10 Native Title Cases from 2025

Key takeaways[1]

The Australian legal system has examined some fundamental questions about native title in 2025. This article summarises ten important native title decisions over the last twelve months. These judgments explore native title claims and core principles, future acts, practice and procedure and the use of native title compensation funds:

• • Sandow on behalf of the Bigambul People #5 v State of Queensland [2025] FCA 53 and Sandow v State Minister for the State of Queensland [2025] FCAFC 140 – Reinforced the importance of proper authorisation.
  • Oobagooma on behalf of the Big Springs Claim Group v State of Western Australia [2025] FCA 592 – Confirmed that multiple native title groups can jointly bring a claim and stressed adherence to the statutory language.
  • North Queensland Land Council Representative Body Aboriginal Corporation v Harris [2025] FCAFC 70 – Clarified the evidentiary burden in negative determination applications.
  • Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279 – Found that “mutual recognition” is not an inherent element of native title group membership.
  • Top End (Default PBC/CLA) Aboriginal Corporation v Northern Territory of Australia [2025] FCA 22 – Overturned an “additional hurdle” imposed in assessing expedited procedure applications.
  • Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490 – Confirmed that inclusion of expedited procedure statements in s 29 notices is not judicially reviewable.
  • Central Land Council v Brett [2025] FCA 1227 – Recognised the Court’s power to make orders related to prospective native title claims.
  • Malone v B&M Aboriginal Corporation (In Administration) (No 2) [2025] FCAFC 51 and Foley v Butchulla Aboriginal Corporation RNTBC [2025] FCA 1270 – Addressed the use and protection of native title compensation monies and trust funds.

NATIVE TITLE CLAIMS AND CORE PRINCIPLES

The High Court decisions in Yunupingu (on behalf of the Gumatj Clan or Estate Group) v Commonwealth of Australia [2025] HCA 6 (Yunupingu) and Stuart v State of South Australia [2025] HCA 12 highlighted the Court’s interest in the relationship between the systems of Aboriginal and Torres Strait Islander traditional law and custom which give rise to rights and interests in land, and the recognition of those rights and interests within the Australian legal system. Our case note on Stuart is available here and our case note on Yunupingu is available here.

Below, we look at some significant Federal Court native tile decisions from this year that explored key concepts including authorisation, the power of the Court to make determinations, and the role(s) of parties in native title proceedings.[2]

Sandow on behalf of the Bigambul People #5 v State of Queensland [2025] FCA 53 and Sandow v State Minister for the State of Queensland [2025] FCAFC 140

In Sandow on behalf of the Bigambul People #5 v State of Queensland [2025] FCA 53 (Sandow), the Court heard two applications brought by the Applicant in the Gamilaraay native title claim (the Gamilaraay Claim). First, the Gamilaraay Applicant sought to be joined as respondents to the Bigambul #5 native title claim (the Bigambul #5 Claim). Second, the Gamilaraay Applicant sought to have the Bigambul #5 Claim struck out or summarily dismissed, alleging that the Bigambul #5 Claim was an abuse of process.

Relevantly, the Gamilaraay Applicant had successfully sought the summary dismissal of an earlier iteration of the Bigambul #5 Claim (see Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450). In that earlier decision, the Court had found that the Bigambul #2 Claim was an abuse of process and should be struck out, because:

1. 1. the claim was not properly authorised, and the defects in authorisation were such that the claim could not be remedied;
   2. the claim was made almost 5 years after the Gamilaraay Claim had been filed, with no explanation for why a Bigambul claim hadn’t been brought during that time;
   3. the unexplained delay in bringing a Bigambul claim had prejudiced the Gamilaraay Claim by delaying a consent determination of the latter; and,
   4. the evidence supported a finding that the Bigambul #2 Claim had been made for an ulterior motive (i.e., preventing the Gamilaraay consent determination, rather than to genuinely advance a competing native title).

The Court observed in Sandow that the Bigambul #5 Applicant had made considerable efforts to address the defects present in the Bigambul #2 Claim when bringing the Bigambul #5 Claim, but that ultimately those efforts failed to overcome the defects in authorisation of the claim.[3] The Court consequently struck out or summarily dismissed the Bigambul #5 Claim.

