Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177

The Pilbara region

Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177.

Between: 

• Fortescue Metals Group Ltd (First Appellant);
• The Pilbara Infrastructure Pty Ltd (Second Appellant); and
• FMG Pilbara Pty Ltd (Third Appellant);
  

and

• Stanley Warrie and others on behalf of the Yindjibarndi People (First Respondent);
• State of Western Australia (Second Respondent); and
• Robe River Mining Co Pty Ltd, Hamersley Iron Pty Ltd and Hamersley Exploration Pty Ltd and others (Third Respondent). 

Judges: Jagot, Robertson, Griffiths, Mortimer and White JJ

Judgment:

The Federal Court had recognised the Yindjibarndi People's native title claim at first instance in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299. This was an appeal by Fortescue Metals Group (FMG) in response to that decision. 

FMG raised a number of grounds on appeal, including that:

• the primary judge had erred by not holding that an abuse of process had occurred, because an earlier native title determination for a separate area to the north had recognised that the Yindjibarndi People only hold non-exclusive native title rights in that area;
• the primary judge should have found that the Yindjibarndi People's native title rights and interests do not include a right to exclude anyone from accessing the determination area for any reason; and
• the primary judge should not have found that certain parts of the claim area were "occupied" for the purposes of s 47B of the Native Title Act 1993 (Cth). 

The Full Court of the Federal Court of Australia rejected all three grounds of appeal and the recognition of the Yindjibarndi People's native title was upheld. 

High Court resolution of the matter

FMG made an application for special leave to appeal the Full Court's decision to the High Court. FMG submitted that the High Court's approach in the Yorta Yorta decision could not be reconciled with the approach taken by the Full Court. Conversely, the Yindjibarndi noted that FMG's suggestions would "turn native title on its head", and failed to distinguish between the existence of native title rights and their exercise. 

In May 2020, the High Court of Australia refused FMG's special leave application, re-affirming the Yindjibarndi People's exclusive native title to land including FMG's Solomon Hub iron ore mine in Western Australia (Fortescue Metals Group Ltd & Ors v Warrie & Ors [2020] HCATrans 65 (29 May 2020)). 

Keane J ultimately concluded: "The decision of the Full Court of the Federal Court was concerned with the application of settled principle. The application to this Court raises no issue of principle that would warrant the grant of special leave to appeal."

Subsequent developments

The Traditional Owners, represented by the Yindjibarndi Aboriginal Corporation (YAC), are expected to lodge a compensation claim in the Federal Court that "could link to a percentage of the tens of billions of dollars in revenue Fortescue has earned from iron ore mining on the Yindjibarndi's traditional lands" (Brad Thompson and Peter Ker, "Forrest Links mining royalties to Indigenous misery").

In October 2020, the Yindjibarndi People also achieved a variation by consent to their existing determination (to the north), to recognise exclusive native title over additional areas (Andrew Gay and Cheyne Jansen, "High Court dismisses FMG's special leave application in Yindjibarndi proceedings - exclusive native title over Solomon Hub re-affirmed").

Public response

Upon hearing the High Court decision, YAC CEO Michael Woodley commented that "a rich man's poor ambition has come to an end" (Keira Jenkins, "Yindjibarndi people celebrate the end of long battle with Fortescue over Native Title rights"). He further noted that "there's no amount of compensation that's going to obviously fix up the damage that miners do to our country [but] we need to also be in a position where we can assess our community and ensure our people don't perish" (Jonathan Green, "The long battle over Yindjibarndi land in the Pilbara"). 

Paul Cleary, in his book Title Fight: How the Yindjibarndi Battled and Defeated a Mining Giant, published by Black Inc., emphasised the "incredible power imbalance" between the Yindjibarndi People and Fortescue. In detailing the 17-year legal battle, Cleary also expressed the idea that money is "no match for a nation and its people" (Conrad Landin). 

Andrew Gay, Partner at Ashurst specialising in native title and cultural heritage matters, noted that the planned compensation application by YAC "could potentially be an important test case for the Western Australian mining industry". He further noted that "it is likely to be the first claim to consider compensation principles where the non-extinguishment principle applies to mining leases that have been granted over exclusive possession native title" (Andrew Gay and Cheyne Jansen).

Background

On 9 July 2003, the Yindjibarndi People filed an application for determination of native title. The Solomon iron ore deposit was subsequently discovered by FMG geologists in 2005 (Isabella Higgins and Nick Sas, "Fortescue and Andrew Forrest lose High Court appeal over exclusive native title of WA's Yindjibarndi people").

On 13 November 2017, Justice Rares in the Federal Court held that the Yindjibarndi People hold exclusive native title rights over land including FMG's Solomon Hub iron ore mines in Western Australia (Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299). 

FMG appealed against the determination in two respects:

1. Firstly, with respect to the Yindjibarndi People's exclusive right to possession, occupation, use, and enjoyment of the area to the exclusion of all others [3].
2. Secondly, with respect to whether s 47B of the Native Title Act applied to certain vacant parcels of unallocated Crown land [4].

Parties' arguments

Appellants' arguments

FMG argued that an "abuse of process" arose due to inconsistent Yindjibarndi determinations which "threaten the integrity of the administration of justice" [557]. In this instance, the primary judge recognised exclusive native title rights and interests held by the Yindjibarndi People over a certain part of Yindjibarndi Country, whereas, in Daniel v Western Australia [2005] FCA 536 and Moses v Western Australia (2007) FCAFC 78, the Federal Court found that the Yindjibarndi People held non-exclusive native title rights over another part of Yindjibarndi Country [11].

FMG also argued that the Yindjibarndi People were not able to prove the existence of a right to exclusive possession. In particular, FMG contended that Griffiths v Northern Territory [2007] 165 FCR 391 and Banjima People v Western Australia [2015] 231 FCR 456 were wrongly decided, to the extent that they "suggest such a right can be established and recognised on the basis of evidence about 'spiritual sanctions' alone" [152].

In addition, FMG argued that certain parts of the claim area were not "occupied" for the purposes of s 47B of the Native Title Act 1993 (Cth) [429], and that "occupation" under s 47B required presence in a "concrete real world sense" [462].

Respondents' arguments

The Yindjibarndi argued that "the primary judge's reasoning could not be faulted" and that a conclusion of abuse of process "would have the potential to erode public confidence in the administration of justice" [79].

Details of judgment

Robertson and Griffiths JJ held that "evidence of the spiritual, cultural and social context may be relevant in evaluating the nature and significance of the activities undertaken on country, and may show that the claim group is established over the land so as to amount to occupation under s 47B(1)(c)" [480]. They concluded that FMG had "not demonstrated error in the primary judge's conclusion" [516].

The appeal was dismissed by the Full Court of the Federal Court of Australia, which upheld the decision in Warrie that the Yindjibarndi People possessed exclusive native title over the area.

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References

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