Camatta Lempens were proud to represent the Arabana People in the above native title appeal before the High Court of Australia on 6 and 7 November 2024.
There were two grounds of appeal:
- The majority in the Federal Court erred in failing to find the learned trial judge had failed to construe and apply the definition of “native title” in section 223(1) of the Native Title Act 1993 (Cth) when dismissing the Arabana’s native title determination application; and
- The court erred in treating all aspects of the determination in Dodd v State of South Australia [2012] FCA 519 as being geographically specific. In particular, it failed to find that the Arabana people continued to acknowledge and observe the traditional laws and customs of the Arabana People at sovereignty, was a determination as to the present claim group that should have been applied in the context of this small adjoining claim area.
Background
In 2012 the native title of the Arabana people was recognised over their country in and around Kati Thanda in South Australia in the matter of Dodd v the State of South Australia. A small area known as the Oodnadatta Common was not included on that claim as part of an agreement with the State to transfer the land.
When that did not occur, the Arabana filed an application seeking a native title determination over what is known as the Oodnadatta Common in 2013.
Another native title party filed two overlapping claims and a contested hearing took place.
In 2021, the primary judge (White J) dismissed the Arabana claim. He concluded that the Arabana people held native title at the time of sovereignty but they had failed to maintain that connection over the overlap area due to their lack of ongoing connection and activity in the specific area. This is despite the Arabana evidence of their connection to the area by their laws and customs including ongoing assertions of ownership, having Ularaka (stories) in relation to that area, having actively sought to protect sites of significance in the area and (although not necessarily required), exercising their rights to hunt and gather food, visiting and residing in the claim area.
He then proceeded to recognise the overlapping claim group as the native title holders, despite the fact that they had not arrived in the area until 1901.
The Full Court of the Federal Court upheld an appeal by the Arabana to reject the overlapping group’s claim, but the majority failed to uphold the Arabana appeal to their native title.
Justice O’Bryan in dissent found error in the trial judge’s approach to the Arabana claim.
No appeal was lodged by the overlapping group after their claim was dismissed.
In February 2024, the Arabana were granted special leave to appeal to the High Court of Australia in relation to their claim.
The Attorney-General of the Commonwealth intervened before the High Court and made submissions in support of the Arabana’s position concerning the definition of “native title”.
Judgment is expected in 2025. The decision is likely to be a significant decision relating to the definition of “native title” and the use that may be made of findings essential to native title in a consent determination by the same group in the adjoining area to the disputed claim area.
Leonora Herweijer of Camatta Lempens acted as junior counsel to Stephen Lloyd SC and Anne Sibree before the court.
Stephen Kenny of Camatta Lempens acted as the instructing solicitor.
