HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJAARON 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.
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 were competing claims over the area. Only the Arabana Applicants now claim native title over the Overlap Area.
In this Court, the Arabana Applicants contend, by their first ground of appeal, that a majority of the Full Court of the Federal Court erred in upholding the primary judge's approach to applying the definition of "native title" in s 223(1) of the Native Title Act. This ground of appeal should be upheld, and the appeal allowed.
To hold native title within the meaning of s 223(1) of the Native Title Act, the claimant Aboriginal peoples or Torres Strait Islanders must relevantly have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them (s 223(1)(a)); and they must have a connection with land (or waters) by those traditional laws and customs (s 223(1)(b)). As will be explained, while the primary judge correctly identified the principles to be applied, his Honour erred in his application of those principles by focussing on whether there were physical acts of acknowledgment and observance of traditional laws and customs in the Overlap Area which demonstrated "connection", rather than asking the broader question of whether the Arabana, by their traditional laws and customs, have a "connection" with the Overlap Area.
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.
On 26 September 2018, the Federal Court ordered, pursuant to s 67 of the Native Title Act, that the Arabana No 2 Application, the Walka Wani No 1 Application and the Walka Wani No 2 Application be dealt with in one proceeding.
On 21 December 2021, the primary judge dismissed the Arabana No 2 Application on the basis that, while the forebears of the Arabana possessed native title rights and interests in the Overlap Area at sovereignty under the traditional laws acknowledged and customs observed by them,[6] his Honour was "not satisfied that the Arabana [had] established the maintenance of their connection with the Overlap Area in accordance with the traditional laws acknowledged and traditional customs observed by them".[7] His Honour concluded that the Walka Wani had non‑exclusive native title rights and interests in the Overlap Area.[8]
[6]Stuart v South Australia (Oodnadatta Common Overlap Proceeding) [No 4] ("Stuart (PJ)") [2021] FCA 1620 at [842].
[7]Stuart (PJ) [2021] FCA 1620 at [916].
[8]Stuart (PJ) [2021] FCA 1620 at [1051].
The Arabana Applicants appealed to the Full Court of the Federal Court on two bases. The first ground of appeal was to the effect that the primary judge "erred in finding ... that the Arabana had not established the maintenance of their connection with the Claim Area". The second ground of appeal was to the effect that the primary judge "erred in finding ... that the [Walka Wani] possessed [native title rights and interests] in the Claim Area at effective sovereignty". In relation to the first ground, the Arabana Applicants submitted that the primary judge, having correctly found that the Overlap Area was "Arabana country" at the time of effective sovereignty,[9] and that the Arabana had native title rights and interests in the Overlap Area at effective sovereignty,[10] erred in finding that the Arabana had not established the maintenance of their connection with the Overlap Area.[11]
[9]Stuart (PJ) [2021] FCA 1620 at [410], [537].
[10]Stuart (PJ) [2021] FCA 1620 at [842].
[11]Stuart (PJ) [2021] FCA 1620 at [916].
On 14 August 2023, the Full Court of the Federal Court (Rangiah, Charlesworth and O'Bryan JJ)[12] upheld the Arabana Applicants' second ground of appeal in relation to the Walka Wani No 1 Application and the Walka Wani No 2 Application and dismissed the Walka Wani claims for a determination of native title over the Overlap Area.[13] The Walka Wani did not seek special leave to appeal that part of the decision of the Full Court in this Court. The Arabana Applicants' first ground of appeal in relation to the Arabana No 2 Application was dismissed by majority (Rangiah and Charlesworth JJ, O'Bryan J dissenting).[14] That part of the decision is the subject of this appeal.
[12]Stuart v South Australia ("Stuart (FC)") (2023) 299 FCR 507.
[13]Stuart (FC) (2023) 299 FCR 507 at 579 [275]-[276]; see also 579-580 [278].
[14]Stuart (FC) (2023) 299 FCR 507 at 549 [175], 580 [279], 602 [366].
In this Court, the Arabana Applicants have two appeal grounds. First, they contend 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 Native Title Act when dismissing the Arabana No 2 Application. Second, they contend that the Full Court erred by treating all aspects of the 2012 Arabana Determination as being geographically specific and, in particular, failing to find that the determination in the 2012 Arabana Determination that the Arabana continued to acknowledge and observe the traditional laws and customs of the Arabana at sovereignty was a determination that should have been applied to the Arabana in the Overlap Area.
In this Court, in addition to the Arabana Applicants and the first respondent (the State of South Australia), the second to fifth respondents (the Walka Wani respondents) filed written submissions and made oral submissions.[15] The Attorney-General of the Commonwealth of Australia ("the Commonwealth") intervened pursuant to s 84A(1) of the Native Title Act in relation to the proper construction of s 223(1) of the Native Title Act and in relation to the legal effect and significance of prior native title determinations made by consent.
[15]The sixth, seventh and eighth respondents filed submitting appearances.
By the hearing, the parties and the Commonwealth were largely in agreement about the proper construction of, and the legal principles to be applied in respect of s 223(1) of, the Native Title Act. The principal issue was whether the primary judge correctly applied s 223(1) of the Native Title Act, and those principles, when his Honour dismissed the Arabana No 2 Application. As these reasons will explain, the answer to that question is "no". The appeal should be allowed and the proceeding should be remitted to the Full Court of the Federal Court (or if the Full Court decides to remit it to a single judge of the Federal Court, for that Court) to consider whether to make a determination under s 225 of the Native Title Act that the Arabana hold native title rights and interests in relation to the Overlap Area and, if so, the nature and extent of those native title rights and interests.
It is necessary to address the proper construction of s 223 of the Native Title Act, and the legal principles underpinning the "connection inquiry" in s 223(1)(b), before turning to identify the findings made by the primary judge and then the way in which the primary judge erred in the application of those principles in considering the Arabana No 2 Application.
Native Title Act
An application for a determination of native title in relation to an area may be made to the Federal Court.[16] Section 225 of the Native Title Act then relevantly provides:
[16]Native Title Act, s 13(1)(a).
"A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraph (b) and (c) (taking into account the effect of this Act); and
...
Note:The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests."
When the Federal Court makes a determination of native title, the Court order must set out the details of the matters in s 225.[17]
[17]Native Title Act, s 94A.
Section 223(1) of the Native Title Act defines the expression "native title" or "native title rights and interests"[18] relevantly as follows:
"Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia." (emphasis added)
The immediately relevant elements in the definition in s 223(1) of "native title" and "native title rights and interests" are based on this Court's decision in Mabo v Queensland [No 2],[19] and have remained constant since the Native Title Act was passed.[20]
[18]Native Title Act, s 223(2) states that "[w]ithout limiting sub-section (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests".
[19](1992) 175 CLR 1. See also Bodney v Bennell (2008) 167 FCR 84 at 126 [163].
[20]Western Australia v Ward (2002) 213 CLR 1 at 66 [17].
The question in any given case is a question of fact that requires not only the identification of the laws and customs said to be traditional laws and customs but, "no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs".[21] The outcome of these inquiries may well depend on the same evidence as is used to establish connection of the relevant peoples with the land or waters because the connection required by s 223(1)(b) is a connection with the land or waters "by those laws and customs".[22] Thus, there are two inquiries required by s 223(1): first, identification of the traditional laws and customs and the identification of the rights and interests possessed under those traditional laws and customs and, second, identifying the connection with land or waters by those laws and customs.[23]
[21]Ward (2002) 213 CLR 1 at 66 [18] (emphasis in original).
[22]Ward (2002) 213 CLR 1 at 66 [18].
[23]Ward (2002) 213 CLR 1 at 66 [18].
In Members of the Yorta Yorta Aboriginal Community v Victoria, the plurality explained the two inquiries in these terms:[24]
"... account must no doubt be taken of the fact that both pars (a) and (b) of the definition of native title are cast in the present tense. The questions thus presented are about present possession of rights or interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.
... the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs."
[24](2002) 214 CLR 422 at 455-456 [85]-[86] (emphasis added).
The continuity in traditional laws and customs required for the laws and customs to fall within s 223(1)(a) was explained in these terms:[25]
"... demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated ... The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood ... ?"
That passage illustrates why it is necessary to identify the laws and customs at present for the purposes of s 223(1)(a), separately from the laws and customs at the time of sovereignty, because the specific or precise content of the laws and customs will not necessarily be the same as those at sovereignty.
[25]Yorta Yorta (2002) 214 CLR 422 at 455 [83] (emphasis in original).
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". That is, if the laws and customs demonstrate that connection with the relevant land and waters is generally by undertaking physical acts of acknowledgment or observance within the area of those land and waters, then establishing a connection may depend on whether such acts were performed. But equally, if the laws and customs demonstrate that connection may be established other than by physical acts of acknowledgment or observance within the relevant area, then such acts may not be necessary to demonstrate "connection".
As the plurality explained in Western Australia v Ward:[26]
"In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a 'connection' with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a 'connection' of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection."
As the passage explains, s 223(1)(a) and (b) are intrinsically linked: ascertaining "connection" for s 223(1)(b) requires identifying the content of the traditional laws and customs for s 223(1)(a). Subsequent decisions of the Federal Court applying this approach have explained how the absence of acts of physical acknowledgment or observance within the claim area does not preclude a conclusion that the native title claimants have a relevant "connection" to that area.[27]
[26](2002) 213 CLR 1 at 85 [64].
[27]See, eg, Daniel v Western Australia [2003] FCA 666 at [421]; Neowarra v Western Australia [2003] FCA 1402 at [353]; De Rose v South Australia [No 2] ("De Rose (No 2)") (2005) 145 FCR 290 at 306 [62]; Starkey v South Australia (2018) 261 FCR 183 at 214 [52]; Blackburn v Wagonga Local Aboriginal Land Council (2021) 287 FCR 1 at 46-47 [143].
