FEDERAL COURT OF AUSTRALIA

Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer and supply to the chambers of Justice Burley by 4pm on 9 June 2026 draft short minutes of order giving effect to these reasons and a proposed timetable for further steps to be taken in these proceedings.

2.    Subject to further order, disclosure of the reasons other than to the parties, their legal representatives and members and staff of the Court is suppressed on an interim basis pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth).

3.    The parties confer and supply to the chambers of Justice Burley by 4pm on 26 May 2026:

(a)    a list identifying any paragraphs or parts therefor of these reasons for judgment which are said to contain confidential information and that ought not be published in an unredacted form, including the reasons why such a confidentiality claim is made; and

(b)    a copy of these reasons for judgment with the paragraphs or parts therefore which are said to contain confidential information highlighted (or otherwise marked for identification).

4.    Insofar as the parties are unable to agree to the terms of the draft short minutes of order referred to in order 1 or the list of confidential referred to in order 3, the areas of disagreement should be set out in mark up.

5.    The proceedings be listed for case management at 2 pm (AEST) on 22 June 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1.1    Synopsis of the claim

1.1.1    Overview

1    This is a claim for compensation brought by Yindjibarndi Ngurra Aboriginal Corporation, RNTBC (YNAC) under the terms of the Native Title Act 1993 (Cth).

2    On 9 July 2003, the Yindjibarndi people filed a native title claim in respect of land located in the Pilbara, Western Australia. That claim succeeded, and on 13 November 2017 the Court made a Determination conferring on the Yindjibarndi people the exclusive right to possession, occupation, use and enjoyment of parts of the land and non-exclusive native title rights and interests in respect of the balance of the Determination Area, which I describe in more detail later in these reasons.

3    Whilst the application for determination was on foot, the State of Western Australia (the first respondent in the current proceedings) granted a variety of mining tenements, wholly or partially located within the Determination Area, to various companies that I refer to collectively below as FMG (the second to sixth respondents in the current proceedings). Those tenements led to the development of the Solomon Hub Project, a collection of large-scale iron ore mines, that commenced operations in 2012.

4    YNAC now seeks compensation from either the State or FMG for any loss, diminution, impairment or other effect of the grant of the mining tenements on the native title rights and interests of the Yindjibarndi people. The claim is substantial. YNAC contends that it is entitled to compensation for economic loss calculated by reference to a percentage of the profits made by the operation of the Solomon Hub Project. It contends that mining companies in the Pilbara typically agree to pay something like a 0.5% royalty to traditional owners for use of their land and that FMG refused to do so. It calculates its economic loss on the basis of a percentage of royalties until the end of the operational life of the project, which is expected to be in 2045. So calculated, the claim for economic loss advanced exceeds $800 million.

5    YNAC separately seeks compensation for cultural loss that it has suffered from the grant of the mining tenements. For this it seeks $1 billion.

6    The State and FMG dispute the claim. They contend that the amount sought for economic loss cannot exceed the value of the freehold estate in the land. When valued as land largely suited for pastoral use, and taking into account various discount factors, the State submits that the total value of the economic loss should be assessed as $128,114.28. FMG takes a similar approach and argues that additional discount factors mean that the claim cannot exceed $95,197.

7    The State and FMG contend that YNAC’s claim for cultural loss is manifestly excessive. The State submits that it should be in the range of between $5 million to $10 million. FMG arrives at a figure of no more than $8 million.

8    The present claim is the first to deal with the question of compensation for “future acts” as that term is defined in the Native Title Act. As a result, it has thrown up a number of novel legal and factual issues. However, there is no dispute between the parties that central to the determination of the case is the reasoning of the High Court in Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1 (Griffiths HC). That decision makes plain that in considering a claim for compensation it is necessary to recognise a division between economic loss and cultural loss: at [3] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, who I refer to below as the plurality, Gageler J agreeing at [240], Edelman J agreeing at [253]).

9    Economic loss is to be calculated on the basis of the objective economic value of the native title rights and interests and, in that case, the High Court applied the test set out in Spencer v The Commonwealth [1907] HCA 82; 5 CLR 418 at p 432 adapted as necessary to accommodate the unique character of native title rights and interests and the statutory context: Griffiths HC at [66] (plurality).