That decision was appealed by the Bigambul #5 Applicant to the Full Court of the Federal Court in Sandow v State Minister for the State of Queensland [2025] FCAFC 140 (Sandow FC). The Full Court granted the Bigambul #5 Applicant leave to appeal, but then dismissed the appeal, finding that the authorisation of the Bigambul #5 Applicant to bring the Bigambul #5 Claim was inherently flawed, as:

1. 1. the notice of the meeting failed to afford members of the claim group a “reasonable opportunity” to participate in the decision-making process with respect to authorisation of the Bigambul #5 Applicant; and,
   2. the effect of the miscarriage of authorisation arising from the defective notice was that all subsequent decisions made by the Bigambul #5 Claim also lacked authorisation and were invalid.

The Court’s decisions, particularly that in Sandow FC, are an important reminder of the significance of effective notification of authorisation meetings, and the centrality of authorisation to the conduct of a native title claim.

Oobagooma on behalf of the Big Springs Claim Group v State of Western Australia [2025] FCA 592

This case concerned a consent determination of native title in favour of the “Big Springs claim group” – however the Court noted that the “Big Springs claim group” was, in fact, two separate claim groups, each with a separate and distinct native title in its respective area – the Warrawa and Worrora claim groups respectively.

Two things about this decision are noteworthy. The first is that, although the Court ultimately determined by consent of the parties that native title existed in the Big Springs claim area in the form sought by the Big Springs claim group, O’Bryan J’s reasons considered, among other things, the unusual nature of a single native title claim which sought to have two respective native titles in the claim area recognised.

Relevantly, His Honour observed at [84] that:

The essential statutory requirements in s 61(1) are that the application relate to a particular geographic area and that the application be made by a person or persons who are authorised by a native title claim group and who are members of the native title claim group. Although the section refers to a single native title claim group, statutory words in the singular include the plural (Acts Interpretation Act 1901 (Cth), s 23). There is no apparent reason to restrict an application under s 61(1) in respect of a given area to an application made by a single claim group (emphasis added).

The second is the State’s use of the term “connection” when referring to the assessment it makes in ensuring there is a credible basis for the orders sought in a consent determination. His Honour found that the State’s use of the term “connection” in the joint submissions gave rise to three issues:

1. 1. s 223(1)(b) of the Native Title Act 1993 (Cth) (NTA) does not require native title claimants to have “maintained a connection” to the claim area. This requires the claimants to have a connection with the area by the traditional laws acknowledged and traditional customs observed by them.
   2. s 223(1)(b) NTA also does not require connection to have been maintained “in accordance with” the traditional laws and customs of the claimants. Rather, the requirement is that connection is maintained “by” their traditional laws and customs.
   3. The phrase “continuing physical and spiritual involvement” of claimants in the claim area may or may not demonstrate connection to the claim area in the sense required by s 223(1)(b). However, the correct test is whether rights and interests are possessed under the system of traditional laws acknowledged and customs observed by the claimants, and the connection must be by those laws and customs.

The case highlights the need to maintain the language in the statute when dealing with issues such as connection, and the relationship between rights and interests and the traditional laws and customs from which they are derived.

North Queensland Land Council Representative Body Aboriginal Corporation (ICN 1996) v Harris [2025] FCAFC 70

This matter concerned an appeal against an earlier determination (Harris v State Minister of Queensland [2024] FCA 1059) that native title does not exist in a large area of land on Strathmore Station, in far north-western Queensland (the negative determination). The negative determination was the result of an application brought by the lessee of Strathmore Station, Mr Harris. The appeal was brought jointly by North Queensland Land Council (NQLC), the native title representative body for the area concerned, and the State of Queensland.

The negative determination was made following a 2-week long hearing, at which NQLC put forward evidence, including direct evidence from four Aboriginal witnesses, and an expert report, to support its’ claims of native title in the land.

