Native Title Year in Review 2023-2024

What you need to know

• Three Full Federal Court appeals have recently been decided in relation to connection issues and in each case the Full Court has held that native title did not exist.
• The Full Court held that findings made in previous consent determinations over adjoining land could not be relied upon as evidence in relation to land outside of the original determination area.
• The High Court has granted special leave to appeal in relation to Stuart v State of South Australia [2023] FCAFC 131, which will require it to consider the tests for connection (and loss of connection) and also what use, if any, can be made of findings in adjoining determinations.
• A special leave application has also been filed in relation to the Clermont-Belyando appeal (Malone on behalf of the Clermont-Belyando Area Native Title Claim Group v State of Queensland [2023] FCAFC 190).

What you need to do

• Watch for the High Court's decision in the appeal from Stuart v SA, in particular what it says about loss of connection and the use of findings in neighbouring determinations.
• Watch for the outcome of the special leave application in Clermont-Belyando appeal.
• If negative determinations are ultimately made in relation to any of these matters, consider the impact on your interests in the claim area.

A busy year for connection decisions

The Full Federal Court has handed down three decisions in the last 12 months relating to loss of connection. These decisions are:

• Malone on behalf of the Clermont-Belyando Area Native Title Claim Group v State of Queensland [2023] FCAFC 190 (the Clermont-Belyando Appeal)
• McLennan on behalf of the Jangga People #3 v State of Queensland [2023] FCAFC 191 (the Jangga #3 Appeal); and
• Stuart v State of South Australia [2023] FCAFC 131 (Stuart v SA).

The Federal Court has also made similar findings in the Gaangalu claim (Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) [2023] FCA 600), which we write about in "Federal Court makes negative determination of native title".

Full Court resolves overlapping native title claims over Oodnadatta in SA but High Court to ultimately decide some issues

In Stuart v SA, the Full Federal Court was asked to resolve two appeals in the context of overlapping claims in the vicinity of Oodnadatta in South Australia. As a result, the previous determination in favour of one group was overturned and the claims of both groups were dismissed.

The two overlapping claim groups — the Arabana people and the Walka Wani people — each had consent determinations of native title to land surrounding the overlap area.

The judge at first instance determined that the Arabana people had occupied the overlap area at the time of effective European sovereignty but had moved away and had (over time) lost connection with the overlap area. On the other hand, the judge considered that the Walka Wani people had some form of 'use' rights under traditional law and custom at the time of effective sovereignty, and that these rights and interests had continued to the present day and could be recognised as native title rights. A determination of native title was therefore made in their favour in relation to the overlap area.

Both the Arabana people and the State of South Australia separately appealed against this decision and the Full Court made a number of useful findings about connection.

Full Court held that the Arabana people could not rely on their neighbouring consent determination

The Arabana people appealed the dismissal of their claim on the basis that they should have been entitled to rely on their neighbouring determination (and the findings therein) to support their claim to the overlap area. They argued that this was sufficient to infer connection to the overlap area for the purposes of section 223 of the Native Title Act 1993 (Cth).

The Full Court rejected this ground of appeal. It upheld the first instance finding that the Arabana people could not rely on adjacent determinations to avoid having to prove the elements of native title under the Native Title Act to this additional area. Whether by consent or after a contested hearing, a determination is geographically specific and binding only with respect to the land and waters that are the subject of the determination.

Parcel by parcel approach queried

The Arabana People also argued that the trial judge had wrongly taken a "parcel by parcel" approach to determining native title in the overlap area, when it was a small portion of a much larger region in respect of which they claimed native title.

The Full Court rejected this argument and pointed out that the Arabana people had commenced separate proceedings in relation to separate parcels of land, the claim was opposed by the State and was tried by way of adversarial process in which the rules of evidence applied. The Arabana people were put to proof which required the test for connection to be established in relation to the parcel being claimed.

The Full Court noted that things might be different when a claim is not opposed on geographical grounds. In cases of that kind, for the purposes of the Native Title Act s 223(1)(b), inferences concerning connection with respect to the whole of the claimed area may be readily drawn where they are reasonably available, and particularly where no defence case is made against them.

High Court to decide correct statutory test under section 223 of the Native Title Act

The Arabana people argued that the trial judge had wrongly formulated the test for connection in section 223 of the Native Title Act by inadvertently introducing a geographical component to the acts of acknowledgement and observance of traditional law and custom.

The majority disagreed with this submission and rejected this ground of appeal.

Justice O'Bryan, in dissent, considered that the trial judge focused too much on whether the Arabana people had demonstrated their connection to the overlap area through particular acts and conduct, rather than whether they had identified traditional laws and customs by which they held native title rights and interests.

In February 2024, the High Court granted the Arabana people special leave to appeal in relation to this issue. The High Court will consider the test under section 223 and whether any aspects of the adjoining consent determination should have been considered. No hearing date has yet been set.

