 1620 at [626]. ↩
Stuart (PJ) [2021] FCA 1620 at [627]. ↩
Stuart (PJ) [2021] FCA 1620 at [640]. ↩
Stuart (PJ) [2021] FCA 1620 at [641]. ↩
Stuart (PJ) [2021] FCA 1620 at [641]-[643]. ↩
Stuart (PJ) [2021] FCA 1620 at [645]. ↩
Stuart (PJ) [2021] FCA 1620 at [646]. ↩
Stuart (PJ) [2021] FCA 1620 at [647]. ↩
Stuart (PJ) [2021] FCA 1620 at [648]. ↩
Stuart (PJ) [2021] FCA 1620 at [650]. ↩
Stuart (PJ) [2021] FCA 1620 at [652]. ↩
Stuart (PJ) [2021] FCA 1620 at [654]. ↩
Stuart (PJ) [2021] FCA 1620 at [653]. ↩
Stuart (PJ) [2021] FCA 1620 at [852]-[906]. ↩
Stuart (FC) (2023) 299 FCR 507 at 533-534 [105]-[106]. ↩
Dodd [2012] FCA 519, Sch 1 to the Orders**.** ↩
Dodd [2012] FCA 519 at [4]. ↩
Dodd [2012] FCA 519 at [41]. ↩
Dodd [2012] FCA 519 at [42]. ↩
Dodd [2012] FCA 519 at [59]. ↩
Stuart (PJ) [2021] FCA 1620 at [854]. ↩
See [31] above. ↩
Native Title Act, s 86(1)(a). ↩
Native Title Act, s 86(1)(c). ↩
Stuart (PJ) [2021] FCA 1620 at [862]. ↩
Stuart (PJ) [2021] FCA 1620 at [863]. ↩
Stuart (PJ) [2021] FCA 1620 at [864]. ↩
Stuart (PJ) [2021] FCA 1620 at [863]. ↩
Stuart (PJ) [2021] FCA 1620 at [865]. ↩
Stuart (PJ) [2021] FCA 1620 at [865]-[870]. ↩
Stuart (PJ) [2021] FCA 1620 at [871]. ↩
Stuart (PJ) [2021] FCA 1620 at [872]-[876]. ↩
Stuart (PJ) [2021] FCA 1620 at [603]. ↩
Stuart (PJ) [2021] FCA 1620 at [874]. ↩
Stuart (PJ) [2021] FCA 1620 at [883]. ↩
Stuart (PJ) [2021] FCA 1620 at [884]. ↩
Stuart (PJ) [2021] FCA 1620 at [894]. ↩
Stuart (PJ) [2021] FCA 1620 at [895]. ↩
Stuart (PJ) [2021] FCA 1620 at [901]. ↩
Stuart (PJ) [2021] FCA 1620 at [902]. ↩
Stuart (PJ) [2021] FCA 1620 at [902]. ↩
Stuart (PJ) [2021] FCA 1620 at [901]. ↩
Stuart (PJ) [2021] FCA 1620 at [903]. ↩
Stuart (PJ) [2021] FCA 1620 at [698]-[744]. ↩
Stuart (PJ) [2021] FCA 1620 at [904]. ↩
Stuart (PJ) [2021] FCA 1620 at [905]. ↩
Stuart (PJ) [2021] FCA 1620 at [912]. ↩
Dodd [2012] FCA 519 at [56]. ↩
Stuart (PJ) [2021] FCA 1620 at [907]-[915]; see also [916]. ↩
Stuart (PJ) [2021] FCA 1620 at [907]. ↩
Stuart (PJ) [2021] FCA 1620 at [913]. ↩
Stuart (PJ) [2021] FCA 1620 at [848]. ↩
Stuart (PJ) [2021] FCA 1620 at [773]. ↩
Stuart (PJ) [2021] FCA 1620 at [102], [842]. ↩
Stuart (PJ) [2021] FCA 1620 at [844]-[845]. ↩
Stuart (PJ) [2021] FCA 1620 at [103]-[110]. ↩
Stuart (PJ) [2021] FCA 1620 at [773], [842], [845]. ↩
See [13] above. ↩
cf Native Title Act, s 85A. ↩
Stuart v South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 ("Stuart (PJ)"). ↩
Stuart v South Australia (2023) 299 FCR 507 ("Stuart (AJ)"). ↩
(2002) 213 CLR 1 at 85-86 [64] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. ↩
Ward (2002) 213 CLR 1 at 86 [64] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. ↩
(1992) 175 CLR 1. ↩
Ward (2002) 213 CLR 1 at 65 [16] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. ↩
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167 per Blackburn J. ↩
Ward (2002) 213 CLR 1 at 174 [331] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. ↩
(1992) 175 CLR 1 at 61 per Brennan J (emphasis added). ↩
See, eg, Western Australia v Graham (on behalf of the Ngadju People) (2013) 305 ALR 452 at 460 [37] per Jagot, Barker and Perry JJ. ↩
Ward (2002) 213 CLR 1 at 240 [559] per McHugh J. ↩
Ward (2002) 213 CLR 1 at 278 [650] per Callinan J, quoting Western Australia v Ward (2000) 99 FCR 316 at 348 [104] per Beaumont and von Doussa JJ. ↩
Ward (2002) 213 CLR 1 at 278 [650] per Callinan J. ↩
Ward (2002) 213 CLR 1 at 84 [60] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. ↩
Ward (2002) 213 CLR 1 at 275 [644] per Callinan J. ↩
Ward (2002) 213 CLR 1 at 275 [644] per Callinan J. ↩
[2012] FCA 519. ↩
Stuart (AJ) (2023) 299 FCR 507 at 594-595 [333] per O'Bryan J. ↩
Stuart (PJ) [2021] FCA 1620 at [842] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [42] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [43] per White J. ↩
Dodd [2012] FCA 519 at [6] per Finn J. ↩
Stuart (PJ) [2021] FCA 1620 at [561] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [561] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [843] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [852] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [914] per White J. ↩
Dodd [2012] FCA 519 at [42], [46] per Finn J. ↩
The concept of the Arabana's Ularaka is set out in the reasons of Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ at [34]-[36]. ↩
Dodd [2012] FCA 519 at [42] per Finn J. ↩
Stuart (AJ) (2023) 299 FCR 507 at 529 [88] per Rangiah and Charlesworth JJ. ↩
Stuart (PJ) [2021] FCA 1620 at [57] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [853]-[854] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [854] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [855]-[864] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [862] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [863] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [864] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [865]-[871] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [865]-[871] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [868] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [870] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [872]-[876] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [872] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [874] per White J. ↩
Dodd [2012] FCA 519 at [50] per Finn J. ↩
Stuart (PJ) [2021] FCA 1620 at [598] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [877]-[892] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [878] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [879] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [882] per White J. ↩
Dodd [2012] FCA 519 at [56] per Finn J. ↩
Stuart (PJ) [2021] FCA 1620 at [884] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [883] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [888] per White J. ↩