The parties and the Commonwealth agreed that the Full Court of the Federal Court in Bodney v Bennell[28] correctly identified and explained the applicable principles. The Full Court said that:[29]
"It is well accepted that an effect of European settlement on Aboriginal communities was often enough to render it impracticable for them to maintain a traditional presence on substantial parts of their respective lands. However, it is equally accepted in decisions of this Court that such impracticability does not necessarily mean that the surviving members of such a community have not substantially maintained their connection with their land ... It may have subsisted at a spiritual and/or cultural level ..."
Put in different terms, establishing "connection" requires identifying the nature of the laws and customs by which that "connection" arises but proving that "connection" may not depend on evidence of physical acts of acknowledgment or observance in the claim area.
[28](2008) 167 FCR 84.
[29]Bodney (2008) 167 FCR 84 at 129 [172]. See also Akiba v Queensland [No 3] (2010) 204 FCR 1 at 138-139 [546]-[551]; Croft (on behalf of the Barngarla Native Title Claim Group) v South Australia (2015) 325 ALR 213 at 229-230 [71]; Northern Territory v Griffiths (2019) 269 CLR 1 at 38 [22]-[24]; Malone (on behalf of the Clermont-Belyando Area Native Title Claim) v Queensland [No 5] (2021) 397 ALR 397 at 445 [163], [166].
The Commonwealth invited the Court to, contrary to a submission put by South Australia, expressly endorse the statement of principles set out by O'Bryan J in the decision below.[30] The Court should do so. That statement is consistent with the principles set out above and, relevantly, emphasises that "connection" for the purposes of s 223(1)(b) need not be physical and may be spiritual.
[30]Stuart (FC) (2023) 299 FCR 507 at 583-584 [290].
South Australia contended that "spiritual" connection could only be sufficient if there were "explicable reasons" for not observing and practising the traditional laws and customs on the claim area, such as that the claimant group "cannot get access to the area" or "are intimidated". That submission cannot be accepted at the level of principle. There is no textual basis for reading "connection" in s 223(1)(b) of the Native Title Act as limited to "physical" connection unless there is some "explicable" reason for the connection to be other than physical. All that s 223(1)(b) requires is that there is "a connection"; a "spiritual" connection may be sufficient, without qualification.
Issues and approach
The primary judge's distillation of the applicable principles was consistent with the preceding summary.[31] As will be explained, however, the primary judge's reasoning did not sufficiently address the two inquiries required by s 223(1): the identification of the rights and interests possessed under traditional laws and customs of the Arabana and, then, the connection with the land by those traditional laws and customs of the Arabana.[32]
[31]Stuart (PJ) [2021] FCA 1620 at [51].
[32]Ward (2002) 213 CLR 1 at 66 [18].
First inquiry – traditional laws and customs of the Arabana and underlying rights and interests
Adopting and adapting what was said by this Court in Yorta Yorta,[33] the first inquiry is about present possession of rights or interests which are possessed under traditional laws acknowledged and customs observed by the Arabana, recognising that some change to, or adaptation of, traditional law or custom is not necessarily fatal because the traditional laws and customs must be expressed at a level of generality appropriate to the rights and interests they reflect. As the following analysis, drawn from the reasons of the primary judge, reveals, in order to answer that first inquiry, it is necessary to consider Arabana society at effective sovereignty, Arabana country at effective sovereignty, the transformation of Arabana society and Arabana society's connection with Arabana country in order to make findings about the contemporary content of the traditional laws and customs of the Arabana.
[33]See [20] above.
Effective sovereignty and Arabana society
It was common ground that, although sovereignty was claimed in 1788, effective sovereignty had not occurred in the Overlap Area for a substantial time after 1788.[34] "Effective sovereignty" is a practical measure by which a court may establish the position of Arabana society and the Overlap Area at the time of actual sovereignty.[35] The primary judge accepted the opinions of the experts called by the Arabana (Dr Lucas[36] and Dr Stockigt[37]) and the State (Dr Sackett[38] and Mr Gara[39]) "that effective sovereignty occurred ... in the period 1872-73".[40] It was also common ground that effective sovereignty did not mean that there was a collapse at that time of Aboriginal law and custom in the region.[41]
[34]Stuart (PJ) [2021] FCA 1620 at [64]-[65].
[35]Stuart (PJ) [2021] FCA 1620 at [65].
[36]An anthropologist.
[37]A linguist.
[38]An anthropologist.
[39]An historian.
[40]Stuart (PJ) [2021] FCA 1620 at [67]; see also [79].
[41]Stuart (PJ) [2021] FCA 1620 at [81].
The primary judge accepted, as appropriate, the summary of the classical Arabana society as defined by the following "key features" of Arabana society set out by Finn J in the 2012 Arabana Determination, namely:[42]
[42]Stuart (PJ) [2021] FCA 1620 at [101], quoting Dodd [2012] FCA 519 at [35] (emphasis added).
"(i)[a] system of kinship and marriage, underpinned by the practice of exogamy and the avoidance of incest, which was central to defining relationships between Arabana people, and between Arabana people and the land. This classical Arabana kinship system was characterised by ‑
(a)a classificatory kin system which attributed kin terms to classes of relationships and in turn predicated normative behaviour between those classes of relationships;
(b)two exogamous matrilineal moieties known as Mutherri (Matthurie) and Kararru (Kirirawa) as well as by exogamous totemic divisions which regulated marriage and were significant in some ceremonial responsibilities; and
(c)preferential marriage rules which were indicated in the classificatory kin system and which oriented marriage (and ceremonial) relationships;
(ii)division into small localised groups with particular association with certain areas within Arabana country. Some members of those smaller groups would come together for ceremony, trade and major decision making;
(iii)[a] distinct language comprising a number of closely related dialects; and
(iv)[a] male initiation process that included the Wilyaru ceremony."
As the primary judge explained, the appropriateness of the summary by Finn J was "supported by the report of Dr Fergie and Dr Lucas prepared in 2011 in support of the then Arabana claim" (which resulted in the 2012 Arabana Determination) and the reports of Dr Lucas prepared in connection with "the present claim".[43]
[43]Stuart (PJ) [2021] FCA 1620 at [101].
Although the Federal Court is generally bound by the rules of evidence in native title proceedings,[44] s 86 of the Native Title Act expressly provides for the Federal Court to receive into evidence the transcript of evidence in any other proceedings before the Court and draw any conclusions of fact from that transcript that the Court thinks proper[45] and also adopt any decision or judgment of the Court.[46] As the primary judge explained, his Honour relied upon the reports prepared and relied upon for the 2012 Arabana Determination, the 2012 Arabana Determination and also the reports of Dr Lucas prepared in connection with the application – the Arabana No 2 Application – that was being determined.
[44]Native Title Act, s 82(1).
[45]Native Title Act, s 86(1)(a).
[46]Native Title Act, s 86(1)(c).
The primary judge then referred to the subsequent report of Dr Lucas filed in the Arabana No 2 Application, which indicated that the Arabana Applicants "are descendants of the Arabana people who were found by the Court in 2012 to be native title holders according to the laws and customs of the Arabana",[47] and quoted Dr Lucas' conclusion that:[48]
"• the applicants are members of a society ('Arabana') that is defined by systematic principles of membership entailing normative prescriptions, this system being defined by way of recognised mechanisms of descent and filiation;
• the applicants are descended from Arabana antecedents, according to principles of filiation recognisable as traditional or as having been derived from a traditional system;
• this is a system by which identity as Arabana people is acknowledged by a body of persons united in their observation of law and custom ('a society');
• this system allows identified families to be traced back to other families, local groups or key individuals in the ethnohistorical record; and
• this system articulates the relationship of people to places by way of inherited rights and interests that derive from, or are transformations of, the traditional system of land tenure."
[47]Stuart (PJ) [2021] FCA 1620 at [102]; Dodd [2012] FCA 519 at [26]-[29], [33].
[48]Stuart (PJ) [2021] FCA 1620 at [103].
These propositions, derived from Dr Lucas' first report that he had filed in the Arabana No 2 Application, were then elaborated on by the primary judge in particular respects.[49]
[49]Stuart (PJ) [2021] FCA 1620 at [104]-[110].
First, in Arabana society, each man inherits a totemic name from his father, an area of country with which this totem and a culture hero were associated, a myth relating to the story of the culture hero and its travels, and a ceremony to ensure the propagation of the totem species. The primary judge explained that a "person's relationship with this patrifilially inherited complex of land, myth and mura is called Ularaka" and that the associated ceremonies had to be performed by men belonging to that Ularaka and thus owning it but that "they were assisted by their sisters' sons (Marduka) who were referred to as 'bosses'".[50] Second, the term Ularaka also has the extended sense of referring to sites, associated stories, ceremonies and objects, all of which were inherited through men. Third, "[r]ights in country, in the form of estates, were also apportioned (and sometimes named) by way of Ularaka" and the "[f]athers' brothers (who usually shared the same Ularaka as a man's father) were the principal teachers of the knowledge".[51]
[50]Stuart (PJ) [2021] FCA 1620 at [105].
[51]Stuart (PJ) [2021] FCA 1620 at [106].
Fourth, Lakes Group people such as the Arabana are divided into matrilineal descent lines called Mardu which have associated with them a particular totemic species, such as the emu. Fifth, people are not permitted to marry someone from their own moiety but, as the moieties cross over the regional clan divisions, marriages were commonly between people of different local groups. Sixth, in addition to inheriting his father's Ularaka, a man also has secondary rights passed down from his mother in her Ularaka, its rituals and associated sites, known as Abalga. That is, men and women inherit Ularaka and Abalga.[52]
[52]Stuart (PJ) [2021] FCA 1620 at [107].
