Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia: Native Title

Thursday 27 July 2017 @ 11.43 a.m. | Legal Research | Trade & Commerce

In the judgment Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 handed down on Thursday, 20 July 2017,  Justice Rares of the Federal Court awarded the Yindjibarndi people exclusive rights over a section of  the ore rich Pilbara land where Fortescue Metals Group (FMG) operates its Solomon mine.

Background

Proceedings in the matter commenced on 9 July 2003, when the claimant application was filed. The applicant claims, on behalf of the Yindjibarndi, that it is entitled to a determination of native title under section 225 of the Native Title Act 1993 (Cth) (NTA) over the claimed area.

In subsequent proceedings: Moses v Western Australia (2007) 160 FCR 148 - the Full Court of the Federal Court made an amended determination of native title in respect of a large area of land to the north of the claimed area (known as the the Moses land) (the 2007 determination). 

In Daniel v State of Western Australia [2005] FCA 536 (the 2005 determination) the Full Court of the Federal Court amended the original determination that Nicholson J had made earlier on 2 May 2005. Ordering there that Yindjibarndi Aboriginal Corporation RNTBC (YAC) hold the Yindjibarndi’s native title rights and interests in the Moses land in trust for the Yindjibarndi people. Nicholson J had published his substantive reasons for that determination on 3 July 2003 in which he held that the Yindjibarndi held "non-exclusive native title rights" over the Moses land, see Daniel v State of Western Australia [2003] FCA 666.


The Key Matters at Issue

In his decision (see paragraph [4]) of his judgment Justice Rares indicates that the case gave rise to six substantial issues that must be decided, namely:

  1. Have the Yindjibarndi proved that they are entitled to a native title right to control access (or exclude others), equivalent to a right of exclusive possession, over so much of the claimed area in which no extinguishing, or partially extinguishing, act has occurred - the exclusive possession issue?
  2. Were any of miscellaneous licence 47/47 or the six exploration licences, “a permission or authority . . . under which the whole or any part of the land and waters in the area is to be used . . . for a particular purpose” within the meaning of section 47B(1)(b)(ii) of NTA, so as to extinguish native title rights and interests over the land and waters any such licence covered - the extinguishment issue?
  3. Have the Yindjibarndi established that one or more members of the claim group occupied, at the time that the claimant application was filed on 9 July 2003, each of the Yandeeyara Reserve 31428 (within the meaning of section 47A(1)(c) of the NTA) and four parcels of unallocated Crown land (UCL) (within the meaning of section 47B(1)(c) of the NTA) - the occupation issue?
  4. If the answer to issue 1 was yes - are the Yindjibarndi precluded from obtaining a determination of native title that they have a right of such exclusive possession because of the 2005 and 2007 determinations that they had only a right of non-exclusive possession over the Moses land - the abuse of process issue?
  5. Are the Todd respondents members of the Yindjibarndi - the Todd issue?
  6. To what other native title rights and interests are the Yindjibarndi people entitled and how should the native title holders be described - the relief issue?

Conclusions on the Key Issues

  1. The exclusive possession issue - Justice Rares found that the Yindjibarndi have the exclusive right to control access to Yindjibarndi country and, in particular, to the claimed area. Saying at paragraphs [149] and [150]:

"[149] I am satisfied that, on the evidence before me, the Yindjibarndi continue to acknowledge their traditional laws and observe their traditional customs that have existed since before sovereignty that a manjangu must seek and obtain permission from an elder before entering on Yindjibarndi country or carrying out activity there (except if the person is simply driving through).

[150] Moreover, that conclusion is supported by the evidence of Dr Palmer, which I accept. He concluded that the Yindjibarndi had the right to exclude others who are not Yindjibarndi “and are consequently identified as manjangu”, but he also found that they had abandoned the pre-sovereignty right to put a trespasser to death."

  1. The extinguishment issue - Justice Rares found that none of the six exploration licences met the exclusionary criterion in section 47B(1)(b)(ii) of the NTA and the 2012 licence was invalid to the extent that it affected native title by force of sectionss 24OA and 28(1)(c) of the NTA. See para [230]:

"It would be a very odd result to suggest that the owner of a freehold interest lost his, her or its right to exclusive possession of real property merely because an exploration licence, with the features of any of the six exploration licences, existed for a limited time and operated in a limited way over that property. Any inconsistency created by the permission or authority to explore licensed land under the relevant exploration licence, would not destroy any of the native title rights and interests."

  1. The occupation issue - On this issue his Honour found that one or more members of the claim group occupied, at the time that the claimant application was filed on 9 July 2003.
  2. The abuse of process issue -  On this issue his Honour rejected the arguments of the State of WA and FMG that the Yindjibarndi’s litigation of their claim to exclude others from, or control access to, the claimed area amounted to an abuse of process, and found that it was a proper use of the Court’s processes (see para [390]).
  3. The Todd issue - his Honour held that none of the Todd respondents or their family were part of the claim group (see para [515])
  4. The relief issue - primarily his Honour directed the parties parties consult, ". . .if need be with the assistance of a native title Registrar, to prepare a draft determination. In the event that no agreement on those matters can be achieved, it will be necessary to have a further hearing" (see para [516]- [521]).

Following From The Decision

The ABC News has reported that FMG is set to appeal against the ruling because it "...could force the company to pay millions of dollars in compensation for its Solomon Hub mine in WA's Pilbara region". The report quotes FMG chief executive Nev Power as saying:

"I think we are likely to appeal, . . . It's a very unusual decision in that the judge has found exclusive native title possession on this land, which we think is unlikely to be the case. ... So we will be looking at it definitely and considering an appeal."  

In the same report the YAC chief executive Mr Michael Woodley is reported as saying he was disappointed to hear FMG was going to appeal, saying the case had already dragged on for years - and further saying:

"I don't think they have an issue with the Yindjibarndi people winning exclusive rights [to the land] ... I think they have an issue with the Yindjibarndi people having exclusive rights and then wanting a compensation claim."

From these reports the indications are that the matter is likely to see further litigation from both sets of parties.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 (20 July 2017)

Andrew Forrest's Fortescue Metals Group likely to challenge Pilbara native title ruling (ABC News)

Traditional owners win native title fight with Fortescue (SMH)

Related Articles: