Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia

[2017] FCA 803

RARES J

summary

In accordance with the practice of the Federal Court in some cases of public interest, the following Summary has been prepared to accompany the reasons for judgment delivered today. The Summary is intended to assist understanding of the decision of the Court. It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment. The published reasons for judgment and this Summary will be available on the Internet at www.fedcourt.gov.au.

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia

[2017] FCA 803

RARES J

SUMMARY

In 2003, Justice Nicholson found that the Yindjibarndi people had non-exclusive native title (rights and interests) under the Native Title Act 1993 (Cth) over a large area in the Pilbara in north-western Western Australia (the Moses land). Justice Nicholson made an important finding that the Yindjibarndi no longer exercised the right to control access to their land by others. The Yindjibarndi call such persons manjangu or strangers. His Honour found that the surviving practice of strangers seeking permission to enter Yindjibarndi land, when it occurred, was “a matter of respect rather than in recognition of a right to control”.

Also in 2003, the Yindjibarndi people began this proceeding over land and waters (the claimed area) immediately to the south of the Moses land (as shown on the attached map). They sought a finding that they had exclusive native title (rights and interests) over the claimed area; that is, that they had the right to exclude anyone from the claimed area who was not a Yindjibarndi.

The claimed area includes four significant areas of unallocated Crown land (UCLs) and the Yandeeyara Reserve. Bangkangarra is a freshwater spring with ancient rock carvings. It is a site of considerable importance to the Yindjibarndi. It is very close to, and offers views of, Fortescue Metals Group’s (FMG) iron ore mine called the Solomon Hub mine. Both Bangkangarra and the mine are in the same UCL.

All the parties accepted that the Yindjibarndi have continued, since before the assertion of British sovereignty in the early 19th century, to acknowledge and observe their traditional laws and customs under which they possess, as a group, their native title rights and interests. It was also common ground that the Yindjibarndi have a connection with their country through their traditional laws and customs. All the parties accepted that the Yindjibarndi country, including the claimed area, is redolent with spirituality and that the Yindjibarndi have continuously observed their unique Birdarra law. Indeed, their traditional laws and customs are a profound part, and form the essence, of Yindjibarndi life. Most Yindjibarndi witnesses spoke their language as a first language and English as a second language.

Companies in the Rio Tinto mining group as well as Hancock Prospecting Pty Ltd and Georgina Rinehart (the Hancock parties) also had interests in exploration and other mining licences in the claimed area. The Rio Tinto and Hancock parties, as did FMG, adopted the arguments that the State of Western Australia made, namely, that the Yindjibarndi were entitled to substantially the same non-exclusive native title rights and interests in the claimed area that they had over the Moses land. All of those parties made a pleaded contention that the Yindjibarndi had an onus to prove at the trial that they had any greater or more extensive native title rights and interests, such as exclusive rights. That remained the position until 31 July 2015, about five weeks before the trial was due to begin on country in early September 2015.

At a directions hearing on 31 July 2015, the State revealed for the first time that it wanted to argue that the Yindjibarndi had no legal entitlement to any native title rights or interests in the claimed area beyond the non-exclusive rights and interests that Justice Nicholson had found that they had in the Moses land. The State contended that it was an abuse of the process of the Court for the Yindjibarndi to contend for a determination by the Court of their native title in this proceeding that was inconsistent with the determination made by Justice Nicholson in the earlier proceedings. The State submitted that Justice Nicholson had determined once for all that the Yindjibarndi as at 2003 no longer acknowledged or observed their previous traditional law and custom that a manjangu or stranger had to obtain permission before entering their lands. And, the State argued, as a consequence of the earlier determination, the Yindjibarndi could not seek a different finding in this proceeding. That was because, it submitted, the Yindjibarndi were seeking to challenge the correctness and finality of the final determination of non-exclusive native title that Justice Nicholson ultimately made in 2005, which the Full Court substantially affirmed on appeal in 2007. FMG actively supported the State’s new arguments.

In addition, three persons of Aboriginal heritage, Lindsay and Margaret Todd and their sister, Phyllis Harris, claimed that they and their large family were Yindjibarndi. They were supported by FMG and a group of Yindjibarndi who want to enter into an indigenous land use agreement with FMG for the operation of the Solomon Hub mine. The current majority of Yindjibarndi oppose that course.

