Fortescue Metals Group Ltd & Ors v Warrie & Ors

This matter came before the High Court of Australia on an application for special leave to appeal. The applicants, Fortescue Metals Group Ltd and others, sought leave to appeal a decision of the Full Court of the Federal Court of Australia. The respondents included the Yindjibarndi people, represented by Yindjibarndi Ngurra Aboriginal Corporation, and the State of Western Australia. The core of the dispute concerned the recognition of native title rights and interests, specifically the continuity of traditional laws and customs in the face of post-sovereignty European settlement and its practical effects.

The legal issues before the High Court revolved around the proper interpretation and application of the Native Title Act 1993 (Cth), particularly sections 223 and 225, in determining native title. The applicants contended that the Full Court's decision was inconsistent with the High Court's jurisprudence in cases such as *Yorta Yorta* and *Western Australia v Ward*. Specifically, they argued that the Full Court had failed to adequately consider the impact of European settlement and the disruption it caused on the continuity of traditional laws and customs, which is a prerequisite for native title recognition. A key point of contention was whether the practical impossibility or non-exercise of certain traditional practices due to settlement necessarily extinguished native title, or if the underlying laws and customs could still be considered acknowledged and observed.

The applicants' primary submission was that the Full Court's reasoning, particularly in paragraph 243 of its judgment, incorrectly put to one side the historical reality of European settlement and its disruptive effects when assessing the continuity of native title. They argued that while the Native Title Act requires continuity of acknowledgement and observance of traditional laws and customs, the Full Court's approach, by focusing on the existence of rights rather than their practical exercise in the context of settlement, failed to give sufficient weight to the factual disruption. This, they submitted, created an irreconcilable tension with the High Court's prior decisions, which had acknowledged the devastating and disruptive impact of settlement on the ability to demonstrate such continuity. The respondents countered that the Full Court had correctly distinguished between the existence of a right and its exercise, and that the passages complained of by the applicants were concerned with issues of extinguishment by inconsistent grant, rather than connection. They argued that the Full Court had correctly applied established jurisprudence, including *Griffiths* and *Banjima*, which had stood for many years, and that the applicants' argument would "turn native title on its head" by conflating the exercise of rights with their existence.

The High Court ultimately granted special leave to appeal.