Rares J
In this matter Rares J determined that the Yindjibarndi people hold exclusive possession native title rights and interests in relation to the claimed area, located in the Pilbara in north-western Western Australia. The area is directly south of the area over which the group holds non-exclusive native title rights and interests: Moses v Western Australia [2007] FCAFC 78 (Moses). Rares J held that it was not an abuse of process for the claim group to seek exclusive native title rights and interests in the claimed area, despite the earlier finding in Moses.
The claimed area comprises some areas over which there are current pastoral and mining leases as well as other areas, comprising the Yandeeyara Reserve and other unallocated Crown land. The pastoral leases are held by lessees of stations called Coolawanyah (that extends over the north-western boundary of the claimed area into the Moses land), Mount Florance (that also extends, to the east of Coolawanyah, over the mid-part of the northern boundary into the Moses land), Hooley (that is to the east and north-east of Mount Florance) and Mulga Downs (that is to the south-east of Mount Florance and extends over the southern boundary into Banjima country). The claimed area also extends in the north-east over the Mungaroona Range Nature Reserve 31429, the creation of which, the Yindjibarndi accept, extinguished native title in accordance with the decision in Western Australia v Ward [2002] HCA 28.[1]
Background
On 9 July 2003, this claimant application was filed. In it the applicant claimed, on behalf of the Yindjibarndi, that it is entitled to a determination of exclusive possession native title under s 225 of the Native Title Act 1993 (Cth) (NTA).
In Moses, the Full Federal Court of Australia made an amended determination of native title in respect of a large area of land to the north (the Moses land) of the claimed area (the 2007 determination). The Full Court amended the original determination that Nicholson J had made earlier on 2 May 2005 (Daniel v State of Western Australia [2005] FCA 536) (the 2005 determination). His Honour ordered there that Yindjibarndi Aboriginal Corporation RNTBC (YAC) hold the Yindjibarndi’s native title rights and interests in the Moses land in trust for the Yindjibarndi people. Nicholson J published his substantive reasons for that determination in July 2003 in which he held that the Yindjibarndi held non-exclusive native title rights over the Moses land: Daniel v State of Western Australia [2003] FCA 666.
Three sets of respondents took an active role in these proceedings namely, the first respondent, the State of Western Australia, the second respondent, FMG Pilbara Pty Ltd, Fortescue Metals Group Ltd, and the Pilbara Infrastructure Pty Ltd which are all members of the Fortescue Metals Group (together FMG), and the sixth respondent, Phyllis Harris (née Todd), Lindsay Todd and Margaret Todd (the three individuals collectively are referred to in the judgment as ‘the Todd respondents’). Companies in the Rio Tinto mining group, Hamersley Exploration Pty Ltd and Robe River Mining Co Pty Ltd (the Rio parties), as well as Hanco*ck Prospecting Pty Ltd and Georgina Hope Rinehart (the Hanco*ck parties), and Yamatji Marlpa Aboriginal Corporation participated in the settling of the agreed issues in dispute before the trial and then adopted substantively the same position on those issues as the State.
The 2005 and 2007 determinations
In the proceeding that resulted in the 2005 determination, Nicholson J heard three separate, overlapping claims. The first was a combined claim made by both the Ngarluma people and the Yindjibarndi people, the second was a claim, that his Honour described as the Yaburara Mardudhunera claim, in respect of land and waters to the north of the Moses land and that has no present relevance, and the third was a claim made by a group that called itself the “Wong-Goo-TT-OO” (WGTO) applicant.
Nicholson J decided that the Ngarluma people had non-exclusive native title rights and interests in the northern part of the Moses land, that the Yindjibarndi had non-exclusive native title rights over the southern part (down to the boundary that is contiguous with the claimed area) and that they both shared non-exclusive rights over an area in the middle. In the 2007 determination, the Full Court made some variations to the 2005 determination.
Relevantly, after the appeal, the 2007 determination provided that the native title rights and interests did not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others. The determination did not include any rights for the Yindjibarndi to control access to, or use of, land and waters in, or to take or use, for commercial purposes, the resources of, the claimed area. Importantly, in 2003 Nicholson J decided that the practice of seeking permission to enter onto Yindjibarndi lands was a matter of respect rather than in recognition of the right to control: Daniel [2003] FCA 666 at [292].
Issues
There were six issues for Justice Rares to address in these proceedings:
The exclusive possession issue – have the Yindjibarndi proved that they are entitled to a native title right to control access (or exclude others), equivalent to a right of exclusive possession?
