Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36

FEDERAL COURT OF AUSTRALIA

Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36 Appeal from: Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899

File numbers: SAD 249 of 2016 SAD 250 of 2016 SAD 251 of 2016

Judges: REEVES, JAGOT AND WHITE JJ

Date of judgment: 16 March 2018

Catchwords: NATIVE TITLE – where three applicant claim groups made competing and entirely overlapping native title claims over the same area – where each of the applicant claim groups had already obtained consent determinations over areas adjoining the claim area – where the primary judge dismissed the three competing claims – whether native title determinations should have been made in respect of any of the claims – whether any of the appellants, on the evidence, had maintained a substantially uninterrupted connection with the claim area since sovereignty under their traditional laws and customs – consideration of the principles applying to the requisite connection inquiry – consideration of the fundamental matters determined by a determination of native title under the Native Title Act 1993 (Cth) – whether the primary judge erred in the manner in which he gave effect to the prior consent determinations – whether the primary judge erred in not drawing an inference in favour of any of the appellants APPEALS – where the errors alleged by the appellants related to factual findings – consideration of the role of an appeal court – consideration of the advantage of a trial judge in making factual findings – whether the primary judge's findings were wrong by "incontrovertible facts or uncontested testimony", or were "glaringly improbable" or "contrary to compelling inferences" Held: all appeals dismissed