Stuart v State of South Australia [2023] FCAFC 131

FEDERAL COURT OF AUSTRALIA

Stuart v State of South Australia [2023] FCAFC 131 Appeal from: Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620

File numbers: SAD 16 of 2022 SAD 17 of 2022

Judgment of: RANGIAH, CHARLESWORTH AND O'BRYAN JJ

Date of judgment: 14 August 2023

Catchwords: APPEAL AND NEW TRIAL – NATIVE TITLE – appeal from orders made on overlapping native title determination applications – claims brought on behalf of the Arabana people and the Walka Wani people – trial judge finding the ancestors of the Arabana people occupied the overlap area at sovereignty – trial judge concluding the Arabana claim group did not presently possess native title rights and interests in the overlap area – trial judge concluding the Arabana people did not, by their traditional laws and customs, have a connection with the overlap area – whether the trial judge misconstrued or misapplied the definition of native title in s 223 of the Native Title Act 1993 (Cth) – whether the orders or conclusions of the primary judge are inconsistent with a determination of native title in favour of the same claimants in an adjacent area – trial judge making a determination of native title in favour of the Walka Wani people – trial judge finding there to be a consensus among expert witnesses as to the existence and nature of native title rights and interests in a report of a joint conference of experts – whether the finding of a consensus was open on the material before the primary judge – whether there was a sufficient evidentiary basis for a determination describing the nature of the rights and interests possessed by all members of the Walka Wani claim group – where error affecting that finding justifies the setting aside of the native title determination – whether there is a proper basis to order a new trial