FEDERAL COURT RULING FOR YINDJIBARNDI
Yindjibarndi at the Federal Court
The Federal Court has ruled that the Yindjibarndi Ngurra Aboriginal Corporation is entitled to substantial compensation for the impact of Fortescue Metals Group’s Solomon Hub mining operations on Yindjibarndi Country in the Pilbara.
The case centred on compensation for mining tenements granted by the State of Western Australia while the Yindjibarndi native title claim was still before the courts. Those tenements enabled the development of FMG’s Solomon Hub iron ore mines, which began operating in 2012.
The Court found the mining operations caused major cultural harm to the Yindjibarndi people, including destruction of heritage sites, damage to songlines, restricted access to Country, groundwater impacts and deep spiritual distress experienced by Traditional Owners. Evidence before the Court described more than 135 square kilometres of Country being fenced off and transformed by large-scale mining infrastructure.
The judgment noted FMG records showed 124 heritage sites had been completely destroyed and many others significantly damaged or buried beneath roads, infrastructure and tailings dams.
In assessing compensation, the Court rejected Yindjibarndi’s argument that economic loss should be based on a royalty-style share of mining profits, which had produced claims exceeding $800 million. Instead, the Court adopted the approach outlined by the High Court in the Griffiths compensation decision, valuing economic loss according to the freehold value of the affected land.
The Court said the economic compensation amount would likely total about $100,000 once calculations across the 36 mining tenements are finalised.
However, the Court awarded $150 million for cultural loss, recognising the profound spiritual and cultural damage caused by the mining operations to Yindjibarndi connection to Country.
The Court also ruled that FMG — not the State of Western Australia — is responsible for paying the compensation. Justice Colvin found that provisions in the WA Mining Act validly place liability for Native Title Act compensation onto the holders of the mining tenements.
As a result, the FMG respondents are liable to pay damages awarded to the Yindjibarndi people.
Yindjibarndi Elder Marion Cheedy said “I think of my parents because they had a long, hard struggle in this … it was 2003 when we started this court case against FMG and it’s taken us this long to, what, get this amount of money for our struggles” said Marion.
Ms Cheedy said they would find out tomorrow morning when Yindjibarndi meet to learn if they have finally got there or whether there would be appeal.
The cultural loss award is 8.33 percent of the $1.8 billion dollar claim, which Marion Cheedy said disrespected her father, the late Ned Cheedy who reached the age of 106. “He lived that long to help Yindjibarndi with their struggle and it seems disrespectful to him, and my mum”.