Traditional owners score big win over Fortescue

Andrew Forrest’s Fortescue Metals Group is facing a huge compensation claim from traditional owners after a High Court defeat on Friday.

The High Court denied Fortescue special leave to appeal earlier rulings from six Federal Court judges that effectively mean the company built its Solomon iron ore mining hub in Western Australia without permission of traditional owners.

The traditional owners, represented by the Yindjibarndi Aboriginal Corporation (YAC), are now poised to launch a compensation claim that could amount to hundreds of millions of dollars through the Federal Court.

The Roebourne-based YAC and its members celebrated their latest victory in a legal battle that has dragged on for 12 years.

The case saw WA’s Labor government line up on the side of the traditional owners against a high-powered Fortescue legal team headed by top silk Bret Walker, SC, who acted for Cardinal George Pell in his successful appeal against historic child sex offence convictions.

Fortescue chief executive Elizabeth Gaines said the company was disappointed with the outcome on Friday, when the High Court described its application as “undeserving” of special leave to appeal.

The High Court rebuff is a major blow for Mr Forrest, the Fortescue founder and chairman who used the company's annual general meeting in October to criticise the Yindjibarndi community and told shareholders “that is not a community I’m going to empower with tens of millions of your cash”.

His comments came soon after the Federal Court had rejected an appeal against an earlier ruling that gave the YAC exclusive possession in native title terms over 2700 square kilometres in WA’s iron ore-rich Pilbara region.

Cultural loss

The ruling recognised the YAC as private owners with a spiritual connection that allowed them to decide who came on to the land.

YAC chief executive Michael Woodley said the community would discuss the size of its compensation claim and also seek advice from its accountants KPMG.

There are some in the community who believe the size of claim should be based on a percentage of Fortescue’s total revenue of about $70 billion over the past decade.

Mr Woodley said the claims would be based on cultural loss – with Fortescue accused of destroying hundreds of sacred and significant sites – pain and suffering, and economic loss.

Another factor will be the social disruption caused in the Yindjibarndi community after Fortescue opted to throw its support behind the breakaway Wirlu-murra Yindjibarndi Aboriginal Corporation.

In a statement to the ASX on Friday, Fortescue repeated its earlier advice that the decision of the full Federal Court in October had no impact on its current or future operations or mining tenure at the Solomon Hub.

The company said it did not anticipate any material financial impact to the business as a result of the Federal Court rulings.

Ms Gaines said Fortescue had a strong history of working with traditional owners and native title partners across the Pilbara and had delivered native title royalties, training and assistance to more than 1600 Aboriginal people and more than $2.5 billion in contracts to Aboriginal businesses.

Important point of law

“We accept, and have always accepted, the Yindjibarndi people’s non-exclusive native title rights and interests over the relevant area,” she said.

“While we are disappointed with the outcome, as we believe this is an important point of law regarding the test for exclusive possession with potential implications for a range of industries, we accept the High Court’s decision.”

Ms Gaines said Fortescue remained open to negotiating a Land Access Agreement “to the benefit of all Yindjibarndi people on similar terms to the agreements Fortescue has in place with other native title groups in the region”.

YAC in-house lawyer George Irving said that at the heart of the Fortescue case rejected by the High Court was the notion that the inability of Indigenous peoples to exclude European “settlers” from their traditional countries demonstrated discontinuity in the acknowledgement and observance of their traditional laws and customs, and therefore precluded a determination of exclusive possession native title.