Facts of the case
Miller v State of South Australia involved an application for determination of native title, relating to an area of the sea, and some islands, off the far west coast of South Australia (Sea Claim Area).
The claim area was adjacent to, and in proximity to an existing determination over land known as the Far West Coast Native Title Claim (FWC Determination Area). In this case, the applicants applied to amend the description of the claim group to align it with the description of native title holders in the adjacent land determination. They argued that native title rights in the sea must logically flow from rights in the neighbouring land, and the coastal waters should be treated as an extension of the land where native title had already been recognised.
Legal issues to be considered
The Court defined three issues for consideration:
- Whether native title exits in any land or waters in any part of the Sea Claim Area
- If native title exists, which persons (or group of persons) hold the common or shared native title rights
- The preliminary questions arising under Section 225 of the Native Title Act 1993 (Cth). Namely, the nature and extent of the native title rights and interests that exist in the Sea Claim Area
Findings of the Court
Spiritual connection to the claim area
The Federal Court found that native title exists in parts of the Sea Claim Area but only in waters that were physically accessible from land at the time of sovereignty.
The Court referenced Stuart v South Australia [2025] HCA 12, where the High Court held that connection to the claim area does not need to be demonstrated by physical acts or tangible activity. Instead, connection is determined by the relationship of the community to its country under the traditional laws and customs which it acknowledges and observes.[1]If the laws and customs demonstrate that a connection can exist without physical acts of observance, then those acts are not required to establish connection. Thus, an absence of recent use does not mean a group has no connection; spiritual and cultural links may continue even if the claimants have not maintained a physical presence on all parts of their traditional lands or waters.[2]
In Miller, the Court reiterated that the ‘connection’ enquiry under Section 223 (1)(b) of the Native Title Act is concerned with spiritual connection, but it is for the claim group to articulate its case as to how connection arises by their traditional laws and customs.[3] In this case, the question of connection was presented as one involving actual access, use and responsibility for Country as well as mythological narratives that supported connection to those physically accessible areas. Based on the evidence led, the Court determined that there was no native title existing in places that were physically inaccessible at sovereignty.
NATIVE TITLE COMPENSATION: Commonwealth of Australia v Yunupingu [2025] HCA 6
(1)(b) of the Native Title Act is concerned with spiritual connection, but it is for the claim group to articulate its case as to how connection arises by their traditional laws and customs.[1] In this case, the question of connection was presented as one involving actual access, use and responsibility for Country as well as mythological narratives that supported connection to those physically accessible areas. Based on the evidence led, the Court determined that there was no native title existing in places that were physically inaccessible at sovereignty.
‘In Rem’ Judgments
The Court recognised that the land claim (the FWC Determination) is a judgment ‘in rem.’ That means, it is a judgment concerned with people’s rights in relation to property, and it is binding on the world, not just the parties to the proceedings.[1] The case also clarified that while a judgment in rem is binding on the world, it is necessary to determine with precision, what the determination is, and what it is not.
The Court clarified that the judgment ‘in rem’ is made up of orders. While the written reasons explain those orders, not all facts and propositions in the reasons are part of the binding determination. The factual matters are to be found in the determination or orders, not in the judgment accompanying them that provide context for the decision.
The Claim Group
The Court accepted that the claim group making the Sea Claim was substantially the same as those in the earlier land decision and confirmed that the group’s rights and interests were practiced according to traditional law and customs. However, the Court rejected the argument that native title over the Sea Claim area was shared ‘communally’ by one single group.[2] Rather, the Court emphasised the need to investigate whether different groups or societies held rights over different parts of the coast and sea.
Implications
The case clarifies the legal framework for determining native title in coastal and marine areas, particularly in relation to the interaction between land and sea claims.
It also clarifies the evidential burden that is placed on applicants. That is, if a claim group seeks to rely on spiritual connection to areas not accessed presovereignty, it must articulate that, and provide evidence to show that connection, in their case to the Court.
The case also recognises that connection to Country can exist where recent physical use has been limited, reaffirming the importance of spiritual relationships with land and waters.