10    Cultural loss is to be understood as compensation for loss or diminution of traditional attachment to the land or connection to country and for loss of rights to gain spiritual sustenance from the land. This is to be determined by reference to an amount which society would rightly regard as an appropriate award for the loss: Griffiths HC at [3] (plurality).

11    I consider both in some detail in this judgment, however, it will immediately be understood that whereas the quantum for economic loss is determined by objective metrics, there is an evaluative quality to the determination of cultural loss that involves engagement with and understanding of the spiritual and cultural connection of the Yindjibarndi people with their land and any harm caused to it as a result of the future acts concerned.

12    The scale of the operation of the Solomon Hub Project is relevant to both economic and cultural loss. Over 135 km2 of land has been fenced off and secured from entry, including by the Yindjibarndi people, because it is too dangerous to enter. Within that area are four large open pit mines called Kings, Trinity, Firetail North and Firetail South. There is significant transport infrastructure for vehicles, a railway, a large tailings dam, waste dumps and a stockpile area. Water courses have been stopped and power infrastructure installed. According to one witness, during a single shift the operation of a single excavator with a 75-tonne bucket has the capacity to load over 30,000 tonnes of iron ore. The evidence is that the ore is crushed and goes on a conveyor belt to the Ore Finery Plant. Groundwater from the land is taken by FMG for mining operations. Some water is added to the mill to wash the ore, which washes away clay and other things. The ore then goes in a conveyor that is about 2 km long to the Dry Plant where it is milled again. It then goes on another conveyor of about 2 km to the train load-out where it is stockpiled before being loaded onto trains. Mining operations continue 24 hours a day, 7 days a week, generating tremendous revenue for both FMG and the State (by way of royalties collected in accordance with the State’s mining legislation).

13    Middleton Cheedy, a Yindjibarndi witness, describes the physical and emotional impact of the mine upon him, and its pervasiveness in everyday life, as follows:

When I wait at a railway crossing I see the trains carrying ore to the ports. They are up to 2.4 km long and carry up to 30,000 tonnes at a time. To me that is 30,000 tonnes of ngurra blasted up and taken off and moved to another country, like China, to be transformed into steel. It is a very distressing experience for me because it happens all the time when I travel about the Pilbara…

I have been taught that my ngurra is precious and should not be defiled by a Mine. The Mine has taken everything, ngurra is gone, the spirits are gone, the water is gone, the caves are gone, the munda is gone, the wundu is gone, and our ancestor’s remains have been put through the crushers on the Mine site. I have been traumatised throughout my life by racism, deaths in my family, alcohol coming into our community, watching the old people try to save the Harding River, but the Mine is like a death for me. It has killed all the things that are important to Yindjibarndi People.

14    Judith Coppin, another Yindjibarndi witness, similarly describes the emotional impact of the mine on her:

Once I was driving with my husband Bruce James…on the Rio Tinto road near Hamersley Station, near Wirlu-Murra jinbi (spring). This is near where the T-junction meets the turn off to the Auski roadhouse (Nanuturra Wittenoom Road). I could see the lights from the Solomon Hub Project mine (the Mine). I just went so quiet. It looked like a big city. Bruce who was driving stopped at the gate there. I asked him, “what are them lights?”. Bruce said that was my country getting blown up. I said, “Can’t be”. Then we heard a big blast. I started crying and he cried with me. I didn’t talk to Bruce again on that trip until we got to our camp at the windmill north of Tom Price. All the way from that gate at Wirlu-Murra jinbi to where we were stopping at the windmill near Tom Price I was speechless. This was for about 1.5-2 hours. When we got out of the car, I was still quiet. I had seen my ngurra just blown up. I was devastated. My wirrard (soul and spirit) was destroyed.

1.1.2    Synopsis of the main legal issues and their outcome

15    In these reasons it has been necessary to decide a large number of issues in reaching my conclusion. By way of imperfect summary, I identify the main points and my conclusion in relation to each below.

16    A significant threshold issue arises as to whether the proceedings ought to have been brought under the terms of the Native Title Act or under the terms of the Mining Act 1978 (WA). The State and FMG contend for the latter, based on their view as to the application of s 24MD(3)(b)(ii) of the Native Title Act and s 123 of the Mining Act. I disagree with that view and conclude in section 6 below that it is the terms of the Native Title Act that should apply.

