The case demonstrates that where traditional laws concerning primary rights and inheritance of rights in land, creation mythology, and ceremonial life have been substantially lost — even where the loss was caused by dispossession — native title cannot be established under s 223(1) of the NTA. The identification of pre-sovereignty laws and customs at a high level of generality, derived from broad anthropological literature rather than specific ethnographic evidence, does not satisfy the requirement to demonstrate continuity. The Court recommended legislative reform to empower the Court to make declarations recognising ancestral occupation under traditional laws and customs even where native title cannot be established.
The full text is available to signed-in members, including the 6 later cases that cite this judgment.