Federal Court of Australia

Richards v State of South Australia (Far West Coast Sea Claim) (No 2) [2026] FCAFC 128

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth), the determination of 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, be remitted to the primary judge for further hearing and determination in accordance with the reasons of the Full Court published on 29 July 2026, and otherwise in such manner as the primary judge sees fit.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 On 29 July 2026, this Court made orders allowing, in part, an appeal against the judgment in Miller v State of South Australia (Far West Coast Sea Claim) (No 4) [2025] FCA 388 (primary judgment or PJ), which judgment answered separate questions concerning a native title claim over an area of sea country. The sea country is an area of sea that abuts the southern boundary of an area of land and waters referred to as the Far West Coast area, and which was the subject of a native title determination in Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 (Far West Coast land determination). The southern boundary of the Far West Coast land determination is 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.

2 The separate questions that were determined in the primary judgment were as follows:

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).

3 The answers to the separate questions were stated in the primary judgment at [1505]. Relevantly, separate question (b)(i) was answered as follows:

(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.

4 By the orders made on 29 July 2026, this Court set aside the primary judgment in so far as it relates to separate question (b)(i). We concluded that the primary judge’s determination of separate question (b)(i) involved error, in that her Honour admitted evidence and made findings that were inconsistent with the fundamental matters determined by the Far West Coast land determination: see Richards v State of South Australia (Far West Coast Sea Claim) [2026] FCAFC 97 (appeal judgment) at [193]-[226].

5 The orders made on 29 July 2026 required the parties to file written submissions 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 stated in the appeal judgment. The orders also provided that, subject to further order, the Court would determine on the papers the question of the appropriate form of orders to be made for the remittal of separate question (b)(i).

The position of the parties

The appellant’s submissions

6 The appellant filed a written submission dated 13 August 2026. In that submission, the appellant accepts that it is most efficient for the primary judge to hear and determine the outstanding controversies on remitter. In addition to the usual order that separate question (b)(i) be remitted to the primary judge pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for hearing and determination according to law, the appellant proposed additional procedural orders with the stated aim of narrowing the issues in dispute on remitter. The appellant proposed that the parties provide an agreed or competing:

(a) draft list of issues for the primary judge to determine according to law (list of issues);

(b) draft schedule of any evidence that contradicts the Far West Coast land determination that should not have been considered by the primary judge (schedule of evidence to be excluded); and

(c) draft schedule of evidence that the primary judge did not consider but should have according to law (schedule of evidence to be considered).

7 The appellant’s orders contemplate that, in the event of disagreement between the parties on those documents, the matter would return before this Court for resolution.

The Bunna Lawrie respondents’ submissions

8 The third to sixth respondents (Bunna Lawrie respondents) filed a written submission dated 24 August 2026. That submission advances four principal contentions.

9 First, the Bunna Lawrie respondents oppose the appellant’s proposed orders (save in respect of remitting the matter to the primary judge).

10 Second, the Bunna Lawrie respondents submit that the matter should be remitted to the primary judge as a continuation of the trial. This is particularly appropriate in circumstances where the primary judge is already familiar with the large volume of evidentiary material, took a number of views, and has had the benefit of seeing and hearing the witnesses give evidence, including Aboriginal evidence given on-country.

11 Third, the Bunna Lawrie respondents submit that there is no need to fetter the case management discretion of the primary judge, particularly in circumstances where this Court does not have sufficient familiarity with the entire corpus of evidence to usefully direct or constrain the primary judge as to how her Honour should proceed upon remittal.

12 Fourth, the Bunna Lawrie respondents further submit that, notwithstanding that this Court has to date only set aside the primary judge’s answer to the question of who holds native title, the appeal judgment necessarily finds material error in the primary judge’s approach and findings concerning traditional laws and customs. The argument advanced by the Bunna Lawrie respondents in that respect is difficult to follow. Doing the best we can, the argument appears to proceed in the following manner: first, the primary judge accepted evidence of traditional law and custom that Mirning and Wirangu coastal descendants hold native title in the coastal fringe and that Kokatha people do not; second, there was no other evidence of traditional law and custom of the Far West Coast People before the primary judge; third, if the effect of the Far West Coast land determination is to prevent evidence of traditional law and custom that Mirning and Wirangu coastal descendants have native title in the coastal fringe, then there is no evidence that can support a finding of native title rights and interests. On the basis of that submission, the Bunna Lawrie respondents submit that this Court should vary its existing orders to set aside the entirety of the primary judge’s determination of the separate questions.

