Background
The proceeding concerns a native title claim over sea country adjoining the southern boundary of the Far West Coast land and waters previously covered by a 2013 native title determination. The primary judge found that native title existed in an accessible portion of the sea claim area and identified its holders by reference to descendants of 18 named antecedents.
In an earlier appeal judgment, the Full Court held that the primary judge had erred when deciding who held the native title because she admitted evidence and made findings inconsistent with fundamental matters settled by the earlier Far West Coast land determination. The Full Court set aside only the answer identifying the native title holders and invited submissions on the form of the remittal order.
All parties supported returning that question to the primary judge as a continuation of the original trial. They differed over whether the Full Court should prescribe procedural steps and whether it should also set aside the finding that native title existed in the sea claim area.
The Court’s Holding
The Full Court remitted separate question (b)(i)—who are the persons, or each group of persons, holding the common or group rights comprising the native title—to the primary judge under s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth). The question must be reheard and determined consistently with the Full Court’s earlier reasons, but otherwise in the manner the primary judge considers appropriate.
The Court declined to impose proposed procedures requiring lists of issues and schedules identifying evidence to be excluded or considered. Because the primary judge was familiar with the extensive evidence and had heard witnesses, including on-country Aboriginal evidence, the Full Court concluded that her case-management discretion should not be constrained.
The Court also refused to set aside the primary judge’s finding that native title existed in the sea claim area. The appeal had concerned the identity of the holders, not the existence of native title, and setting aside the unappealed existence finding on a ground not argued in the appeal would create insurmountable procedural-fairness problems.
Key Takeaways
- The remittal is limited to identifying the persons or groups who hold the native title; the finding that native title exists remains undisturbed.
- The primary judge may manage the continued trial as she sees fit, subject to compliance with the Full Court’s earlier reasons.
- An appellate court will not ordinarily unsettle an unappealed determination on a basis the parties did not argue, particularly where doing so would deny procedural fairness.
Why It Matters
The decision defines the scope of the continued Far West Coast sea-claim litigation: the parties must revisit who holds the native title, but not whether native title exists. It also preserves flexibility for the judge most familiar with the substantial evidentiary record to determine how the remitted issue should proceed.
More broadly, the ruling illustrates the limits of appellate relief and the importance of framing issues on appeal. Even where questions about the existence and ownership of native title may overlap, the Full Court would not expand its orders beyond the issue actually contested without giving affected parties a proper opportunity to be heard.