Rares J heard from a number of Yindjibarndi witnesses and accepted at [69] that neighbouring groups including Banjima, Eastern Guruma and Nyiyiparli observed the practice of requesting permission to come on to Yindjibarndi country. Rares J also accepted the expert anthropologist report of Dr Palmer.
His Honour stated at [105]: ‘The imperative need to show that “respect” is and was a native title right or interest, under Yindjibarndi law and custom, broadly equivalent to the common law concept of trespass to land (and trespass to goods, if things be taken from the land and waters such as ochre or animals). That understanding demonstrated that the need to show such “respect” under Yindjibarndi laws and customs was in the nature of a real proprietary right equivalent to the common law right of exclusive possession, as did the ancient normative consequence that a transgression was punishable by death or spiritual harm. The Yindjibarndi had and continue to have a normative responsibility to care for and protect their country from unauthorised access to it by a manjangu.’
At [110] Rares J accepted that the evidence establishes a native title right of exclusive possession: ‘[f]or the reasons I have given, I am satisfied that those rights and interests include a right to control access equivalent to the right of exclusive possession in respect of the claimed area.’ Rares J rejected the counterarguments of FMG and the State at [118].
Rares J observed at [126] that: ‘The gradual evolution of law and custom, by adaptation and change, within a traditional system of laws and customs ordinarily will not entail that the society or group within which those laws and customs existed has ceased to acknowledge or observe the traditional laws and customs. Any society of human beings, over time, must adapt and change its social structures, including its laws and customs, to current or more modern conditions when changes in or to earlier conditions and circ*mstances occur. In doing so, the society can retain a coherence with its traditions, and remain recognisable, or it can transform radically.’
His Honour continued at [132]: ‘I am of opinion that such changes and adaptations, as the evidence reveals have occurred since sovereignty to the traditional laws and traditional customs, relating to a manjangu seeking permission from Yindjibarndi to access or conduct activity on Yindjibarndi country have not affected the essential normative character of those laws and customs or their observance at the present time. The right to control access that the Yindjibarndi assert is, in substance, the same as they have possessed continuously since before sovereignty under their traditional laws and customs.’
The extinguishment issue
In order for the each of ss 47A(2) and 47B(2) to operate to disregard prior extinguishment and preserve native title on particular parts of the claimed area, the Yindjibarndi had to firstly establish that none of the miscellaneous licence and each of the six exploration licences is a permission or authority under which the whole or any part of the land and waters covered by the particular licence ‘is to be used…for a particular purpose’ within the meaning of s 47B(1)(b)(ii) and, secondly, that one or more members of the claim group occupied particular land and waters at the time the application was made on 9 July 2003 within the meaning of ss 47A(1)(c) or 47B(1)(c) of the NTA.
Rares J found that the miscellaneous licence is a permission or authority and was excluded from the operation of s 47B. His Honour stated at [178] that ‘the parties did not address whether non-exclusive native title rights and interests in that corridor have ceased to subsist and, subject to any submissions to the contrary, I would infer that they continue to exist.’
Rares J found at [195] that ‘none of the five exploration licences gave any permission or authority that required any particular part of the licensed land, let alone the whole, to be used for a particular purpose: Western Australia v Brown [2014] HCA 8 at [63]. Each of the five licences gave the licensee an option to come onto, and do limited exploration on, one or more parts of the land, if and when it chose to do so.’ His Honour found at [197] that s 47B applies to the lands covered by the 6 licences and operates to preserve native title rights and interests in those lands and waters.
There were two further substantive issues in relation to whether the 2012 exploration licence extinguished native title. First, whether the grant of that licence was valid notwithstanding the failure of the State to give the applicant notice under ss 29(2)(b)(i), (7) and 32 of the NTA that the proposed act of granting the licence may have attracted the expedited procedure under s 32 of that Act. That question arises because ss 24OA and 28 had the effect that, ordinarily, a failure to comply with ss 29 and 32 of the Act rendered a future act invalid to the extent that it affected native title. Secondly, whether the grant of the 2012 licence is a valid future act or other interest for the purposes of s 225(d) of the Act and, if so, how it should be recorded in the determination of native title.
His Honour found at [216] that the State’s failure to give the Yindjibarndi notice in November 2011 in accordance with ss 29(7) and 32 of the NTA of its proposal to utilise the expedited procedure, rendered the 2012 licence wholly invalid pursuant to ss 24OA and 28(1)(c), to the extent that the 2012 licence affected the Yindjibarndi’s native title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [93] per McHugh, Gummow, Kirby and Hayne JJ.
In the event that his Honour’s conclusion and ruling as to the validity of the licence is wrong, or the 2012 licence does not affect the Yindjibarndi’s native title, Rares J also concluded at [226] that ‘there would be no inconsistency between the Yindjibarndi’s non-exclusive native title rights and interests and the rights of FMG under the 2012 licence.’