The State’s submissions

13 The State filed a submission dated 26 August 2026. By those submissions, the State stated its agreement with the appellant and the Bunna Lawrie respondents that the proceeding should be remitted to the primary judge under s 28(1)(c) of the FCA Act as a continuation of the first trial and not a new trial.

14 The State disagreed with the submission of the Bunna Lawrie respondents that this Court should vary its orders to set aside the entirety of the primary judge’s determination of the separate questions. The State submitted that the existence of native title rights and interests was not in contest on the appeal. While the State and the Commonwealth had contended at trial that there was no native title within the sea claim area, that contention was rejected at trial and there was no appeal from that part of the primary judge’s decision.

15 The State proposed alternative procedural orders to those proposed by the appellant, on the basis that the appellant bears the onus on remittal of proving that all of the Far West Coast People, and not just Mirning and Wirangu people, hold native title rights and interests in the sea claim area. The State therefore proposed timetabling orders by which the appellant should file and serve a list of issues, schedule of evidence to be excluded and schedule of evidence to be considered, to which the other parties would respond, after which the proceeding would be listed before the primary judge for case management.

The Commonwealth’s submissions

16 The Commonwealth filed a submission dated 26 August 2026. By those submissions, the Commonwealth stated its agreement with the appellant and the Bunna Lawrie respondents that the proceeding should be remitted to the primary judge. The Commonwealth also stated its agreement with the Bunna Lawrie respondents that “it is not possible to completely divorce the question of whether native title exists in a particular area under traditional law and custom from the question of who holds it” and submitted that “it may be necessary to provide a mechanism for the primary judge to vary her answer to separate question (a) on remittal if the evidence so compels her to do so”. The Commonwealth did not propose a form of order to implement such a “mechanism”.

The Laing respondents’ submissions

17 The Laing respondents (Robert Lawrie and Michael Laing) filed a submission dated 27 August 2026, expressing their agreement with the orders sought in the submissions filed by the Bunna Lawrie respondents.

Consideration

18 All of the parties support the remittal of the proceeding to the primary judge under s 28(1)(c) of the FCA Act as a continuation of the first trial. In the absence of any objection by a party to that course, in the present case it is the appropriate course to be adopted. Further, none of the parties proposed that the remittal should be subject to any particular directions of this Court, beyond the usual direction that the proceeding be remitted for further hearing and determination in accordance with the reasons of this Court. It is therefore appropriate that the order for remittal be in the ‘usual’ form.

19 As to whether this Court should make procedural directions in the form proposed by either the appellant or the State, we agree with the submission of the Bunna Lawrie respondents that we should not fetter the case management discretion of the primary judge. As submitted by the Bunna Lawrie respondents, we do not have sufficient familiarity with the entirety of the evidence to usefully direct or constrain the primary judge as to how her Honour should conduct the continuation of the trial.

20 We do not accept the submission of the Bunna Lawrie respondents that we should now vary the orders made on 29 July 2026 to set aside the entirety of the primary judge’s determination of the separate questions. The submission goes beyond the scope of the orders made by the Court which sought submissions concerning the appropriate form of orders to be made for the remittal of separate question (b)(i) for further hearing and determination. Further, we accept the State’s submission that the existence of native title rights and interests in the sea claim area was not raised as an issue on the appeal. The relevant issue that was raised concerned the definition of the persons who held the rights and interests. The issues now raised by the Bunna Lawrie respondents were not argued by them on the appeal. Insurmountable problems of procedural fairness would arise if this Court were to set aside the primary judge’s determination of the existence of native title rights and interests on a basis that was not the subject of argument on the appeal.

21 In light of the submissions that have been filed, we consider that the appropriate order to be made is an order under s 28(1)(c) of the FCA Act remitting the determination of separate question (b)(i) to the primary judge for further hearing and determination in accordance with the reasons of this Court, and otherwise in such manner as the primary judge sees fit.

Associate:

Dated:    18 September 2026

SCHEDULE OF PARTIES