Forescue Metals Group Ltd & Ors v Warrie & Ors [2020] HCA Trans 65 (29 May 2020)

Application for Special Leave to Appeal to the High Court (dismissed)

Between:

Fortescue Metals Group (FMG) Ltd (ACN 002 594 872), the Pilbara Infrastructure Pty Ltd (ACN 103 096 340), FMG Pilbara Pty Ltd (Applicants) AND Stanley Warrie and Others on behalf of the Yindjibarndi People, State of Western Australia, Robe River Mining Co Pty Ltd, Hamersley Iron Pty Ltd and Hamersley Exploration Pty Ltd, Georgina Hope Rinehart and Hancock Prospecting Pty Ltd., Yamatji Marlpa Aboriginal Corporation, Lindsay Todd, Margaret Todd and Phyllis Harris (Respondents). 

Judges:

Keane and Edelman JJ

Judgment:

The High Court decided that the application had no issue of principle that warrants the granting of special leave to appeal the decision of the Full Court of the Federal Court which concerned the application of the settled principle.

The application was thus dismissed.

This decision reaffirms the Yindjibarndi People's native title rights, including their exclusive native title over the area of FMG's Solomon Hub, and provides the Yindjibarndi People with the scope to claim compensation under the Native Title Act 1993 (Cth) (NTA). 

Background

In the proceeding Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803, Justice Rares decided that the Yindjibarndi People hold exclusive native title to land that included FMG's Solomon Hub iron ore mines in the Pilbara region of Western Australia. 

FMG filed a notice of appeal in December 2017, appealing the finding of exclusive native title. The appeal was heard and dismissed by the Full Court of the Federal Court in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177.

FMG then lodged an application for special leave to appeal to the High Court in November 2019. The High Court refused FMG's application, upholding the lower court's decision that the Yindjibarndi People hold exclusive native title over FMG's Solomon Hub mines.

The dismissal of this application reinforces existing native title decisions.

Details of Judgment

FMG raised two main issues in their special leave application:

• Whether proof of non-Aboriginal conduct was irrelevant to the continuity of the native title right of exclusive possession; and
• Whether the Yindjibarndi People held a native title right of exclusive possession, which was ineffective in relation to non-Aboriginal persons. 

FMG submitted that traditional continuity of connection could not be reconciled with the approach taken by the Full Court in the Yindjibarndi proceedings. With reference to Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta), FMG argued that the Yindjibarndi People did not demonstrate a continued connection to their traditional land: that 'reality on the ground, without involving extinguishment in the proper sense, nonetheless... devastation and disruption will factually answer the proposition that there has been continuity of acknowledgment and observance and if that is so, of course, there simply cannot be the section 223 of the NTA recognition'.

FMG noted that native title rights are "extremely vulnerable" to this kind of devastation and disruption, but asserted that there is "no reason... to water down the requirement for the continuity". FMG said there had been a failure to reflect the proper approach taken in Yorta Yorta.

The State of Western Australia and the Yindjibarndi People both opposed FMG's special leave application,

The State described FMG's submission as being without merit since "where traditional law is acknowledged but the traditional means of enforcement are prohibited by Australian law, indigenous people cannot establish continuity and must inevitably lose their native title". Further noting, among other things, that FMG would 'turn native title on its head' and fail to distinguish between the existence of native title rights and their exercise.

The High Court subsequently dismissed FMG's submission with costs.

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