17    FMG contends that some of the mining tenements should be characterised as “water licences” which has consequences as to whether it or the State is liable to pay any compensation for their grant. YNAC and the State disagree and contend that all of the mining tenements in issue are future acts within s 24MD of the Native Title Act. In section 7 below I conclude that the position advanced by YNAC and the State is correct.

18    There is a significant dispute about whether the exclusive rights declared in the Determination are relevant to the claim for compensation. FMG contends that they are not. YNAC and the State contends that they are. There is a further dispute about the time from which (if ever) those exclusive rights apply. These matters concern the construction of ss 47A and 47B of the Native Title Act. In section 8 below I conclude that the exclusive rights are relevant to the compensation claim and that they apply from the date that the claimant application was filed, in July 2003.

19    After addressing these important pieces of legal shrapnel, I turn to the substantive claim for economic loss, the central issue of which concerns whether, as a matter of law, the claim for loss that YNAC has advanced on the basis of a percentage royalty of the value of profits made in the Solomon Hub Project is appropriate. I refer to this as the YNAC exchange value case.

20    I conclude in section 12 that having regard to the reasoning in Griffiths HC and the structure and terms of the Native Title Act this approach to economic loss is not available and that the methodology proposed by the State and FMG is correct. I separately conclude in section 19, that the exchange value case has not been proved on its facts by the expert evidence advanced by YNAC.

21    The reasoning in section 12 finds that s 51(3) is the operative provision for the assessment of economic loss. This requires consideration of the principles and criteria for determining compensation under the terms of the Mining Act, specifically s 123(2).

22    As a part of my reasoning in relation to the exchange value case I conclude that valuing economic loss by reference to the freehold value of the land does not offend the requirement in s 51(1) of the Native Title Act that compensation be awarded “on just terms” and that this reflects the conclusions of the High Court in Griffiths HC. This conclusion has been relevant to addressing a number of further subsidiary arguments that were raised between the parties.

23    One subsidiary argument made by YNAC is that to the extent that s 51(3) does not provide for compensation on just terms, because the operation of s 123 of the Mining Act prohibits recovery on the basis of royalties, then s 53(1) of the Native Title Act must apply to provide “top up” compensation that is on just terms. I reject that argument in section 13 of these reasons.

24    Another subsidiary argument is that s 123(1) of the Mining Act is invalid because it brings that Act into conflict with the terms of the Native Title Act by rendering compensation on the basis of the exchange value case unavailable. As a consequence, YNAC contends that s 109 of the Constitution will operate to invalidate s 123(2). I reject that argument in section 14 of these reasons.

25    YNAC advances alternative subsidiary arguments on the basis of the terms of the Racial Discrimination Act 1975 (Cth). One is that, had I concluded that compensation could not be determined under the terms of the Native Title Act but rather is only available under the Mining Act then the operation of s 123 of the Mining Act is discriminatory within the terms of the Racial Discrimination Act and accordingly s 45 of the Native Title Act operates to provide for compensation via the terms of the Native Title Act. Another is that if (as I have found) s 51(3) of the Native Title Act applies, then insofar as its application is discriminatory pursuant to the terms of s 123 of the Mining Act, compensation should be awarded pursuant to s 45 of the Native Title Act. The State contends that the terms of the Racial Discrimination Act are not applicable to the Native Title Act and the State and FMG dispute that the application of s 51(3) of the Native Title Act is discriminatory. In section 15 below I find that the Racial Discrimination Act is applicable. I find that it may well be that a compensation claim advanced by the Yindjibarndi people pursuant to the terms of s 123(2) of the Mining Act is discriminatory, but having regard to my conclusion on the primary claim (namely, that s 24MD(3) of the Native Title Act applies), it is not necessary for me to take this further. I reject the alternative argument advanced by YNAC.

26    By the terms of s 125A of the Mining Act, the State has legislated to provide that it is the holder of a mining tenement that is liable to pay any compensation awarded under the Native Title Act with the consequence that the respondent FMG companies are liable to pay. FMG challenges the constitutional validity of that provision on the basis of s 109 of the Constitution. In section 16 I conclude that there is no s 109 inconsistency and that accordingly FMG is liable to pay any compensation.