Dodd [2012] FCA 519 at [49] per Finn J. ↩
Stuart (PJ) [2021] FCA 1620 at [893]-[896] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [896] per White J. ↩
Dodd [2012] FCA 519 at [56] per Finn J. ↩
Dodd [2012] FCA 519 at [58] per Finn J. ↩
Stuart (PJ) [2021] FCA 1620 at [897]-[902] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [897] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [898] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [900] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [902] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [903] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [698] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [728] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [903] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [904] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [905]-[906] per White J. ↩
Stuart (PJ) [2021] FCA 1620 at [905] per White J. ↩
Dodd [2012] FCA 519 at [56] per Finn J. ↩
As will be explained, the Walka Wani Group is a native title claim group which comprises two sub-groups of Aboriginal peoples: the Lower Southern Arrernte and the Yankunytjatjara/Antakarinja Peoples. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 and Stuart v State of South Australia (2023) 299 FCR 507. ↩
Mabo v Queensland [No 2] (1992) 175 CLR 1 at 60. ↩
(1992) 175 CLR 1. ↩
(1992) 175 CLR 1 at 35. ↩
(1992) 175 CLR 1 at 58. ↩
(1992) 175 CLR 1 at 58. ↩
(1992) 175 CLR 1 at 58. ↩
(1992) 175 CLR 1 at 48. ↩
(1992) 175 CLR 1 at 68-69. ↩
Commonwealth of Australia v Yunupingu [2025] HCA 6 at [58]-[59], quoting Mabo v Queensland [No 2] (1992) 175 CLR 1 at 59; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [48]; Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58; Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46] (emphasis in original) (footnotes omitted). ↩
(2002) 214 CLR 422 at 453-454 [77] (emphasis added). ↩
(2002) 214 CLR 422 at 455-456 [85] (emphasis added). ↩
(2002) 214 CLR 422 at 456 [86] (emphasis added). ↩
(2002) 214 CLR 422 at 456-457 [87]-[89] (emphasis added). ↩
(1992) 175 CLR 1 at 61 (emphasis added). ↩
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 455 [83] (emphasis in original). ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [30], [57(a)]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [35]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [35]. ↩
Dodd v State of South Australia [2012] FCA 519. ↩
Yankunytjatjara/Antakarinja Native Title Claim Group v State of South Australia [2006] FCA 1142. ↩
King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386. ↩
King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [64]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [65]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [80]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [67]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [81]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [410]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [538]-[539]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [540]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [541]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [542]. ↩
The Finke River, north of the Overlap Area. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [544]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [551]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [552]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [554]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [561]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [30] and [32]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [56]. ↩
Eg, Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [56], [843], [844], [911], [913], [914]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [54]-[55]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [849]-[850]. ↩
Stuart v State of South Australia (2023) 299 FCR 507 at 514 [33]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [849]-[850]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [581]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [602]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [585]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [587]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [589]-[590]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [601]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [621]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [609]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [610]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [611]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [617]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [618]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [654]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [650]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [651]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [652]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [715]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [773]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [779]. ↩
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 455 [84]. See also Western Australia v Ward (2002) 213 CLR 1 at 85 [64]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [853]-[854]. ↩
See Native Title Act, s 86. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [905]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [865]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [898]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [901]. ↩
Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [907]. ↩
Stuart v State of South Australia (2023) 299 FCR 507 at 533 [105]. ↩