The Court’s decision focused on the role of and evidentiary onus upon an applicant for a determination that native title doesn’t exist. The forensic task for an applicant in a negative determination application was set out by the Full Court in Mace v State of Queensland [2019] FCAFC 233, and includes, inter alia, consideration of:

1. 1. the probative strength of the evidence adduced;
   2. the disadvantages which may affect the power of litigants asserting native title to produce evidence;
   3. the absence of responses to a public notification process in respect of a non-claimant application, noting that the absence of responses may not be a reliable indicator of the absence of any native title claim having regard to the process used and the history of claims within the relevant area; and,
   4. the gravity and permanency of a negative determination.

The Court observed (at [17]) that the NTA is intended to recognise and protect native title (ss 4(1), 10), and that the burden to be discharged by an applicant for a negative determination is “…the demonstration that there are no such traditional rights and interests in relation to the land and waters of the relevant area that find their source in a normative system of laws acknowledged and customs observed by a society of people that existed before the common law arrived and has continued since then”.

Citing the High Court in Stuart v South Australia, the Court noted (at [18]) that connection may be sustained without members of the society maintaining physical possession of the land and waters and, at [19], that “Dispossession of the land does not equate to a loss of native title”. It found title (at [23]) that there is a difference to the forensic approach “…which might be taken when seeking to prove the absence of a real property interest of a kind recognised by the common law” and that to be taken when considering the non-existence of native.

Crucially, the Court found (at [24]) that:

…a determination that native title does not exist is not an adjudication as to whether there are Aboriginal or Torres Strait Islander people who may be able to trace their ancestry to the people who formed part of a traditional society in respect of a particular place or the undoubted significance of those origins in a broad sense. Rather, it concerns only the extent to which there remains a present system of observed traditional law and custom which is the source of rights and interests in relation to particular land which system is a continuation of that which existed when the Crown asserted sovereignty.

Ultimately, the Court found that the grounds for appeal asserted by NQLC were not made out, and the appeal was dismissed. Still, this case usefully explains the fundamental elements of a native title determination, being that the recognition of rights and interests derived from a contemporary system of traditional laws and customs, which is a continuation of a system which existed when the Crown asserted sovereignty.

Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279

This decision was in respect of a series of separate questions, principally regarding the composition of a native title claim group for an area of land which includes the city of Melbourne and the eastern shores of Port Phillip Bay. The last of the separate questions addressed by the Court was:

At sovereignty did membership of the Boonwurrung (also described as Bunurong) People require “mutual recognition” as described by Justice Brennan in Mabo No 2 at 70? For the avoidance of doubt, this question is not limited to a legal question as to whether Justice Brennan’s dicta regarding “mutual recognition” is an element of native title, either under common law or under the Native Title Act 1993 (Cth) (NTA). It includes the question as to whether, as an issue of fact, membership of the Boonwurrung (also described as Bunurong) claim group requires “mutual recognition” as described by Brennan J.

The “mutual recognition” element was one part of a tripartite test described by Brennan J in Mabo No 2 for whether a person is or is not a member of a native title holding group – the test being that the person has a connection to the group in accordance with the group’s traditional laws and customs, identifies as a member of the group, and is recognised by others within the group as a group member. The test described by Brennan J was derived from comments made by Deane J in Commonwealth v Tasmania [1983] HCA 21 (commonly referred to as the “Tasmanian Dam Case”).

It was argued in this case that the “tripartite test”, and specifically the “mutual recognition” element therein, was an inherent feature of native title at common law and has thereby become incorporated into the NTA. The Court found, at [939], that:

Justice Brennan’s dicta regarding the tripartite test, including the mutual recognition criteria, has been considered by courts, without criticism, in numerous decisions both inside and outside the native title context. The test makes sense and to my mind it is appropriate to take it into account. Even so, it is incorrect to describe it as applying as a matter of law under either the common law or the NTA (emphasis added).

Among the reasons the Court found (at [940]-[954]) that the tripartite test, or more specifically the “mutual recognition” element, are not an inherent feature of either the common law or the NTA are that whether and how a person comes to be a member of a native title holding group is a matter to be decided only by reference to the group’s traditional laws and customs. It is not something for the common law or the NTA to prescribe.

