2 days ago
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A Federal court judge has awarded the Yindjibarndi people of Western Australia’s Pilbara region around $150 million dollars for cultural loss in their 18-year-long battle for compensation with Andrew Forrest’s mining company Fortescue.
In handing down his decision, Justice Stephen Burley said the claim was substantial, despite it falling well short of the $1 billion the group was seeking.
“In the result, I have concluded that the claim for economic loss should be valued on the basis of the freehold value of the land within the Compensation Claim Area, with various allowances addressing the level of diminution in the native title rights and interests caused by the mining tenements and the duration of those tenements,” he said.
“Whilst the amount so assessed will be relatively low, calculating the correct amount involves some complexity having regard to the fact that compensation is in respect of each future act, of which there are 36, many of which overlap with each other.
“I anticipate that the total amount will be in the vicinity of $100,000, although the orders that I will make require the parties to confer and supply short minutes of order giving effect to my reasons and including the amount calculated on the basis of my reasoning.
“I have concluded that the claim for cultural loss should be assessed in the amount of $150 million.”
Burley said his assessment of the Yindjibarndi people’s level of cultural loss was conducted after speaking to lay witnesses during time the court spent in the region.
It included the cultural importance of heritage sites and culturally significant land that had been destroyed by the operations of the mine site.
The final compensation figure brings an end to an ongoing battle that started nearly two decades ago when Fortescue chair Andrew Forrest and Yindjibarndi Ngurra Aboriginal Corporation chief executive Michael Woodley started negotiations in 2008 in a community building in Roebourne used as a youth centre.
Forrest wanted an open-ended access agreement with YAC so his company could develop its second set of Pilbara iron ore mines, the Solomon Hub. In exchange, the Yindjibarndi, who had their right to native title confirmed in 2003, sought a 5 per cent royalty.
The talks were unsuccessful and an intense legal stoush began.
In 2013, Fortescue opened its first Solomon mine, Firetail, and four years later the Federal Court determined that the Yindjibarndi had exclusive possession over most of Fortescue’s Solomon leases.
The Yindjibarndi compensation case was filed in February 2022, following a successful claim recognising exclusive native title rights on a substantial part of Yindjibarndi ngurra, or country, in a judgment set down by Justice Stephen Rares in 2017 on behalf of the Yindjibarndi people against the State of Western Australia.
The judgment of Justice Rares was the culmination of a long-running fight by the Yindjibarndi people for recognition of their native title rights.
The claim area includes a large part of the Solomon Hub mine operated by Fortescue. The 2017 judgment was unsuccessfully appealed by Fortescue and a subsequent application by the company for special leave to appeal to the High Court also failed.
Fortescue had opposed the compensation claim together with the State of Western Australia.
In May 2022, with no compensation agreed, the Yindjibarndi applied to the Federal Court for it to step in to determine what Fortescue should pay.
The Yindjibarndi people sought substantial compensation of more than $1 billion for their cultural and economic losses, while Fortescue aimed to limit compensation to no more than around $8.1 million.
The state contended that compensation should be awarded in the vicinity of $5 million to $10 million.
Justice Burley travelled to the Pilbara in May 2024 to hear evidence from lay witnesses on-country and view significant Yindjibarndi cultural sites.
Expert evidence was heard later in 2024 and the Yindjibarndi people had been awaiting Tuesday’s judgment since closing submissions last year.
