“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.
A Fortescue spokesperson said the Federal Court would publish the reasons for its decision at a later date and the company would review the decision once published.
“Dr Andrew Forrest and Fortescue care deeply about all First Nations people, including the Yindjibarndi community. Fortescue accepts that the Yindjibarndi People are entitled to compensation,” the spokesperson said.
“The Company has agreed to and pays financial compensation under all of its other seven native title agreements.
“Fortescue has strong relationships with the First Nations people of the Pilbara region of Western Australia, with dedicated Heritage, Native Title and Community teams working hand in hand with Traditional Custodians to ensure cultural heritage is managed sustainably and responsibly.”
A state government spokesperson said the government was still considering the Federal Court’s decision and seeking legal advice on its implications.
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