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

Western Australia
Federal Court - Full
Legislation considered: 
s 47B Native Title Act 1993 (Cth)
s 13 Native Title Act 1993 (Cth)
s 47A Native Title Act 1993 (Cth)
s 223 Native Title Act 1993 (Cth)
s 225 Native Title Act 1993 (Cth)

Jagot, Robertson, Griffiths, Mortimer and White JJ

In this matter the Full Federal Court considered an appeal by Fortescue Metals Group Ltd, The Pilbara Infrastructure Pty Ltd and FMG Pilbara Pty Ltd (Appellants) against a November 2017 determination of the Yindjibarndi peoples' native title in the Pilbara region of Western Australia.

The Respondents were Stanley Warrie and others on behalf of the Yindjibarndi People, the State of Western Australia, Robe River Mining Co Pty Ltd, Hamersley Iron Pty Ltd, Hamersely Exploration Pty Ltd, Georgina Rinehart, Hancock Prospecting, Yamatji Marlpa Aboriginal Corporation and 3 other individuals. 


In 2005 the Court made a native title determination in relation to a different part of Yindjibarndi country: Daniel v State of Western Australia (2005) FCA 536 (Daniel determination)​. On appeal, in 2007, the Full Court amended the Daniel determination: ​Moses v Western Australia [2007] FCAFC 78 (Moses determination). The Daniel/Moses determination recognised non-exclusive native title over another part of Yindjibarni country to the north of the claimed area. See Related Content. 

In November 2017, the Federal Court made a further native title determination in favour of the Yindjibarndi people: Warrie (formerly TJ)(on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 308 and Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299 (Warrie determination).

The Warrie determination includes an Exclusive Area with native title rights and interests which confer the right to possession, occupation, use and enjoyment of that area to the exclusion of all others, with certain exceptions.

The primary judge found that:

  • The Yindjibarndi People had proved that they are entitled to a native title right to control access (or exclude others), equivalent to a right of exclusive possession, in the Exclusive Area; and
  • The earlier Daniel/Moses determination did not prevent the Yindjibarndi People from obtaining exclusive native title in relation to the present claim area.

After the Court reserved its decision the Yindjibarndi Aboriginal Corporation RNTBC (YAC) lodged an application under s 13 of the Native Title Act 1993 (Cth) (NTA) to vary the Daniel/Moses determination so as to give the Yindjibarndi people exclusive, rather than non-exclusive, native title over that area.

The Appellants appealed against the Warrie determination in two respects:

  • the Yindjibarndi People's right to exclusive possession, occupation, use and enjoyment of the Exclusive Area; and
  • the effect of ss 47A and 47B of the NTA on certain parcels of unallocated Crown land and Reserve land.

The Grounds of Appeal

The Appellants pressed 4 grounds of appeal. 

  1. the primary judge was wrong to:
    • find that s 13 of the NTA exempts, displaces or modifies general law principles of res judicata, issue estoppel and abuse of process to enable a claim group to seek a native title determination that is inconsistent with a previous native title determination;
    • permit the claim group to claim inconsistent findings of their native title in relation to different areas, particularly where the Daniel determination evidence and findings were used; and
    • not permit the Appellants to rely on the findings in the Daniel/Moses determination.
  2. Alternatively, the primary judge was wrong in:
    • finding that a belief held by the claim group, shared with neighbouring Aboriginal groups, that adverse spiritual consequences may result if strangers enter or use country without prior permission is proof of a right to exclude any and everyone (Aboriginal and non-Aboriginal) from access to the determination area for any or no reason;
    • finding that the concept of 'spiritual necessity' gives rise to a right of exclusive possession based on Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths) and Banjima People v Western Australia [2015] FCAFC 84 (Banjima); and
    • not finding that the claimants' rights and interests were those in the Daniel determination and do not include exclusive possession.
  3. Alternatively, if Griffiths and Banjima are authority for the concept of spiritual necessity giving rise to a right of exclusive possession the authority is incorrect.
  4. Alternatively, the primary judge was wrong to find that two parts of the claim area were occupied for the purposes of s 47A(1)(c) and s 47B(1)(c) of the NTA.

A further ground of appeal,  whether s 47B of the NTA applies to areas within the Exclusive Area covered by exploration licenses, was withdrawn following the High Court's decision in Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12.

