This story was originally published in The West Australian on 4 December 2017 with the headline "D-day for native title fight." © Peter Milne.
Mining companies, pastoralists and native title claimants across the county will be watching Fortescue Metals Group closely today — the deadline for the miner to appeal against a landmark native title decision that awarded exclusive title over the Solomon Hub iron ore operation in the Pilbara.
The Yindjibarndi People in July won a fight they started in 2003 and gained exclusive rights over vast areas of their 2700sqkm Pilbara claim, including Fortescue’s Solomon Hub.
The win may not reap the Yindjibarndi the sort of money Andrew Forrest would notice missing but the precedents set by the case may be a boost for title claimants across the country.
Ten years ago, the Yindjibarndi gained rights to a much bigger area north of the area covered by this year’s win, the Moses land, but were awarded only non-exclusive possession.
The legal reasoning behind the Yindjibarndi winning much stronger native title rights this time could affect the outcome of native title cases across Australia.
Native title gives the recognised indigenous people rights to use the land in traditional ways, including living there, holding ceremonies, hunting and fishing.
Non-exclusive possession means these traditional rights must co-exist with non-indigenous rights, such as those linked to pastoral leases. Exclusive possession, which the Yindjibarndi won this year, comes, in some circumstances, with the right to exclude others.
For the Yindjibarndi to gain exclusive possession, the Native Title Act required them to demonstrate first that they had a right to exclusive possession and second that any previous tenure on the land that may have extinguished those rights could be disregarded. In his July judgment, Federal Court Justice Steves Rares set a lower bar for clearing these hurdles.
Clayton Utz special counsel Pauline Gartlan said the different outcome this time was not primarily due to different facts, but that the judge had drawn on other decisions over the past decade to reach a different conclusion.
The Moses case found that the Yindjibarndi had required others to obtain permission to enter the land as a matter of respect. Justice Rares decided that the requirement came from more than a matter of respect; it was driven by spiritual necessity. This gave rise to a right of exclusive possession.
Clayton Utz partner Brad Wylynko said the importance the decision granted to spiritual and emotional connection meant it had moved significantly away from an earlier focus on physical connection.
However, having the right to exclusive possession was not enough. The Yindjibarndi also had to show that any previous tenure on the land could be disregarded. To do this, the law required them to demonstrate two things: they occupied the area, and it was not required for any “particular purpose.”
Clayton Utz special counsel Tosin Aro said while most people thought occupation meant to live or spend a lot of time somewhere, in this case it was enough that members of the claim group from time to time went on to the claim area to look after sacred sites, or exercise their native title interests in some other way.
Mr Aro said the judge also determined that this exercising of native title interests could occur anywhere in the claim area to be legally effective over the entire claim area.
This meant that to determine if native title extinguishment in a part of the claim area covered, say by a lease, could be disregarded, the Yindjibarndi did not have to have physically occupied the lease area, just any part of the claim area.
The final step for the Yindjibarndi to gain exclusive possession was to show that the land was not “required” for a “particular purpose.”
Justice Rares ruled that Fortescue’s railway corridor was required for a particular purpose so exclusive native title right could not be granted over it.
However, in an unpleasant surprise for the mining industry, the judge found that six exploration licences, including one for Fortescue, did not require the land to be used for a particular purpose.
Clayton Utz partner Damien Gardiner said the judge found that as exploration could not start without additional permissions, the licence by itself was not enough to conclude that the land was required for a particular purpose.
“The problem with that analysis is . . . is there ever going to be an exploration licence that would fall into that category? That’s one of the key issues we see with the judgment,” he said.
Mr Gardiner said the outcome differed to native title practice for the past 25 years, where the impact a lease or licence on native title took effect when it was granted, not when the last approval for the exercise of that interest occurred.
Justice Rares last month held a court sitting at the Millstream Chichester National Park to the north of the claim area to hand down his determination.
“That order acknowledges that the Yindjibarndi people not only possess today, but also have continuously possessed, since before the British Crown claimed sovereignty over Australia, specific native title rights and interests in the claimed area that have not been wholly or partially extinguished,” Justice Rares said.
Befitting a case that has continued for 14 years, the outcome is not simple.
The Yindjibarndi now have a patchwork of different rights across the area. Maps of the final native title determination show four areas of exclusive possession separated by expanses with non-exclusive rights.
Roads and a railway traversing the area are classified as unclaimed, as are some mining leases.
Even where exclusive possession has been awarded, the rights are not as absolute as they may sound.
Another party can still apply for tenure, such as a prospecting or exploration licence, that would allow them to enter the area.
Aboriginal Affairs Minister Ben Wyatt told State Parliament that, acting on advice from the State’s Solicitors Office, the Government would not appeal against the decision. He called on Fortescue to do the same.
Fortescue chief executive Nev Power said he was proud of the company’s “longstanding relationships with Aboriginal people and our commitment to ending Aboriginal disparity”.
“Through our seven Land Access Agreements with native title groups across the Pilbara, we have delivered employment to over 1200 Aboriginal people, nearly $2 billion in contracts to Aboriginal businesses and made in excess of $55 million on compensation payments,” he said.
“Consistent with our position during the trial, Fortescue welcomes the recognition of Yindjibarndi native title. However, the Federal Court decision relating to the concept of exclusive possession has potentially wide-ranging implications for new investment in resources, agriculture and tourism.”
Yindjibarndi Aboriginal Corporation chief executive Michael Woodley said it was Fortescue’s prerogative to appeal, but he would rather have the opportunity to get back to the negotiating table with them after a break of several years.
If the two parties did meet, compensation would be the topic. If the compensation was determined in the courts, not by negotiation, the amount could not exceed the value of the land if it was sold as freehold, and there would be no compensation for the value of any minerals.
If the decision stands, the Yindjibarndi people may benefit further.
In May, they lodged an application for a redetermination for parts of the 2007 Moses area that are unallocated Crown land.
Mr Woodley said the application was before the Federal Court and with the Government.
With the law created in this year’s case there is a real chance that the same facts could lead to another award of exclusive possession to the Yindjibarndi.