Catchwords:

NATIVE TITLE – application for determination of native title over an area of sea – sea claim area abuts land in respect of which there is an existing determination of native title – legal effect of the land determination in separate proceeding concerning abutting sea claim area – proper construction of the land determination – principles to be applied in construing native title determination – whether the land determination determined that the native title holders hold their rights and interests in the determined area communally – meaning and effect of a “communal” determination of native title – whether primary judge erred in failing to exercise discretion under s 86(1)(c) of the Native Title Act 1993 (Cth) to receive into evidence the reasons for the land determination – considerations relevant to the exercise of discretion under s 86(1)(c) – whether primary judge erred in admitting evidence and making findings in the sea claim application that were inconsistent with the land determination and the fundamental matters determined by the land determination

NATIVE TITLE – dispute with respect to the extent of the sea claim area – principles relevant to the distinct inquiries under paras (a) and (b) of 223(1) of the Native Title Act 1993 (Cth) – evidence concerning spiritual beliefs extending into the sea claim area – where evidence did not rise above generalised assertions as to the extent of sea country

NATIVE TITLE – whether primary judge erred in finding that the right to access and take resources from the sea claim area was limited to domestic consumption and sustenance for family members – principles relevant to determining whether there exists a constraint as to the purpose for which non-exclusive rights can be exercised

PRACTICE AND PROCEDURE – determination of separate questions in a proceeding under the Native Title Act 1993 (Cth) – objection to the competency of the appeal – where answers to separate questions formally stated in the reasons for judgment but not incorporated into an order of the Court – whether answers given to separate questions constitute an “operative judicial act” which is an appellable judgment for the purposes of s 24(1) of the Federal Court of Australia Act 1976 (Cth) – answers to separate questions constitute an interlocutory judgment – whether leave to appeal should be granted – importance and utility of granting leave to appeal