Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim) [2021] FCA 1357

Federal Court of Australia

Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim) [2021] FCA 1357 File number: SAD 76 of 2021 SAD 71 of 2016

Judgment of: CHARLESWORTH J

Date of judgment: 4 November 2021

Catchwords: NATIVE TITLE – native title determination application made in respect of land and waters in the vicinity of the Great Australian Bight – claim group defined in a way that excludes some descendants of named apical ancestors but not others – descendants of the same apical ancestors previously determined to acknowledge the same traditional laws and to observe the same traditional customs – consideration of whether the claim group is a properly constituted claim group for the purposes of s 61 of the Native Title Act 1993 (Cth) – consideration of the traditional decision-making law, taking the claimant's evidence at its highest – consideration of whether the claim group is a distinct society – claim not authorised as required by s 61 – whether the Court should permit the claim to proceed to trial notwithstanding the defect in authorisation PRACTICE AND PROCEDURE – native title determination application overlapping a series of existing claims in respect of the same land and waters – existing claims having a long procedural history – existing claims subject to adjudication of a single disputed issue – existing claims to promptly proceed to a consent determination in the usual course – consideration of the impact of the recently commenced overlapping claim – overlapping claim summarily dismissed as an abuse of process