Seventh, Dr Lucas described the Arabana principles of traditional tenure involving a complex set of interactions between inheritance, knowledge and place. As the primary judge recorded, "[p]ersons may have unique and multiple rights arising from their birth place or from their mother's or father's mother's birthplace. Rights in land in Arabana society are found in the membership of particular groups of people and in the entailments of those groups in complementary relationships and responsibilities for country. People shared in their group's land and Ularaka by virtue of their membership in their father's patrifilial group (pintara) and their mother's pintara group (Maduka)."[53] Unlike the Western Desert people, the Arabana do not acquire "ownership" rights in land merely by being born on it or by acquiring ceremonial seniority. As the primary judge put it, "groupings of people linked by affiliation ... could be said to own and hold ritual responsibility for particular areas of land surrounding Ularaka/pintara sites".[54]
[53]Stuart (PJ) [2021] FCA 1620 at [108].
[54]Stuart (PJ) [2021] FCA 1620 at [109].
Overlap Area was Arabana country at effective sovereignty
Before the primary judge, it was common ground that, at effective sovereignty, the Arabana had native title rights and interests in the Overlap Area in accordance with the traditional laws acknowledged and the traditional customs observed by the Arabana.[55] In addition, the primary judge found that the conclusion that the Overlap Area was Arabana country at the time of effective sovereignty was "inevitable" and a "correct understanding of the position" having regard to the combined effect of the ethnographic-historical evidence, the linguistic evidence, the evidence of Sydney Strangways,[56] the evidence of migration, the evidence of custodianship, other sources and the anthropological evidence the primary judge reviewed and assessed.[57] The primary judge conducted a careful and detailed review of this evidence to support this conclusion.
Ethnographic-historical evidence
[55]Stuart (PJ) [2021] FCA 1620 at [842].
[56]See [63]-[65] below.
[57]Stuart (PJ) [2021] FCA 1620 at [842].
The primary judge concluded that the ethnographic-historical evidence "overwhelmingly"[58] and "strongly"[59] supported the conclusion that the Overlap Area was Arabana country at the time of effective sovereignty. The primary judge formed this view on the basis of the evidence of many people who had spent sustained periods in the region and who were familiar with the Arabana or the Arrernte,[60] including Giles,[61] Robert Hogarth,[62] Byrne,[63] Stirling,[64] Spencer and Gillen,[65] Tom Hogarth,[66] the Berndts,[67] TGH Strehlow,[68] Hercus[69] and Shaw and Gibson.[70] The primary judge also relied on the evidence of those who obtained information from a range of informants within the region,[71] including Howitt[72] and Mathews.[73]
[58]Stuart (PJ) [2021] FCA 1620 at [410].
[59]Stuart (PJ) [2021] FCA 1620 at [414].
[60]Stuart (PJ) [2021] FCA 1620 at [412].
[61]Stuart (PJ) [2021] FCA 1620 at [126]-[127].
[62]Stuart (PJ) [2021] FCA 1620 at [140]-[147].
[63]Stuart (PJ) [2021] FCA 1620 at [176]-[181].
[64]Stuart (PJ) [2021] FCA 1620 at [182]-[188].
[65]Stuart (PJ) [2021] FCA 1620 at [204]-[231].
[66]Stuart (PJ) [2021] FCA 1620 at [232]-[240].
[67]Stuart (PJ) [2021] FCA 1620 at [314]-[317].
[68]Stuart (PJ) [2021] FCA 1620 at [318]-[324].
[69]Stuart (PJ) [2021] FCA 1620 at [332]-[352].
[70]Stuart (PJ) [2021] FCA 1620 at [361]-[365].
[71]Stuart (PJ) [2021] FCA 1620 at [412].
[72]Stuart (PJ) [2021] FCA 1620 at [163]-[175].
[73]Stuart (PJ) [2021] FCA 1620 at [241]-[253].
In particular, his Honour placed "significant weight" on the works of TGH Strehlow and Hercus.[74] TGH Strehlow had conducted detailed anthropological fieldwork with the Arrernte people[75] and published a number of maps showing Arrernte boundaries[76] (which were consistent with the claim that the Overlap Area was Arabana country at the time of effective sovereignty). Hercus was "one of Australia's most senior and authoritative linguists" who "conducted extensive field work in the Oodnadatta region", with Arabana being "one of the principal languages on which she worked".[77] The primary judge surveyed her work, which showed the location of the languages she discussed,[78] and which indicated that Oodnadatta and its surrounds were within Arabana country.[79] The primary judge's view of the evidence was consistent with the opinion of the ethnographic-historical material taken by the Arabana's and South Australia's experts:[80] Dr Lucas (for the Arabana)[81] and Dr Sackett and Mr Gara (for South Australia).[82]
Linguistic evidence
[74]Stuart (PJ) [2021] FCA 1620 at [376].
[75]Stuart (PJ) [2021] FCA 1620 at [318].
[76]Stuart (PJ) [2021] FCA 1620 at [319].
[77]Stuart (PJ) [2021] FCA 1620 at [332].
[78]Stuart (PJ) [2021] FCA 1620 at [333].
[79]Stuart (PJ) [2021] FCA 1620 at [342].
[80]Stuart (PJ) [2021] FCA 1620 at [410].
[81]Stuart (PJ) [2021] FCA 1620 at [86].
[82]Stuart (PJ) [2021] FCA 1620 at [88].
The primary judge concluded that the weight of the linguistic evidence which his Honour accepted pointed to Arabana having been the language of the Overlap Area at effective sovereignty.[83] His Honour preferred the evidence of Dr Stockigt,[84] who was the Arabana's linguistic expert,[85] to that of Dr Black, who was the Walka Wani's linguistic expert.[86] The primary judge considered that Dr Stockigt had "undoubted expertise" in the specialised field of linguistics.[87] Among other things, Dr Stockigt had conducted linguistic fieldwork in Alice Springs with Mr Strangways, one of the Arabana's witnesses.[88] The primary judge described Dr Stockigt's opinions as "well researched" and "well‑reasoned" and considered that "her evidence revealed a deep knowledge of the subject matter" and that she had "delved more deeply into source materials" than Dr Black.[89]
[83]Stuart (PJ) [2021] FCA 1620 at [537].
[84]Stuart (PJ) [2021] FCA 1620 at [426].
[85]Stuart (PJ) [2021] FCA 1620 at [416].
[86]Stuart (PJ) [2021] FCA 1620 at [416].
[87]Stuart (PJ) [2021] FCA 1620 at [416].
[88]Stuart (PJ) [2021] FCA 1620 at [416].
[89]Stuart (PJ) [2021] FCA 1620 at [426].
Having identified and examined vocabularies and word lists compiled by the early white explorers, ethnographers and anthropologists,[90] pastoral run sheets, maps and other sources,[91] Dr Stockigt "concluded 'beyond reasonable doubt' that at effective sovereignty ... Arabana language belonged to country to the south of the Macumba River, including the Overlap Area"[92] and "formed the opinion 'on the balance of probability' that the language belonging to Oodnadatta and the Overlap Area was Arabana".[93]
Evidence of migration
[90]Stuart (PJ) [2021] FCA 1620 at [430], [432].
[91]Stuart (PJ) [2021] FCA 1620 at [431], [441].
[92]Stuart (PJ) [2021] FCA 1620 at [435].
[93]Stuart (PJ) [2021] FCA 1620 at [437].
The primary judge accepted that there had been eastward and southward migrations of the Western Desert people and Arrernte people since effective sovereignty, and that this was generally consistent with the views of Dr Lucas, Dr Sackett, Dr Stockigt and Mr Gara that Oodnadatta and its immediate environs were within Arabana country at the time of effective sovereignty.[94]
Evidence of custodianship
[94]Stuart (PJ) [2021] FCA 1620 at [580].
The primary judge accepted the evidence of Mr Strangways about custodianship, noting that it was corroborated by Reginald Dodd's evidence and documentary evidence.[95] Mr Strangways gave evidence of the Arabana having made certain non-Arabana men custodians of their sacred sites, myths and sacred objects.[96] Mr Dodd gave evidence about the particular individuals who had become senior custodians of Arabana country and said that Arabana ceremonial objects had been taken to Oodnadatta and placed in their care.[97] The primary judge referred to the work of Shaw and Gibson which supported Mr Strangways' and Mr Dodd's evidence.[98]
Anthropological evidence and other sources
[95]Stuart (PJ) [2021] FCA 1620 at [680].
[96]Stuart (PJ) [2021] FCA 1620 at [680], [682].
[97]Stuart (PJ) [2021] FCA 1620 at [686].
[98]Stuart (PJ) [2021] FCA 1620 at [690].
Dr Lucas, Dr Sackett and Mr Gara considered that the Overlap Area was Arabana country at effective sovereignty.[99] They reached these conclusions after consideration of the ethnographic-historical evidence (referred to above), genealogies, materials concerning movements of Aboriginal peoples and other sources.[100] The primary judge considered the opinions of Dr Lucas and Dr Sackett, supported by the historical evidence of Mr Gara, the linguistic evidence, a map, and other evidence, to be "generally soundly based and reasoned" and accepted their opinions in preference to those of the Walka Wani anthropologists[101] (Dr Cane, Mr Graham and Dr Liebelt[102]).
[99]Stuart (PJ) [2021] FCA 1620 at [747], [750]; see also [772].
[100]Stuart (PJ) [2021] FCA 1620 at [747].
[101]Stuart (PJ) [2021] FCA 1620 at [794].
[102]Stuart (PJ) [2021] FCA 1620 at [87].