Full Court prefers oral witness testimony over expert report

One of the issues which arose in the Arabana appeal was whether the trial judge should have given more weight to the opinion of the appellant's expert anthropologist.

The anthropologist's report referred to the results of interviews with 13 Arabana people about their traditional laws and customs. On this basis, the expert expressed the view that the Arabana people continued to hold native title rights and interests to the overlap area.

The trial judge did not accept the expert's opinion on the issue of connection, on the basis that the Court had heard much more detailed evidence on the issue directly from the five Arabana witnesses. The Full Court agreed with the trial judge's approach, considering it "plainly appropriate" to prefer evidence adduced at trial over the informant material referred to in an expert report.

The State's appeal against the Walka Wani determination upheld

The State of South Australia appealed the determination in favour of the Walka Wani people on a number of grounds. Primarily, the State contended that the Walka Wani people, at effective sovereignty, were only able to be present and exercise rights on the land with the permission of the Arabana people. Therefore, the Walka Wani people's 'rights and interests' were personal rights and not rights in relation to the land and waters themselves — and therefore were not native title rights.

The Full Court accepted the State's submissions and overturned the determination of native title in favour of the Walka Wani people.

In summary, the Full Court found that the Walka Wani people — or at least, one of the constituent sub-groups — was not present in the area at effective sovereignty other than in a transient way. Because of this, there could be no native title rights and interests continuing from prior to that time.

Separately, the Full Court considered that the trial judge had misinterpreted the expert evidence that supported the conclusion that the Walka Wani people had their own, separate, native title rights and interests in the overlap area.

Result – both overlapping claims dismissed

As a result of the two appeals, the claims of both the Arabana people and the Walka Wani people were dismissed.

The final outcome for this claim area will not be known until the High Court makes its decision on the Arabana people's appeal.

Full Court upholds trial judge's decision that no native title exists in relation to the Clermont-Belyando claim area in central Queensland

The Full Federal Court in the Clermont-Belyando Appeal and Jangga #3 Appeal upheld determinations that native title does not exist in respect of two central Queensland claims.

We discussed the first instance decision of Justice Reeves in both claims in our Native Title Year in Review 2021-2022 article "Proving connection becomes harder in 2021". Both claims failed to prove connection and both native title applicants were unsuccessful in their appeals.

Clermont-Belyando Appeal

The Clermont-Belyando appealed on a number of grounds, including whether the current claim group had proven that they constituted a normative society united in and bound by a body of laws and customs that they continued to acknowledge and observe.

The Court unanimously dismissed the appeal, upholding the trial judge's findings that the ongoing issues with how the group described itself and determined its members meant that they could not prove they constituted a normative society as set out above.

The Clermont-Belyando appellant has filed an application for special leave to appeal this decision to the High Court, but it has not yet been heard.

Jangga #3 Appeal

The Jangga people also appealed on multiple grounds, including whether they could rely on findings made in a previous consent determination to a neighbouring area.
The Court also dismissed this appeal for the reasons set out above in relation to Stuart v SA. The Jangga #3 group has not appealed this decision.

Result of appeals

These appeals have confirmed that (subject to the outcome of the appeal to the High Court) native title does not exist in area of the Clermont-Belyando claim.
It is not yet known whether the High Court will grant special leave to appeal, and if so, when the hearing of that appeal would occur.

Key Insights

High Court to decide relevance of findings in neighbouring determinations when considering connection issues

In the Stuart v SA appeal, the High Court will ultimately decide whether any use can be made of findings in consent determinations over adjoining land.

In both the Jangga #3 Appeal and Stuart v SA, the Full Court confirmed first instance findings that the native title parties could not rely on consent determinations over adjoining land to avoid needing to prove the elements of native title under the Native Title Act.

The Full Court in both cases considered that while an approved determination is a determination in rem (regarding property), it is binding only with respect to the area that is the subject of the determination. Native title is held in relation to land or waters — parties cannot divorce a determination of native title from the land and waters to which it relates.

Primacy of Aboriginal lay evidence

The Full Court's findings in Stuart v SA about the expert evidence is another reminder of the primacy of Aboriginal lay testimony — particularly sworn testimony — in native title proceedings. Courts will, by and large, prefer such evidence in native title proceedings over expert reports.

Negative determinations may be available in due course

Once all appeals have been exhausted, if the decisions that native title does not exist are not overturned, any party to the proceedings may apply to the Court for a negative determination.

If a negative determination is made in relation to any of these matters, proponents should consider the impact on their interests in the claim area.

Want to know more?

• Proving connection becomes harder in 2021 (11 July 2022) - Outlines connection decisions in 2020-2021.
• Federal Court makes negative determination of native title (7 June 2024) - Summarises the Federal Court's findings about making a negative determination in the Gaangalu claim in Qld.

Authors: Martin Doyle, Lawyer and Leonie Flynn, Expertise Counsel.