Federal Court of Australia

Richards v State of South Australia (Far West Coast Sea Claim) [2026] FCAFC 97

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be granted.

2.    The appeal be allowed in part.

3.    The judgment of the court dated 24 April 2025 be set aside in so far as it relates to separate question (b)(i), being the question who are the persons, or each group of persons, holding the common or group rights comprising the native title.

4.    Within 14 days of the date of these orders, the Applicant file and serve a submission concerning the appropriate form of orders to be made for the remittal of separate question (b)(i) for further hearing and determination in accordance with the reasons of the Full Court published today, limited to 5 pages.

5.    Within 28 days of the date of these orders, each of the Respondents file and serve a submission concerning the appropriate form of orders to be made for the remittal of separate question (b)(i) for further hearing and determination in accordance with the reasons of the Full Court published today, limited to 5 pages.

6.    Subject to further order, the Court will determine on the papers the question of the appropriate form of orders to be made for the remittal of separate question (b)(i) for further hearing and determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    Introduction

1    On 5 December 2013, Mansfield J made a consent determination of native title under the Native Title Act 1993 (Cth) (NTA) in favour of the Far West Coast People (who include descendants of Kokatha, Mirning and Wirangu people) in respect of an area of land and waters referred to as the Far West Coast area: Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 (Far West Coast land determination). Mansfield J described the determination area as follows (at [22]-[23]):

22    The Determination Area is located in the far south-west of the State of South Australia. The area to be covered by the consent determination is approximately 75,249 km2 and extends from the coast north of Streaky Bay to the Western Australia border, abutting the Maralinga Tjarutja lands to the north. It includes the towns of Ceduna/Thevenard, Denial Bay, Smoky Bay, Penong, Fowlers Bay and Coorabie.

23    The Determination Area does not include waters on the seaward side of the low water mark. To the extent that the area covered by the application includes waters beyond the low water mark, it is being dismissed by the Consent Determination (paragraph 3). That is not a determination that no native title rights and interests exist in that excluded area: cf ss 13(1), 61(1) and 225 of the NTA.

2    The southern boundary of the Far West Coast land determination was the southern continental coastline stretching from the Western Australian border in the west to Acraman Creek in the east, which lies to the north of Streaky Bay. As can be seen from the foregoing description, the southern boundary extended to the low water mark and did not include waters on the seaward side of the low water mark.

3    On 9 March 2016, the Far West Coast People filed an application for a determination of native tile in respect of sea country, being the area of sea that abutted the southern boundary of the Far West Coast land determination and extended seaward from the low water mark for three nautical miles (Far West Coast sea claim). By the time of trial, the application area had been reduced such that the seaward distances (measured from the lowest astronomical tide) range between 30 and 300 metres as follows:

(a)    from the Western Australian border to a point near Head of the Bight, the distance is 30 m;

(b)    from that point to a point near Point Peter, the distance is 100 m; and

(c)    from that point to the eastward boundary of the claim area (Acraman Creek), the distance is 300 m, except for an area around a southern portion of St Peter Island, where the distance is 50 m.

4    On 28 April 2020, White J made orders for the determination of separate questions in the Far West Coast sea claim pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (Rules). The order was as follows:

Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the following questions are to be decided separately from and before any other question in the proceedings:

But for any question of extinguishment of native title and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth):

(a)     Does native title exist in relation to any and what land and waters of the claim area?

(b)     In relation to that part of the claim area in which the answer to (a) above is in the affirmative:

(i)    who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)     what is the nature and extent of the native title rights and interests? (Preliminary Questions).

5    The following respondents to the proceeding participated in the trial of the separate questions:

(a)    the first respondent, being the State of South Australia (State);

(b)    the second respondent, being the Commonwealth of Australia (Commonwealth);

(c)    the third, fourth, fifth and sixth respondents, being Bunna Rupert Lawrie, Dorcas Miller, Rose Miller and Robert Miller (who are referred to as the Bunna Lawrie respondents); and

(d)    the seventh and eighth respondents, being Robert Lawrie and Michael Laing (who are referred to as the Laing respondents).

6    At trial, the principal case of both the State and the Commonwealth was that no native title exists in the sea claim area. Their alternative case was that native title exists in some parts of the sea claim area but is held by a more narrowly described group than that alleged by the applicant. The Bunna Lawrie respondents are Mirning people who contended at trial that not all members of the Far West Coast People have native title rights and interests in the sea claim area. They originally asserted that native title was held by (and only by) a subset of Mirning people in respect of the whole of the sea claim area but, by the time of closing submissions, their defence related to a western and middle portion of the sea claim area. They did not oppose a finding in relation to the rights and interests of Wirangu descendants in an eastern and overlapping portion, and an argument founded on notions of exclusive Mirning identity was abandoned. Michael Laing (supported by Robert Lawrie) contended at trial that the claim group wrongly excluded an apical ancestor from whom he is descended.

7    On 24 April 2025, the primary judge delivered judgment answering the separate questions: Miller v State of South Australia (Far West Coast Sea Claim) (No 4) [2025] FCA 388 (primary judgment). The answers were stated in the reasons for judgment as follows (at [1505]):

But for any question of extinguishment of native title and the determination of matters required by s 225(c), (d) and (e) of the NT Act:

(1)     native title rights and interests exist in those parts of the Sea Claim Area that fall within the Accessible Area, being an area that:

(a)    includes that part of the Sea Claim Area aligning with the State Border and proceeding eastward to a point aligning with the western end of the Bunda Cliffs (23 km from the State Border), extending seaward from the Lowest Astronomical Tide to a distance of 30 m;

(b)     does not include any part of the Sea Claim Area aligning with the western end of the Bunda Cliffs (23 km from the State Border) and proceeding eastward to a point aligning with the eastern end of the Bunda Cliffs (3 km from Head of the Bight);

(c)     includes that part of the Sea Claim Area that aligns with the eastern end of the Bunda Cliffs (3 km from Head of the Bight) proceeding eastward to a point aligning with the vicinity of Point Peter, extending seaward from the Lowest Astronomical Tide to a distance of 30 m; and

(d)     includes that part of the Sea Claim Area aligning with the vicinity of Point Peter to the eastern boundary of the Sea Claim Area (as amended), extending seaward from the Lowest Astronomical Tide to a distance of 50 m, but not incorporating St Peter Island or Eyre Island.

(2)     the persons holding the rights and interests comprising the native title in the Accessible Area are the descendants of the following antecedents:

(a)     Bingi;

(b)    Eliza Ellen Ware;

(c)     Maggie (mother of Jimmy Scott);

(d)     Yari Wagon Billy;

(e)     Kulbala;

(f)     Eva;

(g)     Jinnie (Dunnett);

(h)     Bobby Wandrooka;

(i)     Wirangu mother of Jimmy and Arthur Richards;

(j)     Wirangu mother of Ada Beagle;

(k)     Tjabilja;

(l)     Sally Broome;

(m)     Kaltyna;

(n)     Betsy;

(o)     Siblings, Milaga and Munjinya;

(p)     Mailman Jimmy;

(q)     Tjeltjinya; and

(r)     Mother of Gordon Charles Naley.

(3)    the native title rights and interests in the Accessible Area are:

(a)     the right to speak for the Accessible Area;

(b)     the right to access, to remain in and to (subject to paragraph (c)) use the Accessible Area;

(c)     the right to access resources in and take resources from the Accessible Area for purposes limited to domestic consumption and sustenance of family members; and

(d)     the right to care for, maintain and protect sites and places of significance,

including places of spiritual or cultural importance, in accordance with the traditional laws and customs of the native title holders.

8    The primary judge also made an order for the determination of the remaining issues in the proceeding in the following form:

On or before 22 May 2025 the first respondent is to file and serve an affidavit proposing a timetable for the progression to trial of all remaining issues, having regard to the answers to the Preliminary Questions set out in [1505] of the reasons published today.

9    On 15 May 2025, the applicant filed a notice of appeal from the primary judgment. The applicant subsequently realised that the primary judgment, and specifically the answers given to the separate questions in the primary judgment, involved interlocutory decisions because neither the judgment nor the answers finally disposed of the proceeding: see Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767 (Computer Edge) at 767-768 (Gibbs CJ, with whom Murphy and Wilson JJ agreed); Australian Builders’ Labourers’ Federated Union of Workers – Western Australian Branch v J-Corp Pty Ltd [1993] FCA 360; 42 FCR 452 at 454 (Lockhart and Gummow JJ); Fraser v NRMA Holdings Ltd [1995] FCA 9; 55 FCR 452 at 457 (Black CJ, von Doussa and Cooper JJ); and Monash Health v Singh [2023] FCAFC 166; 327 IR 196 at [44] (Katzmann, Snaden and Raper JJ). As a consequence of that realisation, on 16 June 2025 the applicant filed an application for an extension of time and leave to appeal from the primary judgment. The application was supported by an affidavit of Gabrielle Maria Bielawski, a paralegal employed by South Australia Native Title Services, made on 16 June 2025, explaining the error in filing the notice of appeal and the delay in rectifying that error by filing an application for leave to appeal (together with the necessary application for an extension of time).

10    On 7 July 2025, the Court made orders dispensing with compliance with r 35.13 (and r 35.19) of the Rules, the practical effect of which was to excuse the delay in the filing of the application for leave to appeal.

11    On 9 September 2025, the applicant filed a document titled “Supplementary Notice of Appeal”. Given the procedural history of the matter, it is unclear why the applicant filed a document that purported to be a notice of appeal rather than a draft notice of appeal. Nevertheless, we will treat the Supplementary Notice of Appeal as a supplementary draft notice of appeal. The proposed grounds of appeal are as follows:

Ground 1

a)     The primary judge erred in failing to correctly construe and apply the definition of native title in s.223(1) of the Native Title Act 1993 (Cth) (NTA) when finding that native title only exists in those parts of the application area that were physically accessible and were in fact physically accessed by Aboriginal people, prior to sovereignty: [1125]-[1126], [1130], [1477], [1505(1)].

b)     The primary judge should have found that, subject to issues of extinguishment, native title exists in relation to all of the land and waters of the application area as described in Attachment B to annexure TMG1 to the affidavit of Timothy Graham sworn on 29 March 2022 (Application Area).

Ground 2

(a)     The primary judge erred in finding that the applicant conceded that the Application Area was only premised on physical accessibility at sovereignty: [1138], [1141], [1149].

(b)     The primary judge should have found that the applicant’s case was that the claim group possessed native title rights and interests in all of the Application Area because, pursuant to the traditional laws and customs acknowledged and observed by the claim group, the Application Area formed part of the sea country:

i)     for which the claim group was responsible and held rights and interests in; and

ii)     to which the claim group held a spiritual connection.

Ground 3

The primary judge erred in failing to have proper regard or to give due weight to, the adjoining determination in Far West Coast Native Title Claim Group v State of South Australia (No 7) [2013] FCA 1285 (Far West Coast land determination) and hence erroneously found that native title is held by a subgroup of the Far West Coast claim group, rather than by the group as a whole.

Particulars of Ground 3

(a)     The primary judge erred in treating all aspects of the Far West Coast land determination as being geographically specific to the determination area and, in particular, failed to find that it had determined that under the traditional laws and customs acknowledged and observed by the Far West Coast claim group, the group possessed communal native title rights and interests in their traditional lands and waters, that should have been applied to the application area. Instead, the primary judge erroneously concluded that the relevant native title rights and interests are held by a subgroup of the Far West Coast claim group in the adjacent Application Area: [4], [180], [200], [201], [207], [208], [210], [1126], [1308]-[1310], [1327], [1491], [1505(2)].

(b)     The primary judge erred in failing to exercise her discretion under s. 86(1)(c) of the NTA to receive into evidence the reasons for judgment in the Far West Coast land determination which were highly relevant and should have been given sufficient weight: [190]-[193].

(c)     The primary judge erred in admitting evidence and in making findings, that were inconsistent with the orders or with the findings underlying the orders, in the Far West Coast land determination: [207]-[214].

Ground 4

(a)     The primary judge erred by finding that the native title right to access and take resources is for purposes limited to domestic consumption and sustenance of family members: [1483], [1505(3)(c)].

(b)     The primary judge should have found that the native title right to access and take resources is for purposes limited to personal, domestic and communal use.

Particulars of Ground 4

(a)     The primary judge erred in finding that the native title right to access and take resources is limited for a purpose which is different to the purpose limiting the native title rights and interests determined in the adjoining Far West Coast land determination area.

(b)     The primary judge erred in finding that the native title right to access and take resources is for purposes limited to domestic consumption and sustenance of family members in circumstances where the primary judge also found that at sovereignty, resources from the claim area were used for trade and ceremony: [1370], [1376].

12    The proposed grounds of appeal challenge three aspects of the answers given to the separate questions by the primary judge.

13    Proposed grounds 1 and 2 challenge the primary judge’s findings with respect to the claim area. The primary judge concluded that native title rights and interests continue to be held in a part of the claim area, being:

(a)    from the Western Australia State border to a point aligning with the western end of the Bunda Cliffs (23 km east from the State border), the sea area extending seaward from the lowest astronomical tide to a distance of 30 m;

(b)    from the eastern end of the Bunda Cliffs (three km east of the Head of the Bight) to a point aligning with the vicinity of Point Peter, the sea area extending seaward from the lowest astronomical tide to a distance of 30 m; and

(c)    a point aligning with the vicinity of Point Peter to the eastern boundary of the claim area, the sea area extending seaward from the lowest astronomical tide to a distance of 50 m, but not incorporating St Peter Island or Eyre Island.

14    The primary judge also concluded that native title rights and interests are not held in the claim area that abutted the coast between the western end of the Bunda Cliffs and the eastern end of the Bunda Cliffs.

15    The applicant contends that the primary judge should have found that the claim area accords with the applicant’s amended application (being a seaward distance from the lowest astronomical tide ranging between 30 and 300 m).

16    The State and the Commonwealth contend that the primary judge’s determination is correct.

17    Proposed ground 3 challenges the primary judge’s findings with respect to the persons who hold the native title rights and interests. The primary judge concluded that the Far West Coast land determination did not involve a communal determination of native title rights and interests across the Far West Coast land determination area in favour of all Far West Coast People, and therefore did not compel the conclusion that all of the Far West Coast People hold native title rights and interests in all places within the Far West Coast land determination area. Having reached that conclusion, the primary judge reasoned that, prior to the assertion of British sovereignty, rights and interests in the sea claim area were held by persons who held rights and interests in the coastal land abutting the sea claim area, and that today native title rights and interests in the sea claim area are held by the descendants of only those persons. The description of the native title holders determined by the primary judge both excludes persons who are members of the Far West Coast People and includes other persons who are not members of the Far West Coast People. The applicant contends that the primary judge should have found that the native title holders are the Far West Coast People, consistently with the Far West Coast land determination. Each of the State, the Commonwealth, the Bunna Lawrie respondents and the Laing respondents contend that the primary judge’s determination is correct.

18    Proposed ground 4 challenges the primary judge’s findings with respect to one aspect of the nature and extent of the native title rights and interests. The primary judge concluded that the native title rights and interests included the right to access resources in and take resources from the sea claim area for purposes limited to domestic consumption and sustenance of family members. The applicant contends that the primary judge should have found that the native title rights and interests include the right to access resources in and take resources from the sea claim area for purposes limited to personal, domestic and communal use (consistently with the description of rights and interest in the Far West Coast land determination). The practical difference between the two descriptions is not immediately apparent. However, the applicant explained in argument that the primary judge’s description does not extend to the use of sea resources (including resources other than food) for communal purposes (such as ceremonial purposes).

19    For the reasons that follow, we have concluded that leave to appeal should be granted, appeal grounds 1, 2 and 4 should be dismissed, but appeal ground 3 (specifically, the grounds stated in particulars (a) and (c) to ground 3) should be allowed. It follows that the appeal is upheld in part and the primary judgment must be set aside in so far as it relates to separate question number (b)(i), being the identity of the persons holding the native title rights and interests in the Accessible Area (being that part of the sea claim area in which native title rights and interests exist). Orders will be made giving the parties an opportunity to make submissions concerning the appropriate form of orders for the remittal of separate question (b)(i) for further hearing and determination in accordance with these reasons.

2.    Objection to competency

2.1    The objection to competency

20    On 4 August 2025, the Bunna Lawrie respondents filed a notice of objection to competency of the appeal for which the applicant seeks leave. The Bunna Lawrie respondents raised the following grounds of objection:

1.    The proposed appeal is premature.

2.    The proposed appeal does not identify any order from which the appeal is brought (and none can be identified).

3.    The proposed appeal would contest factual findings made by the trial judge in the course of hearing preliminary questions. Those factual findings will be relevant to future disposition of the proceeding before the trial judge, but appear to be irrelevant to any presently extant order from which an appeal could be brought.

21    In support of their objection to competency, the Bunna Lawrie respondents relied upon an affidavit of their solicitor, Virginia Anne Marshall, affirmed 19 August 2025. Relevantly, the affidavit annexed a copy of the transcript of a case management hearing before the primary judge conducted on 27 June 2025.

22    The three grounds of objection concern the same essential issue. The Bunna Lawrie respondents contended that there is no order or operative judicial act to ground an appeal from the primary judgment. They contended that the trial judge only made factual findings after the trial of the preliminary questions, and an appeal does not lie from those findings (until there is a judgment in the form of an order or other operative judicial act). In support of those contentions, the Bunna Lawrie respondents advanced the following submissions:

(a)    Section 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confers jurisdiction to hear and determine appeals from “judgments”. Section 4 of that Act defines “judgment” to mean “a judgment, decree or order, whether final or interlocutory”.

(b)    It is well settled that the word “judgment” in s 4 of the FCA Act refers only to operative judicial acts, and is not used as an abbreviation for reasons: Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 (Driclad) at 64 (Barwick CJ and Kitto J); The King v Batak [2025] HCA 18; 99 ALJR 820 at [45] (Edelman J).

(c)    An operative judicial act is one that is binding upon parties and definitive of legal rights: Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280 (Ah Toy) at 285 (Toohey, Morling and Wilcox JJ).

(d)    Whether a court has, without making an order, performed an operative judicial act and, if so, what its terms are, is to be determined having regard to the legal framework in which the court exercised jurisdiction.

(e)    The factual findings made by the primary judge do not determine the applicant’s native title application in whole or in part because the answers to the separate questions do not address, amongst other things, extinguishment and the interaction of native title (if any) with other interests.

23    The State, the Commonwealth and the Laing respondents supported the objection to competency for the reasons advanced by the Bunna Lawrie respondents. In their written submissions filed prior to the hearing, the State and the Commonwealth observed that the objection to competency could be remedied by the applicant seeking an order from the primary judge setting out the answers to the separate questions as recorded in [1505] of the primary judgment.

24    The applicant submitted that the usual course adopted by the Court following the determination of separate questions (particularly in the context of native title proceedings) is to make orders giving the answers to the questions (citing Bennell v State of Western Australia [2006] FCA 1243; Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455; and Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279). It is uncontroversial that (subject to the grant of leave) an appeal can be brought from orders answering separate questions. The applicant submitted that (subject to the grant of leave) an appeal can also be made from the determination of separate questions in a proceeding even if formal orders stating the answers to the separate questions have not been made (citing Town v Australian Telecommunications Commission [1983] FCA 54; 47 ALR 137 (Town) at 145-146 and 150-151; Landsal Pty Ltd (in liq) v REI Building Society [1993] FCA 171; 41 FCR 421 (Landsal) at 425-426; and Arrowcrest Group Pty Ltd v Gill [1993] FCA 849; 46 FCR 90 (Arrowcrest) at 100). An appeal can be made where it is apparent from the judgment that the separate questions have been answered in a manner that finally determines an issue in the proceeding.

2.2    Does a constitutional issue arise?

25    At the commencement of the hearing, the Commonwealth submitted that the objection to competency involved a “matter arising under the Constitution or involving its interpretation” within the meaning of s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act). The Commonwealth submitted that the argument advanced in support of the objection required the Court to decide whether the meaning of the word “judgment” in s 24 of the FCA Act (which governs the appellate jurisdiction of the Federal Court) is the same as, or is informed by, the meaning of the same word in s 73 of the Constitution (which governs the appellate jurisdiction of the High Court).

26    Section 78B stipulates that, where a cause pending in a court involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter, has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceeding or removal of the cause to the High Court. If a party to a proceeding considers that the proceeding raises a matter under the Constitution or involving its interpretation, it is incumbent on the party to inform the Court and the other parties at the earliest possible time so that a decision can be made whether notices are required to be given to the Attorneys-General, and notices given if required. Otherwise, the Court may be forced to adjourn the hearing of the proceeding causing delay and wasted costs.