Transformation of Arabana society
That there has been some transformation of the Arabana society and some change in the particular detail of its traditional laws and customs since sovereignty was not in dispute. The primary judge identified[103] the transformations of some of the detail of the Arabana traditional laws and customs that had occurred since sovereignty and then addressed those transformations by setting out parts of the evidence of Dr Lucas and Dr Sackett.[104] As explained, his Honour found their opinions were "generally soundly based and reasoned" and supported by other evidence.[105]
[103]Stuart (PJ) [2021] FCA 1620 at [103], [845].
[104]Stuart (PJ) [2021] FCA 1620 at [773], [778], [794], [844].
[105]See [44] above.
In relation to Dr Lucas, the primary judge stated that Dr Lucas "considered that the depopulation of the Arabana had made it 'demographically and practically impossible' for them to continue the exercise of [their] traditional rights and interests in the Overlap Area in their full traditional scope".[106] The primary judge then set out the following paragraphs of Dr Lucas' report:[107]
"[251]In my opinion it is likely that the surviving Lakes Aboriginal population (including Arabana, Wangkangurru and Dieri groups) was progressively insufficient to ensure the persistence of ularaka and marduka relations (both as structures of everyday social life and as the basis of ritual groupings that were their expression). Traditionally, the presence of each was necessary for telling the stories, singing the songs, using the objects and doing ceremony for land (which ultimately sustained the relationship amongst all these integral elements). The extinction or non-viability of either ularaka or marduka groups likely threatened the particular 'proximate title' relationship of each to particular estates of land defined in terms of their ularaka identity (see Sutton 2005:116). Rituals requiring the complementarity of ularaka and marduka roles (and therefore the expression of each in terms of rights and responsibilities) ceased with depopulation and the increasing presence of non‑Aboriginal people (pastoral workers, fettlers, etc.) throughout the region.
[252]With smaller numbers of people coming together at limited sites (Oodnadatta, Anna Creek, Finniss Springs, Gudnumpanha, Marree, etc.) and the separation of small local groups from their ritual centres, it seems probable that landed interests devolved into a broader 'underlying' title held by those survivors who continued to identify as descendants of Arabana people (see Sutton 2003: 116‑18). What these subsequent generation people emphasise is the collective right of Arabana people to Arabana land, on the basis of filial connections (through men or through women) to known ancestors who they also believe to be Arabana people who had rights in Arabana land. Arabana people with specific kin-based identities connect with what they understand to be Arabana 'country' as a whole. This, in my opinion, is the contemporary expression of underlying title."
The primary judge recorded that Dr Sackett supported Dr Lucas' conclusion that the development Dr Lucas had described in [252] of his report was "but an adaptation to changed circumstances".[108]
[106]Stuart (PJ) [2021] FCA 1620 at [773].
[107]Stuart (PJ) [2021] FCA 1620 at [773] (emphasis added).
[108]Stuart (PJ) [2021] FCA 1620 at [778].
The evidence before the primary judge also included the findings of Finn J in the 2012 Arabana Determination (not all referred to by the primary judge) where Finn J addressed the transformations in Arabana traditional laws and customs that had occurred since sovereignty:[109]
[109]Dodd [2012] FCA 519 at [36]-[41] (emphasis added).
"The Evidence indicates that there has clearly been some transformation in some of the characteristics of the 'classical' Arabana society as described above since sovereignty. The traditional customs and laws concerning social organisation and group membership have transformed since settlement, as a consequence of the demographic pressures of radical depopulation and displacement from estates. Similarly, classical marriage rules (such as the requirement that marriage partners be of the opposite matrilineal moieties and the regulation of marriage by reference to totemism) are no longer observed or even remembered by younger claimants.
However, it is the opinion of the experts that
... the Arabana system of kinship and marriage has ... evolved since sovereignty in ways that are founded in and consistent with the classical system. Kinship relations, and their normative expression, continue to structure all aspects of Arabana life. Exogamy, and its consequence the offence (or taboo) o[f] incest, continues to be a fundamental principle in Arabana custom and law and is reflected in the normative system.
The Evidence supports the opinion of the experts that the classificatory kinship system remains a key feature of contemporary Arabana custom and law. This was also apparent to the State officers who participated in the field trip. Under this system, terms (both in Aboriginal English and the Arabana language) equivalent to brother/sister, daughter/son, aunt/uncle and grandparent/grandchild are extended to include wider ranges of collateral relatives. Siblings, first cousins and second cousins in English kin terminology, for example, are all 'classified' as brother/sister in Arabana kinship terminology and are addressed as such.
In the opinion of the experts, the kinship classifications bring with them normative obligations and expected behaviours, such as responsibility, nurturing, discipline and teaching from the older relatives to the younger, as well as respect from the younger to the older. There was evidence of other normative behaviours predicated on kinship, including the practice of children being 'brought up' by relatives (generally classificatory parents or grandparents) other than their biological parents, the obligations of a man's wife towards his (classificatory) brothers, and the view that (classificatory) sisters can share their husbands.
The evidence suggests that the classical system of landholding by localised groups based on patrafilial Ularaka (ie traditional stories) is no longer observed. Contemporary Arabana people consider that all of Arabana country belongs to Arabana people generally. Nevertheless, the evidence demonstrates that some individuals or families are recognised as having special knowledge of and responsibility for particular areas and their Ularaka, including related songs.
In the context of negotiations for a consent determination, the State could properly accept that the changes in traditional rules of succession to country that accommodate both patrifilial and matrifilial descent, and succession to the country as a whole (as distinct from particular parts of the country) have their basis in traditional law and custom. For these purposes, the State accepts that the pre-sovereignty normative society has continued to exist throughout the period since sovereignty, notwithstanding an inevitable adaptation and evolution of the laws and customs of that society."
As is apparent, the conclusions of Dr Lucas and Dr Sackett about the transformation of particular details of Arabana traditional laws and customs since sovereignty, while not all expressly referred to by the primary judge, mirrored the evidence that was referred to by the primary judge.[110] In particular, the primary judge, like Finn J in the 2012 Arabana Determination, accepted evidence that the Arabana recognise a collective right to what they understand to be Arabana country as a whole, and that this is a contemporary expression of the entitlement of the descendants of Arabana to their land.[111]
[110]See [46] above.
[111]Stuart (PJ) [2021] FCA 1620 at [773]; cf Dodd [2012] FCA 519 at [40]-[41].
Contemporary Arabana society's connection with Arabana country
In contrast to the detailed findings of Finn J made in the context of the 2012 Arabana Determination,[112] the primary judge did not make sufficient findings about the contemporary content of the traditional laws and customs of the Arabana. In sum, the primary judge identified the traditional laws acknowledged and customs observed by the Arabana at sovereignty,[113] that there had been a transformation of those laws and customs since sovereignty,[114] and that "the depopulation of the Arabana had made it 'demographically and practically impossible' for them to continue the exercise of [their] traditional rights and interests in the Overlap Area in their full traditional scope",[115] such that the contemporary laws and customs of the Arabana were an adaptation to changed circumstances.[116]
[112] Dodd [2012] FCA 519 at [42], [45]-[50].
[113]See [29]-[36] above.
[114]See [45]-[46] above.
[115]Stuart (PJ) [2021] FCA 1620 at [773] (emphasis added). See [46] above.
[116]See [46] above.
The primary judge importantly recognised that the contemporary laws and customs of the Arabana include a broader "underlying" title held by those who continue to identify as descendants of the Arabana, the collective right of the Arabana to Arabana land on the basis of filial connections (through men or women) to known ancestors whom they also believe to be Arabana who had rights in Arabana land, and that "Arabana people with specific kin-based identities connect with what they understand to be Arabana 'country' as a whole".[117] However, the primary judge did not make sufficient findings about the nature and content of the contemporary traditional laws and customs of the Arabana.[118]
[117]See [46] above.
[118]See, eg, Stuart (FC) (2023) 299 FCR 507 at 595-596 [338]-[339], 598 [347], 599 [353], 599-600 [355], 600 [359], 601 [363].
Second inquiry – connection
The Arabana Applicants submitted that, although the primary judge stated the applicable principles concerning "connection" correctly in his Honour's reasons for decision,[119] the primary judge erred in reasoning to his conclusion that the Arabana had not maintained connection with the Overlap Area.[120] Those submissions should be accepted.
[119]Stuart (PJ) [2021] FCA 1620 at [50]-[51], [847].
[120]Stuart (PJ) [2021] FCA 1620 at [916].
Error in application
In assessing the second inquiry in relation to the Arabana No 2 Application, the primary judge framed the inquiry as "whether ... the Arabana ... establish, in accordance with s 223(1)(b) of the [Native Title Act], that their [native title rights and interests] extend to the Overlap Area and if so, whether they have continued to be possessed by the current [Arabana society] in accordance with an acknowledgement of their ... traditional laws and an observance of their ... traditional customs".[121]
[121]Stuart (PJ) [2021] FCA 1620 at [56] (emphasis added).
The proper approach to s 223(1)(b) is to ask whether there is a "connection" with the claim area "by [the] laws and customs" for the purposes of s 223(1)(a). This does not necessarily require that there be physical acts of acknowledgment or observance in the claim area. If, as here, the laws and customs include that the Arabana have a collective right to Arabana country, "connection" may arise from knowledge of the Overlap Area as Arabana country, together with "spiritual" or "cultural" connection to Arabana country that is not necessarily demonstrated by acts of "acknowledgment" or "observance".
Two aspects of the Arabana's case should be considered in this second inquiry: the lay evidence and the ten matters relied upon by the Arabana. Upon considering those two aspects, the primary judge found that it was the "relative absence of acknowledgement of traditional law and observance of customs by which a connection by the Arabana to the Overlap Area is maintained which [was] fatal ... to the Arabana claim".[122]
[122]Stuart (PJ) [2021] FCA 1620 at [914] (emphasis added).