The Court concluded that membership of the Boonwurrung group was, by its’ traditional laws and customs, automatic based on descent from a Boonwurrung father. Once patrilineal descent was established, nothing further was required to be a member of the Boonwurrung group, and there was no evidence that elders or others in the group with traditional authority had authority to exclude any person from membership of the Boonwurrung group (where the person was descended from a Boonwurrung father).

The significance of this case is that it definitively addresses (and rejects) the suggestion that “mutual recognition” is an inherent element of native title. In other words, whether “mutual recognition” is a necessary criterion for membership of a native title holding group will be determined by the traditional laws and customs of that group.

FUTURE ACTS

While the ongoing Yindjibarndi v State of Western Australia matter is likely to be highly consequential in shaping future thinking about native title compensation and the NTAs future acts regime when it is decided, below are several decisions made by the Court in 2025 which considered important questions about the “expedited procedure” process described by s 237 NTA.

Top End (Default PBC/CLA) Aboriginal Corporation v Northern Territory of Australia [2025] FCA 22

This case concerned an appeal of two determinations made by the National Native Title Tribunal (the Tribunal) that the proposed grant of two exploration licenses (to two different grantees) were “acts attracting the expedited procedure” pursuant to s 237 of the NTA. The appeals centred on whether the Tribunal had created an “additional hurdle” for native title parties to satisfy when assessing whether the expedited procedure should apply.

Section 237 of the NTA provides that an act is an “act attracting the expedited procedure” if it does not:

1. 1. directly interfere with the community life of the native title holders;
   2. interfere with areas or sites of particular significance, in accordance with their traditions, to the native title holders; and,
   3. involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned.

Top End argued before the Tribunal that the proposed acts were not “acts attracting the expedited procedure” as they would interfere with areas or sites of particular significance to the native title holders. The Tribunal determined that, in both cases, the areas or sites referred to were not of “particular significance” and that interference was not likely. Consequently, the Tribunal found that the acts were “acts attracting the expedited procedure”.

Top End’s grounds of appeal were, inter alia, that:

1. 1. the Tribunal erred in deciding that interference with areas or sites of particular significance was unlikely for the purposes of s 237(b) NTA on the basis that interference “will generally involve physical intervention” and it could be presumed that a grantee party will not enter into a known area or site of particular significance (as required by applicable legislation);
   2. the Tribunal erred in requiring native title holders to provide an “explanation” of the particular significance of an area or site for the Tribunal to be prepared to afford it that character; and,
   3. the Tribunal erred in purporting to adopt a finding that some sites were not of “particular significance” for the purposes of s 237(b) in another Tribunal decision, when the finding by the Tribunal in that other decision was that the sites were of particular significance.

The Court did not find that all Top End’s grounds had been made out, but crucially did find that, by insisting upon the need for evidence “explaining” the particular significance of a site, the Tribunal had erected an additional hurdle beyond what the legislation required and was therefore a misconstruction of s 237(b). Consequently, the Tribunal’s decisions were overturned.

This case is significant for qualifying the long-held view of the Tribunal that for an area or site to be regarded as being of particular significance for the purposes of s 237(b), it must be of special or more than ordinary significance to the native title holders in accordance with their traditions, and the nature of its significance must be explained to the Tribunal. This test, first formulated in Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 was not wholly struck down by the Court, but the Court made clear that the test cannot require native title holders to “explain” the particular significance of the area or site, as that is not what the s 237(b) requires. Instead, native title holders need only ensure that they have made “more than a mere assertion” of the area or sites particular significance.

Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490

This matter concerned notices given by the State of Western Australia under s 29 of the NTA for the proposed grant of exploration licenses over land the subject of positive determinations of native title. Each of the notices contained a statement that the State considers the grant of the exploration license is a future act attracting the expedited procedure. The effect of the expedited procedure statement’s inclusion was that, unless the inclusion of the expedited procedure statement were objected to within 4 months of the notification date specified in the notice, the State could proceed to grant the licenses without engaging in the “normal negotiation procedure” required by Subdivision P of the NTA.

The applicants sought judicial review of the State’s decision to include the expedited procedure statement, on the basis that, in deciding whether to include the statement in each notice, the State was required by s 29(7) NTA to give consideration to the criteria set out in s 237 (set out above). The applicants alleged that the State adopted a blanket policy of applying the expedited procedure statement to s 29 notices.

