Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416

Pilbara Region

The determination area is the Daniel v State of Western Australia [2005] FCA 536 determination Area. It includes a small Reserve (40617) and six areas of Unclaimed Crown Land (82, 99, 110A, 110B, 110C, 114) that are the subject of this revised native title determination. For a detailed description and maps see the First Schedule: Attachments 1 and 2 (attached below under documents).

Registered on the National Native Title Register

Between:

Yindjibarndi Aboriginal Corporation RNTBC (Applicant) AND State of Western Australia, Fortescue Metals Group Pty Ltd, Yamatji Marlpa Aboriginal Corporation (Respondents)

Judge: Rares J

Judgment:

This decision, by consent of the parties, was made under section 13(1)(b) of the Native Title Act 1993 (Cth). It varies and replaces Moses v State of Western of Australia [2007] FCAFC 78 (Moses).

In light of case law post Moses, Justice Rares made this decision in the interests of justice to recognise that the Yindjibarndi People posess exclusive native title rights and interests over the determination area.

Moses had been decided on appeal from Daniel v State of Western Australia [2005] FCA 536 (Daniel), wherein Nicholson J found that Yindjibarndi native title rights and interests were non-exclusive. Moses had not disturbed the nature of that native title, whereas this present determination does.

Litigation background

In 2007 and 20017, the Court established that the Yindjibarndi People possess native title in two large areas of the Pilbara.

In the first case, after a lengthy trial, Justice Nicholson found that the Yindjibarndi held non-exclusive native title over the present determination area in Daniel v State of Western Australia [2005] FCA 536 (Daniel). An appeal to the Full Court in Moses v State of Western of Australia [2007] FCAFC 78 (7 June 2007) (Moses) amended Daniel but did not disturb the non-exclusivity of the Yindjibarndi's native title [8].

Significantly, in Daniel, Nicholson J had characterised the Yindjibarndi traditional law and custom of requiring all manjangu (strangers) to seek permission before entering or conducting activity on their country as 'a matter of respect rather than a recognition of a right to control' [12]-[13].

Four years later, however, and after the Moses appeal, the Full Court decided in Griffiths v Northern Territory (2007) FCAFC 178 (22 November) (Griffiths) that such a traditional law or custom could amount to a requirement that native title holders could protect their country from strangers. 

In the second case, on 13 November 2017, Rares J determined that the Yindjibarndi People possess exclusive native title rights over an area immediately to the south of the Moses land in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299 (Warrie).

Prior to handing down Warrie, Rares J found that if the law had been decided in this way when Nicholson had determined Daniel, his Honour would probably have characterized the need to seek permission the same as in Warrie [13].

Fortescue Metal Group Ltd (FMG) appealed the decision from Warrie to the Full Court without success in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177. The High Court then later refused FMG special leave to appeal the Full Court decision, on the basis that it concerned settled principle [15].

The application to amend Moses

Following Warrie, the Yindjibarndi Aboriginal Corporation RNTBC (YAC), applied for this revision of the Moses determination in order to recognise the Yindjibarndi as possessing the right of exclusive native title over Reserve 40617 and six other areas (or parts of) unallocated Crown land, as well as to address an ambiguity of whether Reserve 12260 is within the determination area [11].

Once the High Court had removed any avenue of appeal from Warrie, FMG withdrew from this proceeding [16].

Details of Judgment

Section 13(5), in association with s 13(1)(b), provides for the variation or revocation of a previous determination where events have since taken place that has caused it to be incorrect, or where the interests of justice require it.

Justice Rares noted that YAC and the State had filed joint submissions in support of the determination being made to amend the Moses determination[26]. Further, the 'unusual circumstances' of there having been two trials about the laws and customs of the Yindjibarndi People leading to the 2007 and 2017 determinations [29].

Reserve 40617

Rares J was satisfied, as was Nicholson J in Daniels, that s 47A applied to Reserve 40617 so that any earlier extinguishment of native title, due to the vesting of the reserve in the Aboriginal Lands Trust in 1988 under the Land Act 1933 (WA), had to be disregarded [37]-[41]. It follows from the decision in Warrie that Yindjibarndi native title is exclusive and that their native title over Reserve 40617 is exclusive [41].

The six Unclaimed Crown Lands (UCLS)

Rares J was satisfied that the joint submissions explained why YAC and the State considered there to be a credible basis for concluding that the six UCLs were occupied by Yindjibarndi in 1994 when the claim in relation to Daniel was made, so that s 47B applies to disregard any extinguishment of native title [54].

Variation of the mapping error

Contrary to the written description of the Moses determination area, the map incorrectly included Reserve 12260 as part of the determination area [55]. The map has now been amended. [56].

Exclusive native title in the Moses area

In light of Nicholson J's characterisation of 'seeking permission as a matter of respect rather than a right to control' and the Full Court concluding differently in Griffiths, Justice Rares found that there was a credible basis for the Yindjibarndi having the same exclusive rights and interests in the Moses land as they have in the Warrie land [58]-[57].

Accordingly, Justice Rares held that the interests of justice require that Moses be varied to show that the Yindjibarndi People possess exclusive native title over Reserve 40617 and the six UVCLs [60].

Native title exists in parts of the determination area

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