Native title year in review 2025-2026

What you need to know

• There were two Full Federal Court and five single judge decisions relating to connection in the last year.
• In Blucher on behalf of the Gaangalu Nation People v State of Queensland [2025] FCAFC 177 (Gaangalu FC), the Full Federal Court set aside a negative determination of native title, finding that the primary judge had applied the wrong tests to traditional laws and customs and to connection under the Native Title Act 1993 (Cth).
• Gaangalu FC warned against overemphasis on concepts of "society" and explained how adaptation of traditional laws and customs is permissible. These findings were applied in later decisions.
• In Richards v State of South Australia (Far West Coast Sea Claim) [2026] FCAFC 97 (Richards FC), the Full Federal Court upheld the trial judge's finding that native title existed only in that part of the sea claim area that was physically accessible from the land at the time of sovereignty, rejecting as insufficient evidence that native title existed "as far as the eye can see".
• Several decisions resolved disputes between native title holding groups about overlap or boundary areas between already determined native title land areas. These decisions led to some surprising outcomes for the parties.

What you need to do

• Be aware that the law on connection is still developing, with the focus moving to second generation issues – the areas between determined claims and sea areas adjoining determined claims.
• Don't assume that the Federal Court will accept pragmatic solutions just because the parties have agreed. The judge must be satisfied that the orders proposed reflect the native title landscape, and can decline to make the orders.
• Watch for further judicial guidance around the distinction between estate groups and broader native title holding communities.

Further legal developments on questions of connection

We write about legal developments relating to issues of "connection" under section 223(1)(b) of the Native Title Act 1993 (Cth) regularly in our annual Native Title Year in Review. Our Native Title Year in Review 2024-2025 article, "High Court confirms Native Title Act connection can be met by spiritual connection", considered the High Court decision in Stuart v South Australia [2025] HCA 12 (Stuart HC) and a number of Federal Court decisions.

There were consistent themes arising from the 2025-2026 decisions relating to:

• Permissibility of adaptation of traditional laws and customs – Full Court in Gaangalu FC and decisions applying Gaangalu FC;
• Overemphasis on the concept of "society" – Full Court in Gaangalu FC and decisions applying Gaangalu FC;
• Spiritual connection – connection does not necessarily need to be demonstrated by acts of physical connection to the claim area, but can be maintained through spiritual and cultural connection to that area;
• Relevance of neighbouring determinations of native title – in both an evidentiary sense and in the resolution of disputes about boundary areas;
• Boundary disputes between neighbouring determined native title holders can be very complicated to resolve – several decisions highlighted how fraught this process can be. The Federal Court reminds us of the need for rigour – previous determinations needed to be respected and new claims needed to be tested.

Gaangalu: Full Federal Court overturns decision that native title did not exist and finds that adaptation of traditional laws and customs is permissible

In Gaangalu FC, the Full Federal Court set aside a negative determination of native title, finding that the primary judge had applied the wrong tests to traditional laws and customs and to connection under the Native Title Act. We wrote about the first instance decision in our Native Title Year in Review 2023-2024 article, "Federal Court makes negative determination of native title".

Permissibility of adaptations of traditional laws and customs

Applying Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, the Full Court confirmed that a society is simply a group united by a body of laws and customs that its members acknowledge and observe. It does not need a regional structure. The primary judge erred because he asked whether a Gaangalu regional society still existed, rather than whether the Gaangalu continued as a society in the Yorta Yorta sense, and when he found that the regional society had not continued, treated that as fatal to the claim.

The Full Court also held that continuity should not be assessed by weighing present-day laws and customs against those that have been lost. The question is whether the laws and customs observed today have their origin in the pre-sovereignty system.

The Full Court found that the primary judge erred in treating two changes as new practices adopted after colonisation, rather than adaptations of the traditional system. The first was a move from a patrilineal-based system of inheriting primary rights in land to a cognatic system, where rights pass through either parent. The second was a move from landholding by small clan groups to communal holding by the broader Gaangalu language group. The anthropologists retained by both parties agreed that each change was an adaptation rooted in tradition. The primary judge had wrongly required the Gaangalu to explain how traditional law allowed these adaptations. As the Full Court observed, a society has no reason to have rules ready for the catastrophic disruption caused by colonisation.

