Yindjibarndi leader urges WA government to ‘readjust priorities’ on back of Fortescue compensation win
An Aboriginal group awarded more than $150 million for cultural and economic losses in a legal battle with mining giant Fortescue has welcomed findings by the court that ruled the company liable, but took aim at the WA government for not adopting a neutral position on the case.
Yindjibarndi Ngurra Aboriginal Corporation chief executive Michael Woodley also described the landmark compensation figure as “unsatisfactory in the context of what has been lost”.
Woodley said he welcomed the court’s decision that determined Fortescue is now liable, but noted the state could have stayed neutral on the amount of compensation sought.
“We also want to note the fact that the State Government could have adopted a neutral position on the amount of compensation in this case and left the other parties to fight this out in Court but instead it argued against the Yindjibarndi,” he said.
“We take this opportunity to encourage the State Government to readjust their priorities, and work on behalf of all Western Australians equally and consistently.
“This includes allowing Traditional Owners to achieve prosperity and good life from mining on our own Ngurra (country).
“We also want to say that we are not the enemy of the State when it comes to mining.”
At a press conference on Wednesday, Premier Roger Cook said the government was taking advice on the Federal Court ruling.
“We’re going to examine deeply this judgment and the implications of it, and we need to understand the full legal ramifications before we make any further comment,” he said.
The Yindjibarndi people sought substantial compensation of more than $1.8 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.
The final figure handed down by the Justice included $150 million for cultural loss but only $100,000 for economic loss.
“The Court accepted evidence about our deep spiritual connection to country and the physical and emotional impact of the mine suffered by Yindjibarndi witnesses and awarded $150 million for cultural losses based on what, in its opinion, was the amount the broader Australian community would regard as appropriate,” Woodley said.
“Regarding the $100,000 for economic losses, the Court did not accept our argument that the economic losses should be assessed based on the usual royalty rate paid by miners in the Pilbara for native title agreements, i.e. around 0.5 per cent of free on board revenue generated by the mine.
“Instead, in its judgment, the Court followed the precedent set by the 2018 High Court case at Timber Creek in the Northern Territory, for which economic losses were assessed based on freehold land value.
“Given this, the headline amount that the Court arrived at is unsatisfactory in context of what has been lost.”
The almost decades long legal stoush began when Forrest and Woodley started negotiations in 2008.
The Fortescue founder 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.
However, the talks were unsuccessful and a legal battle ensued.
Following the court decision, Forrest said Fortescue already pays financial compensation under each of its other seven Native Title agreements across the Pilbara, and would pay the compensation tomorrow if given the opportunity.
“We have always accepted and encouraged fair and proper compensation should be paid to the Yindjibarndi People. That was never in question,” he said.
“We maintain excellent relationships with Indigenous groups across the Pilbara, and our work with them is both productive and fruitful for their communities, including the state.
“After 20 years, I sincerely hope this money can now flow to the Yindjibarndi community and be used to support the elders and families and create future opportunities.”
A state government spokesperson said the government was still considering the Federal Court’s decision and seeking legal advice on its implications.
