Federal Court finds Fortescue didn’t cause Yindjibarndi rift

The fight between rival Yindjibarndi groups over support for Fortescue’s Solomon Hub iron ore project was not caused by miners.

Federal Court Judge Stephen Burley’s finding was among several notable points to emerge from the 354-page redacted judgment, published on Friday, behind the decision to award the people of Yincibarndi $150 million in damages from Fortescue for building the Solomon Mining Center without their consent.

The blame for the conflict between the Yindjibarndi people of Roebourne and the surrounding remote communities has long been placed on Fortescue.

For more than a decade, the story had circulated that Fortescue and its founder, Andrew Forrest, had driven a rift between supporters of the Yindjibarndi Aboriginal Corporation and a splinter group known as the Wirlu-Murra Yindjibarndi Aboriginal Corporation, whose members wanted to strike a deal with the miner.

This gulf gave rise to fierce rivalry, causing a breakdown in the family and wider relationships, particularly in Roebourne, where the Yincibarndi people had adopted and where social dysfunction was endemic for a time.

In his reasoning for his decision, Judge Burley found no evidence to support the claim that Fortescue had caused the split.

“The twin root causes of conflict leading to social division are [Fortescue]he said.

“During [Fortescue] He may have facilitated or exploited this to some extent, he did not cause it.

“The division within the Yincibarndi community ultimately came about because there were different views within the community on how to conduct negotiations. [Fortescue] should have been approached.”

Judge Burley found sufficient evidence to determine that there were ‘real and strong’ differences that would have surfaced regardless of Fortescue’s actions.

YAC had sued Fortescue for $112 million in damages for the social disharmony it claimed he caused, but this claim was ultimately unsuccessful.

“To find otherwise would be to conclude that the members of the Yincibarndi community who objected to the manner in which YAC conducted its affairs and took a different view of the manner in which negotiations with FMG were conducted, failed and failed to carry out their own wishes in relation to these matters,” Judge Burley said. he said.

“No evidence supports this claim.”

The rift has partially healed since exclusive ownership was determined in 2017.

Some tension remains, and the separatist organization WMYAC still operates today.

economic loss

One of Judge Burley’s more contentious decisions was to estimate economic loss damages at $100,000 plus interest, based on the property value of the land.

The Yindjibarndi Ngurra Aboriginal Corporation had claimed $678 million based on standard royalties for ore mined from Solomon.

Judge Burley largely sided with the convention on this issue, stating that the minerals in the land belong to the state regardless of who controls the land.

“Since 1899, all minerals, including iron ore, on the land subject to the detection area have belonged to the state,” he said.

“There would be an oddity in determining the compensation (to be paid by the State or FMG) based on state-owned mines.

“The approach put forward by YNAC would lead to the incompatible conclusion that compensation for economic loss arising from the suspension of native title rights and interests in the present case would far exceed – by a multiplier of over 100,000 – compensation for economic loss arising from the compulsory acquisition and extinguishment of native title rights and interests of the Yincibarndi people.”

Yincibarndi’s economic loss figure was derived from royalties of approximately 0.5 percent of the value of the ore mined; This figure is understood to be a ballpark figure for various agreements made between miners and native land titles in the Pilbara.

In 2008, Yindjibarndi was pushing for a 5 percent royalty, while Fortescue wanted an access agreement covering all Yindjibarndi lands. Neither happened.

“[YNAC] Evidence shows that native title parties in the Pilbara “We are prepared to commence negotiations and agree to the grant of mining leases on the land for the effective extinguishment of their rights and interests,” Judge Burley said.

“Miners can negotiate and reach agreements with local title holders.

“Accordingly, YNAC argues that there is no need to limit the assessment of economic loss to the freehold value of the land, as the exchange value of the native title rights and interests held by the Yincibarndi people is the negotiated value that a miner would be prepared to pay them for the approval of the mining lease.”

Judge Burley found that YNAC had an opportunity to negotiate with Fortescue.

He noted that there was no finding by regulators that Fortescue had failed to negotiate in good faith.

Good faith negotiations require miners to do their best to reach an agreement with local title agencies.

If an agreement is not reached, as in central Solomon, mines can still continue with government permission.

“Accordingly, the defendants argue that the failure to reach any agreement and the subsequent adoption of future legislation without the consent of the people of Yincibarndi did not amount to a ‘loss of opportunity’ to negotiate and secure commercial interests,” Judge Burley said.

A Fortescue spokesman said the company has continually tried to reach a settlement out of court.

“At Fortescue we have always believed that when you operate in someone’s country, the people of that country should share in the opportunities that arise from that,” they said.

“For more than two decades, we have been working with Traditional Custodians in the Pilbara to create these opportunities through employment, local business development, skills training and long-term economic participation.

“These partnerships have always been about much more than just compensation.”

Owner or occupier

Elsewhere in the full judgment, Justice Burley noted that Fortescue had argued that the Yincibarndi were classified under the law as occupiers, not owners, of their country.

The WA government has suggested that Yincibarndi people may be owners of land over which they have exclusive possession and occupiers of non-exclusive land.

Judge Burley dismissed both sides’ arguments as outdated.

“In my view, the emphasis in the definition of ‘occupier’ as (inclusive of) any person who actually occupies land ‘under any legal title granted by or derived from the owner of the land’ suggests that parliament did not have native title holders in mind when the term was drafted,” he said.

The cultural loss component, which made up most of the compensation figure, was based on an extrapolation of the compensation awarded in the Timber Creek and McArthur River mining cases, both of which were located on non-exclusive land.

In court, Judge Burley noted the potential compensation figure of $576 million for Yincibarndi from the above findings, but found that figure to be excessive, without explaining why.

In his full reasoning it appeared that Judge Burley took the view that the higher figure would be based on compensation for a wider area of ​​claim rather than the part affected by Fortescue’s operations.

“If it is applied only to the Solomon Hub Project area (135.48 km2), approximately 139 million dollars will be generated,” he said.

“In assessing the appropriate amount of compensation, I would like to note that the compensation claim area is not the only area where the Yincibarndi people can practice their traditional customs and receive spiritual nourishment.

“However, this observation is weakened by the fact that for the Yincibarndi people, damage to one part of their country cannot be easily remedied. It is akin to one part of the body being severed, weakening and damaging the whole.

“Even if physical access is achieved, the impacts on other rights and interests will be felt permanently.”

Judge Burley was convinced that, based on the evidence of several Yindjibarndi witnesses, Fortescue’s actions left the Yindjibarndi spirits feeling ‘lost and homeless’, that the storytelling was ‘gone’ and that the ngurra and their people were ‘broken’.

“I take little account of the lack of extinguishing in assessing cultural losses in this context,” he said.

YNAC had sought $1 billion in damages for cultural loss; This meant approximately 1 million dollars per person from Yincibarndi.

Fortescue requested $8 million, while the state government sought between $5 and $10 million.

Judge Burley awarded $150 million.

A Fortescue spokesman said it would take time for the miner to review the court’s findings.

“After more than 20 years, our hope is that the compensation determined by the Court can now be transferred to the Yincibarndi community and used to support seniors, families and future generations,” they said.

“We are ready to pay this compensation tomorrow if given the opportunity.

“But cash payments alone will not deliver the practical, long-term results communities need.

“The longer this situation remains tied up in a legal process, the more difficult it will be for all parties to focus on the broader solutions and opportunities that come with long-term partnerships, including employment, education, business development and economic inclusion.”

YNAC has not yet decided on the appeal.