Because the primary judge had erroneously identified the relevant laws and customs by reference to the regional society, he could not properly decide whether the Gaangalu had a connection with the claim area by those laws and customs. He had found that several laws and customs continued: inalienability of land, communal ownership, spiritual connection with the land and customary use of natural resources (at [94]), but did not ask whether those laws and customs connected the Gaangalu to the land and waters. The Full Court found that this omission was a further error of law.

Spiritual connection

Applying Stuart HC, the Court observed that connection does not require regular physical activity on country. A continuing spiritual or cultural relationship can be enough. This evidence therefore had to be assessed on its own terms, not dismissed because a regional structure had changed.

Result and implications

The Full Court allowed the appeal and set aside the primary judge's negative determination. On 12 March 2026, the Full Court ordered that:

• the State pay the Gaangalu People's costs of the appeal;
• the order of Rangiah J dismissing the claim in Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 4) [2024] FCA 425 be set aside;
• the National Native Title Registrar reinstate the Gaangalu claim (QUD33/2019) on the Register of Native Title Claims in full; and
• the proceeding be remitted to a single judge of the Federal Court.

The State sought special leave to appeal to the High Court. Special leave was refused, with costs against the State. For more about the costs decision, see our Native Title Year in Review 2025-2026 article, "Costs at the crossroads: native title and section 85A".

Had the negative determination stood, it would have permanently barred recognition of native title by any group. Instead, the claim (QUD33/2019) has been reinstated and the Gaangalu must again be treated as registered native title claimants in future act processes. This reversal is a significant change for all parties, most particularly the Gaangalu People.

Marlinyu Ghoorlie: Federal Court applies Stuart HC and Gaangalu FC to recognise Karlamaya Kapurn native title (overlap dispute)

This is the first of a number of decisions in the last 12 months dealing with the resolution of disputes about overlap or boundary areas.

In Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 6) [2025] FCA 1641 (Marlinyu Ghoorlie), the Federal Court conducted a joint trial of overlapping native title determination applications for a large area in the Western Goldfields region of Western Australia. The Marlinyu Ghoorlie applicant claimed native title on behalf of the Karlamaya Kapurn People. A competing application was brought by the Karratjibbin claim group, whose claim area was largely within the Marlinyu Ghoorlie claim area. Additionally, the Cooper respondents claimed an interest in the eastern part of the trial area through descent from a Western Desert ancestor.

In a trial of separate questions, the Court found that, subject to any question of extinguishment, native title exists over the whole of the area and is held by the Karlamaya Kapurn People. The decision draws directly on Stuart HC and Gaangalu FC and explores several of the same themes.

Spiritual connection

Relying on Stuart HC, the Court accepted that connection can continue at a spiritual or cultural level even where claimants have not kept up a physical presence across large parts of their country. Knowledge passed between generations supported the connection. This included knowledge of water sources, sites, plants, place names and how to find food. The Court found the connection to be both physical and spiritual. The physical side lies in the rights to occupy, hunt, hold ceremonies and use resources. The spiritual side lies in the belief that ancestral spirits reside in country, the creation stories still known, and the duty to care for country.

Adaptation: Court applied Gaangalu FC in considering permissible adaptations of traditional laws and customs

As in Gaangalu FC, European settlement had brought about two significant adaptations in the Karlamaya Kapurn People's traditional laws and customs.

Rights that once passed through the father now pass through either parent. Small clan group "patriclan" estates have also been absorbed into communal rights over Karlamaya Kapurn country as a whole. Drawing on Gaangalu FC, the Court held that both changes were permissible adaptations of traditional laws and customs. The change to descent through either parent left the core principles intact, being descent grounded in a spiritual connection with the ancestral dead, and rights that are communal and inalienable. The Court cautioned that the analysis may go wrong if it focuses too heavily on what has been lost.

Gingirana #3: Court refuses to make consent determination over disputed area acknowledging both neighbouring native title holding groups (boundary dispute)

This was a boundary dispute between the holders of two neighbouring determinations (the Nharnuwangga, Wajarri and Ngarla (NWN) People and the Gingirana #3 People), who, following mediation, were able to reach agreement and proposed a single consent determination of "two different native titles" over the boundary area between the two existing determinations. They proposed that a newly established prescribed body corporate would hold native title on trust for both groups.