27    The Commonwealth did not include any submission concerning the possible application of s 78B in its written submissions filed prior to the hearing, and only informed the other parties of the submission on the morning of the first day of the hearing. At the hearing, the Court asked the Commonwealth why the possible application of s 78B had not been raised at an earlier point in time. Senior Counsel for the Commonwealth said that the Commonwealth had anticipated that the competency issue would have been “regularised” prior to the hearing (by the applicant obtaining an order from the primary judge setting out the answers to the separate questions as recorded in [1505] of the primary judgment). That is not a satisfactory explanation. The Commonwealth was aware from at least the date of the applicant’s written submissions (filed five weeks prior to the hearing) that the applicant was not intending to seek a further order from the primary judge setting out the answers to the separate questions.

28    As none of the other parties had received prior notice of the Commonwealth’s submission concerning s 78B, they were unprepared to address the issue raised by the Commonwealth during the hearing. As a result, the Court made orders for the filing, after the hearing, of a written submission by the Commonwealth explaining the issue and for responsive submissions from the other parties.

29    In its post-hearing submission, the Commonwealth submitted that the objection to competency in this proceeding raises a question as to the scope of s 24 of the FCA Act and, in particular, as to the meaning of “judgment” within that provision. The Commonwealth further submitted that the resolution of that question may involve a matter involving the interpretation of the Constitution because the authorities concerning s 73 of the Constitution may be relevant to the Court’s construction of s 24 of the FCA Act in circumstances where:

(a)    the Court has on several occasions recognised that the expression “judgment, decree or order” in s 24 of the FCA Act (read with s 4) bears the meaning that the words “all judgments, decrees, orders” have in s 73 of the Constitution (citing Ah Toy at 285);

(b)    there are decisions of the Court post-2011 where it was held that answers to a separate question were not appealable in the absence of an order giving effect to those answers (referring to Qube Ports Pty Ltd v McMaster [2016] FCA 59 (Qube)); and

(c)    High Court authority has established that answers given in a case referred are appealable under s 73 of the Constitution (citing Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 (Mellifont) at 303-305 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ)).

30    The Commonwealth submitted that, if any of the parties rely on s 73 of the Constitution to inform the construction of s 24 of the FCA Act, the proceeding would involve “a matter arising under the Constitution or involving its interpretation” for the purposes of s 78B of the Judiciary Act and s 78B notices ought to be issued. In those circumstances, the interpretation of the Constitution would be “essential or relevant” to the question of statutory interpretation (citing Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315 at 326-327). However, the Commonwealth acknowledged that it is open to the Court to take the view that the ordinary meaning of “judgment” in s 4 and s 24 of the FCA Act is at least as wide as “judgment” in s 73 of the Constitution without deciding whether s 24 maps precisely onto the scope of s 73 (in which case, no Constitutional issue arises).

31    The Bunna Lawrie respondents submitted that, having regard to the arguments advanced by the parties on the objection to competency, no constitutional issue arises. They submitted that the meaning of “judgment”, or its metes and bounds, is not in issue. None of the parties who addressed the competency issue contests that a “judgment” is an operative judicial act and that an “operative judicial act” is one that is binding upon the parties and definitive of legal rights. It follows that the relevant test for the existence of a Constitutional issue – whether the interpretation of a provision of the Constitution is essential or relevant to the determination of the issue in the case – is not satisfied. They submitted that mere reference to authority for the settled meaning of a term is not “interpretation”.

32    The State adopted the submissions of the Commonwealth, but further submitted that there is no impediment to the Court determining the objection to competency on the basis identified by the Bunna Lawrie respondents.

33    The applicant’s submissions on the constitutional issues were materially the same as the Bunna Lawrie respondents: that is, having regard to the arguments advanced by the parties on the competency issue, the interpretation of s 73 of the Constitution is not “essential or relevant” to the determination of the issue.

34    We accept the submissions of the applicant and the Bunna Lawrie respondents. As discussed below, all of the parties who addressed the competency issue relied upon the settled interpretation that has been given to the word “judgment” in s 24 of the FCA Act. That settled interpretation is at least as wide as the interpretation of “judgment” in s 73 of the Constitution, and it is unnecessary to go further. In the discussion below, it is necessary to have regard to the settled interpretation that has been given to the word “judgment” in s 73 of the Constitution, which has also been applied to s 24 of the FCA Act, but no party challenges that interpretation. As the Bunna Lawrie respondents submitted, mere reference to authority for the settled meaning of a Constitutional provision does not involve “interpretation” of the provision for the purposes of s 78B.

2.3    Consideration of the objection to competency

35    As is well known, an appeal is not a procedure known to the common law; it is always a creature of statute: Fox v Percy (2003) 214 CLR 118 at [20] (Gleeson CJ, Gummow and Kirby JJ); Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 at [2] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). Thus, whether a right of appeal is conferred in the present case depends upon the meaning of s 24(1) of the FCA Act and its application to the decision that is the subject of the application for leave to appeal.

2.3.1    Applicable principles governing s 24(1) of the FCA Act

36    Section 24(1) of the FCA Act relevantly stipulates that the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court. The word “judgment” is relevantly defined in s 4 to mean “a judgment, decree or order, whether final or interlocutory”.

37    The words “judgment, decree or order” in s 4 of the FCA Act have the same meaning as the words “all judgments, decrees, orders” in s 73 of the Constitution: Moller v Roy (1975) 132 CLR 622 (Moller) at 625 (Barwick CJ); Ah Toy at 285 (Toohey, Morling and Wilcox JJ). Thus, the following statements of principle made in the context of s 73 of the Constitution are equally applicable to s 24(1) of the FCA Act:

(a)    a judgment is the formal order which disposes of or deals with the proceedings before the court: see, eg, R v Ireland (1970) 126 CLR 321 at 330 (Barwick CJ), cited by Mason J in Moller at 639;

(b)    the word “judgment” refers only to operative judicial acts and is not used as an abbreviation for the reasons for judgment: Driclad at 64 (Barwick CJ and Kitto J); and

(c)    it is of the essence of a judgment that it is binding upon parties and definitive of legal rights: Minister for Works (WA) v Civil and Civic Pty Ltd (1967) 116 CLR 273 at 277 (Barwick CJ).

38    The foregoing principles have been referred to by the Full Federal Court in the context of s 24(1) of the FCA Act in numerous cases, commencing with Ah Toy at p 285 and Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 (Colpitts) at 399 (Toohey J, with whom Fisher J agreed) and 410 (Jackson J).

39    The phrase “operative judicial act” is usually synonymous with the formal order of the Court. Thus, under s 24(1) of the FCA Act, the general rule is that an appeal may only be brought against a formal order of the Court. However, both the High Court and the Full Federal Court have recognised that, in certain circumstances, there will be an operative judicial act, constituting an appellable judgment, notwithstanding that the judicial act has not been recorded in an order of the Court and is only recorded in the reasons for judgment. Without seeking to be exhaustive, the circumstances include the following.

2.3.1.1 Appeals in the context of orders for remittal

40    One such circumstance arises where a court sets aside an administrative decision and remits the decision to the decision-maker for reconsideration in accordance with law. The successful applicant, who has obtained the relief sought (the setting aside of the decision), may nevertheless disagree with the court’s statement of the relevant law in the reasons for judgment (which would need to be applied by the decision-maker on remittal). There is both High Court and Full Federal Court authority recognising that an appeal may be brought against the court’s judgment in those circumstances. An example in the High Court is given by the circumstances in Driclad. At first instance (in the High Court), Taylor J made orders allowing 14 appeals brought by taxpayers against income tax assessments and set aside the relevant assessments. The taxpayers appealed against Taylor J’s judgment. On the appeal, Barwick CJ and Kitto J observed (at 63-64) that, on the face of the orders, the taxpayers appeared to have succeeded completely. The reasons for judgment, however, showed that Taylor J, while holding that the assessments made against the two company taxpayers were excessive, had declined to hold that they were as excessive as those taxpayers had contended that they were. His Honour had decided that the assessments made against the appellants were excessive because a part of the income of their trust fund was exempt from tax, but had declined to uphold their contention that the whole of that income was exempt from tax. The orders setting aside the assessments left the Commissioner at liberty to make fresh assessments consistently with the reasons of Taylor J (although the orders did not contain any direction to the Commissioner in that regard). Chief Justice Barwick and Kitto J concluded that the taxpayers were entitled to appeal for the purpose of having the orders of Taylor J varied so as to bind the Commissioner to issue assessments whereby the whole of the trust fund income was exempt from tax (at 64, McTiernan and Menzies JJ agreeing at 69). Examples in the Full Federal Court include: Secretary, Department of Social Security v Lowe (1999) 92 FCR 26; Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467; and Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203.

2.3.1.2 Appeals in the context of answers to a stated case or questions reserved

41    Another such circumstance arises where a court answers questions referred to it by an arbitrator or a lower court. In a line of cases ending with Fisher v Fisher (1986) 161 CLR 438 and Swiss Aluminium Australia Ltd v Commissioner of Taxation (1987) 163 CLR 421, the High Court had determined that no appeal lies to the High Court under s 73 of the Constitution from answers given to questions in a stated or special case unless the answers finally determined the rights of the parties in suit. The correctness of that line of cases was doubted in O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 (O’Toole) (in the context of s 25(6) of the FCA Act which empowered a judge to state a case or reserve a question for the consideration of a Full Court), and the High Court departed from that line of cases in Mellifont (in the context of s 669A of the Criminal Code Act 1899 (Qld) which empowered the Attorney-General for the State of Queensland to refer a point of law that arises in a criminal trial to the Queensland Court of Criminal Appeal for its consideration and opinion). In Mellifont, the High Court majority (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) explained that the answers given on a referred point of law fall within the description “judgments, decrees, orders” in s 73 of the Constitution (at 303-304, citations omitted):

In O’Toole, it was explicitly recognized that answers given by the full court of a court to questions reserved for its consideration in the course of proceedings in a “matter” pending in that court do not constitute an advisory opinion or abstract declaration of the kind dealt with in In re Judiciary and Navigation Acts whether or not those answers, of themselves, determine the rights of the parties. Such answers are not given in circumstances divorced from an attempt to administer the law as stated by the answers; they are given as an integral part of the process of determining the rights and obligations of the parties which are at stake in the proceedings in which the questions are reserved. Once this is accepted, as indeed it must be, it follows inevitably that the giving of the answers is an exercise of judicial power because the seeking and the giving of the answers constitutes an important and influential, if not decisive, step in the judicial determination of the rights and liabilities in issue in the litigation. Viewed in this context, it matters not whether the giving of the answers is, as a matter of legal theory, a binding determination, that is, binding on the court at first instance and the parties, as Mason C.J. and Dawson J. thought, or influential, that is, binding in a practical sense or virtually so, as Deane, Gaudron and McHugh JJ. thought.

The consequence is that the answers fall within the description “judgments, decrees, orders” in s. 73 of the Constitution. The difficulties and inconveniences which would flow from a contrary conclusion were identified in O’Toole and there is no occasion to repeat them here. It follows that Fisher v. Fisher and Swiss Aluminium were incorrect to the extent that they decided that no appeal lies to this Court from answers given to a special or stated case where those answers do not determine the parties’ rights. In that respect they should not be followed.

42    In the passage from O’Toole expressly approved by the majority in Mellifont, Deane, Gaudron and McHugh JJ said (at 282-283):

The position is, however, different in the case of an appeal from the decision of the full court of a court on questions reserved for its consideration in the course of proceedings in a “matter” pending in that court. ... The full court’s determination in such a case has much in common with the making of a declaratory order and may be subsequently embodied in a formal “order”. It is made in the course of the exercise of judicial power in relation to an actual “matter” and is in the context of, and not “divorced” from, the ordinary administration of the law. In the absence of quite exceptional circumstances, the full court’s decision will, by operation of the doctrine of precedent, control the course of future proceedings and settle, for the purposes of those proceedings, the questions of law involved. In a practical sense, the decision and answers of the full court in such a case will commonly be far more significant in the determination of the rights of the parties than are many of the temporary or procedural interlocutory orders from which it has always been accepted that an appeal lies (by special leave) to this Court … . In that general context, it is difficult to see any persuasive reason in law or policy why the answers to such questions, or the formal “orders” embodying them, should fall outside the reach of the words “all judgments, decrees, orders” as used in s. 73 of the Constitution. …

43    The reasons of the High Court in Mellifont, read in light of the reasons in O’Toole, make clear that answers given by a full court of a court to questions reserved for its consideration in the course of proceedings pending in that court constitute an appellable judgment, regardless of whether the answers are embodied in a formal order of the full court (for example, in the form of declaratory orders) or are merely recorded in the reasons for judgment as the answers given by the full court.

2.3.1.3 Appeals in the context of the determination of separate questions in a proceeding

44    A third circumstance arises where a court hears and determines a separate question in a proceeding. The specific issue that arises in the present case is whether an appeal lies from the determination of a separate question where the determination has not been incorporated into a formal order of the court.

45    This Court is empowered to hear and determine separate questions pursuant to its own rules (made pursuant to s 59 of the FCA Act) or in the implied power of the Court to control its processes and procedures: see Landsal at 427. The current rules of this Court provide as follows:

Division 30.1—Separate decisions on questions

30.01 Application for separate trials

(1)     A party may apply to the Court for an order that a question arising in the proceeding be heard separately from any other questions.

(2)     The application must be made before a date is fixed for trial of the proceeding.

Note 1: The Court may order that a party state a case and the question for decision.

Note 2: The Court will give any directions that are necessary for the hearing of the separate question.

30.02 Disposal of proceedings after hearing separate questions

If a decision on a question substantially disposes of the proceeding or renders any further trial of the proceeding unnecessary, a party may apply to the Court for:

(a)     judgment; or

(b)     an order dismissing the whole or any part of the proceeding.

46    The preceding Federal Court Rules 1979 (Cth) were substantially similar, and provided as follows in Order 29:

Division 1    Separate decision of questions

1        Interpretation

In this Order, question includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreements of parties or otherwise.

2        Order for decision

The Court may make orders for:

(a)     the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

(b)     the statement of a case and the question for decision.

3        Orders, directions upon decision

Where any question is decided under this Order, the Court shall, subject to rule 4, make such order, grant such relief or give such directions as the nature of the case requires.

4        Disposal of proceedings

Where the decision of a question under this Order:

(a)     substantially disposes of the proceeding or of the whole or any part of any claim for relief in the proceeding; or

(b)     renders unnecessary any trial or further trial in the proceeding or on the whole or any part of any claim for relief in the proceeding,

the Court may, as the nature of the case requires:

(c)     dismiss the proceeding or the whole or any part of any claim for relief in the proceeding; or

(d)     pronounce any judgment; or

(e)    make any other order.

47    It is relatively common in this Court for issues within a proceeding to be separated and decided sequentially. There are advantages and disadvantages in adopting that course. The principal advantage is that the early determination of an issue may result in the legal or practical resolution of the dispute. The principal disadvantage is that the fragmentation of issues in the proceeding, and the prospect of appeals from the determination of separate issues, may delay the final resolution of the proceeding and increase its overall cost. It is relevant to bear in mind, however, that this Court is able to reduce the risk and burden of fragmentation and delay associated with the determination of separate issues through the assessment of applications for leave to appeal. If the determination of the separate issue does not finally determine the rights of the parties, the determination will be interlocutory in character: Computer Edge at 767-768 (Gibbs CJ, with whom Murphy and Wilson JJ agreed). Under s 24(1A) of the FCA Act, an appeal cannot be brought against an interlocutory judgment without leave. The Court has often recognised that the delay associated with interlocutory appeals from the determination of separate questions is a relevant factor in the assessment of applications for leave to appeal: see Australian Postal Corporation v Stephens (No 2) [2011] FCA 992; 207 IR 454 at [16] (Rares J); Quincolli Pty Ltd v Fair Work Ombudsman [2012] FCA 373 at [3]-[8] (Jagot J); Australian Competition and Consumer Commission v Valve Corporation (No 4) [2016] FCA 382 at [6]-[15] (Edelman J); China Australia Travel Group Pty Ltd v Yang [2024] FCA 671 at [15] (Bromwich J); and Angel Holdco Pty Ltd v WIJOAV Services Pty Ltd [2025] FCA 872 at [23] (Moshinsky J).

48    It has been necessary on a number of occasions for the Full Court to consider whether the determination of an issue in the proceeding, in advance of the determination of all issues, gives rise to an appellable judgment. The answer depends on the circumstances of the judicial decision.

49    In Town, the primary judge gave answers to separate questions under O 29. The Full Court concluded that it had jurisdiction to hear an appeal from the answers given to the separate questions, notwithstanding that the answers had not been formally incorporated into an order of the Court: at 138 (Franki J); 145 (McGregor J); and 150 (Sheppard J). Justice Sheppard (with whom Franki J agreed) observed (at 150):

… Unless there is an order … there can be no appeal pursuant to s 24 because there is nothing to appeal against. But it seems to me that in deciding to answer the question in the way that he has, his Honour has, in reality, made an order determining the question favourably to the respondents. The order is not a final order but an appeal lies against an order which is interlocutory only. If this view is not correct, the utility of what is provided for in O 29 will often be lost. If one party wishes to appeal but cannot do so because there is no order, both parties will have to incur expense for further costs which may prove quite unnecessary in the event that an appellant court ultimately decides the question in such a way as to bring about the disposal of the proceedings without the need for any additional evidence.

50    In French Caledonia Travel Service Pty Ltd v Elatri [1992] FCA 353, the Full Court (Lockhart, Gummow and Foster JJ) considered the competency of an application for leave to appeal from what was asserted to be an interlocutory judgment of the Supreme Court of New South Wales in a copyright infringement action. The proceeding before the primary judge was not the subject of any formal order that the issues of liability and relief be determined separately. Nevertheless, the primary judge heard evidence and argument limited to the question of liability. Thereafter, the primary judge gave oral reasons in support of his finding that the issue of liability be resolved in favour of the plaintiff (the respondent on the application for leave to appeal). The primary judge then said: “In my view the plaintiff is entitled to a declaration in the terms of claim 1 in the summons” and proceeded to give directions for the preparation of the remaining questions for trial, including directions with respect to discovery of documents and the filing by the parties of statements of the nature of their respective cases. The primary judge subsequently published reasons supporting the liability finding. The Full Court concluded that the application for leave to appeal the liability determination was incompetent because there was no judgment of the primary judge that was appellable. The Full Court observed (at 3):

… all that his Honour did, so far as presently relevant, was to give reasons to support a finding on the issue of liability in favour of the respondent and expressly declined to make any order or declaration at that stage to give effect to his finding.

51    The defendant to the original proceeding then sought leave to appeal from the procedural orders made by the primary judge (setting down the question of damages for hearing). The Full Court concluded that, while the procedural orders were an interlocutory judgment for the purposes of s 24(1A) of the FCA Act (and therefore no question of competency arose), the orders were essentially discretionary and the exercise of discretion was not shown to have miscarried.

52    The same conclusion was reached by the Full Court (Keely, Burchett and Drummond JJ) in Landsal. The applicants in the proceeding sought relief for misleading and deceptive conduct, fraudulent misrepresentation and breach of contract, arising out of a failed property development. The primary judge made an order by consent that the matter proceed to trial on questions of liability, reserving to the parties the right to argue questions of assessment of damage and loss at a later date. Those directions were subsequently varied such that the initial hearing was confined to certain enumerated issues (as defined by the pleadings). After hearing evidence from various witnesses, the primary judge published in a document which he entitled “Findings of Fact and Law” certain findings, together with his reasons for making those findings. However, the primary judge did not pronounce any order and did not deliver any formal judgment. The Full Court concluded that the primary judge had not answered separate questions pursuant to O 29, but had merely made findings on one part of the proceeding (at 426). In that regard, the Full Court referred to the following statements made by the primary judge in his reasons for making the findings (at 426, emphasis added by the Full Court):

During the pre-trial processes, it was agreed by the parties that it would be expeditious to proceed to the trial of certain limited issues, leaving for a later date questions of the quantification of damages if and when they should arise; it is for this reason that these remarks are described as ‘Findings of Fact and Law’; in due course the parties would be able to make their submissions on the further prosecution of these proceedings.

As the parties have agreed that I should make findings of fact and law on the evidence thus far led, so that they may thereafter assess their positions, I state the following conclusions.

53    The Full Court observed (at 426-427):

These passages suggest that when O’Loughlin J published his findings and reasons, he did not intend to make an order reflecting any of those findings. Rather do they suggest that his Honour regarded the publication of the findings as but one step in the hearing of the case, which would be resumed and would proceed until the trial was finished, when his Honour would give judgment, unless the parties in the meantime were able to settle the litigation after considering his findings.

…

We do not think his Honour proceeded under O 29. We think instead that his Honour decided to hear the trial in two phases, because he accepted that there were advantages to the parties if he were to deal with important matters upon which a determination of liability would in large part depend, and then give the parties an opportunity to consider their position, before completing the hearing.

It is conceded that there is power to follow such a course and that involved a procedure different from that provided for by 029, r 2. We think this concession was rightly made.

