Stephen Kenny and Leonora Herweijer were pleased to be able to represent the Arabana People in their recent High Court win in Aaron Stuart & Ors v The State of South Australia [2025] HCA 12.
A claim originated in 2013 when the firm lodged a native title application on behalf of Aaron Stuart, Joanne Warren, Greg Warren (Snr) and the late Peter Watts who acted on behalf of the Arabana People. Mr Watts name has been included with the permission of his family.
The claim was over what is known as the Oodnadatta Common, a small area that was not claimed in their original native title claim.
Unfortunately, some time later, South Australia Native Title Services (SANTS), acting on behalf of a group known as the Walka Wani, lodged an overlapping claim, despite the fact that they were not an adjoining neighbouring group.
At trial, Justice White of the Federal Court, in an error prone judgment, emphasised the need for physical connection to show that Arabana people continue to maintain their native title, rather than looking at the spiritual connection that the Arabana People had to their land.
On an appeal to the Federal Court, the Walka Wani claim was struck out, but the majority of the Full Federal Court ruled against the Arabana appeal on its claim.
In a 7-0 judgment, the Full Court of the High Court accepted the argument put forward on behalf of the Arabana, that Justice White had mistakenly instructed himself in relation to continuing connection that the Arabana had to their country. The High Court identified that the connection is to be:
…“by [the] laws and customs”, it does not need to be a physical connection with the claim area. The nature of the “connection” will depend on the “laws and customs”.
The State of South Australia and SANTS on behalf of the Walka Wani had argued in the High Court that a “spiritual” connection could only be sufficient if there were “explicable reasons” for not observing or practicing the traditional laws and customs on the claimed area, which was rejected by the Court.
The High Court stated, “if the relevant laws and customs demonstrate that connection may be established [for the purposes of the Act] other than by physical acts of acknowledgment or observance within the relevant area, then such acts may not be necessary to demonstrate “connection”.”
Aaron Stuart, the lead Applicant, said, “It was always Arabana land and always is and always will be.”
Stephen Kenny and Leonora Herweijer will continue to act in the matter during the remittal to the Federal Court for final determination and are confident it will have a successful outcome.
A statement on behalf of the Arabana Named Applicants can be found below and the judgement can be found at: https://www.hcourt.gov.au/cases/case_a1-2024