However, the Court refused to make the consent determination (Williams on behalf of the Gingirana #3 Native Title Claim Group v State of Western Australia [2026] FCA 279 (Gingirana #3)).

The Court accepted it has power to make two determinations of native title in relation to the same area or in relation to two areas that overlap, and said it had heard no submissions to suggest that "two distinct native titles" was any different. However, the Court was not satisfied that:

• the rights respectively claimed by the parties were native title rights within the meaning of section 223(1) of the Native Title Act; and
• it had the power to appoint a different prescribed body corporate where the native title is the same as a prior determination.

On the first point, the limited rights claimed by the Gingirana and the characterisation of the area as a "transitional zone" for the Gingirana (as opposed to their "ancestorial core country") raised a question about whether the Gingirana's rights were rights "in relation to land" as required by section 223(1) of the Native Title Act, or whether they were "reciprocal rights", dependent on interpersonal relationships with the NWN People.

The Court considered a well-established line of authority which distinguished native title rights in a group's "own" country from rights based on reciprocal personal relationships with other native title holders, and was ultimately not satisfied that the Gingirana's rights were native title rights. It was therefore not satisfied that the Court had power to make a native title determination in the terms sought by the proposed consent determination.

On the second point, applying Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69, the Court found that because native title involves a common and collective connection between a group of people and an area of land, manifested by acknowledgment and observance of a single normative body of laws and customs, there can be only one prescribed body corporate for the one native title. The Court found that the materials provided no basis to conclude that the native title held by the NWN People over the boundary area was distinct from that held under the adjoining NWN People determination. If a nomination has been made under an earlier determination, and the Court thereafter proposes to make a further determination recognising that the same native title extends to additional land, the Court is required to give effect to the earlier nomination.

These matters have been in case management since this decision, with an interlocutory application by the NWN People listed for hearing in late November 2026. We will report on the progress of this dispute in our Native Title Year in Review 2026-2027.

Ross: Court finds neither neighbouring native title holding group holds native title to disputed area and instead finds descendants of some apical ancestors from each group hold native title (boundary dispute)

Like Gingirana #3, the context of this decision was a contested boundary dispute between two groups of determined native title holders.

The Court noted that the disputed area is an artificial creation of the native title system, bounded by three consent determinations. This matter arose within a much larger proceeding, known as the Cape York United #1 Claim (CYU#1 Claim). In the CYU#1 Claim, most boundary disputes between neighbouring groups have been resolved by negotiation, resulting in consent determinations of native title. However, the Umpila and Lama Lama Peoples were not able to reach agreement and asked the Court to resolve the dispute by way of separate question. Both groups claimed native title to the disputed area to the exclusion of the other. The State of Queensland was also an active participant in the hearing and submitted that native title was held by both groups.

In Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 40) [2026] FCA 980, the Court found that neither the Umpila nor the Lama Lama People were the native title holders of the disputed area. Instead, the Court found that native title was held by the descendants of some of the apical ancestors referred to in each of the Lama Lama and Umpila consent determinations.

Relevance of the neighbouring consent determinations

The Court cautioned against over-reliance on the Umpila and Lama Lama consent determinations. For example, some submissions referred to "findings" in the reasons accompanying the determinations as if they were findings of fact, or inferences, drawn in a contested proceeding after an adversarial process. The Court said that the observations made in the reasons accompanying consent determinations do not bear that character and cannot be used in the current adversarial contest. However, the orders made, and the content and effect of those orders, are highly relevant, especially in relation to apical ancestors.

Court follows Gaangalu FC on concepts of "society"

Referring to Gaangalu FC, the Court said that "too ready a focus on the society concept tends to distract from the questions asked by the Native Title Act" (at [299]). Therefore, although some submissions encouraged the Court to make findings about whether the Umpila and Lama Lama Peoples were part of the same "society", the Court said this would not assist the resolution of the separate question.

Post-colonial identities did not reliably reflect pre-sovereignty landholding

The Court accepted expert evidence that "Lama Lama" and "Umpila" labels were post-colonial identities that did not reliably reflect pre-sovereignty landholding. It found that colonisation, removals and population movements had brought people from different local estate groups together under modern labels, and that language and contemporary affiliation could not substitute for the historical inquiry into which people held country under the traditional system.