54    In the course of its reasons, the Full Court distinguished the circumstances in Town, stating (at 425):

If a judge can be seen to have dealt with a question in the litigation as a separate issue under O 29, Town v Australian Telecommunications Commission (1983) 67 FLR 48 shows that an appeal will lie from such a determination, even though the judge may not have made a formal order reflecting that decision, as is required by r 3 or 4.

55    The Full Court distinguished Driclad and Ah Toy as cases in which the primary judge can be seen to have intended to dispose, in a final way, of all the issues in the litigation which were required to be resolved, even though the determinations had not been formally incorporated into an order of the court (at 430). The Full Court stated the applicable principles as follows (at 430-431, emphasis added):

Unless the case is one in which the judge has pronounced a judgment or order or can be seen to have intended to do that, we do not think it is open to a litigant to appeal from a determination made in the course of a hearing, which does not necessarily dispose of any question in the litigation, irrespective of the finality with which the judge may have expressed himself in making the determination. It may be appropriate to infer that the judge intended to make an order if the case is one in which he was required by the particular procedure he followed to conclude the matter by giving a judgment or by making an order. It is not to the point that the litigant desirous of appealing is able, by a process of appropriate drafting, to reflect the effect of the ruling or determination in the form of a declaration. That does not assist in conferring a right of appeal where the judge himself, not being bound to do so, has declined to make such a declaration.

If, in the exercise of his inherent jurisdiction, a judge decides to conduct a trial in separate parts, there is no requirement that he make an order reflecting the conclusions he has reached part way through the hearing. Whether a judge, in exercising this particular jurisdiction has reached a conclusion on some of the issues part way through the task, which can be immediately made the subject of an appeal, depends upon whether he has either formally incorporated those conclusions in an order or can be seen to have intended to have done that. If in such a case it can be seen that the judge did not intend to make an order reflecting conclusions he has reached part way through conducting the trial of a matter, then there is nothing that can be the subject of an appeal, whether by leave or as of right.

56    In Arrowcrest, the primary judge set down for hearing a preliminary question, although his Honour did not indicate whether the question was set down pursuant to O 29 or the implied power of the Court. After hearing the separate question, the primary judge made the following order:

The separate question be answered as follows: No.

57    The Full Court dismissed an objection to the competency of the appeal. Justice French stated (at 100, Jenkinson and Spender JJ agreeing):

In the present case, whether his Honour proceeded pursuant to O 29 or otherwise, he has determined the question before him by way of pronouncing a formal order. There was, therefore, a judgment within the meaning of s 4 which could be the subject of an appeal. With respect, however, it would be desirable in such cases if it were expressly stated on the record whether the proceeding is by way of determination of a preliminary issue under O 29 or otherwise under the implied incidental power.

His Honour’s decision on the preliminary issue did not fully determine the rights of the parties in these proceedings. The litigation may continue to the trial of the factual and other legal issues which remain to be determined. The judgment appealed from is therefore interlocutory: Licul v Corney (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767. These issues must be considered by solicitors and counsel advising appellants well prior to the date fixed for the hearing of a notice of appeal. The questions whether leave is required and on what grounds it should be granted should not have to be decided when the appellant has incurred all the expense of preparation for a full argument on the merits. In the present case leave should be granted because the legal issue raised by his Honour’s determination is one of importance to the case …

58    The parties also referred to the decision of Buchanan J (exercising the appellate jurisdiction of the Court) in Qube. In that case, the primary judge had made an order under r 30.01 of the Rules that the question whether the respondent had contravened s 340(1) of the Fair Work Act 2009 (Cth) (the liability question) be heard and determined separately from and before the question of what (if any) relief the applicant should obtain in relation to any such alleged contraventions (the relief question). Such orders are frequently made in this Court. The primary judge conducted a trial of the liability question and, on 4 December 2015, published reasons expressing the conclusion that the respondent had contravened s 340(1). The reasons further stated that directions would be made to deal with the balance of the proceeding (that is, the relief question). His Honour made orders on that day adjourning the proceeding to a directions hearing. On an application for leave to appeal from the determination of the liability question, Buchanan J concluded that, as the determination made by the primary judge was not incorporated into an order of the Court, the determination was not an appellable judgment.

59    It is unnecessary to express any view on the correctness of the conclusion reached in Qube. However, it is relevant to note that we would not embrace two aspects of the reasoning in that decision.

60    First, Buchanan J expressed the view (at [25]) that Town is an unusual, and perhaps exceptional, case. We disagree with that view. Town was cited by the Full Court in each of Landsal and Arrowcrest without any doubt being expressed about the conclusion reached in that case. Furthermore, the conclusion in Town is consistent with that reached by the High Court in Mellifont and reflects the considerations taken into account by the High Court in that case.

61    Second, Buchanan J expressed the view (at [31]) that the conclusion reached in Town (as explained in Landsal) was based upon the requirement of former O 29(3) for the Court to make a formal order upon the determination of the separate question, and that O 29 differed from r 30.01 of the Rules in that respect. We disagree with that view. The reasoning in Town was based on a conclusion that, first, the primary judge had proceeded to determine a separate question under O 29 and, second, the primary judge had, in reality, issued a judgment determining the separate question within the meaning of s 24 of the FCA Act. As noted earlier, the Full Court in Landsal expressed the applicable principle as follows (at 431, emphasis added):

Whether a judge, in exercising this particular jurisdiction has reached a conclusion on some of the issues part way through the task, which can be immediately made the subject of an appeal, depends upon whether he has either formally incorporated those conclusions in an order or can be seen to have intended to have done that.

62    We note in passing that, after Buchannan J made orders on 10 February 2016 dismissing the application for leave to appeal, the proceeding returned to the primary judge who, on 16 March 2016, made declaratory orders reflecting his Honour’s determination of the liability question in favour of the applicant and granted the respondent leave to appeal. On 9 September 2016, the Full Court allowed the appeal and dismissed the proceeding: Qube Ports Pty Ltd v McMaster [2016] FCAFC 123; 248 FCR 414. Thus, the appeal against the determination of the separate question avoided an unnecessary hearing on the relief question.

2.3.2    Application of the principles to the present case

63    The present case concerns the question whether the answers given by the primary judge to the separate questions which were ordered to be determined under r 30.01 of the Rules constitute an appellable judgment for the purposes of s 24(1) of the FCA Act, notwithstanding that those answers were not recorded in a formal order of the Court.

64    In our view, the reasons of the primary judge (at [1505]) indicate that her Honour intended to pronounce a judgment in respect of the separate questions and that her Honour has “in reality” (that is, in practical effect) done so. At the conclusion of the reasons, her Honour gave a formal answer to the separate questions. There is no doubt that, if the answers to the separate questions had been incorporated (in precisely the same form) into an order of the Court, an appeal would lie from the order (subject to the grant of leave, as the order would be interlocutory). The fact that the answers to the separate questions were formally stated in the reasons for judgment, rather than being incorporated into an order of the Court, does not alter the character of the answers.

65    Her Honour’s intention with respect to the answers to the separate questions is indicated by both the form in which the answers were expressed at [1505] of the reasons, and the order made by her Honour when delivering judgment on the separate questions. As noted earlier, her Honour ordered the State to propose a timetable for the progression to trial of all remaining issues “having regard to the answers to the Preliminary Questions set out in [1505] of the reasons”. The order reflects what is apparent from the reasons, that the answers to the separate questions set out in [1505] were “in reality” a judgment on the separate questions.

66    The circumstances of the present case are materially the same as Town, and are entirely different from the circumstances in Landsal. The circumstances are the same as in Arrowcrest, save that the primary judge had not reproduced the stated answers to the separate questions as a formal order of the Court.

67    The Bunna Lawrie respondents sought to place reliance on statements of the primary judge at a case management hearing on 27 June 2025, following the delivery of her Honour’s reasons. At the case management hearing, counsel for the Commonwealth asked whether the primary judge proposed to make an order in the form of the answers to the separate questions, to ensure that there was no legal impediment to any party bringing an appeal against the answers to the separate questions. Her Honour stated that she had not contemplated making such an order, but that she would consider any application for such an order to be made. It is perhaps unfortunate that no such application was made by any party.

68    The Bunna Lawrie respondents submitted that the primary judge had “unmistakeably” indicated at the case management hearing that the reasons, including the answers to the separate questions, were not an operative judicial act (in the absence of a formal order being made). We do not accept that submission. It is not supported by the transcript. Indeed, at the date of the case management hearing, the applicant had already filed the application for leave to appeal. There is no indication in the transcript that the primary judge considered that such an appeal would be incompetent. To the contrary, the primary judge referred to the application for leave to appeal because it was relevant to the discussion of the further steps to be taken in the proceeding. Her Honour discussed a timetable for the progress of the required tenure analysis (to address the issues arising under paras (c), (d) and (e) of s 225 of the NTA) and observed:

… we may schedule a case management hearing soon after that, and by then, we will have a better idea as to the progress of any application for leave to appeal, and if it be granted, the progress of the appeal.

69    We accept that, at the case management hearing on 27 June 2025, her Honour did not express any concluded view about the question raised by the Commonwealth: whether an order was necessary to ensure that there was no legal impediment to any party bringing an appeal against the answers to the separate questions. After indicating that her Honour was willing to hear from the parties about the necessity for an order, her Honour said:

Only if the Full Court that makes a request of me, but if it leaves a party in a position where there is no order from which to appeal, other than the order that I require the parties now to proceed to the second – the trial of the remaining separated issues. That seems, to me, to be enough.

…

That is an order consequent upon the findings that I have made.

70    Although there is some ambiguity in the above statement, we understand her Honour to have indicated a preliminary view that Order 4 of the Orders made on 24 April 2025 (when delivering her Honour’s judgment), which concerned the completion of the trial on all remaining issues having regard to the answers to the separate questions given in [1505] of the reasons, provided a sufficient basis for the application for leave to appeal.

71    In conclusion, we consider that the answers given by the primary judge to the separate questions in [1505] of the reasons are a judgment of the Court for the purposes of s 24(1) of the FCA Act. We therefore reject the objection to the competency of the appeal.

3.    Application for leave to appeal

72    It is common ground that the answers to the separate questions are an interlocutory judgment, as the answers do not finally determine the rights of the parties. As a consequence, the applicant requires leave to appeal: s 24(1A) of the FCA Act. The principles governing applications for leave to appeal in this Court were stated in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. An applicant must generally demonstrate that, first, the decision in question is attended with sufficient doubt to warrant its being reconsidered by the Full Court and, second, that substantial injustice would result if leave were refused, supposing the decision to be wrong. The two criteria are cumulative (that is, both must ordinarily be made out) and they are also interrelated. Each of the respondents accepted that, if the Full Court concluded that the appeal would be competent, this was a suitable case for the grant of leave to appeal. We agree for the following reasons.

73    Commonly, the issues in dispute on a native title application are the issues arising under paras (a) and (b) of s 225 of the NTA: whether native title exists in the claim area and, if it exists, who are the persons holding the rights and interests comprising the native title and what is the nature and extent of those rights and interests. The issues arising under paras (c), (d) and (e) are usually less controversial and are commonly able to be resolved by agreement between the parties. It is for that reason that orders are often made under r 30.01 of the Rules for the determination of the issues arising under paras (a) and (b) of s 225 as separate questions. Following the determination of the separate questions, and assuming the questions are answered in the affirmative, the native title application can usually be finalised by agreement as a consent determination.

74    It follows that the most appropriate time to hear an appeal from the determination of the issues arising under paras (a) and (b) of s 225 is immediately following the determination of those issues. If an appeal were not permitted at that stage of the proceeding, there would be a practical impediment to the resolution of the proceeding by a consent determination. That is because a party who disagreed with the determination of the issues arising under paras (a) and (b) of s 225 would not be in a position to consent to a final determination of native title which incorporated the determination of those issues. As Mortimer J (as her Honour then was) observed in Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 at [88], the parties are bound by the determination of issues as separate questions unless those answers are overturned on appeal. It follows that, in the usual case, the overarching purpose of civil practice and procedure is promoted by hearing any appeal from the determination of the issues arising under paras (a) and (b) of s 225 immediately following the determination of those issues.

75    It also follows that, where the issues arising under paras (a) and (b) of s 225 are determined as separate questions, it is desirable for the answers to the separate questions to be formally incorporated into an order of the Court. Taking that course avoids an argument as to the competency of any application for leave to appeal, as has arisen in the present case. As submitted by the applicant, that is the usual course that has been adopted by the Court.

76    We are satisfied that the issues raised on this appeal are both important and arguable, including in particular the proper approach to the meaning and effect of a prior consent determination. As acknowledged by the parties, the issues justify the grant of leave of appeal. Accordingly, leave to appeal will be granted.

4.    The Sea Claim Area (grounds 1 and 2)

4.1    Introduction

77    Grounds 1 and 2, which are conveniently addressed together, concern the finding by the primary judge that native title only exists in that part of the sea claim area that was physically accessible and was physically accessed from the coast prior to sovereignty. That area, which her Honour referred to as the Accessible Area, is more particularly described in the primary judgment as being an area that (at [1505(1)]):

(a)    includes that part of the Sea Claim Area aligning with the State Border and proceeding eastward to a point aligning with the western end of the Bunda Cliffs (23 km from the State Border), extending seaward from the Lowest Astronomical Tide to a distance of 30 m;

(b)    does not include any part of the Sea Claim Area aligning with the western end of the Bunda Cliffs (23 km from the State Border) and proceeding eastward to a point aligning with the eastern end of the Bunda Cliffs (3 km from Head of the Bight);

(c)    includes that part of the Sea Claim Area that aligns with the eastern end of the Bunda Cliffs (3 km from Head of the Bight) proceeding eastward to a point aligning with the vicinity of Point Peter, extending seaward from the Lowest Astronomical Tide to a distance of 30 m; and

(d)    includes that part of the Sea Claim Area aligning with the vicinity of Point Peter to the eastern boundary of the Sea Claim Area (as amended), extending seaward from the Lowest Astronomical Tide to a distance of 50 m, but not incorporating St Peter Island or Eyre Island.

78    In determining whether, and if so where, the claimed native title rights and interests existed in the sea claim area, the primary judge considered the evidence with respect to access to the sea claim area by the antecedents of the claim group at effective sovereignty and since: primary judgment at [965]-[1124]. That reflected the primary judge’s understanding that the applicant’s case was founded on the capacity at sovereignty to physically access the sea claim area by going onto the islands and onto and into the water: primary judgment at [1138]. Having regard to that evidence of physical access, the primary judge found that access was principally confined to the shallower waters of the sea claim area and did not include its islands: primary judgment at [1125]. That was because watercraft were not used and the taking of marine food resources was mostly confined to the intertidal zone, with the exception of some fishing off reef formations that enabled access to deeper waters, including at low tide. Moreover, while there was evidence that pre-sovereignty Aboriginal people descended cliffs at their eastern and western extremities and may have accessed places at the base of the Bunda Cliffs, the latter areas were mostly within the area covered by the Far West Coast land determination where the waters get deep very quickly.

79    At the urging of the applicant and the Bunna Lawrie respondents, the primary judge also had regard to the evidence with respect to mythology, sacred sites and spiritual connection to the sea claim area: primary judgment at [1134]-[1265]; see in particular at [1141]. Her Honour identified “at least six themes” emerging in the evidence with respect to these topics, which she summarised as follows (at [1134]):

… First, the witnesses referred to a connection to country by reason of their ancestors’ prior occupation of the area, together with their present day visitation and use of coastal areas and the sea … Secondly, some of the Aboriginal witnesses asserted a relationship to country in the nature of ownership by describing its seaward extent as going as far as the eye could see. Thirdly (and related to the second theme), the witnesses gave accounts of mythology forming a part of their spiritual beliefs (referred to as stories), said to extend not only to coastal places within the FWC Land Determination Area but generally in and relating to the sea beyond the Lowest Astronomical Tide. Fourthly, some of the witnesses referred to having responsibility to protect the sea, as well as responsibility for caring for sites on the land. Fifthly, there was some limited evidence about ceremony generally or specifically relating to male initiation. Sixthly, there were references in the evidence to “spiritual danger” resulting from non-observance of traditions or customs.

80    The primary judge noted the evidence of some witnesses that their country extended “as far as the eye can see” and that such expressions have “traction in academic discourse” as a way of “articulating your consubstantiality with that country which extends out from your particular estate areas”: primary judgment at [1139], [1143]-[1145] and [1149]. But the primary judge was not satisfied that, in the present case, such assertions provided a basis for finding that native title existed in places that were physically inaccessible at sovereignty: primary judgment at [1151].

81    That reflected, in part, a consideration of those assertions in the context of evidence of mythological beliefs with respect to the Jeedara (a whale), Jidara or ganba (a snake), balgada and wadu (the seal and the wombat) and Manarn (two men): primary judgment at [1158]. The primary judge considered there existed a “gulf between the qualitative nature of the evidence of mythological narratives contained in the expert reports when compared to the evidence of the Aboriginal witnesses themselves”: primary judgment at [1154]; see generally at [1159]-[1218]. Of present relevance, this included the Jeedara whale story, which the primary judge found did not have pre-sovereignty origins, had as its core narrative a whale “hugging the coast” and was not put forward by a sufficient number of witnesses as defining a seaward boundary for country: primary judgment at [1211]. Further, and relatedly, the primary judge found the witness evidence regarding sites of significance principally concerned places within the Far West Coast land determination area, rather than the sea claim area: primary judgment at [1158].

4.2    The submissions

82    The applicant contends the primary judge erred for two reasons:

(a)    the applicant positively framed its case on the basis that the claim group was connected to the sea claim area irrespective of physical access (ground 2); and

(b)    the primary judge failed to accept the uncontradicted evidence of spiritual connection as discharging the applicant’s onus of proof that it held rights and interests in, and had a connection with, the entirety of the sea claim area (ground 1).

83    The Bunna Lawrie respondents support the applicant to the limited extent that they submit the primary judge ought to have found that native title exists in the area from, and including, Fowlers Bay westward to the State border; east of Fowlers Bay to Point Peter, extending seaward from the lowest astronomical tide to a distance of 50 m and includes that part of the sea claim area otherwise described in [1505(d)] of the primary judgment as extracted above. The Laing respondents similarly contend the primary judge ought to have found that native title exists within a greater portion of the sea claim area, in their case, from the border of South Australia and Western Australia to Fowlers Bay and seawards 300 m from the low water mark of the coastline.

84    The State and Commonwealth argue that the primary judgment is not attended by error because the applicant’s case was largely based on access and use of the sea claim area. In any event, they emphasise that the applicant does not identify any evidence that the primary judge ignored or overlooked this on the basis of her understanding of the applicant’s case. Finally, the respondents submit that the primary judge did not err in how she dealt with the evidence adduced because the applicant failed to establish, in particular, that the Jeedara whale story had a pre-sovereignty origin or established a connection to the sea claim area and the other mythological evidence upon which the applicant relied was of limited compass and narrow effect.

4.3    Consideration

4.3.1    How did the applicant frame its case at trial?

85    During the course of argument before us, the applicant conceded that the oral submissions they made in closing were apt to confuse the primary judge as to the basis upon which the claim group asserted they held rights and interests in, and had a connection with, the sea claim area. That concession was properly made because it is evident from a review of the transcript that differing propositions were advanced at differing stages of the final oral address. Nonetheless, the applicant submitted that the case they advanced in writing made clear they relied upon both physical access and spiritual beliefs to found their claim to hold native title in the sea claim area.

86    The starting point for understanding the case advanced by the applicant is the definition of the native title rights and interests claimed by the applicant in the sea claim area. The applicant’s amended native title determination application dated 24 June 2021 defined the native title rights and interests claimed by the applicant as follows:

The nature and extent of the native title rights and interests claimed in relation to the application area are the non-exclusive rights to use and enjoy the land and waters in accordance with traditional laws and customs being:

a)    the rights to access, to remain in and to use the application area; and

b)    the right to access resources and to take for any purpose resources from the application area.

87    The claimed native title rights and interests necessarily assumed that, at sovereignty, the claim group’s ancestors had the ability to physically access the sea claim area. If the claim group’s ancestors did not have that ability, it is implausible that they would have possessed such rights and interests under their traditional laws and customs.

88    In its closing submissions at trial, the applicant sought leave to further amend the description of the claimed native title rights and interests to add an additional paragraph (c) as follows:

c)    the right to care for, maintain and protect sites and places of significance, including places of spiritual or cultural importance, in accordance with the traditional laws and customs of the native title claimants.

89    The primary judge granted the applicant leave to make that amendment (primary judgment at [88]). The additional claimed native title rights and interests also appear to be based on an assumption that, at sovereignty, the claim group’s ancestors had the ability to physically access the sea claim area. If the claim group’s ancestors did not have that ability, it appears implausible that they would have possessed such rights and interests under their traditional laws and customs as it is not apparent how, at sovereignty, the sea claim area could have been cared for, maintained and protected in the absence of such an ability.

