Far West Coast Sea Claim – Clarifying Sea-Based Native Title Rights

Key Takeaways

A consent determination operates in rem (good against the world), but only the formal determination, and not all findings, is binding.
Native title rights were confined to the “Accessible Area,” reflecting physical access at sovereignty rather than a spiritual connection.
The claim group reflects that recognised the previous associated determination in relation to land, with rights sourced in traditional law and custom.
Further arguments and findings on the nature and exercise of rights are yet to be made.

Background

The Far West Coast Sea claim (the Sea Claim)[1] was lodged by the Wirangu, Mirning and Kokatha peoples following the Far West Coast Land Claim determination (Land Determination)[2] in 2016. The claim area lies along the far west coast of South Australia, adjoining the Land Determination area.

The Federal Court was asked to consider:

Whether native title exists in the lands and waters of the claim area.
The extent of any native title rights and interests.
Preliminary questions arising under sections 225(c)–(e) of the Native Title Act 1993 (Cth) (NTA).

Key Findings

When considering the impact of an in rem judgment of a Native Title claim, the Court will first assess what decisions within the in rem judgment impacted the final in rem Not all statements or facts within an in rem judgment are binding.
To determine boundaries of the Sea Claim the Court relied on an ‘Accessible Area’, being the area where Claimants physically accessed the sea. The Court considered but did not rely upon spiritual connection.

Commentary on the Relationship Between the Land and Sea Claims

The applicants advanced several propositions about the relationship between the 2016 Land Determination and the Sea Claim.[3] In response, the Court:

Accepted that the Land Determination was a judgment in rem,[4] but found that not all propositions and facts within the Land Determination form the ‘determination’ and are not in rem.[5]
Accepted the claim group in the Sea Claim was substantially the same as the earlier determination.[6]
Confirmed that the group’s rights and interests are in accordance with traditional laws and customs.[7]
Rejected the applicants’ argument that native title in the Sea Claim area was wholly communal and beyond inquiry into separate coastal estates. The question of whether distinct societies existed was central to the case and required investigation.[8]

Commentary on Defining the Sea Claim Area

Using the southern boundary of the Land Determination, defined by the lowest astronomical tide (LAT) line, the Court identified the northern edge of the Sea Claim area.[9]

The applicants sought recognition extending 300 metres seaward from the LAT line, including nearby islands.[10]

The Court found insufficient evidence of traditional use of watercraft, deep-sea activity, or pre-sovereignty access to offshore islands.[11] Instead, the Court defined an “Accessible Area”,[12] being the coastal waters that could be physically accessed without watercraft at sovereignty.

Spiritual connections and dreaming stories “as far as the eye could see” did not establish native title beyond physically accessible areas.[13] Consequently, the appropriate claim area was wholly within the Accessible Area, ranging from 30 to 300 metres seaward along different points of the coastline.

Composition of Native Title Holders

The Court examined whether distinct Aboriginal societies existed within the claim area, noting overlapping and fluid boundaries between groups. While some evidence supported the existence of distinct societies, it did not demonstrate that any one group had exclusive rights to the exclusion of others.[14]

Conclusion

The Far West Coast Sea Claim determination clarifies the approach to sea-based native title rights, that was appropriate in the circumstances.

Further questions under sections 225(c)–(e) of the Native Title Act 1993 (Cth) will be finalised at a later stage.

At the time of providing this commentary, an appeal filed by the applicant is yet to be determined.

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.

[1] Miller v State of South Australia (Far West Coast Sea Claim) (No 4) [2025] FCA 388.

[2] Far West Coat Native Title Claim v State of South Australia (No 7) [2013] FCA 1285.

[3] Far West Coast Sea Claim [179].

[4] Ibid [182]

[5] Ibid [185]

[6] Ibid [194]

[7] Ibid. [195]

[8] Ibid [208]

[9] Ibid [49]

[10] Ibid [1138]

[11] Ibid [1068]

[12] Ibid [1130]