Deane dismissed his injunction application, but referred the question to the full bench.
A full complement of confirmed justices is desirable, but the Court has often opened without a full bench.
"We can appeal to the full bench," he said.
The question of jurisdiction was set for argument before the full bench at the upcoming March term.
Baxter was refused special leave to appeal to the High Court against the full bench's judgment.
Generally, the Court sits as full bench, but in the last fifteen years it has on occasion sat as a chamber.
The Justices exercise jurisdiction in judgments as a member of either the full bench or panel.
The traditional owners are now considering either a political campaign or an appeal to the full bench of the Federal Court.
In the early years, a full bench of the Supreme Court sat together to hear the cases presented before them.
It gave the Justice Department seven days to request that the full bench hear any further appeals.