90    As identified by the primary judge, the issues for determination in the proceeding were identified by the statement of facts, issues and contentions (SFIC) filed by each party (primary judgment at [81]). The applicant’s SFIC claimed that the claim area was “occupied and used by the ancestors” of the claim group and that the “claim group and their ancestors have continued to maintain a traditional physical connection with the application area and have lived their lives on and proximate to the application area”. The SFIC also stated that the claim group has maintained a spiritual connection to the application area, but the content of the spiritual connection was not developed further.

91    The applicant’s opening and closing submissions at trial focused upon physical access to and use of the waters of the claim area, whilst acknowledging that parts of the claim area were not accessed by their ancestors at effective sovereignty (and are not physically accessed today by members of the claim group due to the geography of the area). There are various references in both the applicant’s opening and closing written submissions to maintaining connection to the sea claim area through both physical use and the taking of resources and spiritual connection, most notably through Dreaming stories. The applicant’s written closing submissions annexed a summary of evidence given by claimants detailing their physical access to and use of the sea claim area, as well as some references to Dreamings. However, we do not consider that the applicant’s submissions advance a case that the claimed native title rights and interests in the sea claim area are supported solely by a claimed spiritual connection to the area, absent physical access.

92    Ultimately, however, it is not necessary to resolve whether the primary judge misapprehended the applicant’s case because, as emphasised by the State, the primary judge considered the evidence with respect to spiritual beliefs in reaching a conclusion as to whether the claim group held native title rights and interests in, and had a connection with, the entirety of the sea claim area.

4.3.2    Did the primary judge err in dealing with the evidence with respect to spiritual beliefs in defining the sea claim area?

93    We are not persuaded that the primary judge erred in her treatment of the evidence of spiritual beliefs in finding that the claimants’ native title in the sea claim area did not extend beyond the Accessible Area.

94    There are two distinct inquiries in determining, as s 223(1) of the NTA requires, whether native title exists: one relating to rights and interests in relation to land or waters (s 223(1)(a)), the other to connection with that land or those waters (s 223(1)(b)): Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 (Bodney FC) at [165] (Finn, Sundberg and Mansfield JJ). Each is sourced in the acknowledgement and observance of traditional law and custom. It may be in a given case that the evidence necessary to establish connection will be the same as that used to identify the claimed rights and interests. Nonetheless, each serves its own purpose and the distinction between the two inquiries can be “critical”: Bodney FC at [165] citing Western Australia v Ward [2002] HCA 28; 213 CLR 1 (Ward HC) at [19] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

95    The principles relevant to each inquiry are well-established and need not be restated here: see, eg, Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (Wyman) at [450]-[463] (Jagot J), upheld on appeal in Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; 235 FCR 464; and Stuart v South Australia [2023] FCAFC 131; 299 FCR 507 at [290] (O’Bryan J), as endorsed in Stuart v South Australia [2025] HCA 12; 99 ALJR 731 (Stuart) at [25] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

96    To those principles, we would add that general evidence as to spiritual connection such as witness statements to the effect that “country” extends “as far as the eye can see” are not ordinarily sufficient, in and of themselves, to support an inference relevant to s 223(1)(a) of the NTA, as to the extent of the land or waters in relation to which native title rights and interests are held: cf, Yarmirr v Northern Territory (No 2) [1998] FCA 771; 82 FCR 533 (Yarmirr) at 570-574 and 576-577 (Olney J); The Lardil Peoples v State of Queensland [2004] FCA 298 (Lardil) at [110]-[119], [125], [170]-[171] and [227]-[233] (Cooper J); see also by way of analogy, State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186; 239 FCR 175 (Willis) at [180]-[183] (Barker J), at [36] (Dowsett J), and at [85] and [101] (Jagot J).

97    Native title can only be understood as a combination of rights and interests in relation to land or waters: cf, NTA s 223(1)(a); Yarmirr at 576; Lardil at [173]-[174]. General evidence in statements, in the absence of anything else, do not establish the rights or interests (if any) that lie behind the expression “country” or provide an edifice for that term under traditional law and custom: cf, Willis at [183]; Yarmirr at 576-577. They may represent, therefore, a beginning, not a beginning and an end, to the inquiry as to the land or waters in relation to which rights and interests are held under the traditional laws acknowledged, and the traditional customs observed, by the peoples concerned: cf, Willis at [183].

98    Similarly, while there is no requirement that connection under s 223(1)(b) of the NTA is to be made out by reference to any particular features within, or activities in respect of, the land or waters, it remains necessary to identify the content of traditional laws and customs and characterise their effect as constituting a “connection” of the peoples with the land or waters in question: State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143; 305 ALR 452 at [37]-[40] (Jagot, Barker and Perry JJ), citing Ward HC at [14] and [64]. Statements to the effect that “country” extends “as far as the eye can see” do not, without more, elucidate the content of the traditional laws and customs by which there may exist such a connection with particular land or waters.

99    The applicant bore the onus of proof in relation to each of s 223(1)(a) and s 223(1)(b) of the NTA. The standard of proof is the civil standard, on the balance of probabilities: Evidence Act 1995 (Cth) (Evidence Act) s 140(1). As the applicant emphasises, “Generally speaking … the party who bears the legal burden of proving the existence of … a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not … that the state of affairs exists”: Henderson v Queensland [2014] HCA 52; 255 CLR 1 at [89] (Gageler J), citing Jones v Dunkel (1959) 101 CLR 298 at 305 (Kitto J).

100    The difficulty for the applicant is that the primary judge found that the evidence did not rise above the generalised statements to which we have referred. The primary judge considered the evidence of the spiritual relationship between the claimants and the sea claim area, including their mythological beliefs. Her Honour found that many of the mythologies related to places within the land determination area, and were otherwise not linked to sites located within the sea claim area nor the subject of sufficient evidence to support a finding of native title rights and interests in the sea claim area beyond the Accessible Area: primary judgment at [1158]-[1160] and [1212]-[1218]. The primary judge gave substantive consideration to the Jeedara whale mythology, but emphasised the agreement by the experts that, “In its own right [it] does not establish an estate or the extent of a group’s connection to country”: primary judgment at [1183]. In any event, the applicant does not challenge the primary judge’s finding that the core narrative drawn from the witnesses with respect to this Dreaming “involves a whale … ‘hugging the coast’ but not out to sea”: primary judgment at [1211]. The expert evidence with respect to statements that sea country extended “as far as the eye can see” was that the claim group “were ‘affiliated’ with the [sea claim area] at effective sovereignty because it was part of their wider visible ‘landscape’ and through spiritual connection” and that “several significant mythologies explained the origin and features of the ocean and its inhabitants”: primary judgment at [1143] (emphasis in original).

101    We respectfully agree with the conclusion of her Honour that this evidence was not sufficient to draw an inference that it is more likely than not that, at sovereignty, the claimants’ forebears possessed rights or interests in the sea claim area beyond the Accessible Area under the traditional laws and customs acknowledged and observed by them and had a connection with the sea claim area beyond the Accessible Area by those laws and customs.

102    The applicant further contends that “the evidence of various Dreamings, the spirits in the sea, the spiritual connection regarding totems that includes whales and other sea animals and the knowledge that the sea is the traditional country” of the claimants, was not appropriately considered by the primary judge. That contention does not withstand scrutiny when regard is had to the six “themes” of evidence on the topic of mythology, sacred sites and spiritual connection considered by the primary judge and otherwise considered in the primary judgment: primary judgment at [314]-[865] and [1134]-[1265]. As the primary judgment reveals, the consistent thread in that evidence was that it was not sufficient to justify the drawing of an inference that it is more likely than not that by the traditional laws they acknowledged, and the traditional customs they observed, the claim group possessed rights and interests in, and had a connection with, the sea claim area beyond the Accessible Area.

103    It follows that grounds 1 and 2 are not established.

5.    The Claim Group (ground 3)

5.1    Introduction

104    In ground 3, the applicant contends that the primary judge erred in failing to have proper regard to, or give due weight to, the adjoining Far West Coast land determination and, as a result, erroneously found that the native title for the Far West Coast sea claim was held by a sub-group of the Far West Coast land determination native title holders, rather than the group as a whole. The particulars to ground 3 allege three specific errors.

105    The first is that the primary judge erred in failing to find that the Far West Coast land determination had determined that, under the traditional laws and customs acknowledged and observed by the Far West Coast claim group, the claim group possessed communal native title rights and interests in the land determination area (ground 3(a)).

106    The second is that the primary judge erred in failing to exercise her discretion under s 86(1)(c) of the NTA to admit into evidence the reasons for judgment in the Far West Coast land determination (ground 3(b)).

107    The third is that the primary judge erred in admitting evidence and in making findings that were inconsistent with the orders, or the findings underlying the orders, made in the Far West Coast land determination (ground 3(c)).

108    The primary judgment summarised the applicant’s case at trial with respect to the identification of the native title holders of the sea claim area as follows (at [83]-[84]):

83    The applicant submitted that any native title rights and interests held by Aboriginal people in the sea necessarily and logically had to arise from their rights and interests in the immediately adjacent land, as they did not “live” in the water. It was submitted that the coastal waters in the region were and are inseparable from the adjoining land and should be considered an extension of the land in which native title has already been determined. The applicant’s principal submission was that it would be inconsistent with the FWC Land Determination (and therefore illogical or legally impermissible) for the Court to conclude that no native title exists in the Sea Claim Area, or to conclude that native title rights and interests existing in the Sea Claim Area are held by persons other than those who hold native title in the immediately abutting land and waters. The illogicality is said to arise by reason of the Sea Claim Area being such a narrow slither in width together with the shifting and artificial nature of the Lowest Astronomical Tide such that the coastal waters should be regarded as an arbitrary line unknown to Aboriginal people, with the sea waters on one side of it being no different to the sea waters on the other.

84     The applicant contended that an effect of the FWC Land Determination was that persons comprising the “Far West Coast people” must be regarded as an Aboriginal society existing at sovereignty, the present day existence of which cannot be disputed. They alleged that the persons determined to hold native title in respect of the land did so “communally”, and that it must therefore be inferred that each of them held the native title rights in the whole of the Sea Claim Area just as they did in the whole of the FWC Land Determination Area. They emphasised the absence of any competing claim for native title on the seaward or landward external boundaries of the Sea Claim Area. They submitted that the reasons accompanying the FWC Land Determination contained findings of fact in relation to critical issues and that those facts could not be contested, contradicted or undermined by evidence adduced in this proceeding, or orders made by the Court.

109    The applicant submitted below that it followed from the Far West Coast land determination that the native title holders recognised by that determination “must necessarily be found to hold native title” in the Far West Coast sea claim area: primary judgment at [177]. That was because Mansfield J found that members of the Kokatha, Mirning and Wirangu language groups constituted a single society that together hold communal rights and interests in the Far West Coast land determination area. The applicant argued that this meant that “the Court was prohibited from enquiring into the existence or significance of coastal estates existing at sovereignty” because it would undermine the legal effect of the Far West Coast land determination as a judgment in rem: primary judgment at [178].

110    The primary judge rejected that contention for two reasons. First, her Honour concluded that the Far West Coast land determination did not state that all of the native title rights and interests in relation to the Far West Coast land determination area are held communally, and the determination did not specify which native title rights and interests are held communally: primary judgment at [200]. Second, her Honour reasoned that it is not inconsistent with a determination of communal title that rights and interests are held differentially by different people, or that some people have no rights or interests in parts of the determination area under their laws and customs: primary judgment at [208].

111    It followed that while the primary judge placed “great store” on the land determination, her Honour examined the question of the persons holding rights and interests in the sea claim area afresh by reference to the ancestors named in the land determination who hold “core” or “fundamental” rights in their coastal estates: primary judgment at [889] and [1308]. Her Honour found that those “coastal ancestors” did not include Kokatha ancestors named in the land determination because their estates did not immediately abut the sea claim area: primary judgment at [1304] and [1315].

112    The applicant challenges those findings on the grounds that the native title holders for the Far West Coast land determination area were determined to hold communal native title in the land determination area. The applicant argues that the primary judge erred because the findings she made with respect to the “coastal ancestors” impermissibly contradicted that determination.

113    The State, Commonwealth, Bunna Lawrie respondents and Laing respondents contend that ground 3 should be dismissed. They argue that the primary judge neither erred in her construction of the Far West Coast land determination, nor her consideration of what it means to hold native title communally. They submit that the primary judge’s conclusion that native title is held by the Mirning in some parts and the Wirangu in other parts of the sea claim area, but not the Kokatha, in no way undermines the land determination.

114    It is convenient to address ground 3, and the issues raised by the particulars to ground 3, under the following questions and in the following order:

(a)    First, what is the legal effect of the Far West Coast land determination in this proceeding?

(b)    Second, did the primary judge err in refusing to exercise her discretion under s 86(1)(c) of the NTA to “receive into evidence” the reasons for judgment in the Far West Coast land determination (ground 3(b))?

(c)    Third, did the primary judge err in failing to find that the Far West Coast land determination had determined that, under the traditional laws and customs acknowledged and observed by the Far West Coast claim group, the claim group possess communal native title rights and interests in the land claim area (ground 3(a))?

(d)    Fourth, did the primary judge err in admitting evidence and in making findings that were inconsistent with the Far West Coast land determination (ground 3(c))?

(e)    Fifth, if the primary judge erred in any of the respects referred to in grounds 3(a), (b) or (c), was the error material to her Honour’s conclusions in this proceeding?

5.2    What is the legal effect of the Far West Coast land determination in this proceeding?

115    As stated at the commencement of these reasons, the Far West Coast land determination is a determination of native title, made under the NTA by the Court with the consent of the parties, in favour of the Far West Coast People (who include descendants of Kokatha, Mirning and Wirangu people) in respect of an area of land and waters referred to as the Far West Coast area. The southern boundary of the Far West Coast land determination is the southern continental coastline which abuts the Far West Coast sea claim.

116    Both at trial and on this appeal, it was uncontroversial that a determination of native title made under the NTA operates in rem affecting the subject land or waters by way of a declaration of the native title to that land or waters: Wik Peoples v Queensland [1994] FCA 113; 49 FCR 1 at 8 (Drummond J); Western Australia v Ward [2000] FCA 191; 99 FCR 316 (Ward FC) at 368-9 (Beaumont and von Doussa JJ); Dale v Western Australia [2011] FCAFC 46; 191 FCR 521 (Dale) at [92]; Starkey v South Australia [2018] FCAFC 36; 261 FCR 183 (Starkey) at [198] (Reeves J, with whom White J agreed) and [288] (Jagot J, in dissent as to the result). As a judgment in rem, a native title determination binds the world at large and not simply the parties to the litigation. As a consequence, it is an abuse of process for a party to seek to re-litigate a fundamental matter expressly or necessarily encompassed within an earlier native title determination; and a party to a native title determination application cannot lead evidence that is inconsistent with a conclusion upon which an existing native title determination is based: Starkey at [204] (Reeves J).

117    As explained by Reeves J in Starkey (at [198]-[199]), the fundamental matters that are determined “once and for all” in a native title determination are those matters required to be determined by the provisions of the NTA, particularly s 223(1) and s 225, which include the persons who hold the rights and interests concerned, the nature and extent of those rights and interests in relation to that area, the nature and extent of other interests in relation to that area, and the relationship between those two sets of rights. It also follows that one of the most important fundamental matters disposed of by a determination of native title is that the native title rights and interests described in the determination owe their origin to the traditional laws acknowledged and the traditional customs observed by the claimants (at [200]-[201]). In that regard, Reeves J observed in respect of the earlier Kokatha Part A determination (at [202]):

… in order to obtain the Kokatha Part A determination, the Kokatha People also had to establish that the acknowledgement and observance of their traditional laws and customs which gave rise to their rights and interests in that determination area had continued, substantially uninterrupted, and their connection with that area under those laws and customs had been substantially maintained, since sovereignty. This continuity of observance and connection was therefore fundamental to their rights and interests in that area. Accordingly, I consider it follows that the Kokatha Part A determination also determined as a fundamental matter, once and for all, that the Kokatha People’s native title rights and interests in that area held that intrinsic continuity element.

118    The specific question that arises in this proceeding is the legal effect, if any, of the Far West Coast land determination in respect of the sea claim area. This is a question that has arisen in a number of previous cases, including Starkey. It is uncontroversial that a native title determination is a determination in relation to the particular land and waters that is the subject of the application made under ss 13 and 61 of the NTA. In Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350 (Warrie), Jagot and Mortimer JJ stated (at [112]) that a native title determination does not “reach beyond the land and waters which were the subject of the claim”. In other words, a native title determination in respect of one area of land cannot be definitive of the existence, or content, of native title rights and interests in respect of another area of land, regardless of the proximity of the areas and even if the same group of Aboriginal people claim an interest in both areas. Their Honours concluded that the application of traditional laws and customs to different areas of land and waters may vary, giving rise to different rights and interests, stating (at [81]):

In particular, how Yindjibarndi law and custom operates to give rise to rights and interests is likely to vary because it is different land and waters: different people within the claim group may have a right to speak for it, the law which is present and to be observed on that land and waters might manifest itself differently (in terms of what can be or should be done, where and when). What needs to be protected, in terms of sites, will be specific to that land and waters. How and where within the claim area individuals or families or groups acquire rights to speak and protect particular areas under traditional law and custom will be specific to the land and waters involved. We do not see why it is necessarily beyond argument that the actual nature and content of the rights which might arise under traditional law and custom may not be different. Taking an example which is hypothetical, but not uncommon in Australian native title litigation, there may be areas of land and waters over which rights and interests are found to be shared with other groups, or where rights and interests may not be as readily seen exclusive because the area abuts the country of people with a different set of traditional laws and customs. In such an area, perhaps there might not be any right or interest which equates to an exclusive right, or the evidence might be more opaque, even though there is but one overarching source of traditional law and custom. However, in country centrally and firmly connected to one group, and recognised by other groups to be so, rights equating to exclusive rights may be clearly apparent. All will depend on the evidence. There are not necessarily any hard boundary lines, or prohibitions on how rights and interests might be articulated, and many nuances in terms of the nature and content of rights in land and waters are possible.

119    It remains the case, however, that a native title determination is a determination in rem, with the consequence that a person may not, in later proceedings, seek to contradict a determination of native title, or the findings which were essential to that determination: Warrie at [594] (White J). The findings which are essential to the determination can have relevance to a native title claim area that is beyond the land and waters that are the subject of the determination. This was expressly recognised by Jagot and Mortimer JJ in Warrie (at [141]) by reference to the earlier decision of Jagot J in Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777. In that case, Jagot J summarily dismissed a native title determination application made by the Bidjara people over an area of land for the reason that, in the earlier decision Wyman, the Bidjara people had not proved continued acknowledgement and observance of their traditional laws and customs in relation to a different area of land. In Warrie, Jagot and Mortimer JJ observed (at [141]):

… In Wyman v Queensland (No 2) [2013] FCA 1229 (the earlier decision) her Honour had concluded that the Bidjara People had not proven continued acknowledgement and observance of their traditional laws and customs in relation to the area of land known as the “overlap area”: see Wyman at [26]-[28]. That is a factual finding likely to affect any future native title claim made by the Bidjara People, even over different land and waters. We see that as quite a different situation to the present. It may be possible for a finding of that kind to be revisited in a s 13 application, but it is otherwise understandable why a claim group might not be permitted to proceed with further claims over other land and waters if there has been a clear finding of no continuity in the observance of their traditional laws and customs: such a finding is less specific to any particular land or waters.

120    This was also recognised by the High Court in Stuart in respect of the Arabana people. Stuart concerned a native title claim over a relatively small area of land which included the township of Oodnadatta in South Australia (referred to as the ‘Overlap Area’ because of a competing claim to that area). The circumstances of the claim, which have similarities with the present proceeding, were described by the High Court plurality (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ) as follows (at [6]-[7]):

6    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, 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 [Aboriginal Lands Trust] but this never eventuated.

7     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.

121    The findings which were essential to the 2012 Arabana Determination (Dodd v South Australia [2012] FCA 519) assumed considerable significance in each of the judgments of the High Court in Stuart, even though the claim being considered in Stuart concerned a different area of land and waters and notwithstanding that the earlier 2012 Arabana Determination was a consent determination made pursuant to s 87 of the NTA.

122    The plurality confirmed that the 2012 Arabana Determination established certain facts that were relevant to the claim in respect of the Overlap Area, stating (at [81]-[85], citations omitted):

81    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 (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)).

82     The 2012 Arabana Determination was a consent determination made under s 87 of the Native Title Act. 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”; 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; 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”.

83     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” 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”.

84     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.

85    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, 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 and also to adopt any decision or judgment of the Court. 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.

123    In separate reasons, Jagot J similarly observed (at [178]):

178    … 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.

124    The judgment of the plurality in Stuart confirmed that an earlier native title determination (in respect of one area) may have evidentiary significance in a later native title determination (in respect of another area) on two bases. First, the earlier determination has significance as an in rem decision, which establishes those matters required to be determined by the provisions of the NTA, particularly s 223(1) and s 225, and the findings which are essential to the matters so determined. Second, under s 86(1), the Court may receive into evidence the transcript of evidence in the earlier native title proceeding and may adopt any finding made in the earlier proceeding.

