Native title holders hail victories in Pilbara and Northern Territory | Land Portal
  • Historic claim recognised around Andrew Forrest’s Fortescue mine
  • Court upholds $3.3m Timber Creek payout ruling against NT government

The federal court has handed down two major wins for native title holders, dismissing a government appeal against a landmark compensation case and recognising an exclusive native title claim around a $110bn mine owned by Andrew Forrest’s Fortescue Metals Group.

On Thursday afternoon the federal court upheld most of the $3.3m Timber Creek compensation ruling against the Northern Territory government.

The original decision set a precedent for determining compensation amounts for damage on native title lands, even when damage occurred prior to the granting of native title. It drew comparisons with the historic 1992 Mabo ruling which recognised native title for the first time.

In August then federal court judge John Mansfield awarded more than $3.3m in damages to the Ngaliwurru and Nungali groups for NT and commonwealth government acts on their land in the 1980s and 90s, which led to the extinguishment of native title, as well as hurt, loss of spiritual connection and loss of attachment to land.

The amount included $512,000 for the economic value of the extinguished rights, more than $1.48m in interest, and another $1.3m for pain and suffering.

Thursday’s ruling by a full bench of the federal court upheld most of Mansfield’s decision but reduced the interest payment from 80% of freehold value to 65%. It also removed one lot of land from interest calculations and upheld an appeal against a $48,597 damages claim.

The case, and in particular the interest portion, has prompted legal speculation that it would pave the way for billions of dollars in liability payouts by states, territories and the resource sector to Indigenous groups who suffered loss of native title due to actions by government and lessees such as mining companies.

The Northern Land Council welcomed the decision and said it would meet with the native title holders to discuss it.

“While acknowledging the reduced quantum of compensation, the NLC is pleased that appeals against the interest and solatium aspects of the award of compensation were dismissed,” a spokesman said.

The NT government, which set aside the $3.3m in an interest-bearing account while the appeal ran, has been contacted for a response to Thursday’s decision.

Also on Thursday, one of the nation’s longest-running native title cases came to an end, with the federal court awarding exclusive rights over Pilbara land to the Yindjibarndi. The land encompasses a $110bn mine owned by Fortescue Metals Group.

“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 [Rio Tinto’s] Tom Price railway,” Justice Steven Rares said.

“This includes the unallocated crown land occupied by FMG’s Solomon Hub mine.”

“That is because I am satisfied that the Yindjibarndi established ... that a manjangu (or stranger) still has to obtain permission from a Yindjibarndi elder before entering or carrying out activity on Yindjibarndi country.”

Rares said there was no dispute Yindjibarndi maintain a strong and unbroken sense of connection to their lands, even though most now live outside the claimed area.

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.

The area is about 2,700 sq km north of the Karijini national park and has been the subject of long-running disputes with FMG over royalties and access to the land.

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

“This is a moment in our time, we all [win] today,” the Yindjibarndi Aboriginal Corporation chief executive, Michael Woodley, told the ABC.

“You know we talk about legacies – we leave the legacy today for all Yindjibarndi, whether you’re with us or against us, this is your moment too.”

The corporation has said it would sue FMG for compensation if it won the native title case. Fortescue said the decision had no effect on the current and future operations or mining tenure at the Solomon mine.

“We have no commercial concerns and do not anticipate any material financial impact following the court’s determination,” the company said.

Fortescue controversially backed breakaway native title claimant group Wirlu-murra Yindjibarndi Aboriginal Corporation, which splintered from the Yindjibarndi Aboriginal Corporation.

Woodley previously said WMYAC was “stage-managed by Fortescue operatives” and said the company’s activities were disturbing sacred sites, something which the miner rejected.

Photograph: Tony McDonough


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