Case note: Stuart v South Australia [2025] HCA 12

**Case note: Stuart v South Australia [2025] HCA 12**

Key takeaways

Consideration of s 223(1) of the Native Title Act 1993 (Cth) (NTA) must focus on establishing the connection of Aboriginal people’s rights and interests to land and waters by their traditional laws and customs, rather than by applying some other test (such as the carrying out of physical acts of connection);
It is not a requirement of s 223(1)(b) that connection be physical or that there be a physical presence on land and waters for connection to be established. A spiritual connection which properly arises from traditional laws and customs may be sufficient to establish connection;
Misapplication of the framework required by s 223(1) may result in an incorrect assessment of relevant evidence, for instance by emphasising the lack of evidence of acts of physical connection and thereby failing to recognise evidence which clearly satisfied the connection of Arabana people to the land and waters claimed;
Prior adjacent determinations can and should be relied upon, particularly for the purposes of satisfying s 223(1)(a), so long as there is evidence that the area the subject of the current s 223(1) enquiry has previously and consistently been asserted to form part of the larger “country” of the Aboriginal people claiming it, in conjunction with determined areas; and
Establishing that native title rights and interests exist requires proving the possession of those rights and interests by the traditional laws and customs of the Aboriginal people claiming them but does not require the continuous physical exercise of those rights and interests.

Background

This case concerned an appeal from a decision of the Full Court of the Federal Court in respect of the Arabana native title claim (the Arabana claim), in the vicinity of the townsite of Oodnadatta in South Australia. The Arabana claim was brought on the same basis and by the same people as had been determined to hold native title in an adjacent determination in 2012 (Dodd v State of South Australia [2012] FCA 519).

Two native title claims, the Arabana claim and the Walka Wani native title claim (the Walka Wani claim), overlapped the Oodnadatta townsite and surrounding area (the overlap area). A determination of native title in favour of the Walka Wani claim was made in respect of the overlap area in 2021, at which time orders were also made dismissing the Arabana claim (Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620).

A central finding in the Oodnadatta Common Overlap Proceeding was that, while the forebears of the Arabana people possessed rights and interests in the overlap area at sovereignty under traditional laws and customs, the primary judge was not satisfied that the Arabana established the maintenance of their connection in accordance with traditional laws and customs. Instead, the Walka Wani people were determined to hold non-exclusive native title rights and interests in the overlap area.

That decision was appealed by the Arabana to the Full Court of the Federal Court (Stuart v South Australia [2023] FCAFC 131 (the Full Court decision)). The Full Court (Rangiah, Charlesworth and O’Bryan JJ) overturned the Walka Wani native title determination, finding that the Walka Wani did not have connection to the overlap area at sovereignty, while also by majority (Rangiah and Charlesworth JJ; O’Bryan J dissenting) affirming the dismissal of the Arabana claim.

The Full Court decision was appealed by the Arabana people to the High Court, which unanimously overturned the Arabana claim’s dismissal. Three separate judgments were prepared by Gageler CJ and Gordon, Edelman, Gleeson and Beech-Jones JJ (the majority), Steward J, and Jagot J respectively.

Arabana’s grounds of appeal

The Arabana claim’s grounds of appeal from the Full Court of the Federal Court were two-fold:

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 NTA when dismissing the Arabana claim; and
that the Full Court erred by treating the 2012 Arabana determination as being “geographically specific”, and by failing to find that the finding in the 2012 determination that Arabana continued to acknowledge and observe their traditional laws and customs at sovereignty should have been applied to the overlap area, on the basis that Arabana people considered the overlap area to be Arabana country and Arabana laws and customs provide a collective right of all Arabana people to Arabana country.

In their judgment, the majority observed at [15] that “The principal issue was whether the primary judge correctly applied s 223(1) of the Native Title Act” and the principles to be applied in respect of s 223(1) when deciding to dismiss the Arabana claim.

Key findings

The majority noted that, when making a determination of native title, the Court must set out the details of the matters in s 225 NTA which include, inter alia, “(b) the nature and extent of the native title rights and interests in relation to the determination area”. The expression “native title” or “native title rights and interests” is defined by s 223 and includes a requirement that the holders of native title, “by [their] laws and customs, have a connection with the land or waters” concerned.

Their Honours observed that the Court is required not only to identify the laws and customs said to be traditional, but to identify the rights and interests which are possessed under those laws and customs (citing Western Australia v Ward (2002) 213 CLR 1 at 66). Consequently, s 223(1) requires two inquiries of the Court: first, identification of the traditional laws and customs and the rights and interests possessed under those traditional laws and customs, and second, identifying the connection with land or waters by the laws and customs.