The Court found that the State’s decision to include the expedited procedure statement is not judicially reviewable and dismissed the application. The Court noted that it:

…is to be hoped, if not expected, that a Government party will only include an expedited procedure statement in a notice given under section 29 of the NTA if it considers the proposed future act “to be suitable for the expedited procedure” on the basis that “it is likely to have no, or only minimal impact on matters of significance to native title holders”: (Yanunijarra Aboriginal Corporation RNTBC v Western Australia (2020) 276 FCR 53 at [12]

However, the Court ultimately reasoned that the inclusion of the expedited procedure statement is not a “final and operative decision of a substantive nature” and does not involve the exercise of power under the NTA. Importantly, it was found, citing Olney J in Holt v Manzie (2001) 114 FCR 282, that the inclusion of the expedited procedure statement in a s 29 notice is not determinative of whether the expedited procedure applies. The Court observed that the objection and inquiry process provided for by s 29(7) was the appropriate means by which inclusion of the expedited procedure statement could be challenged, rather than by way of judicial review.

This case is significant for clarifying the role of the expedited procedure statement in the s 29 notification process and for making clear that there is an expectation of Government parties not to apply the expedited procedure statement in a blanket way.

PRACTICE AND PROCEDURE

Following on from the novel application in Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Western Australia [2024] FCA 1114 (Karajarri v Western Australia)concerning the taking of preservation evidence prior to the filing of a native title compensation claim (brief commentary is included in our previous summary here), in 2025 the Federal Court considered rights of access owed to putative native title claimants in the preparation of their claims.

Central Land Council v Brett [2025] FCA 1227

This case concerned an application permitting the applicants to enter, access, remain on and inspect a pastoral lease for purposes connected to a proposed native title claim. It is important to note that, ultimately, orders in the matter were made by consent. Still, the judgment nevertheless provides some commentary on some of the jurisdictional and power questions which arose.

Interestingly, the Court cited Karajarri v Western Australia in applying a broad definition to the word “matter” for the purposes of s 39B(1A)(c) of the Judiciary Act 1993 (Cth), so as to include a prospective native title determination application in the category of “matters” over which the Court has jurisdiction to make orders.

Karajarri v Western Australia was also invoked in assessing the Court’s power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make the orders sought, finding that to do so was “appropriate” as that term is used in s 23.

This case is noteworthy for its expansion of the matters over which the Court is content to make orders and exercise power.

THE USE OF NATIVE TITLE COMPENSATION MONIES

Lastly, an emerging issue facing the native title sector appears to be the relationship between, and use of, native title compensation monies and the prescribed bodies corporate (PBCs) and benefit management structures established to represent native title holders and manage their interests.

Malone v B&M Aboriginal Corporation (In Administration) (No 2) [2025] FCAFC 51

This decision concerned the payment of legal costs for the bringing of an (successful) appeal. The applicants submitted that the costs should be paid on an indemnity basis by three directors of B&M Aboriginal Corporation (BMAC), a lawyer who acted for BMAC and BMAC’s administrator. BMAC submitted that s 85A NTA applied to the proceeding and therefore the appropriate order is for each party to bear their own costs or, alternatively, for each party to bear their own costs having regard to the parties’ success on the issues raised in the appeal.

The Court noted that s 43 of the Federal Court of Australia Act 1976 (Cth)gives the Court a broad discretion to award costs, although also observed that s 85A NTA generally provides that parties in native title proceedings bear their own costs.

However, it was found that s 85A NTA did not apply to this proceeding, as the word “proceeding” should be understood within the meaning of s 80 NTA, being applications filed in the Federal Court that relate to native title. This has been found, in decisions of the Court, to generally be confined to applications made under Part 3 of the NTA – predominantly applications for determinations of native title and for compensation.[4] The Court noted that the underlying proceeding from which the appeal was brought was an interpleader proceeding by way of originating application under Part 11 of the Federal Court Rules 2011 (Cth). As the interpleader was not an application under Part 3 of the NTA, it follows that s 85A could not apply.