Lay witnesses
Each of the lay witnesses identified people in Oodnadatta as Arabana, both in the past and presently.[123] The following description of the lay evidence is drawn from the reasons of the primary judge.
Aaron Stuart
[123]Stuart (PJ) [2021] FCA 1620 at [661]. The evidence of Joanne Warren need not be considered.
Aaron Stuart,[124] the lead applicant, was born in 1968 in Port Augusta and said that he is an Arabana man through his father and grandfather. His grandfather, Laurie Stuart, was a senior Arabana man, being an Arabana Wilyaru, the highest level of initiation in the Arabana.[125] Mr Stuart gave evidence to the effect that the initiation of Arabana men ceased in the mid-1950s and neither he nor any of his contemporaries has been initiated.[126] Mr Stuart also gave evidence that as a child he visited Oodnadatta with his grandfather, camping on a claypan to the south of the town and that his grandfather taught him the law for Oodnadatta.[127] From when he was about 18 years old, when he lived in Oodnadatta for a couple of years, he said that there were people who identified as Arabana living in Oodnadatta; and that Nelly Stuart, Uncle Yundu Spider and Uncle Billy Bailes had spoken to him in Arabana.[128]
[124]Stuart (PJ) [2021] FCA 1620 at [582]-[602].
[125]Stuart (PJ) [2021] FCA 1620 at [582].
[126]Stuart (PJ) [2021] FCA 1620 at [591].
[127]Stuart (PJ) [2021] FCA 1620 at [587].
[128]Stuart (PJ) [2021] FCA 1620 at [588]-[590].
In relation to the extent of Arabana country, Mr Stuart gave evidence that his grandfather and his father had each given him accounts about the extent to which Arabana country extended to the north;[129] Janet Bailes and Nelly Stuart had told him that Oodnadatta was Arabana country;[130] and Brian Marks (who represented the Arabana Wilyaru at a meeting in Pimba in 1984 or 1985 and whose father was an Arabana man) had described Oodnadatta to him as "Arabana Wadlhu", namely Arabana country.[131] His evidence was that "every Arabana person has rights to Arabana country and that one did not have to go through Wilyaru Law to have those rights".[132]
[129]Stuart (PJ) [2021] FCA 1620 at [593].
[130]Stuart (PJ) [2021] FCA 1620 at [589].
[131]Stuart (PJ) [2021] FCA 1620 at [595].
[132]Stuart (PJ) [2021] FCA 1620 at [600].
Mr Stuart gave evidence of an occasion in Oodnadatta on which his grandfather, Laurie Stuart, had growled at Uncle Clarrie and his brother Deannie who were wearing red headbands. Mr Stuart's evidence was that his grandfather said "you pull that off, you're in Arabana country, you're in Wilyaru country". Mr Stuart's evidence was that his grandfather had the right to say it because he was the Wilyaru man there. His grandfather explained that the red headbands – made of hair and ochre twined around – are worn only for ceremony and are not to be worn to intimidate or scare people. Mr Stuart said that Audrey Stuart had been present and had not challenged Laurie Stuart's statement concerning Oodnadatta being Arabana land.[133]
[133]Stuart (PJ) [2021] FCA 1620 at [601].
Mr Stuart also gave evidence that he was taught aspects of Arabana law by his grandfather, "but not at all levels". His grandfather had not told him about Wilyaru law which is "a high law ... very strong law" but had, shortly before his death, told him some aspects of the Wilyaru law, even though it was prohibited, so that the knowledge would not be lost. Mr Stuart's evidence was that despite not going through Wilyaru law himself, which the primary judge understood to be initiation, he had learnt it from his father, grandfather, uncles and aunties.[134] Mr Stuart's evidence was that his grandfather had taught him that Arabana law is Wilyaru law and that Wilyaru law is held by particular persons, that his grandfather was a person who could "point the bone" and that he had taught Mr Stuart the process. Mr Stuart's evidence was also that his grandfather had been opposed to him being initiated on Anangu Pitjantjatjara Yankunytjatjara Lands.[135]
[134]Stuart (PJ) [2021] FCA 1620 at [591].
[135]Stuart (PJ) [2021] FCA 1620 at [596].
In relation to the Arabana moiety system,[136] Mr Stuart said he had been taught by his father, his grandfather and his grandmothers on both sides. He identified the two moieties – Kararru and Mathari – describing himself as Kararru and his daughters as Mathari. Mr Stuart said that, after the birth of one of his granddaughters, he had buried a small piece of the umbilical cord the "other side [of] Alberga" as a means of "putting [his] female side from [his] daughter Beralda back into [his] land, like a ceremony". The primary judge recorded that the burial was not in the Overlap Area.[137]
[136]See [35] above.
[137]Stuart (PJ) [2021] FCA 1620 at [592].
Mr Stuart said that he had learnt of Arabana Ularaka[138] from his parents, grandparents, uncles and aunties. Mr Stuart declined to talk about a woman's Ularaka. He gave evidence about four Ularaka connected with Hookey's Hole – the turkey, Warrakatti-Kari (emu), Yaltya (the smaller frog) and Tidnnamara (the sand frog). He said that he had learnt the turkey Ularaka from his father and Nana Laurie, his grandfather, as well as the Kadni (frilled neck lizard) and Karlta (sleepy lizard) Ularaka. In addition, he described the Arabana Thunpillil Ularaka associated with Mount O'Halloran (Kati Thunda) and an Ularaka Kuarkeriee concerning two snakes.[139]
[138]See [34] above.
[139]Stuart (PJ) [2021] FCA 1620 at [597]-[598].
The primary judge regarded his evidence as "generally reliable".[140] However, the primary judge stated:[141]
"However, he has lived in Oodnadatta for only relatively short periods, the longest as a Community Police Constable and that was over 20 years previously. While he gave evidence of the Ularaka he had been taught, he did not convey a sense of connectedness with the Overlap Area through these Ularaka. His evidence concerning use and protection of the Overlap Area was not extensive."
Each of those observations incorrectly focussed on whether there were physical acts of acknowledgment and observance of the traditional laws and customs in the Overlap Area, rather than connection of the Arabana by their traditional laws and customs with the Overlap Area. It would have been relevant to the assessment of "connection" that Mr Stuart had been told, including by his grandfather, that Oodnadatta was Arabana country, and that there was evidence of Mr Stuart's connection with traditional Arabana law and custom, including by reason of the fact he knew the Arabana moiety system and Ularaka. Whether Mr Stuart's evidence, properly assessed, demonstrated "connection" for the purposes of s 223(1)(b) is to be determined on remitter.
Sydney Strangways
[140]Stuart (PJ) [2021] FCA 1620 at [602].
[141]Stuart (PJ) [2021] FCA 1620 at [602].
Sydney Strangways said, and it was not disputed, that – having been born in July 1932[142] – he is the oldest Arabana person alive.[143] Mr Strangways gave evidence that he had been told that Oodnadatta was Arabana country by many people.[144] Between the ages of five and 12, he had gone with his family to Oodnadatta three to four times per year, staying for up to two weeks at a time and staying with his maternal aunt, who would take him and his siblings out to collect bush tucker.[145] He gave evidence about a number of matters related to Arabana law and custom, including that he had been taught Arabana law by his father and uncles who were Wilyaru men,[146] Arabana initiation ceremonies (which had taken place until the 1950s),[147] and he had been taught about Arabana Ularaka.[148] He gave evidence about a number of the Arabana Ularaka including the owl Ularaka,[149] the Kangaroo Ularaka, the Urumbula Ularaka,[150] the Swallow Waterhole and the Thunpili Ularaka.[151] He also gave evidence about the Arabana moiety system, saying that it regulates Arabana society, how the Arabana interact socially as well as the rules of marriage.[152] He also described burial and Sorry Business rituals.[153]
[142]Stuart (PJ) [2021] FCA 1620 at [603].
[143]Stuart (PJ) [2021] FCA 1620 at [619].
[144]Stuart (PJ) [2021] FCA 1620 at [618].
[145]Stuart (PJ) [2021] FCA 1620 at [609].
[146]Stuart (PJ) [2021] FCA 1620 at [611].
[147]Stuart (PJ) [2021] FCA 1620 at [612], [614], [616].
[148]Stuart (PJ) [2021] FCA 1620 at [618].
[149]Stuart (PJ) [2021] FCA 1620 at [618]: the primary judge referred to the "Owl Uralaka".
[150]Stuart (PJ) [2021] FCA 1620 at [618]: the primary judge referred to the "Urumbula Uralaka".
[151]Stuart (PJ) [2021] FCA 1620 at [618].
[152]Stuart (PJ) [2021] FCA 1620 at [617].
[153]Stuart (PJ) [2021] FCA 1620 at [617].
Mr Strangways' evidence spanned four days of the trial.[154] The primary judge accepted Mr Strangways' evidence with "confidence", describing him as a "singularly impressive witness, being honest, knowledgeable, articulate, insightful and responsive to the questions".[155] His Honour said that Mr Strangways had a "good deal of knowledge concerning Arabana law and custom",[156] had "deep cultural knowledge of Arabana culture and law and gave several instances of his compliance with it"[157] and engaged "in a lot of teaching".[158]
[154]Stuart (PJ) [2021] FCA 1620 at [603].
[155]Stuart (PJ) [2021] FCA 1620 at [603].
[156]Stuart (PJ) [2021] FCA 1620 at [613].
[157]Stuart (PJ) [2021] FCA 1620 at [622].
[158]Stuart (PJ) [2021] FCA 1620 at [619].
