Legal development

High Court confirms Native Title Act connection can be met by spiritual connection

By Andrew Gay, Tony Denholder, Clare Lawrence and Leonie Flynn

09 September 2025

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    Native title year in review 2024-2025

    What you need to know

    What you need to do

    • Watch for the Full Federal Court's decisions in the Gaangalu and Boonwurrung appeals for further guidance about how connection issues are to be resolved.
    • Monitor the reliance on neighbouring determinations in disputes about connection and watch for further judicial guidance on this issue.

    Connection disputes continue to proceed to trial 30+ years since the Native Title Act commenced

    The Federal Court is regularly required to hear separate questions in native title claim proceedings relating to what can loosely be described as 'connection' issues. This includes: disputes between applicant groups and the relevant government party about whether native title still exists in relation to a claim area; and, disputes between applicant groups, the relevant government party, and often other Indigenous respondents, about the correct native title holders for the claim area.

    This year, we have seen decisions on connection issues from the High Court and Federal Court, with the Full Federal Court reserving a decision after hearing an appeal in March 2025. We summarise the latest developments on connections issues below.

    High Court clarifies test for connection in section 223(1)(b) of the Native Title Act

    In Stuart v South Australia [2025] HCA 12 (Stuart), the High Court was asked to consider the test for 'connection' in section 223(1)(b) of the Native Title Act 1993 (Cth).

    The background to Stuart is set out in our Native Title Year in Review 2023-2024 article, "Full Court considers connection but High Court to have final word". In summary, the Arabana People claimed native title over the vicinity of Oodnadatta in South Australia. The Federal Court had already made a consent determination in favour of the Arabana People over adjacent land to the east and south of the claim area (2012 Determination). The current claim area covered a small section that had been removed from the original claim. The trial judge considered that, despite the broader 2012 Determination, the Arabana People had failed to demonstrate ongoing connection with current claim area. In particular, the trial judge considered that the Arabana People had failed to provide sufficient evidence in relation to the acknowledgement and observation of traditional laws and customs in relation to the specific geographic location of the current claim area. The Full Federal Court agreed with the trial judge on appeal.

    The Arabana People appealed to the High Court on two grounds:

    1. The Full Court erred by failing to find that the primary judge had not properly construed the definition of native title in section 223(1) of the Native Title Act.
    2. The Full Court erred by treating all aspects of the 2012 Determination as being geographically specific – particularly, failing to find that the determination in the 2012 Determination that the Arabana People continued to acknowledge and observe traditional laws and customs was a determination that should have been applied to the Arabana People in the current claim area.

    Ground one: Test in section 223(1)(b) of the Native Title Act does not require physical connection

    The High Court held that the connection referred to in section 223(1)(b) of the Native Title Act does not necessarily have to be a physical connection. Establishing connection requires identifying the nature of the laws and customs by which that connection arises but proving that connection may not depend on evidence of physical acts of acknowledgment or observance in the claim area.

    The Court said (at [22] and [53]):

    Because the "connection" for the purposes of s 223(1)(b) is to be "by [the] laws and customs", it does not need to be a physical connection with the claim area. The nature of the "connection" will depend on the "laws and customs". That is, if the laws and customs demonstrate that connection with the relevant land and waters is generally by undertaking physical acts of acknowledgment or observance within the area of those land and waters, then establishing a connection may depend on whether such acts were performed. But equally, if the laws and customs demonstrate that connection may be established other than by physical acts of acknowledgment or observance within the relevant area, then such acts may not be necessary to demonstrate "connection".

    The proper approach to s 223(1)(b) is to ask whether there is a "connection" with the claim area "by [the] laws and customs" for the purposes of s 223(1)(a). This does not necessarily require that there be physical acts of acknowledgment or observance in the claim area. If, as here, the laws and customs include that the Arabana have a collective right to Arabana country, "connection" may arise from knowledge of the Overlap Area as Arabana country, together with "spiritual" or "cultural" connection to Arabana country that is not necessarily demonstrated by acts of "acknowledgment" or "observance".

    Ground two: Relevance of the neighbouring determination of native title

    Unfortunately, because of its findings about the test for connection, it was not necessary for the High Court to decide the second ground of appeal relating to the Full Court's treatment of the 2012 Determination.

    However, the High Court referred extensively to reports and other materials prepared for the 2012 Determination that the primary judge relied upon pursuant to section 86 of the Native Title Act in the current claim proceedings. It noted the matters that were expressly determined in the 2012 Determination and that, in making the consent determination, the Court had expressed confidence in the basis on which the State had accepted connection. It said (at [83] - [85]) that:

    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".

    On the first error, as explained, "connection" must be by laws and customs, so connection with an adjacent area may be evidence of connection "by laws and customs" where, as here, the laws and customs emphasise a collective right of all Arabana people to Arabana land, and there is evidence that Oodnadatta is regarded by the Arabana as Arabana country.

