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.

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Liz Wreck
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