The Court observed that while the occupation of land by the Lama Lama since 2000 was genuine and culturally significant, it was a product of post-colonial history and did not determine native title. The relevant inquiry is the position at sovereignty and the continuity of the traditional system, not which contemporary group has been most visible or dominant in the area in recent decades.

The Court said that it was clear on the balance of probabilities that there were landholding groups occupying the disputed area at effective sovereignty and that native title existed in relation to the disputed area. However, the Court found that it was held by neither the Umpila nor the Lama Lama People as described in the neighbouring consent determinations, but instead by the descendants of some of the apical ancestors referred to in each of the Lama Lama and Umpila consent determinations.

Given the native title holders were the descendants of both Umpila and Lama Lama identifying people, the Court queried whether the disputed area was held communally by all Umpila and Lama Lama People. This was the State's contention, but the Court rejected it because of a lack of evidence. Instead, the Court held that native title was held communally only by the descendants of five named apical ancestors, including descendants recognised through traditional adoption.

The Court noted that this would require a new registered native title body corporate because the native title is distinct from the Umpila and Lama Lama determinations.

Eastern Maar: neighbouring determination cannot be contradicted but is not enough without probative evidence of connection to the new claim area (boundary dispute)

In Austin on behalf of the Eastern Maar People v State of Victoria (No 3) [2026] FCA 1054 (Eastern Maar), the Federal Court determined a separate question in competing native title claims between the Gunditjmara People and the Eastern Maar Peoples over an area of land in south-western Victoria. Both groups had previously been recognised as holding native title in adjacent areas. It was uncontentious that the Eastern Maar People held native title over the claim area. The separate question related to whether the Gunditjmara People also held native title over the area and the Court ultimately held that they did not. In this sense, the outcome differed from Ross.

Relevance of neighbouring determination

The Court said that the Gunditjmara submissions overstated the impact of the neighbouring Gunditjmara determinations.

The earlier Gunditjmara and Eastern Maar consent determinations over the adjacent areas were decisions in rem that both groups descend from the Maar-speaking society and have separately continued to acknowledge and observe traditional laws and customs in relation to those adjacent areas. However, the question remained whether the Gunditjmara could establish the necessary connection to the claim area itself.

The Court further held that it was not open to the Gunditjmara to lead evidence or make submissions about the nature of the native title holding group on a different basis to that recognised in the previous determinations. In the previous determinations, the Gunditjmara advanced a native title claim on the basis that the Maar-speaking society had adapted under pressure of colonisation into two interrelated but distinct eastern and western communities or domains, of which the Gunditjmara People comprised the western domain and the Eastern Maar Peoples the eastern domain. That claim was accepted by the parties and the Court, and a consent determination was made which recognised the separate, coexistent native title rights and interests of the Gunditjmara People and the Eastern Maar Peoples in relation to the land and waters of the adjoining determination areas. The Court said (at [514]):

They cannot take the benefit of the consent determination in relation to [the adjoining area], which recognised rights in rem in their favour, and now seek to disavow the basis of that determination because it is inconvenient to their native title claim in respect to an adjacent area.

Court applied Gaangalu FC and cautioned against oversized emphasis on concept of society

The Court said that "as too often happens in native title cases, the focus on 'society' has a tendency to distract" (at [469]). In Gaangalu FC, the Full Court explained that it is not the society per se that produces rights and interests. The core question is identifying whether the claim group can identify a traditional normative system that gave the group rights and interests in a particular area of land.

The Court accepted that the Gunditjmara and Eastern Maar descended from a broader Maar-speaking society, and were bound by the same normative system of traditional laws and customs derived from that society. However, it held that membership of that society did not itself establish connection to the claim area, cautioning against an "oversized emphasis" on the concept of society.

To establish that the Gunditjmara People have a connection to the claim area, it was necessary for the Gunditjmara applicant to put on probative evidence about the continued observance and acknowledgement of traditional laws and customs by members of the Gunditjmara People in relation to that area. It was not sufficient for it to merely put on such evidence about Gunditjmara country in respect of the adjoining determination areas. The Gunditjmara evidence was described as scant and unpersuasive in relation to the claim area. The Eastern Maar evidence, by contrast, addressed specific sites, spiritual significance, resources and continuing responsibilities in the relevant area.

Result and next steps

The Court held that the Gunditjmara People do not hold native title over the claim area.

