Wilcox, Sackville and Merkel JJ
The Primary Judge found that some of the appellants had abandoned the connection they previously had with the claim area and dismissed the claim on the ground that the appellants failed to satisfy him that they now have any connection with the land and waters within the claim area.
Issues on appeal to the Full Court related to the existence of a cohesive society and connection to the claim area.The Full Court found that the Judge did err in finding that the absence of a cohesive society would not adversely effect the claim.
The Full Court found that the trial judge had erred in identifying the traditional laws and customs relevant to the question of connection by taking the wrong approach to this question. The Full Court ruled that the question posed by that provision is not whether the appellants, or any of them, have abandoned their connection to the claim area, the correct question is whether the appellants, by their traditional laws acknowledged and traditional customs observed, have a connection with the claim area.
Ordinarily, the Full Court would allow the appeal and remit the case to the Primary Judge. However, the primary judge had retired and requiring another judge to review all evidence would be very costly and time consuming. The Full Court ordered that the parties identify remaining contentious issues. The Full Court will than take written and oral submissions on those matters and rule on those matters.