27    YNAC raises several other arguments in support of its claim for compensation for economic loss. I address these in section 17 below. One is a claim for compound interest on any damages awarded. In section 17.5 below I conclude that, on the facts of the present case, it is available.

28    In relation to the claim for cultural loss, the assessment involves a complex balance of different factors to determine the essentially spiritual relationship which the Yindjibarndi people have with their country, and then translate the spiritual hurt caused by the compensable acts into compensation: Griffiths HC at [216] (plurality).

29    A portion of the proceedings were heard on country, where evidence was received from a number of Yindjibarndi witnesses as well as experts in anthropology and archaeology. The Court also was able to view the operations of the Solomon Hub Project.

30    Moving evidence was received from lay witnesses as to the effect of the mining operations on their land and their attachment to it. I describe that in sections 23 and 24 below. According to Yindjibarndi belief, the Yindjibarndi people are the custodians of their ngurra, having been bestowed that responsibility by the Marrga, when the land was soft. With that responsibility comes an attachment to and dominion over land and responsibly to care for it. The connection is deep and visceral such that expressions like that of Middleton Cheedy and Judith Coppin (above) to the effect that their spirit, or wirrard, is destroyed when they see the harm done to their country as a result of the mining are plentiful and uncontradicted. To the Yindjibarndi people the ngurra is sentient and their connection to it permeates all aspects of their lives.

31    In considering the question of cultural loss, it is necessary to take into account the compensable acts, being the grant of the mining tenements and the effect that they have on the land by reference to the ground disturbance of the Solomon Hub Project. In section 24, I review aspects of the effect of that ground disturbance, including consideration of particular heritage sites that the Court visited where Yindjibarndi lay witnesses gave evidence and other areas the subject of evidence. Rock shelters, burial sites, resource areas, caves where ancestors’ spirits dwell and other sites of importance to the Yindjibarndi people are addressed. The evidence supports the conclusion that significant damage has been done to Yindjibarndi songlines and other areas of cultural heritage. FMG documents indicate that 240 sites that it designates as “heritage places” have had artefacts removed from them and stored remotely. The Yindjibarndi people have no access to those artefacts. The data indicates that 124 of those sites have been completely destroyed by the operation of the mine and many more substantially affected, being variously dug up, located under roads or other infrastructure or drowned by the tailings dam. All was duly approved under Government processes. However, none was done with the approval of YNAC.

32    An area of contention between the parties is the extent to which the operation of the Solomon Hub Project in withdrawing artesian water from the ground, called “dewatering”, has affected the creeks and surface water outside the area of that project in other parts of the compensation claim area. In section 25, I conclude that there is a causal link between the mining operations and the availability of groundwater and address the consequences of that in the context of the claim for cultural loss.

33    A further issue of contention between the parties is the relevance of an internal dispute within the Yindjibarndi community. This is a framed as a conflict between those supporting YNAC and a splinter group referred to as the Wirlu-Murra group concerning whether an agreement should be reached with FMG about the grant of the mining tenements. YNAC contends that FMG is responsible for this social division and that it is an effect that is compensable. The State and FMG contend that it is not. In section 26 below I conclude that there is no legal basis upon which the social division as alleged in these proceedings can be found to fall within cultural loss as a result of the grant of the mining tenements.

34    Ultimately, it was necessary to evaluate the evidence going to the land the subject of all of the mining tenements cumulatively consisting of 563 km2 of the Determination Area, of which 135.48 km2 forms the Solomon Hub Project, a term I define in more detail below. In sections 28 and 29 of the judgment I explain how, in balancing the various considerations required by authority, I arrive at an amount of compensation for cultural loss.

35    I refer to, but do not find determinative, a comparison between the two available cases where compensation has been awarded. In Griffiths HC, the subject land area was 1.27 km2 and non-exclusive rights applied. The High Court awarded $1.3 million in compensation for the extinguishment of those rights. The present case involves exclusive rights. If Griffiths HC is applied literally to the present, much larger, compensation claim area, the outcome would be about $576 million, but I reject that comparison as excessive.