The occupation issue – have the Yindjibarndi established that one or more members of the claim group occupied the four parcels of unallocated Crown Land (UCL) within the meaning of s 47B(1)(c ) at the time the application was filed?
Rares J found at [265] that ‘the evidence of regular maintenance of the witnesses’ spiritual connection to Yindjibarndi country by the visits to it and the exercise of traditional rights, rites and practices, amounted to occupation of each of areas 1, 2, 3 and 4, as well as the Reserve, by one or more Yindjibarndi within the meaning of ss 47A(1)(c) and 47B(1)(c). That is because each such visit evinced substantively the individual Yindjibarndi visitor’s exercise of their traditional (and possessory) rights over not just the particular named place where they camped or attended, but also over both any on country routes that they used to get there and the whole of the surrounding locale where they believed the spirits with whom (or which) they were communicating were: Banjima People v State of Western Australia [2015] FCAFC 84 at [104]-[105].’ His Honour was also satisfied that one or more Yindjibarndi was or were ‘established’ in each of areas 1, 2, 3 and 4 and the Reserve in the sense explained in Moses at [216].
The abuse of process issue[2] – if issue 1 is answered in the positive, are the Yindjibarndi precluded from obtaining an exclusive possession determination of native title because of the 2005 and 2007 determinations that they had only a right of non-exclusive possession over the Moses land?
In July 2015 the State brought an interlocutory application seeking further and better particulars from the applicant in relation to their witness statements. During that hearing, the State explained that it proposed to argue at the final hearing, set down to commence on country on 7 September 2015, that the Yindjibarndi were estopped from seeking, or would be engaging in an abuse of process if they sought to claim, an exclusive right to control access to the claimed area, in light of the determination of non-exclusive rights and interests in Daniel. Neither issue had been set out in the State’s contentions or the agreed issues, which had merely not admitted the existence of the asserted exclusive possession native title right. The State then filed a further interlocutory application seeking leave to amend its statement of contentions.
His Honour considered it in the interests of justice to grant leave to the State and FMG to amend their contentions as the issues raised matters of public importance in the administration of the NTA and in respect of the certainty of determinations of native title and land tenure under that Act [330]. Rares J noted that if the abuse of process issue been decided in favour of the State and FMG, his Honour would have asked for submissions as to why the Court ought not to order that each of the State and FMG pay the Yindjibarndi’s costs of the preparation of all their evidence on that question [331]-[332].
His Honour considered it ‘important to appreciate that a determination of native title under s 225 is essentially declaratory of what the Court has found to be the factual and legal position as to what interests exist in the determination area...A determination under s 225, and an application under s 13(1), do not themselves, or in some other way, initiate a process to create or extinguish native title or other rights or interests’ at [349]. The Native Title Act itself is structured on the basis that, by reason of the power to revoke or vary an approved determination of native title, such a determination is not necessarily final, even though, ordinarily, it will be [377].
Rares J further noted that the grounds for an application to revoke or vary an approved determination of native title in s 13(5) include not only that subsequent events have occurred that cause the determination no longer to be correct, but also that the interests of justice require such a variation or revocation [373].
Since the decision in Moses, the developing common law of native title led to the Full Federal Court of French, Branson and Sundberg JJ in Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths) finding that ‘if control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of native title rights and interests as exclusive’ at [127].
The evidence and argument before Nicholson J in Moses proceeded on an understanding of the facts and law that did not address the Full Court’s development or exposition of the law relating to the right to control access in Griffiths, decided nearly three months after the 2007 determination in Moses.
His Honour stated at [366] that ‘a determination under s 225 expresses a conclusion about rights and interests that exist over particular land and waters, but does not express any necessarily binding conclusion about the general rights and interests (including native title) of any persons with particular rights and interests in land and waters other than those the subject of the determination.’ At [368]: ‘Thus, a non-exclusive determination does not determine, necessarily, the content of the traditional laws and customs of a claim group so as to deny or preclude their recognition as supporting a claim to exclude others from, or control access to, different land or waters in respect of which no partial extinguishment had occurred…Accordingly, there would be no necessary inconsistency between two determinations of native title over different land and waters where the same claim group had exclusive rights over one determination area, but only non-exclusive ones over another. The inconsistency, would arise not because of a difference in the claim group’s acknowledgment and observance of their traditional laws and customs by which they had a connection with the land or waters in the two separate determination areas, but because of the governmental acts creating partial or complete extinguishment of native title in one of the areas but not in the other.’