    On the second error, the 2012 Arabana Determination as well as evidence on which it was based were before the primary judge and were significant. As has been explained, 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.

    Result

    The appeal was allowed, and the matter was referred back to the Full Court to consider making a determination of native title in relation to the current claim area.

    Federal Court applies High Court decision in Stuart and considers the effect of another neighbouring determination

    The Federal Court had an opportunity to apply the High Court decision in Stuart in the decision of Miller v State of South Australia (Far West Coast Sea Claim) (No.4) [2025] FCA 388 (Miller), which was handed down only a few weeks later.

    This native title claim relates to a long and narrow area of the sea off the far west coast of South Australia. It incorporates sea waters up to 300 metres from the low water mark and some islands. The claim group are the determined native title holders of the area of land and waters to the low water mark abutting the sea claim area (FWC Land Determination Area). The claim went to trial on separate preliminary questions about whether native title exists in the sea claim area, and if so, who holds the native title.

    At the outset, the Court considered the test for connection and said:

    • The High Court in Stuart reiterated that the connection required by s 223(1)(b) of the Native Title Act need not manifest itself in physical presence or tangible activity.
    • The rights and interests referred to in the native title definition are native title rights and interests in relation to land or waters. That is a location-specific enquiry. The focus is on rights and interests in relation to the particular land and waters that form the subject of the application, and not on some other place or related to some other societal order unrelated to land or waters.

    Relevance of the neighbouring consent determination

    Like Stuart, the claim group made submissions about the effect of the FWC Land Determination.

    In particular, the group submitted that the Court could not make findings that contradicted the FWC Land Determination (because it was a judgment in rem) and that even if it was not binding on this Court, it supported a compelling inference that the claim group members hold native title to the abutting sea claim area. The group submitted that the Court was legally bound to find that those who held native title rights and interests in the sea must necessarily be described in the same way as those who hold native title in the adjacent land, and that the Court was prohibited from enquiring into the existence or significance of coastal estates existing at sovereignty. The Court disagreed with the applicants on this point, for the reasons set out below.

    The Court rejected the proposition that matters have been conclusively established because they were mentioned as facts in Mansfield J’s reasons (whether or not expressed as factual findings). It said that the only factual matters necessarily and intrinsically determined by virtue of the in rem status of the FWC Land Determination are to be found in the determination itself, not in the reasons for judgment accompanying it. They include factual matters such as who the holders of the native title are, the nature of the rights and interests and the interaction between those rights and interests with the rights and interests of other persons in relation to the same land.

    The Court held that it was not in the interests of justice to exercise the discretion under section 86(1)(c) of the Native Title Act to adopt any findings, decision or judgment comprised in, or accompanying, the FWC Land Determination over and above what is required by general law according to its status as a judgment in rem. However, after considering all of the evidence in the sea claim proceedings, the Court went on to note that, "the FWC Land Determination has special evidentiary significance because of its geographical position in relation to the Sea Claim Area" and said that, "the Court places great store on the circumstance that the FWC Land Determination Area is immediately adjacent to the sea waters."

    Native title to the sea claim area limited to areas that are physically accessible

    The Court ultimately concluded that native title exists to that part of the sea claim area that was physically accessible from the land at the time of sovereignty, which it defined by reference to distances (usually 30 metres) from the lower water mark. The findings were based on physical access because that was the case that was put by the applicants, who did not base any case on spiritual connection to the places that could not be accessed.

    The Court noted that the connection enquiry under s 223(1)(b) of the Native Title Act is fundamentally concerned with spiritual connection, but it is for the claim group to articulate its case as to how connection arises by their traditional laws and customs. The case on the question of connection was presented as one involving actual access, use and responsibility for country, as well as mythological narratives that were said to give rise to a connection to those physically accessible areas.

    Federal Court determines that Western Kangoulu People hold native title

    In Malone on behalf of the Western Kangoulu People v State of Queensland (No 6) [2025] FCA 363, the Federal Court determined separate questions relating to connection in favour of the Western Kangoulu people after almost of decade of negotiation, mediation and litigation between the claim group and the State.

    This case proceeded in an unusual manner because after the hearing of the separate questions in 2022 (where the State put the applicants to proof), the parties entered into some years of mediation. We wrote about some of the interlocutory steps in our Native Title Year in Review 2022-2023 article, "Recent decision highlights confusion around native title expert evidence" and in our Native Title Year in Review 2021-2022 article, "Proving connection becomes harder in 2021".

    Then in March 2025, with leave of the Court, the hearing of the separate questions was re-opened to allow the applicants to file an additional expert report and a statement of agreed facts relating to connection. The statement records an agreement between the applicants and the State about the central factual issues the subject of the separate questions for the purposes of a consent determination. However, rather than waiting for a consent determination to occur, the Court decided to determine the separate questions based on the statement of agreed facts and the evidence heard at the separate questions hearing.

    The Court considered all of the lay and expert evidence (and the statement of agreed facts) ultimately determined that the Western Kangoulu people had proven connection and held native title to the claim area.