125    The reasoning and conclusions of the plurality with respect to the evidentiary effect of the 2012 Arabana Determination in the claim brought by the Arabana people in the Overlap Area has close parallels with the present proceeding, save in respect of s 86(1). In the present proceeding, the primary judge refused to exercise the discretion conferred by s 86(1) to adopt the findings made in the Far West Coast land determination. That refusal is one of the grounds of appeal, considered immediately below.

5.3    Did the primary judge err in refusing to exercise her discretion under s 86(1)(c) of the NTA to “receive into evidence” the reasons for judgment in the Far West Coast land determination (ground 3(b))?

126    The applicant submitted below that the reasons for the Far West Coast land determination should be received into evidence pursuant to s 86(1)(c) of the NTA. That section relevantly confers a discretion on the Court to “adopt any recommendation, finding, decision or judgment” from other proceedings before the Court, subject to s 82(1) of the NTA. Subsection 82(1) of the NTA provides that the Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

127    The primary judge found that it was not in the interests of justice to exercise the discretion conferred by s 86(1) in respect of any part of the Far West Coast land determination “over and above what is required by general law according to its status as a judgment in rem”: primary judgment at [193]. In reaching that conclusion, the primary judge took into account “the nature and extent of the issues to be determined in this different adversarial context relating to a different but closely related area”, as well as the extent of the material before her Honour as opposed to that before the Court on the consent determination: primary judgment at [193]. The primary judge also had regard to the opportunity the applicant had been given to put on evidence, including with respect to the laws and customs giving rise to native title rights and interests in the land determination area: primary judgment at [193].

128    The applicant contends that the primary judge erred because the reasons for the Far West Coast land determination were “highly relevant”. It should be accepted that the Far West Coast land determination, and the reasons for making that determination, were highly relevant to the sea claim. That was recognised by the primary judge (at [888]). The relevance is not merely that the sea claim is an area that abuts the Far West Coast land determination area. The relevance is strengthened by the nature of the claim as a claim over an area of sea. That circumstance means that, if and to the extent that native title rights and interests are held in the sea claim area, those rights and interests would necessarily be held by Aboriginal people holding rights and interests in the land adjacent to the sea claim area. This immediately requires attention to be given to the Far West Coast land determination, which is an in rem determination in respect of the native title rights and interest in the land adjacent to the sea claim area. Indeed, the circumstances of this case make it a somewhat unique case, where the relevance of an abutting native tile determination is apparent and strong.

129    There has been very little judicial explication of s 86(1) of the NTA. The section is expressed with permissive language, and it has been construed as conferring a discretionary power on the Court: Re Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [96] (Mansfield J); Fulton v Northern Territory of Australia [2016] FCA 1236 at [46] (White J). Relevantly, the section empowers the Court to receive into evidence the transcript of evidence in another court proceeding, draw any conclusions of fact from the transcript that the Court thinks proper, and to adopt any finding made by the other court. It would appear that the power so conferred is intended to overcome the evidentiary barriers that would ordinarily apply to admitting materials from an earlier proceeding as evidence in a later proceeding (such as the rules against hearsay and opinion) and to adopting a finding of fact made in the earlier decision (as to which, see s 91 of the Evidence Act). The power conferred by s 86(1) is expressed to be subject to s 82(1), which stipulates that the Court is bound by the rules of evidence, except to the extent that the Court otherwise orders. Presumably, the legislative intent is to require the Court, when considering whether to exercise the power in s 86(1) to admit evidence or adopt findings, to consider the application of the rules of evidence and whether and to what extent the rules should be applied to the evidence or findings. That legislative intent is confirmed by the Explanatory Memorandum to the Native Title Amendment Bill 1997, which stated (at [26.18]):

This provision enables the Court to save time or resources by choosing not to reconsider matters that have already been canvassed in earlier proceedings. However, this power is subject to the rules set out in subsection 82(1) about the rules of evidence.

130    Section 86(1) does not specify the considerations that are relevant to the exercise of the discretion. That does not mean, however, that the discretion is unfettered. The discretion must be exercised judicially having regard to the nature and purpose of the power and the consequences of its exercise for the parties to the proceeding. Relevant considerations include the objects of the NTA, which include establishing procedures for the just and proper ascertainment of native title rights and interests. That this objective is relevant to the discretion conferred by s 86(1) is confirmed by the Explanatory Memorandum, reproduced above, which states that s 86 enables the Court to save time or resources by choosing not to reconsider matters that have already been canvassed in earlier proceedings. Further, s 86(1) is appropriately characterised as a provision with respect to practice and procedure and is therefore subject to the considerations stated in s 37M of the FCA Act. It follows that the discretion conferred by s 86(1) should be exercised in the way that best promotes the overarching purpose stated in s 37M to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. No doubt, principles guiding the exercise of the discretion in s 86(1) will develop on a case-by-case basis over time. As the High Court observed in Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at [24], the formulation of principles according to which a discretion should be exercised does not constitute a fetter upon the discretion; rather, the formulation of principles to guide the exercise of a discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.

131    As the decision of the primary judge not to adopt, under s 86(1), any of the findings made in the Far West Coast land determination was a discretionary decision, the Court will not interfere unless an error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 (House v The King) at 504-5 is shown to have been made in the exercise of the discretion. It is not sufficient for this Court to conclude that it would have exercised the discretion differently had it been in the position of the primary judge.

132    On the appeal, the applicant failed to identify any error in the reasoning of the primary judge of the kind identified in House v The King. The primary judge recognised that she was bound by the Far West Coast land determination as a determination in rem and had regard to its terms insofar as it was necessary to consider whether a finding would contradict or undermine the land determination (at [183]-[185], [195] and [200]). Her Honour concluded that it was not in the interests of justice to exercise the discretion under s 86(1)(c) to adopt the findings made in the land determination (at [193]). The interests of justice are a relevant consideration to the exercise of the discretion. Her Honour reached that conclusion having regard to “the nature and extent of the issues to be determined in this different adversarial context”. It is not entirely clear what her Honour meant in that regard. Her Honour may have been referring to the fact that the land determination was made by the Court with the consent of the parties whereas the sea claim involved a contested trial. If and to the extent her Honour considered that the findings made in the land determination had less inherent probative value because they were made in the context of a consent determination, we would respectfully disagree with that view. The fact that all parties to the land determination accepted the evidence and supported the determination being made does not diminish the probative value of findings made on the basis of that evidence. More relevantly, though, her Honour had regard to the extensive evidence that had been adduced in the proceeding, which in her Honour’s assessment was more extensive than the material that was before Mansfield J in the land determination. The applicant failed to demonstrate that her Honour erred in taking that consideration into account.

133    For those reasons, the applicant failed to demonstrate requisite House v The King error made by the primary judge in refusing to exercise the discretion to adopt the findings in, or “receive into evidence”, the reasons given for the Far West Coast land determination.

5.4    Did the primary judge err in failing to find that the Far West Coast land determination had determined that, under the traditional laws and customs acknowledged and observed by the Far West Coast claim group, the claim group possessed communal native title rights and interests in the land claim area (ground 3(a))?

5.4.1    The primary judge’s findings

134    The primary judge synthesised the applicant’s contentions at trial with respect to the meaning and effect of the Far West Coast land determination as follows (at [179], proposition 6):

Native title in the FWC Land Determination Area is held communally. The description of the native title as “communal” means that it is neither permissible nor necessary to enquire into which individuals or groups hold native title rights in particular parts of the FWC Land Determination Area. More specifically, it would contradict the FWC Land Determination to assert the existence of (or enquire into the existence of), coastal estates or tracts within any part of the FWC Land Determination Area as to do so would contradict the premise that the Far West Coast people are a single society, the members of which are united in their acknowledgement and observance of the same body of traditional laws and customs. It follows that a determination in relation to the Sea Claim Area that recognises as native title holders only those descendants of apical ancestors who are identified as having occupied coastal estates at sovereignty would impermissibly contradict the FWC Land Determination.

135    The primary judge accepted that the Far West Coast land determination is a determination in rem which is binding not only upon the parties to the proceeding in which the judgment was made, but upon all of the world (at [182]). Her Honour also acknowledged that, by reason of being a judgment in rem, the Far West Coast land determination cannot be contradicted in a subsequent proceeding and any evidence adduced for that purpose will be inadmissible to the extent that it is directed to that purpose, or must be afforded no weight (at [184]). Her Honour drew a distinction between the Far West Coast land determination, which is reflected in the orders of the Court, and the reasons for making the determination; her Honour stated that the parties to the sea claim are bound by, and cannot contradict, the land determination, but the reasons for judgment supporting the Far West Coast land determination were not admissible in proof of the facts stated in those reasons (at [185]). Nevertheless, her Honour acknowledged that the land determination encompasses factual matters that were essential to the determination (at [186]). The applicant does not challenge any of those conclusions.

136    The applicant’s appeal concerns the primary judge’s interpretation of the meaning of the Far West Coast land determination. As noted above, the applicant advanced the proposition at trial (proposition 6 reproduced above) that the Far West Coast land determination determined that the native title rights and interests in the land determination area are held communally by the Far West Coast People (who include descendants of Kokatha, Mirning and Wirangu people); that is, all members of the Far West Coast People hold native title rights and interests in the whole of the Far West Coast land determination area on a communal basis. The primary judge rejected that proposition (at [200]). Her Honour concluded (at [208]-[210]):

208    … Whether all members in fact possess native title rights and interests in all places of the FWC Land Determination Area was not a matter decided by Mansfield J. In the ordinary course, such questions are for resolution under the traditional laws and customs observed by the members. In this proceeding, it would not contradict the FWC Land Determination to find that rights and interests are held differentially by different people, or that some people have rights and interests in some parts of the FWC Land Determination Area but no rights or interests in other parts according to the laws and customs of the society of which they form a part.

209     Nor would it contradict the FWC Land Determination to identify the existence of Aboriginal groups that may be referred to as Mirning, Wirangu and Kokatha people having connections with different places within the FWC Land Determination Area, albeit subject to a body of traditional laws and customs operating at a regional level explaining how relations between the groups are regulated. The reasons of Mansfield J are not evidence in this proceeding, but the concept of a “regional society” was adverted to in his Honour’s reasons (at [57]), including a refence to distinct groups associated with distinct geographical areas with a body of law governing the interactions between them. The phrase “regional society” was used throughout this proceeding in a way that encapsulated that concept. The existence of that society and its legal consequences fall within the scope of the trial on the Preliminary Questions and must be resolved by reference to the evidence.

210     Accordingly, I consider that the applicant’s sixth proposition is wrong in that it attributes a meaning and consequence to the word “communal” that does not accord with the NT Act, nor is it the asserted meaning demanded by the FWC Land Determination itself.

137    On this appeal, the applicant contends that the primary judge erred in two respects. First, the applicant submitted that the reasons given by the primary judge for her conclusion do not support the conclusion. Second, the applicant submitted that the conclusion reached by the primary judge is in error. It is convenient to address each submission in turn.

5.4.2     Were the reasons given by the primary judge for her conclusion in error?

138    The primary judge reasoned that the native title rights and interests determined for the land determination area were not expressed in the Far West Coast land determination as being held communally because (at [200]):

… The determination itself states that “the native title rights and interests are for personal, domestic and communal use” (at [11]), but does not specify which of the rights and interests met which of those descriptions.

139    In our respectful view, that reasoning was in error because the primary judge conflated the provisions of the determination dealing with a limitation on the enjoyment of the determined native title rights and interests with those parts of the land determination dealing with how native title is held.

140    The nature and extent of the native title rights and interests in the Far West Coast land determination area are specified in Order 10 which states, “Subject to [orders] 11, 12, 13 and 14 the nature and extent of the native title rights and interests in the [determination area] are non-exclusive rights to use and enjoy, in accordance with the native title holders’ traditional laws and customs, the land and waters, being …” the non-exclusive rights listed in Order 10. These include, amongst others: the right to hunt on the determination area, the right to fish on the determination area, and the right to gather and use the natural resources of the determination area.

141    Orders 11 to 14 of the Far West Coast land determination deal with “General Limitations”. Order 11 provides:

The native title rights and interests are for personal, domestic and communal use.

142    Read in context, Order 11 imposes a limitation on the purpose for which the determined non-exclusive native title rights may be enjoyed (for “personal, domestic and communal use”) and is not a statement as to how those native title rights and interests are held by the native title holders: cf, eg, Willis at [120]-[127], [136]-[154] (Barker J); see also, at [35]-[41], [44] (Dowsett J), [93], [99]-[100] and [112]-[113] (Jagot J).

143    Counsel for the State and counsel for the Bunna Lawrie respondents argued that that aspect of the primary judge’s reasons is to be read as a rejection of the proposition that the Far West Coast land determination necessarily, or implicitly, provides that there exists a communal title. That may be so, but the difficulty remains that the primary judge based that conclusion on a part of the land determination that does not purport to say anything about how native title rights and interests are held. To do so was in error.

144    Although we consider that aspect of the primary judge’s reasoning to be erroneous, it nevertheless remains necessary to consider whether the primary judge’s conclusion with respect to the meaning of the Far West Coast land determination was in error. That is considered in the next section.

5.4.3    Was the conclusion reached by the primary judge in error?

145    Irrespective of whether the primary judge erred in her construction of Order 11 of the Far West Coast land determination, the State, Commonwealth and Bunna Lawrie respondents argued that the primary judge did not err in her Honour’s interpretation of the determination. The respondents argued that the Far West Coast land determination is not to be construed as determining that the native title is held communally, such that all of the native title holders hold native title rights and interests in all of the determination area. Their arguments, as well as those of the applicant, relied not only on the terms of the Far West Coast land determination, but also the reasons given by Mansfield J for judgment. They raise questions as to the use of reasons in construing orders of the Court, as well as what it means to hold communal native title, to which we turn below.

5.4.3.1    Use of reasons in construing orders

146    It is well established that an order of the Court, which is ambiguous or capable of more than one meaning, is to be construed in the context of the judicial reasons for making the order: Repatriation Commission v Nation [1995] FCA 355; 57 FCR 25 at 33-34 (Beaumont J, with whom Black CJ and Jenkinson J agreed). However, many authorities emphasise the necessity of reading orders in light of the reasons for judgment from which the orders emanate. In Yates Property Corporation Pty Ltd v Boland [1998] FCA 1605; 89 FCR 78 (Yates), Drummond J (with whom Sundberg and Finkelstein JJ agreed) observed (at 78):

It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand an order in isolation from the context of the reasons for it being made.

147    A similar view was expressed by Santow JA in Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 (Athens) at [129] (emphasis in original, Tobias JA agreeing):

To pose the question as simply, can ambiguity in court orders be resolved by reference to their external context, obscures the point of what an order sets out to do. The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract. The order must therefore conform to the judgment, with only such latitude as the judgment allows. Likewise the transfer must conform to the contract. To speak therefore of the originating judgment as providing context for resolving ambiguity understates the primacy of that judgment as a source of the interpretation of the order.

148    As Derrington J observed in Leviston v PQ Management Pty Ltd (No 3) [2023] FCA 986 at [19], the weight of contemporary authorities supports the view that an order of the Court is to be construed in the context of the reasons for which it was made, even if the order is apparently unambiguous. The appellate authorities include: Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232 (Andrews CJ, with whom Kelly SPJ agreed); Yates at 78-79 (Drummond J, Sundberg and Finkelstein JJ agreeing); Athens at [28]-[29] (Hodgson JA, with whom Tobias JA agreed), [129]-[140] (Santow JA, with whom Tobias JA agreed); AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 at [98]-[104] (Campbell JA, with whom Handley AJA agreed); Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185 at [58] (Mazza, Mitchell and Beech JJA); Lim v Comcare [2019] FCAFC 104; 165 ALD 217 at [40]-[41] (McKerracher, Markovic and Snaden JJ); and Doyle v Commissioner of Police (No 2) [2020] NSWCA 34 at [58] (Leeming JA); Ganesh v National Australia Bank Ltd [2021] VSCA 45 at [74] (McLeish, Sifris and Kennedy JJA); and Johnson v CUB Pty Ltd [2021] FCAFC 219; 287 FCR 520 at [50] (Bromwich and O’Callaghan JJ).

149    The importance of reading orders in light of the reasons for judgment from which the orders emanate is particularly important in the context of native title determinations. Section 94A of the NTA stipulates that an order in which the Court makes a determination of native title must set out details of the matters mentioned in s 225, which includes whether or not native title exists in relation to a particular area and, if it does exist, a determination of who the persons, or each group of persons, holding the common or group rights comprising the native title. As this appeal illustrates, a determination of native title may be premised on particular characteristics of the native title rights and interests that are not expressed, or expressed fully, in the orders that constitute the determination. The characteristics of the rights and interests may only be revealed by the reasons for making the determination, which will explain the traditional laws and customs acknowledged and observed by the native title holders under which they possess rights and interests in the determination area and by which they have a connection with the determination area.

5.4.3.2    What is a determination of communal title and what is its effect?

150    In construing the Far West Coast land determination, it is also necessary to have regard to the definition of native title in s 223(1) of the NTA, which relevantly stipulates that:

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.

151    The distinction between communal, group and individual rights and interests has been considered in a number of cases. The Far West Coast land determination must be understood in light of those legal principles.

152    The primary judge approached the question of what constitutes “communal native title” from the proposition that “communal” must bear a statutory meaning because it appears in s 223(1) of the NTA and that statutory meaning is informed by Brennan J’s reasons in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo (No 2)) on which s 223(1) of the NTA is based (at [203]). Her Honour made reference in this regard to the statement by Brennan J in Mabo (No 2) that (at 61-62):

… native title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal usufructuary in nature and whether possessed by a community, a group or an individual. The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld. Of course, in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed. …

… where an indigenous people (including a clan or group), as a community, are in possession or are entitled to possession of land under proprietary native title, their possession may be protected or their entitlement to possession may be enforced by a representative action brought on behalf of the people or by a sub-group or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. Those rights and interests are, so to speak, carved out of the communal native title. A sub-group or individual asserting a native title dependent on a communal native title has a sufficient interest to sue to enforce or protect the communal title. A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands.

(Emphasis in primary judgment)

153    The primary judge then referred (at [205]-[206]) to two early determinations made under the NTA: Yarmirr and Ward FC. The primary judge outlined that each proceeding involved a determination of native title in favour of a community comprised of multiple “groups”. Having surveyed those authorities, the primary judge reasoned (at [208]):

Returning to the present case, to adopt a phrase from Mabo (No 2), it may be assumed that the native title is enjoyed by the members of the group defined in the Far West Coast land determination “according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed” (the emphasis is mine). To say that is not to deny that the native tile is held communally, it is simply to say that the answer to the question is not found on the face of the determination itself, nor is it supplied by necessary implication. Whether all members in fact possess native title rights and interests in all places of the Far West Coast land determination area was not a matter decided by Mansfield J. In the ordinary course, such questions are for resolution under the traditional laws and customs observed by the members. In this proceeding, it would not contradict the Far West Coast land determination to find that rights and interests are held differentially by different people, or that some people have rights and interests in some parts of the Far West Coast land determination area but no rights or interests in other parts according to the laws and customs of the society of which they form a part.

154    We do not agree with that reasoning because it fails to have regard to the requirements imposed by s 94A and s 225 of the NTA with respect to an order containing a “determination of native title” as explained by the Full Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 (Alyawarr FC) at [78] (Wilcox, French and Weinberg JJ) and the majority in Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; 276 FCR 203 (Drury) at [26] (Mortimer and Colvin JJ).

155    An order in which a determination of native title is made must set out the matters mentioned in s 225: NTA s 94A. This includes, relevantly, “a determination of whether or not native title exists in relation to a particular area” and, if it does, a determination of “who are the persons, or each group of persons, holding the common or group rights, comprising the native title”: NTA s 225(a).

156    That demarcation reflects that s 223(1) of the NTA “envisages three possible native title “owning” entities – the community (or “society”) under whose laws and customs native title is possessed, a group or groups, and an individual or individuals”: Bodney FC at [146], citing Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [1135] (Lindgren J); see also, De Rose v South Australia & Ors (No 2) [2005] FCAFC 110; 145 FCR 290 at [38]-[44] (Wilcox, Sackville and Merkel JJ).

157    It is a question of fact in each case as to whether native title rights and interests in a particular area are “owned” by all members of the relevant society (which may be shared intramurally), or by a particular group or groups, or by a particular individual or individuals within that society: Alyawarr FC at [78]-[80] (Wilcox, French and Weinberg JJ); Drury at [22] (Mortimer and Colvin JJ, White J dissenting). Irrespective, those factual findings are to be given effect by a determination of native title under s 94A and s 225 of the NTA which determines the community (which may, but need not be, coincident with the relevant society) that holds the rights and interests comprising the native title: Alyawarr FC at [79]-[80] (Wilcox, French and Weinberg JJ); Drury at [22], [27]-[28] (Mortimer and Colvin JJ).

