On 9^th April 2025, the High Court of Australia unanimously allowed an appeal in Stuart v South Australia from a decision of the Full Court of the Federal Court of Australia. The Native Title Act 1993 (hereafter NTA) recognises and governs the protection and determination of native title rights held by Aboriginal and Torres Strait Islander peoples, and its s 223 defines the meaning of native title by setting out the criteria for its recognition. The s 223 contains two relevant elements: first, the identification of traditional laws and customs, along with the rights and interests possessed under them [s 223(1)(a)]; second, the identification of a connection with the land or waters by those laws and customs [s 223(1)(b)].

By majority, the Court held that for purposes of the second limb of s 223(1), ‘where the relevant [native traditional] laws and customs demonstrate that “connection” for the purposes of s 223(1)(b) of the NTA may be established other than by physical acts of acknowledgment … physical acts may not be necessary to demonstrate such “connection” [to claim native title rights]’. The Court clarified that all s 223(1)(b) requires is that there is a “connection”; a “spiritual” connection may be sufficient without qualification. This judgment marks a pivotal development in the s 223(1) jurisprudence by setting a precedent supported by a majority of the HCA judges, as certain earlier decisions—holding that spiritual connection is insufficient for the purposes of s 223(1)(b)—are, respectfully, inconsistent with the UNDRIP: Callinan J in Ward (2002) at [650] ruled that ‘… the common law could only protect native title rights…that involved “physical presence on the land”… it could not protect other aspects of the spiritual connexion…”.

[The Arabana people, also known as the Ngurabanna, are an Aboriginal Australian group associated with the far north of South Australia. They submitted a claim that they held native title within the meaning of s 223(1) of NTA over an area of land in the vicinity of the township of Oodnadatta in South Australia (“the Overlap Area”).]

The History of Recognition of Native Title Rights

As Jagot J elucidated in Stuart v South Australia at [159], ‘the recognition of native title rights and interests at common law (from the decision in Mabo v Queensland [No 2]) and subsequently under the NTA is rooted in the specific history of British colonisation and settlement of Australia. Over the 18^th and 19^th centuries, British people (and people from other parts of Europe) made their way to “the colonies” including Australia.’ As Brennan J observed in Mabo [No 2] at 35, ‘[the] English colonists were, in the eyes of the common law, entitled to live under the common law of England … as their “birthright”’. The HCA’s decision in Mabo [No 2] overturned the earlier common law doctrine of terra nullius (land belonging to no one), in part to cease the perpetuation of injustice, ensure the equality of all Australians before the law, and to align the law with Australian history. The landmark judgment acknowledged that Indigenous people had complex legal systems prior to colonisation and enjoyed land rights in accordance with their own traditional laws and customs. The NTA was enacted to codify the principles outlined in Mabo [No 2].

The “Connection Inquiry” And UNDRIP Compliance

Australia endorsed the UNDRIP in 2009, and its Articles 25, 26, and 27 recognise and protect Indigenous peoples’ rights to land and country. It is essential that their connection to country is acknowledged according to their own laws and customs, as the non-Indigenous concept of individual property ownership does not always reflect this relationship. For many Indigenous groups—such as communities, language groups, or nations—connection to country is collective, not individual, and extends beyond physical or economic ties to include a spiritual connection. The group’s lawyer, Mr Kenny, said that ‘[this judgment] recognises and re-enforces spiritual connection as an element in a native title claim, which the Arabana can show.’. Mr Stuart said that ‘… there wasn’t no extinction of people … we were always there, we are there and we’ll always be here. Boundaries might change with the states and territories, Arabana land is always Arabana land, as with every other tribe in Australia.’.