Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177

FEDERAL COURT OF AUSTRALIA

Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 Appeal from: Warrie (formerly TJ) (on behalf of the Yindjibarni People) v State of Western Australia [2017] FCA 803 Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299

File number: WAD 611 of 2017

Judges: JAGOT, ROBERTSON, GRIFFITHS, MORTIMER AND WHITE JJ

Date of judgment: 18 October 2019

Catchwords: NATIVE TITLE – abuse of process – potential inconsistency between determinations of native title – where primary judge recognised exclusive native title rights and interests held by claim group over area comprising part of Yindjibarndi country – where earlier determination in Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 recognised only non-exclusive native title rights and interests over another part of Yindjibarndi country – s 13 of the Native Title Act 1993 (Cth) (NTA) – no abuse of process NATIVE TITLE – determination of exclusive native title rights – whether primary judge erred in relying on findings concerning adverse spiritual consequences for strangers entering onto the claim area without permission supported a determination of exclusive native title rights – whether the primary judge was correct to find that the Yindjibarndi had continued to observe the traditional law and custom concerning permission to enter country from sovereignty to the present day – whether Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391 and Banjima People v Western Australia [2015] FCAFC 84; 231 FCR 456 were correctly decided NATIVE TITLE – the meaning of "occupy" in s 46B(1)(c) of the NTA – whether the primary judge erred in finding that at least one or more members of the claim group occupied two parts of the claim area at the time the application for determination of native title was lodged – appeal dismissed, with costs