    Interestingly, the Court held that they were a separate and distinct group descended from a wider group of Ganggalu people who held native title to a much larger area at the time of sovereignty. The Court held that at sovereignty, the Ganggalu people were a society united by their laws and customs, language and identity, but where rights and interests in land were held by local descent groups. The present day Western Kangoulu claim group comprise a distinct group, united by their laws and customs and holding rights and interests in the claim area by descent from their ancestors.

    The Court said that, despite being forcibly removed from their traditional country, and despite the hardships endured by them, the evidence shows that the claim group’s forebears continued to acknowledge and observe their laws and customs, and to teach those laws and customs to each generation. It held that the evidence supports a finding that knowledge of those laws and customs has been passed from generation to generation and has its origin in the society of Ganggalu people who occupied the claim area before European settlement.

    Full Federal Court hears appeal by Gaangalu Nation People after Federal Court found native title did not exist

    Notably, the neighbouring Gaangalu Nation People claim group were not successful in proving their continuing connection to country and did not succeed in their claim at first instance. In Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) [2023] FCA 600, after a contested hearing of separate questions regarding connection, the Court made a finding that native title did not exist in relation to the whole of the claim area. The Court found that as at the date of effective sovereignty, the Gaangalu people held rights and interests to parts of the claim area but their observance and acknowledgement of those rights and interests had not continued to the present day. The Court went on to make a negative determination of native title (Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 4) [2024] FCA 425).

    The Full Federal Court heard an appeal from these decisions in March 2025, and a decision has been reserved. We wrote about this claim in our Native Title Year in Review 2023-2024 article, "Federal Court makes negative determination of native title".

    High Court refused to grant special leave to appeal from Clermont-Belyando decision

    In December 2023, the Full Federal Court upheld determinations that native title does not exist in respect of two other Queensland claims (Malone on behalf of the Clermont-Belyando Area Native Title Claim Group v State of Queensland [2023] FCAFC 190 and McLennan on behalf of the Jangga People #3 v State of Queensland [2023] FCAFC 191). We wrote about these appeals in our Native Title Year in Review 2023-2024 article, "Full Court considers connection but High Court to have final word" and the first instance decision of Justice Reeves in our Native Title Year in Review 2021-2022 article, "Proving connection becomes harder in 2021".

    The Clermont-Belyando Area Native Title Claim group applied for special leave to appeal to the High Court, but the application was refused with costs in August 2024.

    Federal Court considers "tripartite test" in Mabo in deciding dispute about apical ancestors for Boonwurrung native title claim

    In Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279 (Briggs No. 2), the Federal Court considered a dispute about the apical ancestors of the Boonwurrung People. The claim area covers much of metropolitan Melbourne and all of Mornington Peninsula and Western Port and has been beset with issues relating to the composition of the claim group, authorisation and boundaries with other groups. This decision resolves a dispute about the correct apical ancestors for the claim group, but does not address other issues.

    The Court was also asked to consider whether membership of the Boonwurrung People at sovereignty required "mutual recognition", as described by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23. Brennan J in Mabo at [70] referred to a "tripartite test" as follows: "Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people".

    The Boonwurrung Applicants submitted that the tripartite test from Mabo, including a requirement of "mutual recognition", formed the criteria for membership of a First Nations group at both common law and under the Native Title Act.

    The Court noted that Brennan J’s dictum in Mabo regarding the tripartite test, including the mutual recognition element, has been considered by courts, without criticism, in numerous decisions both inside and outside the native title context. However, it is incorrect to describe the test as applying as a matter of law under either the common law or the Native Title Act. The High Court has explained that, beyond the common law’s recognition of native title, it plays no role in determining whether native title exists in a particular case. In all cases under the Native Title Act, the statutory criteria govern.

    The separate question is concerned with the requirements for membership of the Boonwurrung People at sovereignty. Those requirements must be those prescribed by the traditional laws and customs of the Boonwurrung People; not requirements arising as a matter of law under the common law or the Native Title Act.

    The Federal Court's decision in relation to the apical ancestors has been appealed to the Full Federal Court (VID530/2025).

    Key insights

    The High Court's decision in Stuart may change the way that applicants plead their case for connection to focus equally on physical and spiritual connection.

    Stuart has not entirely resolved the issues surrounding the use of neighbouring determinations of native title in further claims. Although the High Court was comfortable in allowing materials from the previous determination to be used as evidence in that claim, the Federal Court was not willing to do so in Miller. Although handed down before Stuart, it is worth noting that the Full Federal Court in McLennan on behalf of the Jangga People #3 v State of Queensland [2023] FCAFC 191, took a similar approach to the Court in Miller. We will continue to monitor the reliance on neighbouring determinations in disputes about connection and to watch for further judicial guidance on this issue.

    Other authors: Fergus Calwell, Senior Associate and Martin Doyle, Lawyer.

    Want to know more?

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.

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