Outcome and Reasoning

The appeal was comprehensively considered and dismissed. The Full Court delivered 3 separate judgments: Jagot and Mortimer JJ, Robertson and Griffiths JJ and White J:

Ground 1 - Abuse of process

Jagot and Mortimer JJ reviewed the evidence and reasons of the primary judge and the procedural history of the claim and found:

  • the primary judge’s exercise of judicial power in making a determination under s 225 of the NTA should not be identified as an abuse of the Court's processes;
  • the way law manifests itself in rights and interests in particular areas may vary across the country of a claim group; 
  • neither the scheme of the NTA or any judgement of the Court requires the establishment of a society that can only ​be described in one way, with which members of a claim group are forever fixed in relation to any other land and waters over which they assert native title, at [107].  
  • the uniqueness of the NTA process, involving novel legal and administrative problems, should inform the resolution of the abuse of process allegation, at [109]. Considerations of finality and fairness will need to be applied differently in the context of the NTA, at [111].
  • the history of the conduct of the proceeding, and the Appellants' conduct in the proceeding, did not support the allegations of oppression or abuse of process.

Robertson and Griffiths JJ considered Griffiths and Banjima had clarified the law in relation to the sufficiency of evidence of 'spiritual necessity" demonstrating exclusive possession.  The Daniels/Moses determinations were made in a different era, by reference to different evidence and without a proper appreciation of the correct focus. Their Honours found, having regard to all relevant circumstances, the inconsistency in determinations is not an abuse of process because it does not reduce public confidence in the administration of justice.

White J

White J dismissed the abuse of process ground but disagreed with the primary judge's conclusion that the power to vary a native title determination in the NTA is a statutory exception to the general law principles of res judicata, issue estoppel and abuse of process. His Honour found that the power of variation and YAC's variation application did not have the relevance which the Judge attached to them and the circumstances were immaterial. 

Accordingly, Ground 1 failed.

Grounds 2 & 3 - Exclusive Possession

Jagot and Mortimer JJ found that the primary judge's findings on the evidence were open to him and there was no error in approach. The decisions of the Full Court in Banjima and Griffiths support the approach taken by the primary judge and are not wrongly decided. 

Robertson and Griffiths JJ agreed with the reasons of Jagot and Mortimer JJ.

White J agreed with the reasons of Jagot and Mortimer JJ at [150]-[366].

Accordingly, Grounds 2 and 3 failed.

Ground 4 - Connection and "Occupy" for the purpose of s 47B and s 47A

The Appellants' submitted that evidence of obligations to spirits or the maintenance of spiritual harmony on country is irrelevant to the question of occupation under s 47B of the NTA because it does not establish presence on the land in a “concrete real world sense”.

Robertson and Griffiths JJ found no error in the primary judge's approach and affirmed that occupation of land by assertion of traditional rights and interests is not limited to areas in which Aboriginal people are physically present. The joint judgment also rejected the Appellants' submissions on its reading of s 47B(1)(c) of the NTA, which assumes that the only ways in which people can be established over land are in ways circumscribed by an Anglo-Australian notion of what it means to be in occupation, at [477]. 

Their Honours concluded, at [481],

"...the true significance and meaning of activities undertaken on country cannot be fully understood unless the context for those activities, as part of the exercise of traditional rights and interests, is appreciated as well. It remains for a trial judge to be satisfied on the evidence led, including as to the spiritual and culture significance or meaning of activities undertaken on land, that the claim group is in occupation of the relevant area under s 47B(1)(c)."

Robertson and Griffiths JJ declined to consider the issue of the proper construction of 'area' as it was not material and rejected the Appellant's submissions that the decisions of Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 and Moses v Western Australia [2007] FCAFC 78 were wrong.

Robertson and Griffiths JJ considered the primary judge's findings and conclusions on occupation and found there was no reason to doubt the authenticity, credibility or accuracy of evidence of the claim group’s witnesses and no circumstances to support the setting aside of the primary judge's findings of fact.

Jagot and Mortimer JJ and White J agreed with the joint reasons of Robertson and Griffiths JJ.

Accordingly, Ground 4 failed.


The appeal was dismissed, with no order as to costs, subject to any party seeking a costs order.