1.1.3    Synopsis of the award and orders that I will make

36    In the result, I have concluded that the claim for economic loss should be valued on the basis of the freehold value of the land within the Compensation Claim Area, with various allowances addressing the level of diminution in the native title rights and interests caused by the mining tenements and the duration of those tenements (having regard to the non-extinguishment principle). Whilst the amount so assessed will be relatively low, calculating the correct amount involves some complexity having regard to the fact that compensation is in respect of each future act, of which there are 36, many of which overlap with each other. I anticipate that the total amount will be in the vicinity of $100,000, although the orders that I will make require the parties to confer and supply short minutes of order giving effect to my reasons and including the amount calculated on the basis of my reasoning.

37    I have concluded that the claim for cultural loss should be assessed in the amount of $150 million.

38    These reasons contain references to financial details that are the subject of suppression orders and to cultural matters that, if published, may give rise to cultural concerns on the part of the Yindjibarndi people. Accordingly, I will order that they be provided in the first instance to the legal representatives and other persons party to relevant confidentiality regimes so that they can prepare a suitably redacted version. I will direct the parties to supply an agreed redacted version to my chambers within 14 days so that it can be published more generally.

39    I would like to record that the parties all provided extremely thorough and helpful written and oral submissions as well as several documents – including an agreed statement of issues – which have been of considerable assistance in addressing the many issues that have arisen in this case. I wish to express my sincere appreciation to counsel, solicitors and parties for their assistance in this regard.

1.2    The proceedings and the parties

40    As I have noted, YNAC seeks compensation for loss arising from the grant by the first respondent, the State, of rights permitting the exploration for and mining of minerals by the second to sixth respondents (collectively, FMG) on Yindjibarndi land.

41    The claim is advanced on the basis of the Determination made by the Court in Warrie (formerly TJ) on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2017] FCA 1299; 366 ALR 467 (Warrie (No 2)) (Rares J), which recognised that native title is held by the Yindjibarndi people and delineates the scope of the native title rights and interests that they hold. A copy of the Determination is Annexure A to these reasons.

42    YNAC has since 11 October 2017 been registered as a native title body corporate pursuant to s 253 of the Native Title Act. It holds those rights and interests on trust for the Yindjibarndi people under s 56(3) of the Native Title Act. YNAC has made the present application for a determination of compensation in accordance with the requirements of regulation 8B of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). The Yindjibarndi #1 applicant is the applicant in the proceedings that led to the Determination.

43    FMG for the purposes of these proceedings comprises the second to sixth respondents which are FMG Pilbara Pty Ltd, Pilbara Energy (Generation) Pty Ltd, Pilbara Energy Company Pty Ltd (PEC), The Pilbara Infrastructure Pty Ltd and Pilbara Gas Pipeline Pty Ltd.

44    The seventh respondent is Yamatji Marlpa Aboriginal Corporation (YMAC), which is the native title representative body for the Pilbara region having statutory functions and powers under Division 3 of Part 11 of the Native Title Act, including to facilitate and assist compensation claims for its constituents.

45    The proceedings were commenced by the filing of a form 4 compensation application on 16 February 2022. YNAC subsequently filed points of claim, to which each of the State and FMG filed responses and to which YNAC replied. YMAC also filed a position on the points of claim and response which in general terms reflects the fact that its interests are aligned with those of YNAC.

46    In the course of the pleadings, YNAC and FMG each filed notices of constitutional matters under s 78B of the Judiciary Act 1903 (Cth) concerning the operation of the Native Title Act and the Mining Act. None of the Attorneys-General of the Commonwealth or of the States has signalled that they wished to intervene or be joined as parties.

47    The proceedings were heard over two years, commencing on 7 March 2023 when preservation evidence was received. Hearings were conducted in four tranches. First, from 7 August 2023 until 21 August 2023 during which the Court heard evidence from Yindjibarndi witnesses called by YNAC at Roebourne, Western Australia, where many of the Yindjibarndi people live, and also on country at Bangkangarra where, further lay evidence was given and the Court viewed the Solomon Hub Project. Secondly, in Perth from 8 April 2024 until 19 April 2024 when expert evidence was received from an anthropologist, psychologist, geologist and hydrogeologists, as well as valuation experts. Thirdly, on 15 October 2024 expert evidence was received from archaeologists. Fourthly, from 17 February 2025 until 26 February 2025 closing submissions were made. Further written submissions were received:

(a)    following the decision of the High Court in Commonwealth of Australia v Yunupingu [2025] HCA 6; 421 ALR 604; and

(b)    following the decision of Banks-Smith J in Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 5) (McArthur River Project Compensation Claim) [2026] FCA 153 (McArthur River).

