Fortescue's Solomon hub in the Pilbara.

Native title winners seek Fortescue compo

Thursday, 20 July, 2017 - 15:19

Yindjibarndi Aboriginal Corporation will seek compensation from Fortescue Metals Group after the Federal Court recognised the Yindjibarndi people have exclusive rights over Pilbara land where the company operates the Solomon hub.

The decision to grant native title to the Yindjibarndi people leaves the door open for YAC to potentially sue the mining company for millions in compensation and royalty payments.

The ruling comes after years of acrimonious disputes Fortescue and YAC, with the mining giant backing a breakaway group called Wirlu-Murra Yindjibarndi Aboriginal Corporation.

In his judgement handed down today, Justice Steven Rares said even though most Yindjibarndi now lived outside the claimed area, there was no dispute they maintained a strong and unbroken sense of connection to their lands.

"They have also continuously acknowledged traditional laws and observed traditional customs relating to the presence, role and power of the spirits of the Marrga and ‘old people’ in and over Yindjibarndi country," he said.

“I have found that the Yindjibarndi are entitled to exclusive native title rights and interests over all of the unallocated Crown land in the claimed area and the Yandeeyara Reserve, except for a small area occupied by the Tom Price railway.

"This includes the unallocated Crown land occupied by FMG's Solomon hub mine.

“That is because I am satisfied that the Yindjibarndi established, on the evidence and in accordance with decisions of the full court, that a manjangu (stranger) still has to obtain permission from a Yindjibarndi elder before entering or carrying out activity on Yindjibarndi country.”

Shortly after the judgment was handed down, senior Yindjibarndi lawman Michael Woodley vowed to launch a compensation claim against the company.

"We believe strongly they are liable for what they've been doing for the last eight years on our country, mining without our ... prior and informed consent," Mr Woodley told media.

Fortescue shares were 3.5 per cent lower to $5.19 each at the close of trade.

In a brief statement, Fortescue said the court’s decision had no impact on the company’s current and future operations, or mining tenure, at Solomon.

"We have no commercial concerns and do not anticipate any material financial impact following the Court’s determination," it said.

“Fortescue will continue its approach of providing training, employment and business development opportunities for Aboriginal people to ensure the strength of its business benefits the communities in which it operates,” it added.

This approach has seen Fortescue award contracts, sub-contracts and works worth $1.95 billion to 105 Aboriginal-owned businesses and joint ventures since 2011, with one of the major winners being Wirlu-Murra Yindjibarndi Enterprises. 

The proceeding began in 2003, and the land also includes Rio Tinto and Hancock Prospecting mining leases and pastoral leases.

In April last year, YAC members re-elected a number of directors who had previously been replaced by a court-appointed receiver, defeating the hopes of Wirlu-Murra Yindjibarndi Aboriginal Corporation members, who had wanted to take control of YAC.

Fortescue would have preferred the latter outcome, as it had backed Wirlu-Murra to take control of YAC so that it could enter into a royalty agreement with the Yindjibarndi people on financial terms proposed by Wirlu-Murra.

YAC is led by Mr Woodley, who in the past has been in conflict with Fortescue after the two failed to reach a land-use agreement that satisfied both parties.

Aboriginal Affairs Minister Ben Wyatt warmly congratulated the Yindjibarndi people on the ruling.

“The Yindjibarndi have proven themselves to be determined and committed advocates in their pursuit of exclusive possession and have won today in the face of not insignificant obstacles over many years," he said in a statement.

“Like many other litigated areas of native title, this has been a difficult and drawn-out process for the Yindjibarndi people, and has caused fractures within their community. 

“However, today’s result is a tremendous victory for the Yindjibarndi people and I hope they are able to unite and work together to ensure they are able to utilise their now recognised native title rights to benefit all members of the Yindjibarndi community.”

The Yindjibarndi ruling coincided with the Full Court of the Federal Court making an updated ruling on the first-ever assessment of native title compensation in Australia.

The Full Court today decreased the native title compensation award to the Ngaliwurru and Nungali Peoples in the Timber Creek compensation claim in the Northern Territory.

In a client note issued today, law firm Ashurst said the Full Court upheld most of the trial judge's findings, with the only significant change being the finding on economic loss.

In August 2016, the Federal Court determined that $3.3 million compensation was payable to the Ngaliwurru and Nungali Peoples for the impact of land grants and public works on their native title rights and interests.

This comprised $512,000 for economic loss (80 per cent of the freehold land value), $1.3 million for non-economic loss (caused by a loss of traditional attachment to the land), and $1.5 million for simple interest on the economic loss component of the compensation from the time of the extinguishment some 30 years ago until the date of judgement. 

The 80 per cent figure had been on the basis that the native title holders held only non-exclusive native title rights and interests that were not equivalent to full freehold value.

The Full Court reduced the total award for economic loss from 80 per cent to 65 per cent of the freehold value of the relevant land at the time of the compensable acts.

The Full Court agreed with the trial judge that only simple interest was payable on the economic loss component of the award.

The Full Court also upheld the trial judge's award for non-economic loss.

Ashurst said an application for special leave to appeal to the High Court was likely because of the implications of this decision for all stakeholders.

The law firm predicted it would be some years before we hear the final word on the assessment of native title compensation at Timber Creek and the rest of Australia.