Since Fortescue Metals Group, the company started by billionaire Andrew Forrest, began mining at its Solomon Hub in the Pilbara in 2013 the company has dug up millions of tonnes of iron ore worth tens of billions of dollars.
FMG has not paid registered native title holders, the Yindjibarndi people, a cent.
Last week the case that will decide how much compensation Yindjibarndi people will receive wrapped up in the Federal Court, bringing to a close years of legal argument.
Yindjibarndi people are seeking $1.8 billion in compensation for FMG's Solomon Hub mine digging up iron ore on their Country in the Pilbara.
Yindjibarndi Ngurra Aboriginal Corporation is asking the court to award them $1 billion for cultural loss, $678 million for economic loss, $3.4 million for destruction of specific sites and $1.1 million for the cost of healing the trauma caused by FMG's social disruption.
Lawyers for Yindjibarndi argued compensation should take into account the amount the native title holders would have been able to negotiate with Fortescue.
But FMG say that the Yindjibarndi people should have made their claim under the Mining Act in the Warden's Court (rather than the Federal Court) and, if they are entitled to compensation under the Native Title Act, it is the State of Western Australia who should pay, not the mining company.
Fortescue describes Solomon as its "flagship iron ore and production site", with a capacity to produce 68 to 70 millions tonnes of iron ore per year. It is expected to operate for decades.
It is standard practice for miners to seek land access agreements with native title holders under the Native Title Act, known as Indigenous Land Use Agreements (ILUA).
In the Pilbara, miners like Rio Tinto are known to pay 0.5 per cent royalties to native title holders for land access agreements, according to documents tendered in court.
When FMG first started negotiating with the Yindjibarndi Aboriginal Corporation around 2008 the mining company offered a capped agreement of $4 million per year, which was rejected.
Despite there being no land access agreement with the Yindjibarndi people, the Western Australian government granted FMG three production licences for the Solomon Hub in 2009, with conditions.
With prospects of the Yindjibarndi Aboriginal Corporation accepting FMG’s terms low, the mining company backed a breakaway group, the Wirlu-murra Yindjibarndi Aboriginal Corporation, financially supporting the group in challenges to the registered native title applicant.
And in 2013 FMG began mining without agreement from the Yindjibarndi people.
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Living Black - WA Native Title
Lawyers for Yindjibarndi argued compensation should take into account the amount the native title holders would have been able to negotiate with Fortescue.
FMG argues that, when the court is calculating the Yindjibarndi's economic loss, comparable royalties paid by other mining companies to native title holders shouldn't be considered - and that the maximum value is $95,000.
The mining company argues that the Yindjibarndi people should receive less than $8 million for non-economic loss.
"Such a sum involves a very generous assessment," FMG's closing submission says.
Fortescue also claims the granting of its mining tenements did not cause community disharmony.
But in its closing submissions Yindjibarndi Aboriginal Corporation says an invoice showing that FMG paid members of the breakaway group proves that the mining company stoked disharmony for their own commercial gain.
The Aboriginal corporation is also seeking compensation for the specific destruction of more than 200 culturally significant sites and for the cost of healing the trauma caused by social disruption.
In its closing submissions, Yindjibarndi Aboriginal Corporation said a "remarkable document" had been discovered in August, in the form of an invoice and corresponding purchase order from law firm Corser & Corser to FMG for $107,000.
The invoice refers to a meeting to be held on March 16, 2011, for more than 200 members of the breakaway group to be paid $500 expenses each.
"This is a clear and significant measure of support for one side of what was already a serious division in the community," the submission reads.
"There should be no difficultly in inferring that FMG gave the support to further its own commercial interests."
Yindjibarndi lawyers said the community division had prevented the practice of cultural ceremony, and therefore had impacts on Country.
But Fortescue barrister Brahma Dharmananda told the court the miner was not the cause of internal disharmony, nor was the granting of its tenements.
"The in-fighting arose because of difference of view about doing a deal with FMG," he said.
"Any inability to regenerate the land was not caused by FMG. It arose because the Yindjibarndi were and continue to be in internal conflict about how to deal with FMG."
In the almost 20 years since FMG began exploration on Yindjibarndi Country more than 200 significant sites have been destroyed –most with the permission of the WA government under section 18 of its Aboriginal Heritage Act.
Lawyer for WA Griff Ranson argued that compensation for damage to Yindjibarndi cultural heritage should be capped at $5-10 million.
Archaeologists told the court that the legal destruction of sites included five rock shelters of national significance, similar to , infamously destroyed by Rio Tinto under the same legislation in 2019.
Yindjibarndi Ngurra Aboriginal Corporation chief executive Michael Woodley said FMG had cleared a big area of land for mining.
Mr Michael Woodley, CEO of Yindjibarndi Aboriginal Corporation Source: NITV / NITV
“Come on, the state government may as well say in its argument that we don’t exist or shouldn’t exist.
“There are implications on both sides.
“There is the miner who might think that he’s paying too much now that the state government has set a bar this low. Then there are implications for First Nations groups.”
Fortescue has argued compensation should be calculated without reference to the value of any minerals on or in the ground, because they are not specifically covered under the Native Title Act.
"Valuing spiritual or cultural loss by reference to the value of minerals never owned by the Yindjibarndi is not correct," Mr Dharmananda told the court.
Federal Court Judge Stephen Burley will now wade through the mountains of evidence and is expected to make a decision late this year or early 2026.