With respect to the argument that each party bear their own costs having regard to the parties’ success on the issues raised in the appeal, the Court found ample authority for the proposition that the fact that not all of a successful party’s arguments are accepted does not make it appropriate to apportion costs on an issue-by-issue basis.[5]

However, the question of who should be responsible for paying the costs was central in this case, due to BMAC being placed into administration and having no source of funds. The Court declined to make a third-party costs order, finding that the interests of justice would not be satisfied by such an order being made. Instead, the Court ordered that the costs be paid from funds held by the Court for the benefit of the Daylight family – being the monies the subject of the originating interpleader proceeding. The Court found (at [30]) that the facts of the case bore similarity to “…those concerning beneficiaries of a trust who properly and reasonably incur legal costs in connection with the administration of the trust”, where such costs would ordinarily be payable from the trust.[6]

The significance of this case is the treatment of funds held by the Court for the benefit of native title holders, being funds paid to the native title holders as compensation for the diminution or extinguishment of native title effected by an ILUA, to meet the legal costs of parties to a dispute about the disbursement of those same funds. It represents a significant caution to native title groups pursuing litigation.

Foley v Butchulla Aboriginal Corporation RNTBC [2025] FCA1270

This case concerned the restraint of the payment of monies from a native title trust account to cover the debts of a PBC, which debts risked the PBC becoming insolvent. It is important to note that the orders made in this matter were injunctive only, with the substantive issues to be heard by the Court in 2026.

An interlocutory application was brought by one of the common law holders and a director of the PBC, Butchulla Aboriginal Corporation RNTBC (BAC) and Queensland South Native Title Services (QSNTS), the native title representative body for the region within which BAC holds native title.

BAC had been issued a notice from the Registrar of Aboriginal and Torres Strait Islander Corporations which stated that BAC may be insolvent as it did not appear to have any assets readily realisable into cash to meet debts when due and payable. The notice referred to debts owed to the Australian Tax Office of approximately $300,000.

BAC established a sub-committee to work with Cor Cordis, an insolvency advisory company, to resolve the issue. Cor Cordis suggested BAC obtain legal advice about the use of funds held in trust for the benefit of the Butchulla native title holders to cover BACs debts, and suggested use of those funds would resolve BACs financial difficulties.

Shortly after the receipt of the Cor Cordis advice and following a meeting of the board of directors of BAC, some $400,000 was transferred from the Butchulla People’s Trust to BAC’s working account, immediately following which the injunctive relief was sought.

The Court agreed to impose an injunction upon the use of the $400,000 in BACs working account, noting (at [37]) that “…there is a serious question to be tried as to whether the funds in the Trust account, including the amount of $400,000 that has been transferred from the Trust account into BAC’s working account, are held on the terms of the Trust and, if so, whether the purposes for which BAC proposes to pay or apply those monies are authorised by the Deed of Trust” (emphasis added).

When the issues are substantively heard and determined, the resulting judgment will likely provide useful guidance on the extent to which monies held in trust for the benefit of native title holders are “quarantined” for that purpose. This decision is nevertheless significant in demonstrating the seriousness with which the Court treats the protection of native title compensation.

This commentary is general only and is not legal advice. If you are unsure about how any of these decisions may relate to you, you should seek expert native title legal advice. For more information, contact us.

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[1] A version of this article summary was prepared by ChatGPT on 12 November 2025, The summary was, however, proof-read and edited for accuracy.

[2] See, also, our summary on Miller v State of South Australia (Far West Coast Sea Claim) (No 4) [2025] FCA 388 available here, for an additional 2025 native title decision of significance.

[3] Sandow per Collier J at [23], [46], [50] and [59].

[4] Citing Lardil Peoples v State of Queensland (2001) 108 FCR 453 at [156]; O’Mara v Minister for Lands (2008) 167 FCR 145 at [34]; Corunna v South West Aboriginal Land and Sea Council (No 2) (2015) 235 FCR 53.

[5] Citing Australian Trade Commission v Disktravel [2000] FCA 62 at [3]-[4]; The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [8]; Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53.

[6] Citing Sheehy v Mitchell Crane Hire Pty Ltd (1991) 104 FLR 96 at 106.