8 May 2020
Introduction
What you need to know
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In October 2019, the Full Court of the Federal Court dismissed an appeal by Fortescue Metals Group (FMG) in relation to the recognition of exclusive native title held by the Yindjibarndi People over FMG's Solomon Hub mines (Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177). The decision clarifies key native title concepts including exclusive possession and occupation.
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The Yindjibarndi People's win paves the way for a long-touted Yindjibarndi compensation claim.
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While it is difficult to speculate on the details of the compensation claim prior to lodgement, there is certainly scope for a significant quantum of compensation being sought.
What you need to do
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Keep an eye out for the outcome of FMG's special leave application in the High Court in mid-2020.
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Make sure you are up to speed with native title compensation developments – including any Yindjibarndi compensation claim, if/when that is made.
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If you are worried about your exposure to native title compensation, we can help you identify potential compensable acts and outline key principles.
Initial finding of exclusive native title
In July 2017, the Federal Court held that the Yindjibarndi People hold exclusive native title to land including FMG's Solomon Hub iron ore mines in Western Australia (in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803).
The Yindjibarndi People successfully relied on principles established in Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths) and Banjima People v Western Australia [2015] FCAFC 84 (Banjima) in asserting that a practice of seeking "permission" to enter land could give rise to exclusive native title.
For more information about the Federal Court's decision, see Ashurst's May 2018 article in our Native Title Year in Review 2017, FMG appeals finding of exclusive native title over its Solomon Hub Mine.
A native title determination in favour of the Yindjibarndi People, recognising exclusive native title over an area including the Solomon Hub, was made in November 2017.
FMG filed a notice of appeal in December 2017, appealing the findings on exclusive native title. The Full Court of the Federal Court heard the appeal in August 2018, and handed down its decision in October 2019.
The Full Court's decision – FMG's appeal dismissed
FMG's grounds of appeal
FMG raised a number of grounds of appeal, including that:
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an abuse of process had effectively 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 in that area;
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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
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the primary judge should not have found that certain parts of the claim area were "occupied" for the purposes of section 47B of the Native Title Act 1993 (Cth).
Outcome and Full Court's reasoning
The Full Court ultimately dismissed FMG's appeal, delivering three separate judgments.
The Full Court rejected FMG's "abuse of process" argument (which FMG said arose as a result of there being inconsistent Yindjibarndi determinations). The Full Court noted among other things that there was no oppression to FMG in the Yindjibarndi People asserting exclusive rights in the circumstances, and having regard to the purposes of the Native Title Act, the Yindjibarndi People's actions did not bring the administration of justice into disrepute.
In relation to FMG's argument that "spiritual necessity" could not found a right of exclusive possession, the Full Court concluded that there was no error in principle in the primary judge's approach – and that the earlier Griffiths and Banjima decisions were not wrongly decided.
FMG's argument that "occupation" under section 47B of the Native Title Act required presence in a "concrete real world sense" also failed. The Full Court concluded 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)" – with occupation remaining a question of fact and dependant on the evidence led.
Where to next – High Court and beyond
FMG has publicly announced that the Full Court's decision does not impact its current or future operations at the Solomon Hub, and it did not anticipate any material financial impact as a result of the Full Court's decision.
FMG lodged an application for special leave to appeal to the High Court in November 2019. FMG's special leave application is yet to be heard by the High Court – that is expected to take place mid-2020.
Yindjibarndi representatives have reportedly commented that it is "only a matter of time" before they make a compensation application. Such an application could potentially be an important test case for the Western Australian mining industry. 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.
For further information, please contact:
Andrew Gay, Partner, Ashurst
andrew.gay@ashurst.com