The Gunditjmara People have filed an appeal. We will monitor developments in the appeal and provide a further update in our Native Title Year in Review 2026-2027.

Yugunga-nya: Like Ross, Court finds neither neighbouring native title holding group holds native title to disputed area and instead finds descendants of some apical ancestors from each group hold native title (boundary dispute)

In Gilla on behalf of the Yugunga-nya People v State of Western Australia (No 5) [2026] FCA 1255 (Yugunga-nya), the Federal Court determined competing claims by the Yugunga-nya and Gingirana claim groups to an area in the Western Desert region of Western Australia. The circumstances were very similar to Ross, in that the determined native title holders of the lands adjacent to the boundary area both asserted native title to the area to the exclusion of the other group. The State submitted that a determination could recognise that descendants of identified apical ancestors from both claim groups hold native title.

Ultimately, the Court agreed with the State and determined that the descendants of certain identified apical ancestors of both groups hold native title in the boundary area. This was a similar outcome to Ross.

This matter was decided approximately one month after Richards FC (see below), and does not refer to it. This is likely because Yugunga-nya was heard in 2022 and 2023. The Court does refer to Gingirana #3 but determined that the outcome in Gingirana #3 was not relevant to this dispute.

Relevance of previous determinations

Applying Stuart HC, the Court held that it was entitled to take into account that the neighbouring consent determinations have recognised that each of the Yugunga-nya and Gingirana claim groups has a normative system of traditional laws and customs which has the capacity to confer native title. However, the Court must determine the position in relation to the boundary area. We note there seems to be a different emphasis on the significance of neighbouring determinations in this than in Richards FC.

The parties agreed that, subject to extinguishment, native title rights and interests exist in the whole of the boundary area, and are held by members of the Western Desert society. The issue for the Court to resolve was which members of the Western Desert society have native title interests in the boundary area - the Gingirana, the Yugunga-nya or both.

Spiritual connection

Applying Stuart HC, the Court was satisfied that the Yugunga-nya have a physical and spiritual connection with the boundary area that has been maintained by the descendants of the apical ancestors. Because the Yugunga-nya have not lived in the boundary area, evidence of physical connection was of a more limited nature than may be the case in other determinations, but the Court held it was sufficient. It is not necessary that a claim group establish that each member has continued to acknowledge and observe laws and customs in precisely the same way or understands them in precisely the same way. It is sufficient to have regard to the conduct of the relevant claim group as a whole. It is not necessary to establish physical connection over each and every part of the relevant land within the boundary area.

Risks associated with overlap/boundary disputes

The Court noted that the principal claims of each of the Yugunga-nya and the Gingirana are binary in nature. Neither recognises the claims of the other. In such circumstances, there is always a prospect that either claim might fail. For example, in Marlinyu Ghoorlie, the Court recognised the native title of the Karlamaya Kapurn People over the whole claim area and rejected a competing claim by the Karratjibbin. In Ross, both competing binary claims failed and it was determined that native title was held communally by the descendants of named apical ancestors, a group embracing both sets of claimants.

Outcome – descendants of certain identified apical ancestors of both groups hold native title in the boundary area

The Court determined that certain apical ancestors from each group had rights and interests in the boundary area at the time of effective sovereignty, and that their descendants had continuing physical and spiritual connection with the area and now hold native title communally.

Because of the mutually exclusive nature of their claims, neither the Yugunga-nya nor the Gingirana gave attention to how native title might be held together. The Court said that the parties would need to consider these reasons and address a number of matters before any determination of native title could be made. This includes how native title is to be held under a single determination. The Court did not express a view, but it seems likely that a new registered native title body corporate would be required, as the Court expressly noted in Ross.

Far West Coast Sea Claim: Full Court upholds finding that native title in sea claim area limited to physically accessible waters but overturns trial judge on identity of native title holders

In Richards v State of South Australia (Far West Coast Sea Claim) [2026] FCAFC 97 (Richards FC), the Full Federal Court considered an appeal from Miller v State of South Australia (Far West Coast Sea Claim) (No 4) [2025] FCA 388, which we discussed in our Native Title Year in Review 2024-2025 article, "High Court confirms Native Title Act connection can be met by spiritual connection". Richards FC was, therefore, the consideration of an appeal against the decision of a trial judge in respect of preliminary questions going to the existence of native title and, if relevant, the identity of the native title holders.

