Aaron Bunch Journalist with Australian Associated Press | Collection of published work | + 61 484 008 119 | abunch@aap.com.au

Aaron Bunch
High Court rejects FMG native title appeal

The High Court has dismissed Fortescue Metals Group’s application to appeal a native title ruling covering its Solomon iron ore mine in Western Australia.

May 29, 2020

Australia’s highest court has rejected a bid by one of the nation’s largest iron ore producers to appeal a native title ruling.

The High Court on Friday dismissed Fortescue Metals Group’s application to appeal a native title decision covering its Solomon iron ore mine in Western Australia.

Exclusive rights to more than 2700sq km of land in the Pilbara region, including the Solomon mine, was granted to the Yindjibarndi people by the Federal Court in 2017.

Fortescue initially welcomed the ruling, saying it had no effect on the mining tenure at the Solomon Hub.

But it later applied to the High Court to appeal against the judgment.

It said granting exclusive possession to the Yindjibarndi people could impact a range of industries, including mining.

Fortescue’s lawyer, Bret Walker SC, told the hearing in Brisbane the Federal Court had failed to adequately consider the Yindjibarndi people’s continuity of connection to the land when it made its decision.

He said European settlement had effected the Yindjibarndi people’s ability to practice their laws and enforce possession of their land.

The Yindjibarndi people’s lawyer, Vance Hughston SC, said Fortescue’s application had failed to distinguish between the existence of a right and the ability to exercise it.

He said historic European pastoral and mining leases extinguished the Yindjibarndi people’s rights to possess their land.

“It is asking too much of Aboriginal people out in the Pilbara, when leases had been granted, to enforce their rights.”

“What is being suggested by the applicant could turn native title on its head,” he said.

Solicitor-General for Western Australia Joshua Thomson SC told the court the Yindjibarndi people had never stopped practising traditional law on their land.

He cited their requirement for strangers to seek permission to enter their land before and after Europeans arrived as an example, saying Fortescue’s application lacked merit.

Justices Patrick Keane AC and James Edelman agreed. They dismissed the application after an hour of submissions.

WA Treasurer Ben Wyatt welcomed the court’s decision.

In a tweet, he said it marked the end of the Yindjibarndi people’s 17-year struggle to have their native title rights properly recognised.

The Yindjibarndi people lodged their claim in 2003. It was one of the longest-running native title claims in Australia.

Fortescue said Friday’s decision would have no impact on its current or future operations at Solomon Hub and it does not anticipate any financial impact.

It remained open to negotiating a Land Access Agreement on similar terms to the agreements it has in place with other native title groups, a company spokesman said in a statement.

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