Stuart v South Australia

Case [2025] HCA 12

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

1.Appeal allowed.

2.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.

3.The proceeding be remitted in accordance with the reasons of the High Court of Australia.

4.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.

  1. 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]

    [1]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.

    [2]The phrase "Overlap Area" was adopted in the Court below because there…

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Details
AGLC
Stuart v South Australia [2025] HCA 12
Case
[2025] HCA 12
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning a native title claim by the Arabana people over an area known as the Overlap Area, which included the township of Oodnadatta and surrounding lands. The dispute arose from the Federal Court's decision regarding the Arabana people's application for a determination of native title under the *Native Title Act 1993* (Cth) in relation to the Overlap Area. This area was bounded by lands in respect of which native title had already been determined in favour of the Arabana people and other groups.

The central legal issues before the High Court were whether the primary judge had correctly construed and applied the definition of "native title" as set out in s 223(1) of the *Native Title Act*, specifically concerning the requirement to establish a "connection" with land or waters. The court was asked to consider whether this connection must be demonstrated through physical acts of acknowledgment or observance, and the relevance of existing native title determinations over adjacent areas to the current claim.

The High Court allowed the appeal, finding that the Federal Court had erred in its construction of "connection" under s 223(1)(b) of the *Native Title Act*. The Court held that a connection to land or waters for the purposes of establishing native title does not require proof of physical acts of acknowledgment or observance. Instead, the connection can be established through a broader understanding of traditional laws and customs, including spiritual and cultural ties, provided these demonstrate a continuing relationship with the land or waters. The Court reasoned that a rigid requirement for physical acts would unduly restrict the recognition of native title rights and interests, contrary to the objects of the Act.

Consequently, the High Court set aside the orders of the Full Court of the Federal Court and remitted the proceeding for further consideration in accordance with the High Court's reasons. The parties were ordered to bear their own costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. 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.

3. The proceeding be remitted in accordance with the reasons of the High Court of Australia.

4. Each party bear its own costs of the appeal.

Background

Background to the litigation

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. Background 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][3]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. 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.[4]Dodd [2012] FCA 519 at [70]. 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 Wani[5] 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.[5]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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON, EDELMAN, GLEESON AND BEECH-JONES JJ (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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