Australia: Exclusive native title determination over the FMG Solomon hub mine

Last Updated: 26 July 2017
Article by Michael Hunt and Liz Wreck

The most publicised decision was last Thursday's ruling that the Yindjibarndi People hold exclusive native title rights and interests over reserved land and unallocated Crown land (Claim Area). The claim area includes land on which part of FMG's Solomon Hub mine and other companies' exploration interests are located (Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 (Yindjibarndi 2017 decision)).

Western Australia's Aboriginal Affairs Minister, Ben Wyatt, said that he "warmly congratulated" the Yindjibarndi people who had "won today in the face of not insignificant obstacles over many years".

The decision follows years of disputes between the Yindjibarndi People and FMG after they failed to reach agreement on payments. FMG subsequently commenced negotiations with a sub-group of the Yindjibarndi People (the Wirlu-murra Aboriginal Corporation). The Federal Court heard evidence in 2015 that FMG had covertly arranged a meeting of the Yindjibarndi People with the aim of removing the leaders of the Yindjibarndi People.

The Yindjibarndi 2017 decision follows the 2003 decision of the Federal Court that the Yindjibarndi People hold only non-exclusive rights over land (Moses land) to the north of the Claim Area (2003 decision) which lead to a determination of non-exclusive native title (2005 determination). In doing so, the judge found that the Yindjibarndi People no longer acknowledged or observed the traditional law and custom to control access by strangers to the Moses land.

Yindjibarndi 2017 decision

Do the Yindjibarndi have exclusive possession?

The key issue in the Yindjibarndi 2017 decision was whether the Yindjibarndi People held exclusive rights over the Claim Area. If so, were they precluded from obtaining a determination of exclusive native title rights because it would be inconsistent with the Court's findings in the 2003 decision?

The Court was satisfied that the Yindjibarndi established, on the evidence and in accordance with decisions of the Full Court given after the 2003 decision, rights of exclusive possession to the exclusion of others. This was on the basis that strangers had to obtain permission from a Yindjibarndi elder before entering or carrying out activity on Yindjibarndi country. In doing so, the Court held that the gradual evolution of law and custom by adaptation and change does not mean those traditional laws and customs cease to exist or cease to be acknowledged and observed.

The State and FMG argued that the Yindijibarndi were prevented from asserting that they held exclusive native title rights in the Claim Area. They had asserted the same laws and customs as those that exist in relation to the Moses land. They claimed to assert otherwise would amount to an abuse of process by re-litigating the exclusive possession issue that had been rejected in the 2003 decision.

In making a finding of exclusive possession, the Court rejected the State's (and FMG's) argument that it was an abuse of process for the Yindjibarndi to seek or obtain a finding of exclusive possession contrary to the findings made in the 2003 decision. The Native Title Act (NTA) expressly allows an earlier Court determination to be varied or revoked where the interests of justice require the variation or revocation or where subsequent events or decisions have occurred that make the earlier determination no longer correct. In this, his Honour found the scheme under the NTA for varying determinations required different assessments of the issues from those usual under an abuse of process or res judicata claim.

Do any of the mining tenements extinguish native title?

The Court held that none of the tenure issued to various mining companies in the claim area operated to deviate from the Yindjibarndi People's rights, holding that the non-extinguishment principle under the NTA applies.

This means that valid mining interests in the claim area continue to exist for the duration of those interests but that native title continues to exist in its entirety. Any inconsistency between the rights of native title holders and holders of validly granted mining interests are resolved by the mining interests continuing to operate temporarily during the currency of the mining tenements, but only to the limited extent necessary to give effect to the rights of the holders of those mining tenements.

One particular licence, issued to FMG in 2012, was not valid against native title because the State failed to give notice of its grant to the Yindjibarndi People pursuant to the expedited procedure of the Native Title Act.

Impact on mining and resources companies

Media reports have stated the potential for major compensation claims. However, without knowing all the facts, it seems, to us, this may be an over-reaction. Further, there would appear to be several issues on which an appeal could be based.

Last week, FMG announced to the ASX that it does not anticipate any material financial impact following the court's decision. FMG executive Nev Power has also been reported to have said that FMG will likely appeal the decision. These releases will no doubt become the focus of further examination, as no one yet knows the full implications of this decision, and it is too early to predict the outcome of any appeal proceedings..

The Yindjibarndi, and a spokesperson for the Yindjibarndi, have previously stated they intend to sue FMG should exclusive native title be granted.

There would also appear to be significant issues for FMG in gaining the necessary consent from the Yindjibarndi People to access the land. After apparently picking the wrong group with which to negotiate, FMG are likely to face problems in getting permission from the rightful native title holders. Further, given the announcement by the Minister, it seems unlikely that the new Labour government will follow the former Liberal/National government's opposition to the Yindjibarndi People's claim of exclusive possession rights to the Claim Area.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Liz Wreck
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions