2 April 2021
What you need to know
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In May 2020, the High Court heard and refused Fortescue Metals Group (FMG)'s application for special leave to appeal from the Full Federal Court's decision that the Yindjibarndi People hold exclusive native title over FMG's Solomon Hub mines (Fortescue Metals Group Ltd & Ors v Warrie & Ors [2020] HCATrans 65).
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The dismissal reinforces existing native title decisions, and helps to clarify key native title concepts including exclusive possession and enforcement of traditional law.
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Yindjibarndi People can now make a native title compensation claim. On the face of things, there is scope for the Yindjibarndi People's claim to be significant.
What you need to do
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You should ensure you are up to date with developments in the native title compensation space if you have mining operations in WA. This should include the current Tjiwarl compensation claim in the WA's Goldfields region (which was lodged in June 2020), and – if/when it is made in the future – any Yindjibarndi compensation claim.
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You should consider the potential exposure of your business to native title compensation. With test cases on the horizon, theoretical risk is becoming more real.
Yindjibarndi exclusive native title – the story so far
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 (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 of Australia [20076] FCAFC 178 and Banjima People v State of Western Australia [2015] FCAFC 84 in asserting that a practice of seeking "permission" to enter land could give rise to exclusive native title.
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.
In October 2019, the Full Federal Court dismissed a subsequent appeal by FMG (Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177).
For more information about the Full Federal Court decision, see our April 2020 article Confirmed: Yindjibarndi People have exclusive native title over Fortescue Metals Group's Solomon Hub in our Native Title Year in Review 2019.
The High Court's decision – FMG's special leave application dismissed
Issues raised by FMG
FMG lodged an application for special leave to appeal in November 2019.
The issues raised by FMG focused on:
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whether proof of post-sovereignty non-Aboriginal conduct was irrelevant to the continuity of a native title right of exclusive possession;
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whether the Yindjibarndi possessed a native title right of exclusive possession, in circumstances where the traditional law was not enforced and was ineffective in respect of non-Aboriginal persons.
Submissions and outcome
The High Court heard and ultimately dismissed FMG's special leave application on 29 May 2020.
Counsel for each of FMG, the Yindjibarndi and the State made oral submissions before Keane J and Edelman J. FMG's submissions included, among other things:
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The High Court's approach in the earlier Yorta Yorta decision (regarding continuity of connection) could not be reconciled with the approach taken by the Full Court in the Yindjibarndi proceedings. FMG noted that the "reality on the ground … will produce the devastation and disruption" of the kind referred to in Yorta Yorta, and which "will factually answer the proposition that there has been continuity of acknowledgement and observance and if that is so, of course, there simply cannot be the [requisite] recognition".
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While noting that the exercise of native title rights was "extremely vulnerable" to that kind of devastation and disruption, FMG said that was "no reason … to water down the requirement for the continuity". FMG said that in the Full Court putting to one side the effect of non-Aboriginal European settlement, there had been a failure to reflect the proper approach taken in Yorta Yorta.
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In relation to the Full Court's finding of exclusive native title rights, FMG referred to the difficulty of such a finding where there was "a lack of observance of a custom or acknowledgement of a law by reason of a lack of any asserted position of being … entitled to … resist access by the whole world including the settlers".
The Yindjibarndi and the State of Western Australia both opposed FMG's special leave application, and made submissions to the contrary.
The Yindjibarndi noted among other things that what was being suggested by FMG would "turn native title on its head", and failed to distinguish between the existence of native title rights and their exercise.
The State described the crux of FMG's case as being "that where traditional law is acknowledged but the traditional means of enforcement are prohibited by Australian law, indigenous people cannot establish continuity and must inevitably lose their native title", which the State described as being without merit.
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. The application should be dismissed with costs."
The conclusion of the High Court special leave proceedings has re-affirmed the Yindjibarndi People's native title rights, including exclusive native title over the area of FMG's Solomon Hub.
Where to next
After the dismissal of the special leave application, FMG has publicly reiterated its previous comments that the Full Court's decision (which has now been affirmed) has no impact on its current or future operations or mining tenure at the Solomon Hub, and that it does not anticipate any material financial impact to the business as a result of the decision.
Since the dismissal of the special leave application, in October 2020 the Yindjibarndi People also (separately) achieved a variation by consent to their existing determination (to the north), to recognise exclusive native title over additional areas.
Yindjibarndi representatives have reportedly commented that it will take "a year or two" before the Yindjibarndi People make a compensation application. This has been touted in the media as potentially being a multi-million-dollar compensation payout for economic loss and spiritual harm.
Such an application could potentially be an important test case for the Western Australian mining industry. Unless the ongoing Tjiwarl compensation claims get there first, 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:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