Rares J concluded at [358]: ‘I am of opinion that in the particular circ*mstances of this matter it is not an abuse of the process of the Court for the Yindjibarndi to litigate their claim of a right to control access to, or exclude others from, the claimed area, despite the apparent inconsistency of that claim with pars 4(a) and 7(k) of the 2007 determination and Nicholson J’s factual findings that underpinned those paragraphs.
In relation to the issue estoppel question, FMG accepted that Rares J was bound to reject its argument by reason of the decision in Dale v Western Australia [2011] FCAFC 46 [355]. FMG could not rely on a finding in the proceedings before Nicholson J, to which it was not a party or a privy to a party, as creating an issue estoppel in this proceeding. Issue estoppel requires, as Dixon J said in Blair v Curran [1939] HCA 23, in a passage that French CJ, Bell, Gageler and Keane JJ described as a classic expression of the primary consequence of its operation (Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]): ‘[a] judicial determination directly involving an issue of fact or of law [that] disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.’
The Todd issue – are the Todd respondents members of the Yindjibarndi claim group?
The Todd issue arose in a context that involved an internal division that emerged relatively recently within the Yindjibarndi people over whether they should co-operate with FMG developing and operating what is now the Solomon Hub mine. On one side were those opposed to co-operating with FMG, who had a voting majority within YAC (which held the Moses land on trust, under the 2005 and 2007 determinations) led by Michael Woodley, while on the other side were the minority within YAC, who, with FMG’s financial support, established Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC) in 2010. Notably, so far as appeared in the evidence before His Honour, prior to the Todd respondents becoming involved in the circ*mstances described below, all the members of both YAC and WMYAC, many of whom were members of both corporations, were Yindjibarndi and recognised each other as Yindjibarndi. That is because each of YAC and WMYAC had a rule requiring that, to be a member of the respective corporation, a person had to be Yindjibarndi.
This proceeding involved earlier stages in the battle to control both YAC and those who comprise the applicant. The Todd respondents are part of a large family who would be entitled to be admitted as members of YAC if the Todd respondents succeed in establishing that they are Yindjibarndi persons. The votes of the Todd respondents’ family members would likely be decisive in bringing about a change of control of YAC and the claim group, as the WMYAC members have attempted, unsuccessfully, to do in the past.
Rares J did not find the Todd respondents to be part of the claim group. His Honour preferred ‘the evidence of the applicant’s witnesses to those called by the Todd respondents on the issue of whether the Todd respondents and their direct ancestors were, or were recognised as, Yindjibarndi’ at [504]. His Honour found it persuasive that none of the Yindjibarndi elders, or anyone else, in the authorisation meetings for both the present proceedings and those before Nicholson J ever suggested that the Todd respondents or their family were part of the claim group [515].
The relief issue – what other native title rights and interests are the Yindjibarndi people entitled and how should the native title holders be described?
The parties did not address any submissions about the way in which the Yindjibarndi’s native title rights and interests, other than those relating to their right to control access, should be described. Since his Honour’s finding that the Yindjibarndi have that right may affect the way in which the determination needs to be expressed, his Honour directed that the parties consult, if need be with the assistance of a native title Registrar, to prepare a draft determination. In the event that no agreement on those matters can be achieved, it will be necessary to have a further hearing. Rares J did not consider it appropriate to change the description of the persons holding the group rights comprising the native title from that used by Nicholson J and approved by the Full Court in Moses at [362] and [375], namely that: ‘“Yindjibarndi People” are Aboriginal persons who recognised themselves as, and are recognised by other Yindjibarndi People as, members of the Yindjibarndi language group.’
In light of His Honour’s finding that the Todd respondents are not Yindjibarndi, he considered that it may be best to make a declaration to that effect under s 21 of the Federal Court Act 1976 (Cth). However, it may be that such a declaration could be included under s 225(a) of the NTA. His Honour gave the parties the opportunity to consider this issue and, if need be, deal with it at a further hearing [519].
At [521], his Honour also noted that the parties should consider, before the making of any final order, whether there are errors of fact or issues that have not been considered. If there are, they should file brief submissions identifying those so that they can be addressed in order to avoid unnecessarily complicating any appeal.
[1] The mining interests are held by FMG, the Hanco*ck parties and the Rio parties. FMG has an operating iron ore mine, known as the Solomon Hub mine, located in UCL 7 within the claimed area.
[2] Only the State and FMG pursued the abuse of process issue.
![Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 (2024)](data:image/png;base64,iVBORw0KGgoAAAANSUhEUgAAAAEAAAABCAQAAAC1HAwCAAAAC0lEQVR42mP8/h8AAvMB+NzmkbcAAAAASUVORK5CYII=)