Yindjibarndi held to hold exclusive native title rights and interest
Native Title determination
The Judge was satisfied that a stranger, known to the Yindjibarndi as a manjangu, needs to seek the permission of the Yindjibarndi before entering their lands and accordingly those rights and interests include the right to control access equivalent to the right of exclusive possession in respect of the claimed area.
The Judge did not determine how the right to control access or the other claimed native title rights and interests should be described and directed the parties to consult and if necessary to seek assistance of a native title registrar. If there is no agreement there will be a further hearing.
Mining Act implications
Miscellaneous Licences and s47B(1)(b)(ii)
In determining the application for a determination for native title, the Judge considered the nature of exploration licences and miscellaneous licence under the Mining Act 1978 (WA) in the context of whether they are a “permission or authority” within the meaning of s47B(1)(b)(ii) of the Native Title Act 1993 (Cth).
His Honour determined that a miscellaneous licence is a permission or authority and accordingly is excluded from the operation of s47B.
In following Banjima People v State of Western Australia  FCAFC 84; (2015) 231 FCR 456 at , the Judge confirmed at  that an exploration licence is not a permission or authority for the purposes of s47B(1)(b)(ii). An exploration licence does not require the whole or any identified part of the land the subject of the exploration licence to be explored. Surprisingly, this is said to be the case notwithstanding s63 providing that every exploration licence is subject to the condition that the holder “will explore for minerals”.
On the other hand, His Honour found that the miscellaneous licence in question is a permission or authority for the purposes of s47B(1)(b)(ii) because the miscellaneous licence was granted on the condition that the miscellaneous licence be continuously used for the purpose for which it was granted: reg 41(b) of the Mining Regulations 1981 (WA).
A miscellaneous licence which is not continuously used for the purpose for which it was granted would be libel to forfeiture under s96 of the Mining Act 1978 (WA).
As identified above, His Honour followed Banjima People v State of Western Australia  FCAFC 84; (2015) 231 FCR 456 at  in finding that the holder of an exploration licence is not required to explore all, or any identified area, of the area of an exploration licence notwithstanding that by failing to do so the licence may be liable to forfeiture.
Work Programs – exploration licences
In a statement that was necessary for the determination, His Honour found that the application for a works program under s63(aa) of the Mining Act 1978 (WA) conferred a discretionary power on the Minister and that the existence of such a power suggests that a person holding native title rights and interest may have a right to be heard before the Minister can grant any approval under s63(aa). This was said to be because the use of ground disturbing equipment has the potential to adversely affect the land concerned and the interests of persons holding native title rights and interests.
A railway is not a tramway
A miscellaneous licence may be granted for the purposes of a “tramway”: reg 42B(b). A miscellaneous licence cannot be granted for the purpose of a “railway” without a special Act of Parliament: s36 Public Works Act 1902 (WA).
His Honour rejected FMG’s argument that the miscellaneous licence in question had been granted for the purpose of a tramway. In doing so, His Honour noted that the ordinary and natural meaning of “tramway” is substantially different to that of “railway” or “railroad”.