This native title claim relates to a long and narrow sea area off the far west coast of South Australia incorporating sea waters up to 300 metres from the low water mark. The claim group are the determined native title holders of the land 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.

Spiritual connection: Statements that country extended "as far as the eye can see" were not enough to establish connection to waters beyond that area

The claim group appealed the primary judge's finding that native title existed only in that part of the sea claim area that was physically accessible from the land at the time of sovereignty, which the Court defined by reference to distances (usually 30 metres) from the low water mark. The findings were based on physical access because that was what the evidence demonstrated and the evidence was not sufficient to justify an inference that the claim group had the requisite connection with the sea claim area beyond the accessible area.

The Full Court upheld the primary judge's finding that native title in the sea claim was confined to waters physically accessible from the coast at sovereignty. Statements that country extended "as far as the eye can see" were not enough to establish connection to waters beyond that area. Such evidence may represent "a beginning, not a beginning and an end" to the inquiry.

The Full Court did not diminish the role of spiritual evidence, but held that the evidence must identify the content of the traditional laws and customs and show how they operate in relation to the particular waters in issue. The Court also held that stories and responsibilities connected mainly with the adjacent land determination could not, without more, establish rights and connection throughout the offshore claim area.

Relevance of the adjoining determination

The Full Court was required to determine the legal effect, if any, of the adjoining Far West Coast Determination in respect of the sea claim area.

The Full Court began by noting that it was uncontroversial that a native title determination is a determination in rem, with the consequence that a person may not, in later proceedings, seek to contradict a determination of native title, or the findings which were essential to that determination. However, as the High Court recognised in Stuart HC, the findings which are essential to the determination can have relevance to a native title claim area beyond the land and waters that are the subject of the determination.

The Full Court said that Stuart HC confirmed that an earlier native title determination (in respect of one area) may have evidentiary significance in a later native title determination (in respect of another area) on two bases:

• First, the earlier determination has significance as an in rem decision, which establishes where native title exists, who holds it and its nature, and the findings which are essential to the matters that are determined.
• Second, the Court may receive into evidence the transcript of evidence in the earlier native title proceeding and may adopt any finding made in the earlier proceeding.

The Full Court held that the Far West Coast Determination, and the reasons for making that Determination, were highly relevant to the sea claim because, to the extent that native title rights and interests are held in the sea claim area, those rights and interests would necessarily be held by Aboriginal people holding rights and interests in the land adjacent to the sea claim area.

The Full Court was not willing to overturn the primary judge's decision not to adopt any of the findings made in the Far West Coast Determination. However, the Full Court said that:

If and to the extent her Honour considered that the findings made in the land determination had less inherent probative value because they were made in the context of a consent determination, we would respectfully disagree with that view. The fact that all parties to the land determination accepted the evidence and supported the determination being made does not diminish the probative value of findings made on the basis of that evidence.

Full Court overturned finding that native title for the Far West Coast sea claim was held by a subgroup of the Far West Coast land determination native title holders, rather than the group as a whole

The dispute about the legal effect of the Far West Coast Land Determination was relevant because of a challenge to the primary judge's finding that native title for the Far West Coast sea claim was held by a subgroup of the Far West Coast Determination native title holders, rather than the group as a whole.

The Full Court upheld this ground of appeal. The issue turned on whether the native title rights and interests in the Far West Coast Determination were held communally. The Full Court held that they were, and that the primary judge erred in making findings that contradicted this determination.

After considering all the authorities on this issue, the Full Court noted that there was a difference between:

• communal native title, that may include an intramural allocation of rights and interests amongst the native title holding group, such that some have particular privileges (eg, to speak for an area) and others particular restrictions (eg, gender-based restrictions on access); and
• two separate societies for a determination area under which there are two separate, but overlapping, native title holding groups. Where the native title holding group comprises multiple groups, each group holding native title rights and interests in a distinct area of land and waters under the laws and customs of a single society, that is to be recognised in multiple determinations: one for each native title holding group.

The Full Court held that the Far West Coast Determination must be construed as recognising a single communal title under which all the native title holders recognised hold native title rights and interests in the determination area as a whole, albeit that there may be an intramural allocation of those rights and interests amongst particular groups (eg, Kokatha, Mirning or Wirangu) including in particular parts of the determination area.

