Native Title Rights to Exclusive Possession, Use and Enjoyment and the Yindjibarndi

• Author: Richard Barltett
• Position: Professor of Law, The University of Western Australia
• Pages: 92-106

92

NATIVE TITLE RIGHTS TO

EXCLUSIVE POSSESSION, USE

AND ENJOYMENT AND THE

YINDJIBARNDI

RICHARD BARTLETT*

I THE YINDJIBARNDI AND FORTESCUE METALS

The recent trial court determination of the rights of the Yindjibarndi people to their

traditional lands, Warrie (on behalf of the Yindjibarndi People) v State of Western

Australia (Yindjibarndi No 2),1 attracted extensive media coverage. The reason

for the extensive coverage was because Fortescue Metals had recently established

a large iron ore mine on the traditional lands the subject of the determination

without any agreement with the native title claimants. The mine is projected to

have revenues of $280 billion over 40 years. The case drew attention to the rights

of exclusive possession which the native title claimants were able to establish.

Fortescue Metals announced very shortly after the trial judgement that the decision

would be appealed, the chief executive ofcer saying that “the court’s decision

appeared to be based on a very different interpretation of exclusive native title

possession, and could have major implications” beyond the immediate case2.

The chief executive ofcer voiced concern as to the compensation that might be

payable, and the rights the Yindjibarndi could exercise over the land.

This paper traces developments with respect to native title rights to exclusive

possession, in particular how the Federal Court has interpreted the requirements

of proof with respect to traditional laws and customs in a way which has served

to benet native title holders, rather than, as is commonly the case, limiting3

* Professor of Law, The University of Western Australia.

1 Warrie (on behalf of the Yindjibarndi People) v State of Western Australia (Yindjibarndi No

2) [2017] FCA 803.

2 The Australian, 22-23 July 2017, 26; Australian Financial Review, 21 July 2017. Notice of

Appeal by Fortescue Metals was lodged on 4 December 2017.

3 Richard Bartlett, ‘The Judicial Treatment of Native Title: Equal or Sui Generis? Using

Traditional Laws and Customs as a Barrier, Limitation and Weakness’ in R Bartlett and

J Milroy (ed), Native Title Claims in Canada and Australia: Delgamuukw and Miriuwung

Gajerrong (Centre for Aboriginal Programmes and Centre for Commercial and Resources

Law, University of Western Australia, 1999); Simon Young and Richard Bartlett, ‘From

Rights to Relics: A Two-Part Critical Comparative Analysis of the Role of Traditional

Laws and Customs in Native Title Doctrine’ (2002) 5 Balanyi: Culture, Law and

Colonialism 124–61; Richard Bartlett, ‘Humpies not Houses or the Denial of Native

Title: A Comparative Assessment Of Australia’s Museum Mentality’ (2003) 10 Australian

Property Law Journal (2003) 83–107; Simon Young, The Trouble with Tradition: Native

Title and Cultural Change (Federation Press, 2008); Richard Bartlett, ‘Content of Native

Title’ in Native Title in Australia (LexisNexis, 3rd ed, 2015).