I have found that the Yindjibarndi are entitled to exclusive native title rights and interests over all of the unallocated Crown land in the claimed area and the Yandeeyara Reserve, except for a small area occupied by the Tom Price railway. This includes the unallocated Crown land occupied by FMG’s Solomon Hub mine. That is because I am satisfied that the Yindjibarndi established, on the evidence and in accordance with decisions of the Full Court given after the decision of Justice Nicholson, that a manjangu (or stranger) still has to obtain permission from a Yindjibarndi elder before entering or carrying out activity on Yindjibarndi country.

The Yindjibarndi’s traditional laws and customs required that the manjangu have such permission for two reasons. The first, no longer operates. It was that, in the past, the Yindjibarndi used to kill, or physically injure, a stranger who entered their country without permission. The second reason, which has endured to the present time, is so that the Yindjibarndi can offer the manjangu, to whom they choose to give permission, protection from any spiritual dangers that they, and the other Aboriginal peoples in the Pilbara, believe will harm a stranger who enters or carries out activities (such as hunting) on Yindjibarndi country without permission. The traditional Yindjibarndi laws and customs give them the right, and they owe a duty to the spirits, to consider whether the stranger should be allowed to enter the particular place and carry out any proposed activity. The Yindjibarndi also consider whether the visit or activity is one that that person, in any event, is allowed under their traditional laws and customs to do on their country. For example, sometimes the stranger will not be allowed to go to a place at all because that is not permitted under the Yindjibarndi’s traditional laws and customs, while on other occasions, they may refuse permission because they are not satisfied about the stranger’s intentions.

In addition, I have found that, it was not an abuse of the process of the Court for the Yindjibarndi to have sought or obtained the finding that they have exclusive native title rights and interests in the claimed area, despite my finding appearing to be at odds with what Justice Nicholson decided earlier. That is because s 13(1)(b) of the Native Title Act allows a subsequent application to be made to revoke or vary an earlier Court determination of native title where the interests of justice require the variation or revocation or where events have occurred subsequently that make the earlier determination no longer correct. In fact, Yindjibarndi Aboriginal Corporation, the Yindjibarndi’s trustee that holds on trust their non-exclusive rights and interests in the Moses land, applied on 15 May 2017 for an order varying Justice Nicholson’s determination so that they would have exclusive native title rights and interests in the Moses land. That case has yet to be heard.

The Native Title Act expressly allows an earlier Court determination to be varied or revoked. Accordingly, I found that the interests of justice require that the Yindjibarndi be permitted to rely on subsequent judicial decisions that changed the law about how indigenous peoples can prove that they have exclusive native title rights and interests. The law now recognises that if indigenous people are the spiritual “gatekeepers” for the purpose of avoiding injury to their country and preventing harm to strangers, in accordance with their traditional laws and customs, that is equivalent to a right of exclusive possession. The Yindjibarndi’s evidence demonstrated that to be their role under their traditional laws and customs throughout their country, including both the Moses land and the claimed area.

I have also found that, apart from the licence for the Tom Price railway, none of the exploration licences issued to the various mining companies operated to derogate from the Yindjibarndi’s native title which is preserved, unaffected by those licences, under s 47B(2) of the Native Title Act. I also found that one of those licences, issued to FMG in 2012, is not valid to affect native title in any event. That is because ss 24OA and 28 of the Native Title Act provide that this licence is not valid to affect native title if, as happened here, the State failed to give the Yindjibarndi notice of its proposal to grant that licence.

I also found that the Todd respondents failed to prove that they had Yindjibarndi ancestry. They were undoubtedly indigenous. However, they are in the tragic situation that they cannot trace their heritage among any of the Pilbara peoples, largely because their parents were “citizens” under 1940s legislation. Those laws treated their family notionally as European but prohibited such “citizens” from speaking their indigenous language, discussing their heritage or genealogies or mixing with other indigenous people. The Todd respondents and their parents, as “citizens”, had to adhere to that “obligation”, and their parents sent the Todd respondents, as children, to the school for white children in Roebourne until the mid-1960s when a mixed school began operating. Now the Todd respondents find themselves in the unfortunate position that they cannot establish from which Pilbara people they are descended.

The parties agreed on most of the other matters necessary for the Court to make a final determination of native title over the claimed area. I will adjourn the proceeding so that can be prepared.