However, the primary judge stated:[159]
"It is fair to say that the actual contact which Mr Strangways has had with the Overlap Area has been limited. Since living in Alice Springs, it has been his practice to travel onto Arabana land three or four times per year but generally his visits to Oodnadatta have occurred when he passes through to his preferred camping spot at Algebuckina (which is within the area of the 2012 Arabana Determination). In the past, he did stop to see his friend (the deceased C Warren) but more recently has stopped only for refreshment. He does not stop at any sites of significance. That is to say, Mr Strangways did not give evidence of any specific continuing connection with the Overlap Area. That connection was left to inference from his connection to Arabana country more generally."
Again, those observations incorrectly focussed on whether there were physical acts of acknowledgment and observance of the traditional laws and customs in the Overlap Area, rather than connection of the Arabana by their traditional laws and customs with the Overlap Area. The latter question, which is to be determined on remitter, will take into account Mr Strangways' evidence about the connection of the Arabana, by their traditional laws and customs, with the Overlap Area.
Dr Veronica Arbon
[159]Stuart (PJ) [2021] FCA 1620 at [621].
Dr Arbon was 69 years old when she gave evidence. She is an Arabana woman born in Alice Springs who has had a substantial career in tertiary education. She obtained a PhD in 2007. Dr Arbon has never lived in Oodnadatta or on Arabana land. Her mother, Shirley Arbon, was an Arabana woman born in Oodnadatta in 1934. Dr Arbon's grandmother, Myra Hodgson, was also an Arabana woman. Her great-great grandmother was Lili Strangways, Mr Strangways' grandmother.[160]
[160]Stuart (PJ) [2021] FCA 1620 at [623].
Dr Arbon first visited Oodnadatta during a family holiday when she was aged 14 to 15 and her mother told her and her siblings then that Oodnadatta was Arabana country.[161] Dr Arbon next visited Oodnadatta in about 1998 when she was part of a family group who went to visit country and other family. Dr Arbon has made subsequent visits to Oodnadatta, in the order of 13 to 15, each for no more than one or two days. Her mother taught her about Arabana bush tucker and the children have also had similar training further north. Dr Arbon agreed that she had limited knowledge of the Arabana two moiety system but knew that the moieties were named Mathari and Kararru. She did not claim to have evidence about the Arabana kinship system more generally, for example, about the moiety sub-lines or totems, or of the animals associated with the totems. Nor did she claim knowledge of the principles by which the Arabana acquire interests in land.[162]
[161]Stuart (PJ) [2021] FCA 1620 at [624].
[162]Stuart (PJ) [2021] FCA 1620 at [625].
However, Dr Arbon had been actively involved in the revival of Arabana language over the last two or three years. She said that she had commenced pursuing learning Arabana about 25 years ago but had done so more actively in the last five years as part of the Mobile Language Team. Dr Arbon said that she had been taught that the Arabana claim heritage through the female line.[163]
[163]Stuart (PJ) [2021] FCA 1620 at [626].
The primary judge stated:[164]
"Although Dr Arbon is clearly actively interested in Arabana language and culture, and she was an honest and reliable witness, I thought that her knowledge of Arabana traditional law and custom was limited, as was her knowledge of significant sites in and around Oodnadatta. It did not suggest a connection with the Overlap Area through acknowledgement and observance of traditional law and custom. It did suggest an attempt to establish connection with Oodnadatta, but with difficulty because of the absence of knowledge."
Those observations proceed on the basis it was necessary for the evidence to demonstrate "acknowledgement and observance" of traditional law and custom by acts taking place in Oodnadatta. For this reason, the fact that Dr Arbon had been told that Oodnadatta was Arabana country and her knowledge of Arabana bush tucker and language were not sufficiently considered as relevant to "connection".
Leonie Warren
[164]Stuart (PJ) [2021] FCA 1620 at [627].
Leonie Warren was born in Leigh Creek in November 1971. When she was still a baby, she was taken to live at Finniss Springs and remained there until she was four or five years old. Her family moved to Port Augusta when she was aged six or seven.[165]
[165]Stuart (PJ) [2021] FCA 1620 at [640].
Ms Warren said that she first visited Oodnadatta when she was aged 14 or 15 when the family went to visit her brother Greg. As a teenager, she visited Oodnadatta three or four times. When she was 17 or 18, she moved with her partner, Stanley Wingfield (who identified with the Arabana and Kokatha), to live in Oodnadatta and did so for approximately six and a half years. She named Arabana people living in Oodnadatta at the time.[166]
[166]Stuart (PJ) [2021] FCA 1620 at [641].
Ms Warren said that she knows only a few words of Arabana but does recognise it when she hears it spoken. When Ms Warren was living in Oodnadatta, they occasionally camped in the area around Oodnadatta. The places at which they camped included Algebuckina, Alberga, around Hamilton, and on the claypan on the Oodnadatta Common. They would catch kadnis (lizards), perenties (a type of lizard) and kangaroo for food. A number of people – Nana Nel and Yundu Spider (Peter Amos's father) – used to say that Oodnadatta was Arabana country.[167]
[167]Stuart (PJ) [2021] FCA 1620 at [641]-[643].
Since leaving Oodnadatta, Ms Warren has returned three or four times a year, for funerals, to visit her brother or to attend the gymkhanas. Her children have been taught hunting by Greg Warren and others on the Oodnadatta Common.[168] Ms Warren described Arabana people living in Oodnadatta as including Bobby Warren and his family, Alan Warren and his family, Lyle Warren, Maxine Marks and her family and Christine Hunt and her family. Ms Warren also described collecting bush foods around Marree and Finniss Springs. She said that she loves camping and taking the children out to do so. She has been attending Arabana language courses. It is important to Ms Warren that the Arabana language be revived.[169]
[168]Stuart (PJ) [2021] FCA 1620 at [645].
[169]Stuart (PJ) [2021] FCA 1620 at [646].
The primary judge regarded Ms Warren as a truthful and reliable witness. However, his Honour appeared to dismiss her evidence as not demonstrating "connection" on the basis that "she had relatively little knowledge of Arabana traditional law and custom".[170] Again, at the very least, the matters his Honour took into account in assessing connection were incomplete. For example, it is not clear that the primary judge considered Ms Warren's evidence of hunting for lizards and kangaroos in assessing whether she had a "connection" with the Overlap Area by law and custom.
Reginald Dodd
[170]Stuart (PJ) [2021] FCA 1620 at [647].
Mr Dodd was born in 1940 at Finniss Springs Mission Station. Mr Dodd regarded himself as Arabana because of his mother, his grandmother and his great grandmother.[171]
[171]Stuart (PJ) [2021] FCA 1620 at [648].
Mr Dodd referred to a large group of people travelling from the west attending a ceremony on Anna Creek Station in the 1960s which led to the cessation of Arabana initiations. When the decision was made to close down initiations, there were corroborees at Port Augusta, Marree and Curdimurka, and Arabana ceremonial objects were taken to Oodnadatta for care by custodians he identified as Tommy O'Donaghue, Jack Parrott, Tom Brady, Paddy Jones and Tommy Parrott.[172] Mr Dodd said that the Arabana law which applies in Oodnadatta and at Hookey's Hole is the same as that which applies at Marree and that it is the whole group of Arabana people within Arabana society who have rights to the whole of Arabana country.[173]
[172]Stuart (PJ) [2021] FCA 1620 at [650].
[173]Stuart (PJ) [2021] FCA 1620 at [652].
Although the primary judge regarded Mr Dodd as an honest and generally reliable witness, his Honour concluded that Mr Dodd's evidence "did not establish any strong continuing connection of the Arabana with the Overlap Area".[174] This finding appeared to be largely informed by the fact that "Mr Dodd agreed that he had not spent lengthy periods in Oodnadatta in the 1970s, 1980s and 1990s".[175] Again, Mr Dodd's evidence may still have been relevant to "connection" because he regarded Arabana law as applying in Oodnadatta and gave evidence that Arabana people within Arabana society have rights to the whole of Arabana country.
Primary judge's assessment of the matters relied upon by the Arabana Applicants[176]
[174]Stuart (PJ) [2021] FCA 1620 at [654].
[175]Stuart (PJ) [2021] FCA 1620 at [653].
[176]Stuart (PJ) [2021] FCA 1620 at [852]-[906].
The error in the approach adopted by the primary judge is readily explained by the nature of the ten matters relied upon by the Arabana Applicants, many of which focussed upon physical connection. However, that does not detract from the statutory task presented by s 223(1)(b).
South Australia contended that the Arabana Applicants could not succeed in this appeal because they were bound by their "forensic decisions" to rely on the ten matters. The majority of the Full Court below essentially accepted this argument. Their Honours accepted South Australia's submission to the Full Court that "the reasons of the primary judge must be considered in the particular context of how the Arabana expressed their connection in their pleading", stating that "it has not ... been shown that the primary judge mischaracterised the case presented to him" and that "[i]t was for the Arabana to demonstrate how the connection arose by their traditional laws and customs, which only they could explain".[177]
[177]Stuart (FC) (2023) 299 FCR 507 at 533-534 [105]-[106].
While the manner in which the Arabana Applicants framed their case may explain why the primary judge erred in the manner his Honour did, it cannot affect this Court's conclusion as to whether or not the primary judge erred. The ten matters are now to be considered.