Adaptation

The Full Court noted that:

• What was determined by the Far West Coast Determination was the existence, as at the date of the determination in 2013, of a single society that includes descendants of Kokatha, Mirning and Wirangu people.
• The Far West Coast Determination does not necessarily require a conclusion that the same society existed at sovereignty. The concept of "traditional" laws and customs is one which accommodates necessary adaptation of laws and customs in response to European settlement of the claim area.
• It is conceivable that, at sovereignty, Kokatha, Mirning and Wirangu people acknowledged and observed laws and customs under which they held rights and interests in discrete areas of land (often referred to as estates), and it is conceivable that, at sovereignty, they may not have been regarded as a single society. Those possibilities are not inconsistent with the Far West Coast Determination.
• There is no legal requirement that the character and scope of the present-day Aboriginal society, the laws and customs acknowledged and observed, and the rights and interests held, be identical to the pre-sovereignty society. What is required under the Native Title Act is that the origins of the content of the present-day laws and customs are to be found in the normative rules of the Aboriginal society that occupied the claim area prior to the assertion of British sovereignty, and that the laws and customs have had a continuous existence and vitality since sovereignty.
• It has been recognised in many cases that a necessary adaptation of traditional laws and customs to the impacts of European settlement is the amalgamation of local estates into a single larger estate.

Ultimately, the Full Court ordered that the matter be remitted to a single judge to determine the question of who holds native title in the sea claim area, in light of the totality of the lay and expert evidence, and based upon a correct understanding of the Far West Coast Determination.

Key insights

The Full Federal Court in Gaangalu FC and Richards FC has provided significant guidance on a number of issues.

Gaangalu FC warned against overemphasis on concepts of "society" and explained how adaptation of traditional laws and customs is permissible. These findings were followed in Marlinyu Ghoorlie, Ross and Eastern Maar and then developed further by the Full Court in Richards FC.

Richards FC built on the High Court's observations in Stuart HC about the relevance of neighbouring determinations of native title in determining claims to adjacent areas. We first wrote about the uncertainties regarding reliance on neighbouring determinations in our Native Title Year in Review 2021-2022 (in relation to the Clermont-Belyando and Jangga #3 native title claims) and our Native Title Year in Review 2023-2024 article, "Full Court considers test for connection, but High Court to have the final word" (in relation to the appeals from these decisions and Stuart). Post Richards FC, these issues are now resolved and parties have clear guidance about how neighbouring determinations, whether by consent or litigated, may be utilised.

That spiritual connection to country can found native title is also uncontroversial following Stuart HC. However, the Full Court in Richards FC held that evidence must identify the content of the traditional laws and customs and show how they operate in relation to the particular waters in issue. Statements that country extends "as far as the eye can see" were not enough to establish connection to waters that were not physically accessible from the land. The Full Court's refusal to overturn the trial judge on this issue is likely to be relevant in the context of offshore infrastructure projects around Australia.

In researching this article, we were struck by the number of decisions in the last 12 months dealing with the resolution of disputes between native title holding groups about boundary areas between already determined native title land areas. These disputes represent an aspect of "next generation" native title connection issues. Primary claims have been made and resolved, leaving less straightforward areas to be tackled later.

Richards FC is now the definitive word on the relevance of previous determinations, so the various trial judges' observations about these issues are to be understood in this context. What is clear is that the primary judges in Gingirana #3, Eastern Maar and Ross were grappling with essentially the same issue, but were faced with a number of different strategies adopted by the claim groups in terms of whether to argue a binary case excluding the other group. Although it would seem less risky for disputing groups to attempt some compromise over boundary areas to reach a consent determination, we saw in Gingirana #3 that the Court will not accept a determination that does not meet the requirements of the Native Title Act.

Want to know more?

• High Court confirms Native Title Act connection can be met by spiritual connection (9 September 2025)
• Full Court upholds negative determination in contested non-claimant application (9 September 2025)
• Costs at the crossroads: native title and section 85A (30 October 2026)

Authors: Leonie Flynn, Expertise Counsel; Samantha Marsh, Senior Associate; Tilie Alleluia, Graduate; Ella Moore, Graduate and Kate Cosgrove, Graduate.