Wednesday, 26 July 2017

Yindjibarndi People granted exclusive native title over their traditional lands

A short entry by the Federal Court of Australia heralds exclusive native title for the Yindjibarndi People over their traditional lands in the Pilbara region of Western Australia.


File number:
WAD 6005 of 2003
Date of judgment:
 20 July 2017


1.    The parties consult and seek to agree and prepare a draft determination of native title for the Court to make under s 225 of the Native Title Act 1993 (Cth) to give effect to the reasons for judgment delivered today.
2.    The proceeding be listed for case management on 17 August 2017 at 11.30am.
Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

In the judgment Justice Rares stated in part:

54    I am satisfied, having considered all of the evidence, that this explanation of spiritual connection reflects both important traditional laws, that the Yindjibarndi acknowledged, and traditional customs, that they observed, at the time of sovereignty and continue to acknowledge and observe today. The explanation neatly captures the essence of the relationship of the Yindjibarndi to their country and their spiritual obligation, embedded in their traditional laws and customs, to protect that country, including from the presence and activities on it of strangers (or manjangu) unless the stranger(s) first obtain(s) permission from Yindjibarndi people.

55    In addition, I am satisfied that, if a stranger were free to enter Yindjibarndi country without permission, under those Yindjibarndi normative laws and customs that have continuously applied over the same time period, he or she could “hurt” the country by violating the Birdarra law, even if unintentionally; for example, by entering a sacred or restricted place, or taking something, such as a resource or animal, from the country. And, those laws and customs thus require the Yindjibarndi to protect their country from a manjangu gaining access to it or its living or inanimate resources without permission of a Yindjibarndi elder.

56    Moreover, I am satisfied by all of the evidence that the Yindjibarndi have continuously (since before sovereignty) acknowledged traditional laws and observed traditional customs relating to the presence, role and power of the spirits of the Marrga and “old people” in and over Yindjibarndi country.

149    I am satisfied that, on the evidence before me, the Yindjibarndi continue to acknowledge their traditional laws and observe their traditional customs that have existed since before sovereignty that a manjangu must seek and obtain permission from an elder before entering on Yindjibarndi country or carrying out activity there (except if the person is simply driving through).

150    Moreover, that conclusion is supported by the evidence of Dr Palmer, which I accept. He concluded that the Yindjibarndi had the right to exclude others who are not Yindjibarndi “and are consequently identified as manjangu”, but he also found that they had abandoned the pre-sovereignty right to put a trespasser to death.

151    Accordingly, I find that the Yindjibarndi have the exclusive right to control access to Yindjibarndi country and, in particular, to the claimed area.

PHOTO: The Yindjibarndi land extends across an inland section of the western Pilbara, including parts of the Millstream National Park. (ABC North West WA: Joseph Dunstan)
The response of that right-wing warrior Andrew Forest of Fortescue Metals was not long in coming.

The Australian, 21 July 2017:

A landmark court decision could set a new template for the way the mining industry approaches ­native title negotiation, after ­Andrew Forrest’s Fortescue Metals Group lost a long running claim over its Pilbara mining hub.

Fortescue could be on the hook for hundreds of millions of dollars in past and future royalties, following the biggest native title ruling to hit an Australian miner for years.

Even so, Fortescue yesterday moved to hose down concerns about the impact of a native title ruling over its Solomon mining hub, noting that it did not expect the ruling to have any “material” financial impact on or inhibit current or ­future operations.

The ruling gives the Yindjibarndi exclusive native title rights over Fortescue’s Solomon mining hub in Western Australia that ­accounts for at least 70 million tonnes of the company’s annual iron ore output.

While the ruling does not prohibit Fortescue from continuing to operate the Solomon mines, it does potentially leave Fortescue exposed to a compensation claim over the hundreds of millions of tonnes of iron ore mined at the project to date as well as possible royalties over future production.

The Guardian, 21 July 2017:

Fortescue Metals Group is likely to appeal against a determination of exclusive native title for Yindjibarndi people over land in the Pilbara which encompasses its Solomon Hub mine.

On Thursday the federal court ruled in favour of the Yindjibarndi traditional owners, awarding exclusive rights and interests over about 2,700 sq km of unclaimed crown land, which encompasses FMG’s $110bn mine.

The company responded on Thursday that it had “no commercial concerns and do not anticipate any material financial impact following the court’s determination,” but on Friday its chief executive suggested it would appeal.

Nev Power told ABC local radio he thought the court’s decision was wrong.

“I think we are likely to appeal,” he said. “It’s a very unusual decision in that the judge has found exclusive native title possession on this land, which we think is unlikely to be the case. So we will be looking at it definitely and considering an appeal.”

Following the decision on Thursday FMG shares dropped 19c to $5.19, and opened at $5.05 on Friday.

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