Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299

The Pilbara region.

Registered on the National Native Title Register

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299.

Between:

• Stanley Warrie, Kevin Guiness, Angus Mack, Michael Woodley, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin, and Maisie Ingie, on behalf of the Yindjibarndi People (Applicant); and
• the State of Western Australia (First Respondent);
• Fortescue Metals Group Ltd (ACN 002 594 872), the Pilbara Infrastructure Pty Ltd (ACN 103 096 340) and FMG Pilbara Pty Ltd (ACN 106 943 828) (Second Respondent);
• Robe River Mining Co Pty Ltd, Hamersley Iron Pty Ltd and Hamersley Exploration Pty Ltd (Third Respondent);
• Georgina Hope Rinehart and Hancock Prospecting Pty Ltd (Fourth Respondent);
• Yamatji Marlpa Aboriginal Corporation (Fifth Respondent); and
• Margaret Todd, Lindsay Todd and Phyllis Harris ('the Todd party') (Sixth Respondent).

Judge: Rares J

Where made: on the papers.

Determination:

Native title exists in the entire determination area. The native title consists of exclusive and non-exclusive rights and interests.

Native title is held by the Yindjibarndi People.

The Yindjibarndi Ngurra Aboriginal Corporation RNTBC (ICN: 8721), as the prescribed body corporate, holds the determined native title in trust for the Yindjibarndi People.

The Yindjibarndi People's native title includes rights:

• to access;
• to engage in ritual and ceremony (including to carry out and participate initiation practices);
• to camp and build shelters;
• to fish;
• to collect and forage for bush medicine;
• to hunt and forage for and take fauna;
• to forage for and take flora;
• to take and use resources;
• to take water for drinking and domestic use;
• to cook on the land including a light a fire for this purpose;
• to protect and care for sites and objects of significance, including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others; and
• to conduct activities necessary to give effect the above rights.

Qualifications on the native title: The above native title rights and interests are exercisable in accordance with the laws of the State and the Commonwealth, and the traditional laws and customs of the Yindjibarndi People. They do not provide:

• exclusive rights in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) at the determination date;
• any rights in relation to minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);
• petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• water captured by the holders of the 'other interests' (see below), pursuant to those other interests.

Native title in the Exclusive Area: Subject to the rights of the 'other interests' (as below) the above native title rights confer, in the exclusive area, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others. 

The Exclusive Area (see map in 'Documents' below) consists of the area where s 47A applies: Reserve 31428, and also the Unclaimed Crown Land (UCL) areas where s 47B applies: UCL01, except to the extent covered by mineral lease AML70/00004 as at the date the application was filed; UCL02, except to the extent covered by mineral lease AML70/00004 as at the date the application was filed; UCL04; UCL06; UCL07, except to the extent covered by mineral lease AML 70/00004 and miscellaneous licence 47/47 as at the date the application was filed; UCL08; UCL09; UCL10; UCL11; UCL11; UCL13, except to the extent covered by mineral lease AML70/00004 as at the date the application was filed; UCL14; UCL17; UCL 18; UCL19; UCL22; UCL23; UCL24; and WATER1, except to the extent covered by mineral lease 70/00004 as at the date the application was filed.

Other (non-native title) interests: Other rights and interests existing in the determination area include those in relation to:

• Reserve Numbers: 5516 (water); 27915 (resting place travellers and stock); 31428 (use and benefit of Aborigines); and
• Pastoral Lease Numbers: PL N049532 (Coolawanyah Station); PL N050483 (Mt Florence Station); PL N050568 (Hooley Station); PL N050370 (Mulga DownsStation); and
• Water interests: licences to take groundwater, licences to construct or alter wells, and permits to obstruct or interfere;
• Mining Tenements (mining leases, miscellaneous licences, exploration licences, prospecting licences);
• Petroleum interests: PL105 (pipeline licence under the Petroleum Pipelines Act 1969 (WA); and
• other rights and interests including: licences and permits granted by the State or the Commonwealth; rights and interests by the operation of the laws of the State or Commonwealth; rights to access as required by law; public access (so far as confirmed per s 212(2) of the NTA and s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) to waterways, beds and banks or foreshores of waterways, stock routes, and areas that were public places as the end of 31 December 1993; and any other valid or validated interest in the land or waters or any other right in connection with the land or waters, or an interest in the land or waters, or a restriction on the use of the land or waters.

For full details of the above non-native title interests see Schedule 5 of the determination (or the Extract from the National Native Title Register in 'Documents' below).

Determination Area

The Extract from the National Native Title Register describes the area subject to the Yindjibarndi People's native title per Schedule 1 (description) and Schedule 3 (maps - see in 'Documents' below) of the Federal Court determination.

Background

On 20 July 2017, in the proceeding Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803, Justice Rares decided almost all of the issues in dispute in this proceeding and made orders that the parties consult towards preparing a draft determination of native title for the Court's final determination. The parties worked constructivley together and did this, however two issues remained in dispute:

1. FMG maintained that a note should be included in the final determination in relation to the areas of Reserve and Unclaimed Crown Lands affected by six exploration licences, to the effect that any extinguishment of [the Yindjibarndi's exclusive] native title was either disregarded under ss 47A and 47B of the Native Title Act 1993 (Cth) ('the NTA') or otherwise wholly extinguished [2].
2. The second issue involved deciding what form a declaration should be made about the Todd party's unsuccessful claim to be recognised as Yindjibarndi [2].

Details of Judgment

The NTA recognises what has not been extinguished under its own provisions. Accordingly, Justice Rares said that no rights or interests, capable of being disregarded, can have existed prior to the Court making a final determination [5]. Rares J rejected FMG's application for the note to be included in the final determination [9 - 11].

In relation to the second issue, Justice Rares set out the declaration about the Todd party as defined in the final determination at [22].

Related Entries

References

Documents

Glossary