158    That is not to ignore the influence of the judgment of Brennan J in Mabo (No 2) on the provisions of the NTA. But, as the majority highlighted in Drury, the declaration made by the Court in Mabo (No 2) was global and declared the rights held by all Meriam people, whereas (at [22]):

It is a question of fact in each case as to whether the common connection, by reason of the manner in which it is shared, results in communal ownership by all members of the society (which may be shared intramurally) or in communal ownership of particular areas by particular individuals or groups with no communal ownership by the whole society. If communal ownership is found to be held by a particular group rather than the whole society then all the members of that group hold the native title. However, the Native Title Act does not contemplate some form of derivative or subsidiary communal title which is also a native title such that each intramural right or interest possessed by a sub-group or individual has the same character as the community title described in Mabo (No 2).

159    It followed, the majority reasoned in Drury (at [28]), that where supported by the factual findings, even a single claimant application “may give rise to multiple overall determinations, especially where the conclusion reached is that there are separate societies each with native title over the land the subject of the application”. In Drury, the factual findings supported a determination of separate, overlapping native titles respectively held by the Malgana people and the Nanda people and derived from the laws and customs of separate and distinct normative systems (at [3]).

160    The Commonwealth submitted, based on the statements of Brennan J in Mabo (No 2) at 61-62, that within “one native title” there may be sub-groups or individuals whose rights and interests are “carved out” of the communal native title. So much can be accepted, with the proviso stated by Brennan J that any such group or individual rights and interests are dependent upon (and not independent of) the communal native title.

161    The Commonwealth further submitted, based on the above-cited passage from Drury, that where a determination recognises multiple groups holding native title under the “communal title of a broader society”, then what is “carved out” of the communal title is a group title held by each group. The submission is stated in such loose terms that it cannot be accepted. Whether there are groups within a native title holding community that also hold group rights and interests is a question of fact in each case and cannot be assumed; and whether the group rights and interests constitute a separate native title from the native title held by the community as a whole is also a question of fact. Drury was not such a case because, as noted above, there were two separate societies for the area under which separate groups owned distinct, but overlapping, native titles.

162    The Commonwealth next submitted that, in effect, there is a discretion as to how multiple group determinations may be reflected in orders made under s 94A and s 225 of the NTA, asserting that: “In some cases a multiple group determination will map the interests of a sub-group; in other cases (such as in the Far West Coast Land Determination) it will leave that to be determined intramurally in accordance with traditional law and custom”. That submission cannot be accepted because it is at odds with the view expressed in Drury and Alyawarr FC: that a native title determination determines the native title owning group or groups. Moreover, rights and interests cannot be determined intramurally by the native title holding group when some of its members do not possess those native title rights and interests under traditional law and custom.

163    There is a tension between Drury and Alyawarr FC and some of the earlier decisions of this Court. Most notable amongst these is Yarmirr (to which the primary judge referred at [205]) in which Olney J made a global determination in favour of a single community comprised of five different estate groups with traditional rights in discrete areas of land and sea: at 569-570, 601-603. But, as appears from Alyawarr FC, that tension can be reconciled when one appreciates the context in which Yarmirr was determined – that is, before Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 (Yorta Yorta), which brought into focus the requirements of the statutory definitions of “native title rights and interests” and “determination of native title” in s 223(1) and s 225 of the NTA.

164    At issue in Alyawarr FC was the correctness of a single determination of native title in favour of a community comprised of seven estate groups. At first instance, the primary judge found that there existed a single communal title because the evidence revealed that while there were “different subgroups or persons who have particular responsibility for parts of the claim or particular sites”, nevertheless, there was “a significant crossing or sharing of such responsibilities across particular persons from different estate subgroups which arises under the broader communal laws and customs”: Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory [2004] FCA 472 at [132], cited in Alyawarr FC at [108]. On appeal, the Northern Territory contended that was in error, and there ought to have been separate determinations in favour of each of the estate groups, because “connection” to the claim area, as required by s 223(1)(b) of the NTA, was not established at the claim group level (Alyawarr FC at [110]).

165    The Full Court in Alyawarr FC rejected that contention, concluding that the “evidence of extensive connections across the seven groups” supported the characterisation of the “title as communal over the whole area rather than as severally held by the estate groups in respect of their particular estates” (at [112]). In reaching that conclusion, the Full Court examined the “developing law of native title” relevant to ascertaining the rules which govern the recognition of native title at common law, and how they are given effect by the definitions of “native title rights and interests” and “determination of native title” in s 223(1) and s 225 of the NTA (at [62]-[93]). This commenced with an identification of the basic propositions emerging from Mabo (No 2), including as noted by the primary judge, that the “communal character of native title” emerges from the observation of Brennan J, that it “enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights or interests in the community’s lands” (at [69], citing Mabo (No 2) at 62). The Full Court highlighted the “global determination” made in Mabo (No 2), noting that it was made “[n]otwithstanding the existence of groups and individuals [amongst the Meriam people] with particular native title rights and interests” (at [70]).

166    The Full Court in Alyawarr FC then considered the decisions under the NTA, remarking that in “Yorta Yorta the centrality of the statutory definition of native title rights and interests and ‘determination of native title’ was emphasised”, with the majority stating that a determination under the NTA was “a creature of that Act, not the common law” (at [74], citing Yorta Yorta at [32] (Gleeson CJ, Gummow and Hayne JJ)). There followed a consideration of the requirements of the inquiry for which s 223(1) calls and the introduction of the concept of “society” by the High Court in Yorta Yorta as a “conceptual tool for use in its application” to identify the repository of traditional laws and customs, acknowledged and observed since sovereignty, under which native title rights and interests are possessed, and by which, the persons holding native title rights and interests have a connection to their lands and waters (at [78]).

167    Turning to s 225 of the NTA, the Full Court in Alyawarr FC found that the determinations which may be made under that section “cover a range of possibilities which depend upon the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title claimed” (at [79]-[80]):

79    … In some cases the members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans. This was the case in Sampi v State of Western Australia [2005] FCA 777. The relevant community in that case was geographically confined to the Dampier Peninsula. Lawmen had global responsibilities encompassing law grounds in each of the clan estates. There was an area accessible to all members of the community and regency arrangements in relation to vacant estates. The traditional laws and customs, as explained in the evidence, supported a principle of communal ownership.

80    If, on the other hand, the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw. In De Rose v State of South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts.

168    The Full Court then noted that there “have been native title determination cases, preceding the decision in Yorta Yorta, which involved multiple groups” which it proceeded to consider at [81]-[86].

169    In dealing with Yarmirr, the Full Court in Alyawarr FC acknowledged that Olney J made a global determination in respect of five different estate groups asserting traditional rights and interests in respect of discrete areas of land and sea (at [82]). However, the Full Court emphasised the circumstances in which, and the reasons why, that determination was made, namely, the members of the different estate groups “saw themselves as a single community and brought the application on that basis”, and Olney J said (at 570):

Such an approach was adopted in the declaration made in Mabo (No 2) and was clearly contemplated by the reference in s 223(1) of the Native Title Act to “the communal group or individual rights and interests of Aboriginal peoples …”

170    It can be seen, therefore, that the global determination in Yarmirr was informed by the declaration in Mabo (No 2). There followed the decision of the High Court in Yorta Yorta, which brought into sharp relief the particular requirements of the statutory definitions of “native title rights and interests” in s 223(1) and “determination of native title” in s 225 of the NTA.

171    As the Full Court made explicit in Drury (at [22]), under the NTA, if communal ownership is found to be held by a particular group rather than the whole society then it is the members of that group that hold the native title. The Full Court also considered Ward FC, to which the primary judge referred. That was also a single determination recognising the Miriuwung and Gajerrong groups. Ward FC is, however, in a different category to Yarmirr. That is because while the native title holders were variously affiliated with the Miriuwung and Gajerrong groups, they were found to be members of a single community enjoying “differing arrays of rights within and outside their particular family or estate country” (Ward FC at [239]). As the Full Court explained in Alyawarr FC (at [81]), this says that a “composite community of estate holding groups may comprise a community which enjoys communal ownership of the native title rights and interests albeit there may be intramural allocations between particular family or clan groups or other subsets of the community”.

172    The Commonwealth referred the Court to Neowarra v Western Australia [2003] FCA 1402 (Neowarra) which was also considered in Alyawarr FC. Neowarra was determined after Yorta Yorta. In Neowarra, a determination was made recognising the members of the Wanjina-Wunggurr Community “for their respective communal, group and individual rights and interests” in the determination area. The Wanjina-Wunggurr Community was comprised of “dambun” and language level groupings. Justice Sundberg rejected the contention that native title should be recognised at the level of those groupings (at [387]-[388]). That was because the Wanjina-Wunggurr Community held “various rights and interests communally” in the determination area, while “various sub-groups and as individuals” the community held “various sets of rights and interests in various sub-areas of, and places within” the determination area (at [384] and [387]-[398]). This reflected evidence that members of the Wanjina-Wunggurr Community, other than the dambun or language group members themselves, had rights and interests in the land and waters associated with the various dambuns or language groupings and that responsibility for, or control of, the land and waters of those parts of the determination area did not follow from occupation of it (at [387]-[390]). It is, therefore, a determination that accords with the reasoning in Alyawarr FC and Drury.

173    The Commonwealth also referred the Court to four examples of “multiple group determinations” made after Alyawarr FC and before Drury: Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932 (Lovett); Hunter v State of Western Australia [2012] FCA 690; Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 (Budby); and Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 (Manado). A feature of each of those determinations is that at least part of the area determined was shared or held jointly by the multiple groups named in the determination. For example, in Manado, the determination further provided for discrete determined areas that were held separately by each respective group. As such, the determinations accord with and usefully illustrate the principles discussed in Alyawarr FC and Drury because they reflect the differing possibilities for a determination of native title involving multiple groups, be it overlapping native titles each held by a separate group, a single native title held by a composite group, or separate areas each held by a separate native title owning group.

174    The Bunna Lawrie respondents referred the Court to the separate reasons for judgment of Gordon and Edelman JJ in Commonwealth v Yunupingu [2025] HCA 6; 99 ALJR 519 (Yunupingu). On their case, those reasons support the proposition that it does not follow from a determination of native title that native title rights and interests are held by all of the native title holders in all of the determination area. The aspects of the reasons upon which the Bunna Lawrie respondents rely concerned the differences between native title and property rights as ordinarily understood at common law. Material amongst those differences identified by Gordon J in Yunupingu were that “native title does not exhibit the uniformity of rights and interests of an estate in land at common law” and will vary from group to group (at [140], citing Yanner v Eaton [1999] HCA 53; 201 CLR 351 (Yanner) at [72] (Gummow J)). Her Honour also observed that “native title involves a ‘communal’ or ‘special collective’ set of rights or interests” which do not “correspond to the concept of ownership as understood by the land law of England” (at [141], citing Mabo (No 2) at 178-179 and Yanner). To similar effect, Edelman J outlined in Yunupingu (at [286], citations omitted):

“Native title” is also a loose description. It is loose in two respects. The first respect in which “native title” is a loose description is that it conflates two different dimensions: the source of the common law rights and interests and the legal recognition of those rights and interests. In one sense, “native title” can describe the norms that underlie the traditional laws and customs of Aboriginal and Torres Strait Islander peoples, which create rights and interests in relation to land, waters, and chattels. This was the sense in which Brennan J used “native title” in Mabo (No 2) when his Honour spoke of native title being ascertained “as a matter of fact by reference to [traditional] laws and customs” and of native title being recognised by the common law but not being an “institution of the common law”. But “native title” can also be used to describe the rights and interests existing at common law after recognition at common law of those norms. That was the sense in which Deane and Gaudron JJ used the expression “common law native title” in Mabo (No 2) and that is the sense in which the expression is used, interchangeably with “native title rights and interests”, in the Native Title Act. In these reasons, the norms that underlie the traditional laws and customs of Aboriginal and Torres Strait Islander peoples, which create rights and interests in relation to land, waters, and chattels, will be described as “native title norms” rather than merely “native title”, as Brennan J had described them. By contrast, the expression “native title rights and interests” will be used to describe the rights and interests as recognised by the common law, where that recognition was based upon native title norms.

175    We are not persuaded that the reasons of Gordon and Edelman JJ support the proposition for which the Bunna Lawrie respondents contend. It is uncontroversial that the rights and interests that may be enjoyed by First Nations people in land and waters under traditional laws and customs “are not to be understood as confined to the common lawyer’s one-dimensional view of property”: Ward HC at [95] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). As was emphasised by the majority in Ward HC (at [14]):

… The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal…

176    That process of translating the spiritual into the legal is given effect by a determination of native title under s 94A and s 225 of the NTA. That determination may take a variety of forms. But where the determination recognises a single native title holding group, it follows that its constituent members hold native title in the entirety of the determination area, albeit that there may be an intramural allocation of native title rights and interests under the traditional laws and customs they acknowledge and observe.

177    To summarise the conclusions we have reached, in making a determination under s 225 of the NTA, a distinction is to be drawn between the society that is the repository of traditional laws and customs under which members may hold native title rights and interests in land and waters and the members of the society that do hold those native title rights and interests in an area of land and waters under traditional law and custom. A determination is to recognise the persons, or each group of persons, that hold the rights and interests comprising the native title. There may be an intramural allocation of those rights and interests amongst the native title holding group, such that some have particular privileges (eg, to speak for an area) and others particular restrictions (eg, gender-based restrictions on access). It may be that the persons holding the native title rights and interests are one and the same as the society from which they are derived. It may be that there are two separate societies for the determination area under which there are two separate, but overlapping, native title holding groups. But where the native title holding is comprised of multiple groups, each group holding native title rights and interests in a distinct area of land and waters under the laws and customs of a single society, that is to be recognised in multiple determinations: one for each native title holding group.

178    A useful illustration of this is the determination made in Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; 204 FCR 1 (Akiba (No 2)). In that case, Finn J recognised the existence of “one society” under whose laws and customs there existed distinct “marine estates” for which the “primary holding groups” were claim group members of “individual island communities” (at [492], [636]-[638]). Such marine estates were “held severally by an island community or, for certain areas, [were] shared” (at [638]). These several marine estate titles were delineated by a “tenure blanket” reflecting community estates extending “outwards until it meets the estate of another community in what characteristically is a shared area” (at [640]). As appears from the Orders made by Finn J, there were nine determination areas, each being held by a different island or cay group or groups.

5.4.3.3    How is the Far West Coast land determination to be construed?

179    The authorities discussed above identify the different forms that a determination of native title rights and interests may take. In our view, the Far West Coast land determination must be construed as recognising a single communal title under which all the native title holders recognised hold native title rights and interests in the determination area as a whole, albeit that there may be an intramural allocation of those rights and interests amongst particular groups (eg, Kokatha, Mirning or Wirangu) including in particular parts of the determination area. That is for three reasons.

180    First, the language of the Far West Coast land determination, as properly construed, identifies the persons holding the native title for the purposes of s 225 of the NTA as a single group. That is identified by the use of “people” singular in the determination itself. The native title holders are relevantly defined in Order 9(A)(i) as “those living Aboriginal people who … are descendant either through birth or adoption from one or more of the following Kokatha, Mirning and Wirangu antecedents”. The listed antecedents are:

Bingi; Eliza Ellen (Ware); Maggie, mother of Jimmy Scott; Yari Wagon Billy; Koigidi and Anbing; Kulbala; Eva and Pompey; Jinnie (Dunnett); Yabi Dinah; Siblings Nellie Gray, Dhubalgurda Frank Gray and Kwana Teddy Gray; Bobby Wandrooka; Wirangu mother of Jimmy and Arthur Richards; Wirangu mother of Ada Beagle; Tjabilja (Lawrie); Sally Broome; Mark Mirka Kelly; Tommy Munia; Peter and Nellie Tjubedie; Binilya and Kaltyna; Topsy (Miller); Harry Yari Miller, son of Maggie Burilya; Maggie Inyalonga (Miller); Billy Danba (Dunbar) and Topsy; Billy Benbolt and Fanny; Judy (Struthers); Nellie (Betts); Emma (Bilney); Jimmy Blueskin; Jack McCarthy; Eva Nudicurra (Modikari); Marangali Jim Young and Lucy Mundy; Betsy (affinal links to Tjuna family); Siblings, Milaga (affinal links to Tjuna family) and Munjinya; and Toby Ngampija Roberts, son of Moonlight Lightning.

181    Those persons are additionally required to be recognised by other native title holders as a person who has “realised their rights” through “knowledge, association and familiarity” with the determination area. Orders 9(A)(ii) to 9(C) identify additional pathways to membership of the native title holding group being descent from an acknowledged Kokatha, Mirning or Wirangu antecedent; birth within the land determination area and mythical and ritual knowledge and experience of the land determination area and responsibility for sites and strings of sites within it. Those pathways also contain the requirement of recognition by other native title holders and, in the case of descent from a Kokatha, Mirning or Wirangu antecedent, a realisation of rights. Those other pathways to membership of the native title holding group do not alter the characterisation of the Far West Coast land determination as recognising a single communal title held by the group.

182    Order 9 of the determination further provides that the native title rights and interests are derived from “the relevant traditional laws and customs of the Kokatha, Mirning and Wirangu who comprise the Far West Coast People”. Counsel for the State and counsel for the Bunna Lawrie respondents argue that these words “must be given some work to do”, and support the proposition that the land determination is to be read as recognising three separate groups comprising a broader regional society which do not hold communal rights across the land determination area. We disagree. The language of Order 9 supports the construction of a single communal title because it speaks of rights being held by a single group, being the descendants of named or otherwise acknowledged “Kokatha, Mirning and Wirangu antecedents”, which descendants are recognised by other native title holders under traditional law and custom. The use of the conjunctive “and” makes plain that in the context of the land determination, the “Kokatha, Mirning and Wirangu antecedents” are treated as a single native title holding group.

183    Second, the Far West Coast land determination describes and depicts a single determination area defined by reference to external boundaries: Far West Coast land determination, Order 2, Schedules 1 and 2. The land determination does not provide for separate determination areas associated with particular groups of native title holders: cf, eg, Akiba (No 2) which provided for separate determination areas of territorial sea, each associated with a particular island or islands, cay or cays.

184    Third, the Far West Coast land determination identifies a single prescribed body corporate (the Far West Coast Aboriginal Corporation) to act as agent for the native title holders: Orders 17 and 18; see also, NTA s 57(2). This is not a case like Drury (or Lovett or Budby) in which there were two prescribed body corporates named in the determination, one for each native title holding group.

185    It follows that we consider that the terms of the Far West Coast land determination are self-explanatory. This is not a case in which the reasons are necessary to fully understand their effect.

186    Further, and separately, the reasons given by Mansfield J support the view that we have reached that the land determination can only be read as recognising a single communal title in the land determination area held by the native title holders. As much is made clear from Mansfield J’s statements that (at [43]-[44]):

43    The evidence suggests that members of these three language groups form constituent members of a single regional society, who together hold the communal rights, title and interests in the Determination Area.

44    The evidence demonstrates that there is, between members of the three language groups, a commonality of laws, customs, religious and spiritual matters and kinship such that they form one integrated polity. Furthermore, there is a commonality of customs and beliefs that are shared with the Western Desert peoples to the north of the Determination Area, many of whom now reside at Yalata (within the Determination Area) and Oak Valley (on the Maralinga Tjarutja lands immediately to the north of the Determination Area). Some descendants of these Western Desert people, who were born on the Determination Area and have knowledge of and ritual responsibility for it, are also members of the native title claim group.

187    The State, Commonwealth and Bunna Lawrie respondents argue that [43] does not support a construction that the land determination provided for a single communal title because Mansfield J did not say “who together hold all of the rights communally”. That is a distinction without a difference. The phrase, “the communal rights, title and interests”, is sensibly understood to refer to a single class of “rights, title, and interests”, one that is “communal” in character. As much appears from the use of the definite article “the” and the conjunctive “and” in the phrase in question. As was explained in Alyawarr FC and Drury, in the context of the NTA, the use of the adjective “communal” in reference to title, rights or interests denotes ownership by all the members of the group. That group is identified by Mansfield J at [43] as the “three language groups … together”.

188    The State emphasised that Mansfield J went on to observe that, “identification with these three language groups is an important part of the way that members of the native title claim group situate themselves in relation to others” (at [45], emphasis added). That is said to give the language groups a geographic location. But as was rightly conceded, his Honour found that “[l]anguage group identity is not, according to the evidence, the critical factor in determining native title rights and interests in the area” (at [46]).

189    Justice Mansfield examined the evidence with respect to the laws and customs by which rights and interests were held in the land determination area at sovereignty and following the arrival of European settlement (at [55]-[57]):

55     The evidence establishes that the three distinct geographic areas within the Determination Area were linked by trails of water holes, defined and located in shared mythical narratives. The evidence also establishes that there was shared trade, ceremonial and social communication across the three geographic areas, such that each of the three language groups was not isolated or independent from each other.

56     Post sovereignty, the movement of people around the Determination Area occasioned by the arrival and effect of European settlement, and the coming together of members of the native title group first at Ooldea, and later at Koonibba and Yalata, markedly increased the level of social interaction and inter-marriage between the three language groups, and increased the focus on shared cultural attributes, beliefs and practices.

57     As a consequence, what was pre-sovereignty likely to have been three more distinct groups associated with distinct territorial areas but bound by a common regional set of laws and customs governing interaction between them has evolved, in a process that was in accordance with, and is the product of, the pre-sovereignty system of laws and customs of the native title holding group, into an integrated society: Akiba v Queensland (No 3) (2010) 204 FCR 1; Sampi on behalf of the Bardi and Jawi People v Western Australia [2005] FCA 777.

190    Justice Mansfield went on to outline with respect to the issues of the rights and interests possessed under traditional law and custom, and by which the native title holders are connected to the determination area, that (at [72] and [74]-[75]):

72     In Dr Palmer’s expert opinion, there is a differentiation of rights in relation to land within the Determination Area held by different members of the native title holding group. Dr Palmer has termed these “use rights” and “fundamental rights”. “Use rights” are available to all members of the native title holding group who have realised potential rights obtained through descent or birth in the Determination Area. These consist of rights to access the country and utilise its resources. Economic exploitation of the Determination Area requires knowledge of the country and its potentialities and dangers.

…

74     Although individual native title holders mention strong connections to particular local areas within the Determination Area, (such as their parents’ country or where they were born or raised) there is no evidence to suggest the existence of any specific “estates” or sub-areas within the Determination Area where particular sub-groups of native title holders have pre-eminent use rights. Conversely, the evidence is that free access is available to all members of the native title holding group, subject, however, to adherence with certain religious restrictions.

75     According to Dr Palmer’s evidence, “fundamental rights” are rights to make decisions about, or “speak for” country. Fundamental rights are held only by those who possess the requisite ritual knowledge. …

191    Those reasons make clear that, while at sovereignty there existed “three more distinct groups associated with distinct territorial areas” under a single regional normative system, post-effective sovereignty, there has been an adaptation of that normative system by which there exists a single communal title. That is not to deny the existence of an intramural allocation of rights and interests under that communal title, such as the “fundamental right” to make decisions about or speak for country. But, as the reasons for the land determination reveal, all members of the native title holding group have, at least, “use rights” to access the country and utilise its resources.

5.4.3.4    Conclusion

192    For the reasons given above, in our respectful view the primary judge erred in finding (at [200], [208] and [210]) that the Far West Coast land determination did not recognise a communal title in which all the native title holders have rights and interests in all parts of the land determination area. That misunderstanding of the Far West Coast land determination led her Honour to admit evidence and make findings that were inconsistent with the Far West Coast land determination, as discussed in the next section of these reasons.

5.5    Did the primary judge err in admitting evidence and in making findings that were inconsistent with the Far West Coast land determination (ground 3(c))?

5.5.1    What was determined by the Far West Coast land determination?

193    Having concluded that the primary judge misinterpreted the effect of the Far West Coast land determination, it is necessary to consider whether her Honour erred in admitting evidence and in making findings that were inconsistent with the Far West Coast land determination.

194    It should be reiterated that the Far West Coast land determination is not determinative of the Far West Coast sea claim. A native title determination is a determination in relation to the particular land and waters that is the subject of the application made under ss 13 and 61 of the NTA. In the present case, it is conceptually possible that the group of persons who hold native title rights and interest in the Far West Coast sea claim area differs from the group of persons who have been determined to hold native title rights and interests in the Far West Coast land determination area, as was found by the primary judge. However, any such conclusion must be reached in a manner that does not contradict the Far West Coast land determination, and the factual conclusions that are essential to that determination.

195    The “fundamental matters” that have been determined by the Far West Coast land determination can be summarised as follows:

(a)    The native title holders are the Far West Coast People, who include descendants of Kokatha, Mirning and Wirangu people, as defined by Order 9 of the determination.

(b)    The native title rights and interests in the Far West Coast land determination area are possessed under the traditional laws and customs of the Far West Coast People, and by those laws and customs the Far West Coast People have a connection to the Far West Coast land determination area, as referred to in Orders 9 and 14.

(c)    In the language adopted in Yorta Yorta, the Far West Coast People are a single society, acknowledging and observing their traditional laws and customs under which they possess native title rights and interest in the Far West Coast land determination area and by which they have a connection with that land. This necessarily means that the traditional laws and customs acknowledged and observed by the Far West Coast People today have their origin in the laws and customs acknowledged and observed by their forebears prior to the assertion of sovereignty by the British Crown.

(d)    The nature and extent of the native title rights and interests are non-exclusive rights to use and enjoy, in accordance with their traditional laws and customs, the Far West Coast land and waters, as defined in Order 10. The determination recognises a single communal title under which all the Far West Coast People hold native title rights and interests in the determination area as a whole, albeit that there may be an intramural allocation of those rights and interests amongst particular groups (eg, Kokatha, Mirning or Wirangu) including in particular parts of the determination area.

196    The requirements of s 223(1) of the NTA are drawn in the present tense: the definition of native title is concerned with the traditional laws and customs presently acknowledged and observed and whether the claimants currently possess rights and interests under those laws and customs and have a current connection with the land and waters by those laws and customs: see Yorta Yorta at [85]; Stuart at [20]-[21]; Starkey at [48]. Thus, what was determined by the Far West Coast land determination is the existence, as at the date of the determination (2013), of a single society that includes descendants of Kokatha, Mirning and Wirangu people.

197    The determination does not necessarily require a conclusion that the same society existed at sovereignty. The concept of “traditional” laws and customs is one which accommodates necessary adaptation of laws and customs in response to European settlement of the claim area and the assertion of British sovereignty over the claim area (and the Australian continent): Croft (on behalf of the Barngarla Native Title Claim Group) v State of South Australia [2015] FCA 9; 325 ALR 213 at [640] (Mansfield J); Starkey at [46(d)] (Reeves J, with whom White J agreed). It is conceivable that, at sovereignty, Kokatha, Mirning and Wirangu people acknowledged and observed laws and customs under which they held rights and interests in discrete areas of land (often referred to as estates), and it is conceivable that, at sovereignty, they may not have been regarded as a single society (in the sense discussed in Yorta Yorta). Those possibilities are not inconsistent with the Far West Coast land determination. There is no legal requirement that the character and scope of the present day Aboriginal society, the laws and customs acknowledged and observed, and the rights and interests held, be identical to the pre-sovereignty society. What is required under the NTA is that the origins of the content of the present day laws and customs are to be found in the normative rules of the Aboriginal society that occupied the claim area prior to the assertion of British sovereignty, and that the laws and customs have had a continuous existence and vitality since sovereignty. It has been recognised in many cases that a necessary adaptation of traditional laws and customs to the impacts of European settlement is the amalgamation of local estates into a single larger estate: see, eg, Ward FC at [201], [204], [239]-[240], [249]; Banjima People v Western Australia (No 2) [2013] FCA 868; 305 ALR 1 at [400], [695]-[696] (Barker J); Malone on behalf of the Western Kangoulu People v State of Queensland (No 6) [2025] FCA 363 at [600]-[601] (O’Bryan J); Blucher on behalf of the Gaangalu Nation People v State of Queensland [2025] FCAFC 177; 314 FCR 213 at [171] (Murphy, SC Derrington and Bennett JJ).

198    It follows that, whilst the Far West Coast land determination determines the persons who hold native title rights and interests, and the nature and extent of those rights and interests, as they exist today, the determination does not determine the history of those rights and interests. Findings that are relevant to that history were made by Mansfield J in the Far West Coast land determination, but those findings were not adopted by the primary judge. Nevertheless, whatever the position at sovereignty, the Far West Coast land determination conclusively determines that, today, there is a single society of Kokatha, Mirning and Wirangu people who acknowledge and observe traditional laws and customs under which they hold communal title to the Far West Coast land determination area.

199    As already noted, it is conceptually possible that the group of persons who hold native title rights and interests in the Far West Coast sea claim area differs from the group comprising the Far West Coast People who have been determined to hold native title rights and interests in the Far West Coast land determination area. However, a finding to that effect necessarily presupposes that, whilst there exists today one set of laws and customs conferring rights and interests in the Far West Coast land determination area which are acknowledged and observed by the Far West Coast People, there is another set of laws and customs conferring rights and interests in the Far West Coast sea claim area which are acknowledged and observed by a subset of the Far West Coast People. It also presupposes that, whilst rights and interests in the Far West Coast land determination area may have amalgamated post-sovereignty as a necessary adaptation to European settlement, the same amalgamation did not occur in respect of the abutting sea claim area.

200    The primary judge reached the conclusion that the group of persons who hold native title rights and interests in the Far West Coast sea claim area differs from the group comprising the Far West Coast People. By ground 3(c) of the appeal, the applicant contends that the primary judge erred in reaching that conclusion because her Honour impermissibly admitted evidence and made findings that were inconsistent with the Far West Coast land determination. For the reasons that follow, we consider that the primary judge erred in the manner alleged by the applicant.

5.5.2    Evidence and findings that are inconsistent with the Far West Coast land determination

201    In Part 6 of the primary judgment, the primary judge explained her understanding of the Far West Coast land determination and, based on that understanding, the approach her Honour took to the evidence in the proceeding. As discussed above, her Honour concluded that the native title rights and interests recognised by the Far West Coast land determination are not held communally by the Far West Coast People (at [200], [210]). Her Honour concluded that whether all members of the Far West Coast People possess native title rights and interests in all places of the land determination area was not a matter decided by Mansfield J in the Far West Coast land determination (at [208]). For the reasons given earlier, we respectfully consider that those conclusions are wrong.

202    On the basis of that understanding of the Far West Coast land determination, her Honour explained the approach that she took to the evidence in the proceeding (at [208]):

… In this proceeding, it would not contradict the FWC Land Determination to find that rights and interests are held differentially by different people, or that some people have rights and interests in some parts of the FWC Land Determination Area but no rights or interests in other parts according to the laws and customs of the society of which they form a part.

203    For the reasons stated above, we consider that it would contradict the Far West Coast land determination to find that some members of the Far West Coast People (eg, people descended from a Kokatha forebear) have no rights or interests in parts of the land determination area (eg, the coastal fringe).

204    Her Honour also explained the approach that she took to the evidence in the proceeding concerning the “society” that held native title rights and interests in the land determination area (at [209]):

Nor would it contradict the FWC Land Determination to identify the existence of Aboriginal groups that may be referred to as Mirning, Wirangu and Kokatha people having connections with different places within the FWC Land Determination Area, albeit subject to a body of traditional laws and customs operating at a regional level explaining how relations between the groups are regulated. The reasons of Mansfield J are not evidence in this proceeding, but the concept of a “regional society” was adverted to in his Honour’s reasons (at [57]), including a refence to distinct groups associated with distinct geographical areas with a body of law governing the interactions between them. The phrase “regional society” was used throughout this proceeding in a way that encapsulated that concept. The existence of that society and its legal consequences fall within the scope of the trial on the Preliminary Questions and must be resolved by reference to the evidence.

205    We agree that it may not contradict the Far West Coast land determination to identify the existence of Aboriginal groups that may be referred to as Mirning, Wirangu and Kokatha people having connections with different places within the Far West Coast land determination area, if what is meant that, under the traditional laws and customs of the Far West Coast People, particular members or sub-groups have particular spiritual connections with particular places that entitle them to ‘speak’ (that is, make decisions within the community of native title holders) for those places. It would, however, contradict the Far West Cost land determination to deny that all members of the Far West Coast People, including Kokatha people, have rights and interest in all areas of the land determination, including the coastal fringe. Further, her Honour’s reasons suggest that the Far West Coast land determination did not determine the identity of the society that continued to acknowledge and observe traditional laws and customs under which native title rights and interests in the land determination area were possessed and by which the members of the society had a connection to the land determination area. That is incorrect. The Far West Coast land determination conclusively determined that that society was the Far West Coast People.

206    Her Honour explained the approach that she took to the evidence in the proceeding concerning the traditional laws and customs under which native title rights and interests are held in the Far West Coast land determination area (at [211]-[212]):

211    A closely related question arising from the applicant’s argument is whether it is permissible to adduce evidence in this proceeding of the traditional laws and customs under which native title rights and interests are held in the FWC Land Determination Area. Again, the answer must depend on how the parties in this proceeding have presented their cases. It happens that both the applicant and the Bunna Lawrie Respondents have invited the Court to draw inferences about the Sea Claim Area based upon facts and circumstances existing on the immediately adjacent landward areas. But they are in dispute about what those facts and circumstances are. This Court’s task in answering the Preliminary Questions cannot be performed without resolving that factual controversy.

212    The case is one in which it is necessary to identify the traditional laws and customs that operate in the FWC Land Determination Area, because that is the very thing that the applicant has invited the Court to do in reasoning to a conclusion that the native title holders in the adjacent Sea Claim Area are those described in the proposed amended Claim Group description. In addition, I am not satisfied that in anthropological terms it is possible to ascertain the existence of holders of native title in the sea without referring to the traditional laws and customs giving rise to native title rights and interests in (at least) the immediately adjacent coastal lands.

207    The above passage of the primary judge’s reasons recognises the possibility, indeed likelihood, that if native title rights and interests exist in the sea claim area, those rights and interest will be held under the same traditional laws and customs governing native title rights and interests in the land determination area. As the primary judge stated, this was the case advanced by the applicant – that the traditional laws and customs acknowledged and observed by the Far West Coast People were the source of native title rights and interests in both the land determination area and in the sea claim area. We agree with her Honour’s reasoning that, to determine the applicant’s claim, it was necessary for the Court to receive evidence about those laws and customs to determine whether they supported the existence of rights and interests in the sea claim area. In so far as evidence was adduced by the respondents in opposition to the applicant’s claim, that evidence would not be admissible to contradict the Far West Coast land determination, and could not be relied on to make findings that were inconsistent with the Far West Coast land determination. Thus, there was no barrier to the Court receiving evidence from the respondents to the effect that:

(a)    the traditional laws and customs of the Far West Coast People do not recognise rights or interests in the sea claim area; or

(b)    the traditional laws and customs of the Far West Coast People recognise that only sub-groups of the Far West Coast People hold rights and interests in the sea claim area; or

(c)    rights and interests in the sea claim area are held under traditional laws and customs acknowledged and observed only by a sub-group of the Far West Coast People, being different laws and customs to those acknowledged and observed by the Far West Coast People which give rise to rights and interests in the land determination area.

208    However, it would be inconsistent with the Far West Coast land determination for the Court to receive evidence from the respondents to the effect that:

(a)    the traditional laws and customs of the Far West Coast People recognise that only sub-groups of the Far West Coast People hold rights and interests in the land comprising the coastal fringe abutting the sea claim area; or

(b)    rights and interests in the coastal fringe abutting the sea claim area are held under traditional laws and customs acknowledged and observed only by a sub-group of the Far West Coast People.

209    Part 7 of the primary judgment identifies the Aboriginal witnesses called on behalf of the applicant and called on behalf of the respondents (specifically, the Bunna Lawrie respondents and the Laing respondents). Fifteen witnesses were called on behalf of the Bunna Lawrie respondents, and both of the Laing respondents, Robert Lawrie and Michael Laing, gave evidence. The evidence of those witnesses is summarised in Part 10 of the primary judgment (at [554]-[864]). Large parts of the evidence concern traditional laws and customs relating to the land determination area, but parts also concern traditional laws and customs relating to the sea claim area. Much of the evidence does not directly contradict the Far West Coast land determination, but some of it does.

210    The witnesses for the Bunna Lawrie respondents all asserted a distinct Mirning language and cultural identity within a geographic area they identified as Mirning country. Some of the witnesses expressed dissatisfaction with the Far West Coast land determination. Such evidence is not necessarily inconsistent with the Far West Coast land determination. However, it would be inconsistent if the evidence were relied upon to support a finding that only a Mirning sub-group of the Far West Coast People hold rights and interests in Mirning country. Parts of the evidence given by the witnesses for the Bunna Lawrie respondents were directly inconsistent with the Far West Coast land determination. The following examples are not intended to be exhaustive:

(a)    Bunna Lawrie gave evidence as to the exclusive nature of Mirning traditional laws and customs which, he said, precluded membership of any person who identified as anything other than Mirning (primary judgment at [579]) and repeatedly referred to “Mirning country” in a manner that indicated it was a distinct from the land determination area. The primary judge recorded that (at [595]):

Bunna Lawrie claimed that “Aboriginal people whose homelands are not coastal” (including the Kokatha and Anangu people) lack “connection to our coastal country”.

and that (at [604]):

Bunna Lawrie claimed that the Mirning people were not allowed to venture beyond the edge of the Nullarbor Plain and that non-Mirning people required permission to enter Mirning land.

and that (at [607]):

He [Bunna Lawrie] emphasised that Mirning people were distinct from Ngadju people, Wirangu people, Anangu people and Kokatha people. He said that Mirning people had different laws, customs, language and creation stories.

(b)    Dorcas Miller gave evidence that Mirning laws and customs were different from those of the desert (at [679]), that she practised Mirning laws and customs (at [680]), and that if Kokatha people came onto Mirning country they would be chased, adding that “[t]hey’re not allowed on Mirning country. No other tribe allowed on Mirning country” (at [701]).

(c)    Rose Miller gave evidence that Mirning law was the only law that could be acknowledged, observed and practised on Mirning Country (at [712]), and she believed that the claim resulting in the Far West Coast land determination involved “disrespect, lack of consultation and broken promises” (at [713]).

(d)    Meegan Sparrow asserted that Mirning people were a separate society (at [739]), and that Mirning people had never been part of the Western Desert culture (at [740]).

211    Robert Lawrie and Michael Laing also asserted a distinct Mirning language and cultural identity within a geographic area they identified as Mirning country. Parts of their evidence were also directly inconsistent with the Far West Coast land determination:

(a)    Robert Lawrie gave evidence that he had been taught Mirning laws by his father and grandfather, and that his father taught him that Mirning law was strict and that only Mirning people could come onto Mirning land and sea areas without permission (at [839]). He was also taught by his father that Mirning country has a protocol and that everything on land and sea comes under Mirning laws and custom in Mirning country (at [846]). He gave evidence that it was Mirning law that rights to land and sea were gained by descent and that Aboriginal people from the desert (referring to Kokatha people) had no knowledge of Mirning culture, traditions or laws (at [848]). He said that outsiders, including Kokatha and Wirangu, had no traditional sites or stories on Mirning country; he described Kokatha people as “Western Desert people” from hundreds of kilometres away to the north and said Mirning laws and customs allowed for no other laws and customs “to sit on our Country” (at [849]). He gave evidence that “under our laws all Mirning people whether they are from WA or SA, hold all Mirning native title rights and interests in all of Mirning country and sea (WA and SA) together as one group of people. Anthropologists and lawyers are changing our laws by saying we don’t which is not telling the truth” and “[t]he Mirning through the Mirning Council of Elders never consented to the WA Mirning Claim or the FWC land claim” (at [850]).

(b)    Michael Laing gave evidence that Mirning traditional laws and customs that determine whose country it is are different from those of other groups and from Western Desert law (at [857]).

212    The primary judge summarised her impression of the witnesses in Part 11 of the primary judgment and added the following statement (at [871]):

I have placed no weight on some parts of the Aboriginal evidence that could be interpreted to deny the consent underpinning the FWC Land Determination or the quality of that consent. Some evidence concerning negotiations culminating in that determination is relevant for other purposes, as will become apparent. Similarly, where a witness has asserted a fact that is inconsistent or incompatible with the FWC Land Determination I have given that evidence no weight.

213    Her Honour did not expressly identify any parts of the witness evidence that were inconsistent or incompatible with the Far West Coast land determination. As already discussed, her Honour did not consider that the Far West Coast land determination necessitated a conclusion that all Far West Coast People held native title rights and interests in the whole of the land determination area. It follows that her Honour would not have regarded those parts of the witness evidence identified above as being inconsistent with the Far West Coast land determination. In our respectful view, that conclusion is incorrect.

214    Her Honour also assessed the expert anthropological evidence based on an understanding that that the Far West Coast land determination did not necessitate a conclusion that all Far West Coast People held native title rights and interests in the whole of the land determination area.