The majority then stated at [22] that:

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”.

Consequently, their Honours found (at [26]) that “…All that s 223(1)(b) requires is that there is a “connection”; a “spiritual” connection may be sufficient, without qualification”.

His Honour Steward J emphasised the trial judge’s decision to “confine” the assessment of connection to the overlap area. His Honour noted that the overlap area constitutes only 0.2% of the totality of Arabana country, and that, aside from the townsite of Oodnadatta, most of the overlap area is arid. In contrast to that confined assessment, His Honour found that the correct way to consider the question of the Arabana people’s connection to the overlap area, in all the circumstances, would be whether the diminished nature of the Arabana people’s links to the overlap area amounted to extinguishment of their connection to that land.

Taking that approach and noting that the majority of Arabana country is arid, His Honour reasoned that connections throughout the entirety of Arabana country, including the overlap area, may be stronger or weaker depending on a range of factors without native title being extinguished in any weaker part.

Further, Steward J concluded, at [151], that were the Arabana people’s claim for the overlap area a distinct and independent application for native title, the trial judge’s reasoning would be correct and sufficient physical connection could not be established. However, the fact that Arabana people had made claims to the overlap consistently in connection with the balance of Arabana country, together with the operation of the system of laws and customs articulated in the 2012 Arabana determination, served to establish a context in which connection needed to be understood in respect of the entirety of Arabana country, rather than in the confined way the trial judge had assessed it.

Her Honour Jagot J, meanwhile, drew an important distinction between the exercise of native title rights and interests and their possession, noting (in citing Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 455) that the NTA is concerned with the latter; the former being potentially powerful evidence of the existence and content of the rights and interests, but not the critical consideration.

Commentary on spiritual connection

In the Arabana case, it was common ground that Arabana people had rights and interests in the overlap area at sovereignty, under Arabana traditional laws and customs. Those laws and customs provided for, inter alia, a system of local “land holding” groups, described by the primary judge (and cited at [36] by the majority) as “groupings of people linked by affiliation… [who] could be said to own and hold ritual responsibility for particular areas of land surrounding Ularaka/pintara [mythical] sites”.

Following sovereignty, the anthropological evidence suggested that the depopulation of the Arabana had resulted in a transformation of the Arabana system of holding rights and interests in land, such that subsequent generations of Arabana people emphasise a collective right of Arabana people to Arabana land, on the basis of connections to known ancestors who they believe to be Arabana people who had rights in Arabana land.

The anthropological evidence was supported by the evidence of Arabana witnesses, who spoke of the overlap area being Arabana country, the application of Arabana law to the overlap area and Arabana people having and exercising rights and interests within the overlap area.

The majority found that the primary judge had erred, in assessing the evidence of the Arabana witnesses at trial, by focusing on the lack of physical acts of acknowledgment and observance of traditional laws and customs in the overlap area, rather than merely the connection of Arabana people, by their traditional laws and customs, with the overlap area.

The majority noted various instances of the primary judge reaching conclusions about evidence provided by Arabana witnesses and the content of Arabana law and custom without having made findings about the operation of those laws and customs. The primary judge rejected, for instance, evidence of Arabana people’s visits to the overlap area demonstrating connection by traditional laws and customs as the purposes for the visits were not “traditional” and were, instead, social activities. The majority observed that anthropological evidence in the 2012 Arabana determination established that attendance at social activities is evidence of contemporary Arabana society and the operation of the system of traditional law and custom, particularly through the practice, monitoring and transmission of ‘proper’ Arabana behaviour between Arabana people.

Conclusion

The High Court’s decision in Stuart is an important reminder of the origins of native title rights and interests in traditional law and custom, and how the character of connection to country must be understood by reference to that system of traditional law and custom.

The purpose of the enquiry in s 223(1) is to ensure that rights and interests are possessed in relation to land and waters by the traditional laws and customs of the Aboriginal people claiming them, rather than by demanding evidence of the continued physical exercise of the rights and interests.

Additionally, a misapplication of the s 223(1) test risks the enquiry misunderstanding or mischaracterising evidence and overlooking or omitting relevant evidence due to its non-conformity with the incorrect test.

This is general commentary only and is not legal advice. If you are unsure how this commentary may apply to you, seek legal advice. For more information, contact us.