(i) The matters established by the 2012 Arabana Determination
This is the second ground of appeal in this case. The 2012 Arabana Determination expressly determined: that native title exists in relation to the 2012 Determination Area[178] (save for specified exceptions as a result of extinguishment), an area abutting the eastern and southern boundaries of the Overlap Area (Order 2); under the relevant traditional laws and customs of the Arabana, the native title holders comprise those living Aboriginal people who both self-identify as Arabana and who are recognised as being Arabana by other Arabana people based on filiation (including by adoption) from an Arabana parent or grandparent or long term co-residence with Arabana people on Arabana country, and who satisfy certain other requirements (Order 5); the nature and extent of the native title rights and interests of the Arabana in relation to the 2012 Determination Area (Orders 6 to 9); and that the native title rights and interests are subject to and exercisable in accordance with the traditional laws and customs of the native title holders (Order 9(a)).
[178]Dodd [2012] FCA 519, Sch 1 to the Orders.
The 2012 Arabana Determination was a consent determination made under s 87 of the Native Title Act.[179] Finn J explained why the requirements of s 223(1) were satisfied and, in doing so, expressed confidence in the basis on which the State had come to the view that there should be a determination of native title. In particular, Finn J considered that the State could properly accept: that "the pre‑sovereignty normative society has continued to exist throughout the period since sovereignty, notwithstanding an inevitable adaptation and evolution of the laws and customs of that society";[180] that there was "[s]ubstantial evidence" provided of the continuing connection of members of contemporary Arabana society by their laws and customs with a substantial part of the claim area through their laws and customs;[181] and ultimately, that the steps taken by the State to satisfy itself of the matters in s 223 as they related to the Arabana claim were "rigorous" and "could properly satisfy it that there was a credible basis for the Arabana's application".[182]
[179]Dodd [2012] FCA 519 at [4].
[180]Dodd [2012] FCA 519 at [41].
[181]Dodd [2012] FCA 519 at [42].
[182]Dodd [2012] FCA 519 at [59].
In that context, the primary judge's finding that "the requisite continuity of connection of the Arabana in the Overlap Area in accordance with traditional law and custom must be established by the evidence in these proceedings"[183] revealed two errors. First, the primary judge considered that the 2012 Arabana Determination could not be sufficient evidence of "connection", as it was not evidence of "connection" "in" the Overlap Area. Second, the primary judge did not consider the 2012 Arabana Determination to be "evidence in these proceedings".
[183]Stuart (PJ) [2021] FCA 1620 at [854].
On the first error, as explained, "connection" must be by laws and customs, so connection with an adjacent area may be evidence of connection "by laws and customs" where, as here, the laws and customs emphasise a collective right of all Arabana people to Arabana land, and there is evidence that Oodnadatta is regarded by the Arabana as Arabana country.
On the second error, the 2012 Arabana Determination as well as evidence on which it was based were before the primary judge and were significant. As has been explained,[184] s 86 of the Native Title Act relevantly and expressly provides for the Federal Court to receive into evidence the transcript of evidence in any other proceedings before the Court and draw any conclusions of fact from that transcript that the Court thinks proper[185] and also to adopt any decision or judgment of the Court.[186] The 2012 Arabana Determination and the reports prepared and relied upon for that Determination were therefore evidence of and relevant to the question of connection.
(ii) The continuity of Arabana people living in Oodnadatta
[184]See [31] above.
[185]Native Title Act, s 86(1)(a).
[186]Native Title Act, s 86(1)(c).
In making his determination, the primary judge proceeded "on the basis that people who have resided in Oodnadatta and who were named as Arabana by Arabana [lay] witnesses and by [Dr] Lucas are, or were, Arabana".[187] However, the primary judge stated that there was "no evidence those Arabana who continue to live in Oodnadatta do so because they are Arabana, or that they continue to observe Arabana law and custom, or that their manner of living derives from, or is influenced by, or reflects an acknowledgement or observance of, Arabana traditional law and custom".[188] His Honour referred to this as "an absence of physical presence".[189] As has been explained, his Honour did not make specific or detailed findings about contemporary Arabana law and custom. As the Arabana Applicants submitted, this was based on a premise that there were contemporary Arabana laws and customs that specified a "manner of living" for the Arabana to demonstrate connection by their laws and customs, when no such finding had been made. To the contrary, the Arabana Applicants made submissions before this Court that there was evidence of some witnesses to the effect that they felt connected to and comfortable living in Oodnadatta because it was their inherited country and, in that sense, their mere living in Oodnadatta showed their connection by their laws and customs. Accordingly, these findings erroneously assume the content of contemporary Arabana traditional laws and customs and then, separately and interrelatedly, incorrectly assume that there is a need for evidence of physical connection with the Overlap Area.
[187]Stuart (PJ) [2021] FCA 1620 at [862].
[188]Stuart (PJ) [2021] FCA 1620 at [863].
[189]Stuart (PJ) [2021] FCA 1620 at [864].
The primary judge's further finding that the "younger cohort of Arabana witnesses did not indicate any familiarity with the principles in Arabana law and culture by which persons acquire rights and interests in Arabana land or with the secondary rights passed down from mothers"[190] also assumes that connection by traditional law and custom requires the younger cohort to have familiarity with the principles in Arabana law and culture by which persons acquire rights and interests, when there was no finding by his Honour that this was essential or otherwise reflective of connection by Arabana traditional law and custom.
(iii) Continued use of the natural resources "in" the Overlap Area
[190]Stuart (PJ) [2021] FCA 1620 at [863].
The primary judge found that there was "some evidence of the use of the natural resources of the Overlap Area in contemporary times but it was not extensive".[191] His Honour referred to the evidence of lay witnesses concerning camping in the Overlap Area and making use of the bush resources as well as the Dr Fergie and Dr Lucas report prepared for the 2012 Arabana Determination.[192] His Honour concluded this matter by stating that "[h]unting and gathering of food is a recognised [native title right and interest] but the evidence that this was done in traditional ways or for traditional purposes was limited. In some respects, the evidence of Leonie and Joanne Warren and of Aaron Stuart was the strongest evidence of continuing physical connection by Arabana People."[193]
[191]Stuart (PJ) [2021] FCA 1620 at [865].
[192]Stuart (PJ) [2021] FCA 1620 at [865]-[870].
[193]Stuart (PJ) [2021] FCA 1620 at [871].
There would have been no problem with the primary judge having confined his inquiry to s 223(1)(b) of the Native Title Act in circumstances where the 2012 Arabana Determination had been made. The 2012 Arabana Determination necessarily determined that, at that time: (a) the Arabana People had native title rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them; and (b) the Arabana People, by those laws and customs, have a connection with the land the subject of the 2012 Arabana Determination, being land to the immediate north, the south and the east of the Overlap Area. There being no suggestion of any material change to the circumstances of the Arabana People after 2012, the primary judge would have been correct to consider that the only issue for determination in respect of their claim was whether, as required by s 223(1)(b), the Arabana People had proved that by those laws and customs, they have a connection with the Overlap Area.
The primary judge's formulation of the relevant question, however, is an amalgam of both s 223(1)(a) and (b) of the Native Title Act. This framing of the question does not represent a mere one-off infelicity of phrasing, but the imposition on the Arabana People's claim of an incorrect conceptual framework.
The conceptual error involves the terms of s 223(1) of the Native Title Act and the fact of the 2012 Arabana Determination. The key circumstances are that: (1) the primary judge had found that at sovereignty the Arabana People had rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them and, by those laws and customs, the Arabana People have a connection with the Overlap Area; (2) the 2012 Arabana Determination determined that the Arabana People have native title rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them, and the Arabana People by those laws and customs have a connection with the land the subject of the 2012 Arabana Determination, being land to the immediate north, the south and the east of the Overlap Area; (3) the native title claim group for the Arabana People's claim to the Overlap Area is identical to the description of the Arabana People recognised in the 2012 Arabana Determination; and (4) the native title rights and interests claimed by the Arabana People in relation to the Overlap Area are the same as those in the 2012 Arabana Determination.
In these four critical circumstances, the relevant question was only that arising under s 223(1)(b) of the Native Title Act. That is, in these circumstances, the relevant question was not whether the Arabana People possessed native title rights and interests in accordance with an acknowledgement of their respective traditional laws and an observance of their respective traditional customs which extended to the Overlap Area; it was whether by the traditional laws and customs determined by the 2012 Arabana Determination to be the traditional laws acknowledged, and the traditional customs observed, by the Arabana People by which the Arabana People did have a connection with the land to the north, south and east of the Overlap Area, they also had a connection to the Overlap Area.
The materiality of the conceptual error to the primary judge's reasoning is exposed in several ways.
First, the primary judge consistently focused on the need for proof of continued possession by the Arabana People of native title rights and interests "in accordance with an acknowledgement of their respective traditional laws and an observance of their respective traditional customs" in respect of the Overlap Area, not whether by the traditional laws and customs determined by the 2012 Arabana Determination to be the traditional laws acknowledged, and the traditional customs observed, by the Arabana People by which the Arabana People did have a connection with the land to the north, south and east of the Overlap Area, they also had a connection to the Overlap Area.[337]
[337]Eg, Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [56], [843], [844], [911], [913], [914].
Second, having found that the Overlap Area was Arabana country at the time of sovereignty — meaning that at that time the Arabana People had rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by them and that by those laws and customs, the Arabana People had a connection with the Overlap Area — the primary judge did not give effect to the true significance of the 2012 Arabana Determination. Instead, the primary judge considered the earlier determinations including those of the sub-groups within the Walka Wani Group together as meaning that facts fundamental to those determinations could not be called into question in the proceeding before his Honour.[338] So much may be accepted. But once the primary judge found that the Overlap Area was Arabana country at the time of sovereignty the 2012 Arabana Determination took on a unique significance. The primary judge said that while the 2012 Arabana Determination could not be ignored and it would be "natural for the Court to have regard to matters bearing on the Arabana connection in the larger area", the same reasoning would apply to the earlier determinations in favour of the sub-groups of the Walka Wani Group.[339] That is, the primary judge, having found the Overlap Area to be Arabana country at sovereignty, continued to treat all of the earlier determinations relating to the land adjoining the Overlap Area as of equal and therefore of limited significance.