215    Part 14 of the primary judgment concerned the identification of the Far West Coast People as a “society” for the purposes of the sea claim. In that part of the judgment, her Honour discussed the evidence of the applicant’s anthropological expert, Robert Graham. In his evidence, Mr Graham referred to the earlier reports of the anthropologist Dr Kingsley Palmer, whose reports informed the findings made by Mansfield J in the Far West Coast land determination (at [28]-[30], [58]-[59], [61], [65], [72], [75] and [79]). The primary judge referred (at [958]) to Mr Graham’s reference to and reliance upon the following opinions expressed by Dr Palmer:

(a)    that the relevant society along and adjacent to the coast comprised three language groups;

(b)    whilst the evidence from accounts he had considered was “not conclusive”, the Mirning, Wirangu and Kokatha “shared some cultural commonalities” which enabled them to “share ritual practice and beliefs, entertain common attachments and concerns for areas of spiritual and mythological importance and so interact and, in all probability, inter-marry”;

(c)    members of the language groups “would then appear to have recognised the mutual observance of laws and customs and adherence to a common normative system and as such can be considered to have comprised a single society”; and

(d)    post-sovereignty demographic changes may have enhanced the “existing commonalities and commensalities”, but it was also true that the language groups asserted individuality based on language difference and locality.

216    In respect of those opinions, her Honour cautioned (at [960], emphasis added):

However, Palmer’s view is to be understood in the context of a claim where each member of the Claim Group had rights and interests in some part of the subject land. That land included northern parts of the area, being desert fringes occupied by Kokatha antecedents as their core country. As identified below that factual circumstance is not present in the Sea Claim Area.

217    We understand that caution to be based on her Honour’s understanding of the Far West Coast land determination, that members of the Far West Coast People do not hold native title rights and interests in all parts of the land determination area. As already discussed, that understanding is incorrect.

218    An even more fundamental inconsistency with the Far West Coast land determination arises in Part 18 of the primary judgment which is titled “Core rights and coastal estates at sovereignty”. In the preceding Part 17 of the primary judgment, the primary judge considered the anthropological and historical evidence concerning the localities that were associated with the Wirangu, Mirning and Kokatha language groups at effective sovereignty. Her Honour recorded that the anthropological experts agreed that “Kokatha is an inland group whose estates at effective sovereignty did not abut the sea” (at [1268]), and her Honour accepted that opinion (at [1271], [1285] and [1301]). At the commencement of Part 18, her Honour recorded a further agreement of the anthropological experts that “[m]arine components of estates were acquired by the fact that groups held rights and interests in a coastal estate or landholding group” and that marine estates were “extensions of the coastal groups’ tracts of country” (at [1304]). As is apparent from the Report of the Conference of Experts from which those statements were extracted, the agreement concerned the position at effective sovereignty. Her Honour concluded, based on the conclusion reached in Part 17, that the area immediately abutting the sea claim area did not form any part of an estate occupied by the Kokatha antecedents (at [1304]). Again, that conclusion must be understood as relating to the position at effective sovereignty.

219    Seemingly based on those conclusions, the primary judge expressed the following conclusion (at [1308], emphasis in the original):

In this part of my reasons I conclude that native title rights and interests in the Sea Claim Area are possessed by the descendants of some of the antecedents listed in Pathway A on the originating application. The rights and interests possessed are those having their origins in the transmissible rights and interests held prior to sovereignty by those ancestors in estates abutting the sea, described in the evidence as “core” or “fundamental” rights. I will refer to those apical ancestors collectively as coastal ancestors and the remaining as non-coastal ancestors. Their descendants will respectively be referred to as coastal descendants and non-coastal descendants.

220    The “antecedents list in Pathway A” are the same antecedents listed in Order 9(A)(i) of the Far West Coast land determination, being identified Kokatha, Mirning and Wirangu antecedents: see primary judgment at [72]. The primary judge then made findings as to which of those antecedents were “coastal ancestors” and which were “non-coastal ancestors”, with only the descendants of the “coastal ancestors” being found to hold native title in the sea claim area (at [1308]-[1360]). Those “coastal ancestors” were associated with estates forming part of the country of the Wirangu or Mirning at effective sovereignty (at [1267], [1303] and [1312]-[1358]). The primary judge found with respect to the character of the rights held by the descendants of the coastal ancestors under traditional law and custom (at [1356]-[1358]):

1356    I am satisfied that at sovereignty, the coastal ancestors possessed a right to access, use and enjoy at least a part of the Sea Claim Area under and in accordance with their traditional laws and customs. Those rights, together with the right to “speak for country” (discussed below) arose as a necessary incident of their membership of the coastal estates. It is that bundle of rights that may be described as “core” or “fundamental”.

1357    In respect of the core rights discussed in these reasons, the relevant laws existing at sovereignty were those relating to transmission by descendancy of rights in the limited localities known as estates. I find that those laws and customs adapted in the post-sovereignty period as Aboriginal groups in coastal areas met the challenges of colonisation. Those challenges included not only the deaths of family lines that once occupied and had responsibility for estates, but the movements and activities of both European and Aboriginal people from elsewhere.

1358    One result of that evolution is that rights and interests are now acquired by descent in locations that are broader than the original estates but nonetheless identifiable by reference to the general regions of language groups:  Mirning to the west, Wirangu to the east, with an area in the vicinity of Head of the Bight in the nature of a shared or transition zone. The adaptation of the laws and customs in that way does not disconnect them from their pre-sovereignty origins and I am satisfied that there is continuity in those laws as they relate to the concept of estates and core right holders. …

221    It can be seen that, in the above paragraphs, her Honour reasoned as follows: at effective sovereignty, “marine components of estates” (that is, rights and interests in the sea) were acquired by the fact that groups held rights and interests in an abutting coastal estate; at effective sovereignty, Kokatha people were an inland group whose estates did not abut the coast; under the traditional laws and customs at effective sovereignty, rights and interests in the land and sea estates were transmitted by descent; in the post-sovereignty period, those laws and customs adapted as Aboriginal groups in coastal areas met the challenges of colonisation; one result of that evolution is that rights and interests in land and sea are now acquired by descent in locations that are broader than the original estates but nonetheless identifiable by reference to the general regions of language groups; as a result, rights and interests in areas of sea could not be acquired from a Kokatha antecedent.

222    In our respectful view, in reasoning in the above manner, the primary judge fell into error because she failed to incorporate a correct understanding of the Far West Coast land determination. Her Honour’s reasoning assumes that it is consistent with the Far West Coast land determination to conclude that, since sovereignty, there has been an amalgamation of estates within the land determination area, but that the amalgamation does not include the entirety of the land determination area such that different members of the Far West Coast People hold rights and interest in different parts of the land determination area. That conclusion is not consistent with the Far West Coast land determination. A necessary finding underpinning the Far West Coast land determination is that, today, those holding native title rights and interests in the “estates [of the land determination area] abutting the sea” include the Kokatha people.

223    That is not to say that it is a necessary conclusion in this proceeding that descendants of Kokatha antecedents hold rights and interests in the sea claim area. It is possible that the post-sovereignty amalgamation of land estates that is implicitly recognised by the Far West Coast land determination was not replicated in respect of marine estates, and that post-sovereignty adaptation of laws and customs relating to marine estates followed a different course to land estates. However, any such conclusion would need to be reached on a consideration of the totality of the evidence in light of a correct understanding of the Far West Coast land determination. In failing to consider whether descent-based native title rights held by Kokatha people today in the coastal regions of the land determination area found native title rights in the sea claim area as an “extension” of those rights and interests in land, the reasoning process miscarried because the conclusion reached by the primary judge was based on an incorrect understanding of the land determination.

224    The same inconsistency with the Far West Coast land determination arises in Part 19 which is titled “Other rights and interests in the sea claim area”. That section of the primary judgment considered what, if any, rights and interests in the sea claim area exist by the mechanisms of Pathway A(ii) and B. Those “mechanisms” (described at [72]-[74]) are the same criteria for membership of the Far West Coast People as stated in Orders 9(A)(ii) and 9(B) of the Far West Coast land determination, being Aboriginal people who:

(a)    are descendant, either through birth or adoption, from another person acknowledged by the claim group as a Kokatha, Mirning or Wirangu antecedent born on or near the sea claim area at or around the time of sovereignty and who are recognised by other claim group members under their relevant traditional laws and customs as having realised their rights through knowledge, association and familiarity with the sea claim area; or

(b)    persons born within or near the sea claim area who have gained knowledge of that area in accordance with the traditional laws and customs of the claim group and are recognised by other claim group members under their relevant traditional laws and customs as having native title rights and interests in the sea claim area.

225    It is unnecessary to discuss the primary judge’s consideration of this topic in any detail. We respectfully consider that the primary judge’s analysis was affected by error because her Honour did not proceed from the necessary assumption that Far West Coast People, including Kokatha people, who satisfied Pathway A(ii) or B, held rights and interests in those parts of the land determination area that abut the sea (the former “coastal estates”). That assumption, which is a necessary finding underpinning the Far West Coast land determination, begs the following question: if the post-sovereignty adaptation of the traditional laws and customs of the Mirning, Wirangu and Kokatha peoples has resulted in Far West Coast People who satisfy Pathway A(ii) or B holding rights and interests in those parts of the land determination area that abut the sea, is there evidence to suggest that there was a different post-sovereignty adaptation of the traditional laws and customs in respect of rights and interests in the sea? Such a conclusion might be available on the evidence, but it is necessary to assess the evidence in light of the necessary implications of the Far West Coast land determination.

226    For those reasons, we respectfully consider that the primary judge erred in admitting evidence and in making findings that were inconsistent with the Far West Coast land determination.

5.6    If the primary judge erred in any of the respects referred to in grounds 3(a), (b) or (c), was the error material to her Honour’s conclusions in this proceeding?

227    Having concluded that the primary judge erred in the respects referred to in grounds 3(a) and (c), it is necessary to consider whether the error was material to her Honour’s conclusions in the proceeding. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [53].

228    It is apparent from our earlier reasons that we consider that the primary judge’s error with respect to the meaning and effect of the Far West Coast land determination, and her Honour’s consequential errors with respect to the receipt of evidence and the making of findings that are inconsistent with the Far West Coast land determination, are material to her Honour’s conclusions in the proceeding. But for those errors, we consider that her Honour might have reached the conclusion that the persons holding native title rights and interests in the sea claim area are the Far West Coast People as defined in the Far West Coast land determination. Instead, her Honour found that the persons holding native title rights and interests in the sea claim area are limited to the descendants of identified Mirning and Wirangu forebears.

229    As stated earlier, the Far West Coast land determination is not determinative of the identity of the persons holding native title in the sea claim area. It is conceptually possible that the group of persons who hold native title rights and interest in the sea claim area differs from the group of persons who have been determined to hold native title rights and interests in the Far West Coast land determination area. However, any such conclusion must be reached in a manner that does not contradict the Far West Coast land determination, and the factual conclusions that are essential to that determination. A finding that the persons who hold native title rights and interest in the sea claim area differs from the persons who hold native title rights and interests in the Far West Coast land determination area necessarily presupposes that, whilst there exists today one set of laws and customs conferring rights and interests in the Far West Coast land determination area which are acknowledged and observed by the Far West Coast People, there is another set of laws and customs conferring rights and interests in the Far West Coast sea claim area which are acknowledged and observed by a subset of the Far West Coast People. It also presupposes that, whilst rights and interests in the Far West Coast land determination area were likely amalgamated post-sovereignty as a necessary adaptation to European settlement, the same amalgamation did not occur (or did not occur to the same extent) in respect of the abutting sea claim area.

230    The resolution of the question of who holds the native title rights and interests in the sea claim area must be made in light of the totality of the lay and expert evidence, and based upon a correct understanding of the Far West Coast land determination. That is not an exercise that can be undertaken by the Full Court, without conducting a further hearing. We have been taken to only a small part of the evidence adduced in the proceeding, particularly the anthropological evidence. In that regard, whilst we note that the anthropological experts agreed in the Report of the Conference of Experts that there is one society for the Far West Coast land determination area and the sea claim area being the Far West Coast People, the primary judge considered that the evidence revealed some disagreement between the experts whether all members of the Far West Coast People held native title rights and interests in the sea claim area (at [943]). An assessment of the totality of the evidence, in light of a correct understanding of the Far West Coast land determination, is most appropriately undertaken by a single judge of this Court upon remittal.

6.    The right to access resources (ground 4)

6.1    Introduction

231    Ground 4 concerns the primary judge’s finding that the native title rights and interests include “[t]he right to access resources in and take resources from the Accessible Area for purposes limited to domestic consumption and sustenance for family members”: primary judgment at [1505(3)(c)].

232    The applicant contends that finding is in error having regard to the primary judge’s finding that at sovereignty resources from the claim area were used for trade and ceremony, and is otherwise impermissible because it contradicts the Far West Coast land determination recognition of non-exclusive native title rights and interests limited only by the requirement of “personal, domestic and communal use”: primary judgment at [1370] and [1376] and Far West Coast land determination, Order 11. The applicant contends that the primary judge ought to have found there exists a non-exclusive native title right to access and take resources for “personal, domestic or communal purposes”.

233    The Bunna Lawrie respondents support the applicant’s position insofar as it concerns their complaint that the findings made by the primary judge were at odds with earlier findings made in the primary judgment with respect to taking resources for trade or ceremony. The State and Commonwealth dispute that the primary judge erred in the findings she made with respect to the scope of the non-exclusive right to take resources or that this finding undermined or contradicted the Far West Coast land determination. The Laing respondents make no submissions as to this ground.

6.2    Purposive constraints on non-exclusive native title rights and interests

234    The following principles can be discerned from the authorities in determining whether, under traditional law and custom, there exists a constraint as to the purpose for which non-exclusive rights can be exercised:

(a)    A native title right or interest defines the relationship between the native title holders and the land or waters to which the right or interest relates. The right is one thing; the exercise of it for a particular purpose is another: Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 (Akiba HC) at [21] (French CJ and Crennan J); see also, at [66]-[67] (Hayne, Kiefel and Bell JJ).

(b)    That does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose: Akiba HC at [21]. A distinction is to be drawn, in this respect, between the existence of traditional laws and customs that regulate the exercise or enjoyment of a native title right and those which define its scope: Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251 at [312] (Rares J). An example of the former is the finding in Akiba (No 2) (at [529]) that the right to take resources was unconstrained, save by considerations of respect, conservation and the avoidance of waste. An example of the latter, is Lardil (at [180]-[181]) in which the Court found that the right to take resources under traditional law and custom was constrained by an obligation to take only that which was sufficient to satisfy immediate needs and, as such, was to be defined as a right to take resources for the purpose of personal and domestic consumption.

(c)    The question for the Court is whether the evidence establishes, on the balance of probabilities, that a claimed right is recognised by traditional law and custom and has not been abandoned; the nature and extent of “activity” (eg, opportunistic exploitation of resources) may inform the existence of the right, but it is the possession of the right, not its exercise, that is the proper question: Willis at [36] (Dowsett J); [99]-[100], [112] (Jagot J); see also Isaac on behalf of the Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776; 255 FCR 228 (Isaac) at [108]-[110] (Mansfield J). Equally, however, evidence to the effect that claimants “own” country and that which is on or under it, is not, in and of itself, sufficient to support an inference that there exists a right under traditional laws and customs to take resources for any purpose: Willis at [37] (Dowsett J); see also at [99]-[101] (Jagot J) and [180] (Barker J). The question is to be determined upon the careful consideration of the whole of the evidence and what it reveals about the nature and extent of the native title rights and interests recognised by the system of traditional law and custom: Willis at [36]-[37] (Dowsett J), [100] (Jagot J) and [170], [183] (Barker J); Isaac at [128] (Mansfield J).

6.3    Did the finding by the primary judge as to the scope of the right to take resources contradict the Far West Coast land determination or the findings that were essential to it?

235    We are not persuaded that the primary judge’s finding that the right to take resources only for purposes of “domestic consumption and sustenance for family members” contradicts or undermines the Far West Coast land determination.

236    The land determination recognised the existence of non-exclusive native title rights and interests including, relevantly, to gather and use the natural resources of the land determination area for personal, domestic and communal use: Far West Coast land determination, Orders 9(e) and 11. The primary judge did not purport to make a finding that those rights were not possessed in the land determination area. Rather, the primary judge found that in the adjacent sea claim area – which extends seaward from the lowest astronomical tide and unlike the land determination area is always wet – there existed a right to take resources but for domestic consumption and sustenance by family members: (at [49]-[51] and [1483]). Given the different area, and its differing characteristics, it did not undermine or contradict the land determination to find that there existed a more constrained right to take resources in that area.

6.4    Was the primary judge’s finding otherwise in error?

237    The applicant contended below that there existed under traditional law and custom a right to take resources from the claim area for any purpose: primary judgment at [1482]. The primary judge rejected that contention because she found that pre-sovereignty resources were used for purposes related to feeding family members (at [1483]). The primary judge also accepted that it was customary to take no more than what was required because it was consistent with the right to speak for country including by protecting its resources for future generations: (at [1483]). Her Honour also found that to take resources for any purpose (eg, commercial purposes) would not be in accordance with traditional law and custom (at [1483]).

238    The applicant argues that conclusion is inconsistent with the earlier finding by the primary judge that “coastal ancestors” engaged in trade with, at least, the “non-coastal ancestors” and “non-coastal” ancestors may have used the resources of some parts of the sea claim area in this context (at [1370]-[1372]). The applicant also points to findings by the primary judge that “non-coastal ancestors” may have accessed areas of coastal estates for ceremonial purposes and accessed and used parts of the sea claim area in that context as well as contemporary evidence that inorganic resources (eg, ochre and flint) are taken today for ceremonial purposes (at [1376]).

239    The Bunna Lawrie respondents support that submission. They further submit that the primary judge found that the taking of resources for trade and ceremony was a “norm”. The Bunna Lawrie respondents rely, in this respect, on their closing submission extracted at [1487] of the primary judgment with respect to “four fundamental and related ‘norms’” said to exist in the sea claim area. Those “traditional norms” were relevantly said to “confer the full breadth of rights and interests, including the right to exclude non-native title holders”. At [1488] of the primary judgment, her Honour stated that the findings made in the reasons “correlate with that statement of norms, other than the suggestion of an exclusive right of possession”. It follows, the Bunna Lawrie respondents contend, that her Honour found that the “formulation of traditional laws and customs” for the “norm” of taking resources for trade or ceremony, included “the full breadth of rights and interests” extending to the use of resources for any and all purposes.

240    The difficulty with those submissions is that the primary judge did not find that the resources of the sea claim area were taken for the purposes of trade or ceremony pre-sovereignty. Rather, her Honour found that “non-coastal ancestors”, in the context of being present in the “coastal estates” of the land determination area for trade or ceremony, may have used the resources of the sea claim area. That finding does not, in and of itself, support the inference that the resources of the sea claim area were taken by those holding rights and interests in the sea claim area for the purposes of trade or ceremony.

241    It is striking that, on this ground of appeal, the applicant did not take the Court to any evidence given by the witnesses at trial to the effect that their native title rights and interests in the sea claim area extended to the use of resources from that area for trade or ceremony. It is significant in that regard that the primary judge found (at [1376]):

The contemporary evidence of Aboriginal witnesses had a heavy emphasis on their use of the sea in the context of family gatherings and recreational fishing to provide food for themselves and others. The only references to the use of the sea for purposes relating to ceremony did not advert to food resources, but rather to the gathering of inorganic resources such as ochre or flint.

242    In the absence of evidence and a specific finding that the contemporary taking of resources from the sea claim area related to ceremony was in accordance with traditional law and custom, there is no error in the primary judge finding that the right recognised by traditional law and custom was to take the resources of the sea claim area for the limited purpose of domestic consumption and sustenance of family members.

243    It follows that ground 4 is not established.

7.    Conclusion and orders

244    For the reasons expressed above, we have concluded that leave to appeal should be granted, appeal grounds 1, 2 and 4 should be dismissed, but appeal ground 3 (specifically, the grounds stated in particulars (a) and (c) to ground 3) should be allowed.

245    It follows that the appeal is upheld in part and the primary judgment must be set aside in so far as it relates to separate question (b)(i), being the identity of the persons holding the native title rights and interests in the Accessible Area (being that part of the sea claim area in which native title rights and interests exist).

246    On the appeal, the applicant urged the Court to make findings in answer to the separate questions arising from any grounds of appeal on which they were successful rather than remit the matter for further hearing and determination. As explained earlier, that is not an appropriate course for the Full Court to take. Separate question (b)(i) must be reconsidered in light of the totality of the lay and expert evidence, and based upon a correct understanding of the Far West Coast land determination. The reconsideration is most appropriately undertaken by a single judge of this Court upon remittal. Accordingly, orders will be made giving the parties an opportunity to make submissions concerning the appropriate form of orders for the remittal of separate question (b)(i) for further hearing and determination in accordance with these reasons.

247    Only one party made a submission with respect to costs. The Bunna Lawrie respondents submitted that, if their objection to the competency of the appeal were successful, an order for costs should be made in their favour. Their objection to the competency of the appeal was unsuccessful. Consistently with the principle stated in s 85A of the NTA, we consider that there should be no order as to the costs of the appeal, including the objection to competency, with the result that each party must bear their own costs of the appeal.

Associate:

Dated:    29 July 2026

SCHEDULE OF PARTIES