[338]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [54]-[55].
[339]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [849]-[850].
However, while those determinations may have started with equal significance, once it was found that the Overlap Area was Arabana country at the time of sovereignty: (a) the determinations in favour of the sub-groups of the Walka Wani Group in respect of adjoining land could have no relevance to the Arabana People's claim because the Overlap Area was not land to which any sub-groups of the Walka Wani Group had a connection by their traditional laws and customs at sovereignty. Rather, the determinations in favour of the sub-groups of the Walka Wani Group represented the south-eastern most geographical extent of their traditional country at sovereignty, the Overlap Area being outside of their traditional country at sovereignty; and (b) as explained, in respect of the Arabana People's claim, the relevant question narrowed to that under s 223(1)(b) in respect of the Overlap Area. This is why the Walka Wani Group's submission in this Court to the effect that the determinations in favour of the sub-groups comprising the Walka Wani Group continued to be of equal significance to the 2012 Arabana Determination in the determination of the Arabana People's claim is unsustainable. The primary judge's finding that the Overlap Area was Arabana country at the time of sovereignty (unchallenged before the Full Court[340]) meant that the issue before his Honour reduced to one of the substantial continuity of the connection of the Arabana People with the Overlap Area by the traditional laws and customs which the 2012 Arabana Determination had determined continued to be acknowledged and observed by them and by which they continued to have a connection with the land to the immediate north, south and east of the Overlap Area. If the primary judge had imposed this conceptual framework, as was necessary in the circumstances of this case, the evidence on which the Arabana People relied might have taken on an entirely different complexion from that perceived by the primary judge.
[340]Stuart v State of South Australia (2023) 299 FCR 507 at 514 [33].
Third, the necessary conceptual framework in this case does not overlook the fact that the 2012 Arabana Determination did not relate to the Overlap Area. It is not to the point that all determinations of native title are geographically specific. Factual findings and inferences are to be made in all relevant circumstances. In this case, the four critical circumstances identified above gave the 2012 Arabana Determination a unique and weighty significance to the resolution of the Arabana People's claim in relation to the Overlap Area. It would be quite unrealistic to reason on the basis that those four critical circumstances were immaterial or unimportant to the factual findings and inferences which were reasonably open in respect of the only relevant question as to whether, by the laws and customs that the 2012 Arabana Determination determined to be the traditional laws acknowledged, and the traditional customs observed, by the Arabana People, by which the Arabana People did have a connection with the land to the north, south and east of the Overlap Area, they also had a connection to the Overlap Area. The primary judge recognised this when he observed that it would be "natural" given the 2012 Arabana Determination to reason from the Arabana People's established continuing connection to their other traditional country to their continuing connection with the Overlap Area.[341] His Honour did not so reason because of the equivalence he drew between the 2012 Arabana Determination and the determinations in favour of the sub-groups comprising the Walka Wani Group, an equivalence which could not be sustained after his Honour found that the Overlap Area was part of the traditional country at sovereignty of the Arabana People.
[341]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [849]-[850].
Fourth, once the limited scope of the correct question is identified, it is apparent that the conceptual error must have affected the primary judge's assessment of the evidence on which the Arabana People relied. Six Arabana people gave evidence and 13 Arabana people spoke to an anthropologist who gave evidence, Dr Lucas.[342] The primary judge, for example, described and drew inferences from the evidence of these witnesses as follows:
(a)Aaron Stuart's evidence "concerning use and protection of the Overlap Area was not extensive" and "did not convey a sense of connectedness with the Overlap Area"[343] —in circumstances where there was evidence from Aaron Stuart that: (i) he spoke Arabana in their home and was taught Arabana law and culture by his father Rex and grandfather Laurie;[344] (ii) Laurie Stuart taught him the law for Oodnadatta;[345] (iii) he had been told by Arabana people that Oodnadatta was Arabana country;[346] and (iv) there had been an occasion in Oodnadatta in which Laurie Stuart had growled at Uncle Clarrie and his brother Deannie who were wearing red headbands. He had said "you pull that off, you're in Arabana country, you're in Wilyaru [high and strong men's law connected with the initiation of men which had ceased in the 1950s or 1960s] country".[347]
(b)"[T]he actual contact which Mr [Sydney] Strangways has had with the Overlap Area has been limited ... That is to say, Mr Strangways did not give evidence of any specific continuing connection with the Overlap Area. That connection was left to inference from his connection to Arabana country more generally"[348] —in circumstances where there was evidence from Sydney Strangways that: (i) between the ages of five and 12 (he was 87 at the time of the hearing before the primary judge), "he had gone with his family to Oodnadatta 3–4 times per year staying with Jack and Sarah Hele for up to two weeks or so at a time. Sarah Hele took in him and his siblings to collect bush tucker";[349] (ii) while living in Alice Springs, Mr Strangways would come to Arabana country two to three times per year, usually staying at Algebuckina;[350] (iii) he had been taught Arabana law by his father and uncles, who were Wilyaru men;[351] (iv) he described the Arabana moiety system, saying that it regulates Arabana society, how the Arabana interact socially as well as the rules of marriage. He described burial and Sorry Business rituals. He also gave several instances of his continued compliance with Arabana traditional law and custom;[352] and (v) he had been told that Oodnadatta was Arabana country by many people and said it was for Arabana people to protect sites by visiting them, by issuing permission to those other people who may wish to visit them and to keep other Aboriginal people away.[353]
(c)Reginald Dodd's evidence "did not establish any strong continuing connection of the Arabana with the Overlap Area"[354] —in circumstances where there was evidence from Reginald Dodd that: (i) when Arabana initiations ceased in the 1960s Arabana ceremonial objects were taken to Oodnadatta for care by custodians;[355] (ii) he started going to Oodnadatta in the mid‑1950s for race meetings. He also said that when he started working on the railways, he was told by old women in Oodnadatta that they were looking after the places of cultural significance to his mother, grandmother and great grandmother;[356] and (iii) the Arabana law which applies in Oodnadatta and at Hookey's Hole is the same as that which applies at Marree and that it is the whole group of Arabana people within Arabana society who have rights to the whole of Arabana country.[357]
[342]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [581].
[343]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [602].
[344]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [585].
[345]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [587].
[346]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [589]-[590].
[347]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [601].
[348]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [621].
[349]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [609].
[350]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [610].
[351]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [611].
[352]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [617].
[353]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [618].
[354]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [654].
[355]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [650].
[356]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [651].
[357]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [652].
Fifth, there was also evidence before the primary judge that the "whole of the Overlap Area is within the boundaries of the Arabana [that was] marked by the senior men on the 1996 Map"[358] and Dr Lucas considered that "the depopulation of the Arabana had made it 'demographically and practically impossible' for them to continue the exercise of traditional rights and interests in the Overlap Area in their full traditional scope"[359] but that they "continued their connection to the Overlap Area by their ongoing visits, the utilisation of resources as of right, and the teaching of cultural significance to younger generations".[360] In this latter regard, it is sufficient to refer to the observation in Yorta Yorta that while "the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content", the "statutory questions are directed to possession of the rights or interests, not their exercise".[361]
[358]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [715].
[359]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [773].
[360]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [779].
[361]Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 455 [84]. See also Western Australia v Ward (2002) 213 CLR 1 at 85 [64].
Sixth, the primary judge said that while he accepted what the 2012 Arabana Determination established "in relation to the immediately adjacent land, including the finding that rights to Arabana country are held, under the Arabana system of law and custom, by Arabana society as a whole, with Arabana People and families having localised attachments, and that under Arabana rules, rights in land are based on filiation from known Arabana Persons", the "requisite continuity of connection of the Arabana in the Overlap Area in accordance with traditional law and custom must be established by the evidence in these proceedings".[362] The whole of the evidence in relation to the 2012 Arabana Determination was tendered in the proceedings in relation to the Overlap Area.[363] This included an expert report of Dr Fergie and Dr Lucas which contained evidence of the importance of attendance at events on Arabana country for the observance, monitoring and transmission of Arabana traditional laws and customs including bronco branding and stock events in, amongst other places, Oodnadatta. Consistently with his Honour's approach to the other evidence, the primary judge considered that "the evidence that this occurs as a manifestation of Arabana traditional law and custom is sparse".[364] Other evidence capable of sustaining a finding of continued connection with the Overlap Area was similarly characterised by the primary judge as "not extensive",[365] "limited",[366] or "sparse".[367] Further, the primary judge said Mr Strangways' "acknowledgement of Arabana traditional law and observance of Arabana traditional custom in relation to the Overlap Area is now of a spiritual rather than practical kind".[368] The weight of these characterisations of the evidence indicates that the primary judge was searching for evidence of physical acts on the Overlap Area involving an acknowledgement of the Arabana People's traditional laws and an observance of their traditional customs. That is not what s 223(1) of the Native Title Act requires and, in the circumstances of this case, caused error in the primary judge's analysis of the significance of the 2012 Arabana Determination.
[362]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [853]-[854].
[363]See Native Title Act, s 86.
[364]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [905].
[365]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [865].
[366]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [898].
[367]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [901].
[368]Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 at [907].
The reasoning of the majority in the Full Court (Rangiah and Charlesworth JJ), in contrast to that of O'Bryan J in dissent in respect of the appeal of the Arabana People, does not confront these problems with the reasoning of the primary judge and the conceptual error they expose. The majority also wrongly approached the case of the Arabana People as if they had to establish every matter on which they relied to establish their continuing connection with the Overlap Area.[369]
[369]Stuart v State of South Australia (2023) 299 FCR 507 at 533 [105].
The orders identified by Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ should be made.