1.3    Methodology

48    Section 51(1) of the Native Title Act, as interpreted in Griffiths HC, conveniently provides a roadmap for determining the complex issues in the present case:

(1)    identify the native title rights and interests;

(2)    identify the “act” in respect of which compensation is claimed;

(3)    identify the claimed loss, diminution, impairment or other effect of the act on the native title rights and interests in respect of which the claim for economic loss is claimed;

(4)    assess the economic loss flowing from the act;

(5)    identify the claimed loss, diminution, impairment or other effect of the act on the native title rights and interests in respect of which the claim for cultural loss is claimed;

(6)    assess the cultural loss flowing from the act; and

(7)    provide a total sum reflecting the components of economic and cultural loss, including interest.

49    In the reasons that follow, I endeavour to adopt that broad methodology.

1.4    Spellings, words and descriptions used

50    In determining how to resolve spelling, words and descriptions in these proceedings, I have adopted the approach of Mortimer J (as the Chief Justice then was) in Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [15]–[23].

51    In these reasons, I refer to all witnesses by their full name. Some witnesses have names that I have shortened for ease of reference and where others have preferred names, I have referred to them by their preferred name – for example, Fabian (“Charlie”) Cheedy, I will often refer to as “Charlie Cheedy”.

52    The evidence contained a large variety of spellings for names of people, places, concepts, groups and words in language. Where quoting from a witness or source, I have used the spelling provided. Much of the evidence going towards Yindjibarndi law and custom is summarised in the statement of agreed facts (filed 12 February 2024) and I have relied upon spellings here if they are agreed between the parties. Otherwise, I have attempted to resolve spelling inconsistencies by relying upon the spelling used by YNAC’s anthropological expert, Dr Kingsley Palmer. In his first report filed 14 December 2022, he notes that there has considerable variation over time in the orthography used when writing the Yindjibarndi language. He notes that there are some words as spelt in his reports that will not reflect the Yindjibarndi pronunciation. An example is the word wirrard, which is likely to sound like wirr-rut despite its spelling. He notes that Yindjibarndi words generally have a stress on the first syllable. Dr Palmer italicised words (with the exception of proper nouns) in Yindjibarndi language and did not use capital letters for these words unless they commenced a sentence. For proper nouns, Dr Palmer did not italicise these and used capital letters. I have adopted this approach when using words in Yindjibarndi language.

Unfortunately, there have been two lay witnesses who have passed away after making statements adduced in these proceedings. When referring to them and other deceased Yindjibarndi people, I have referred to them as “the late Mr or Mrs [Surname]”, per the request of the applicant.

1.5    The Determination

53    The native title rights and interests of the Yindjibarndi people are identified in the Determination, which substantially provides as follows:

Existence of native title (s 225 Native Title Act)

1.    Native title exists in the Determination Area in the manner set out in paragraphs 3 and 4 of this Determination.

Native title holders (s 225(a) Native Title Act)

2.    The native title in the Determination Area is held by the Yindjibarndi People. The Yindjibarndi People are the people referred to in Schedule 6.

The nature and extent of native title rights and interests and exclusiveness of native title (s 225(b) and (e) Native Title Act)

3.    Subject to paragraphs 4, 5, 6 and 9, the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following rights on the Yindjibarndi People, including the right to conduct activities necessary to give effect to them:

(a)    A right to access (including to enter, to travel over and remain);

(b)    A right to engage in ritual and ceremony (including to carry out and participate in initiation practices);

(c)    A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;

(d)    A right to fish from the waters;

(e)    A right to collect and forage for bush medicine;

(f)    A right to hunt and forage for and take fauna;

(g)    A right to forage for and take flora;

(h)    A right to take and use resources;

(i)    A right to take water for drinking and domestic use;

(j)    A right to cook on the land including light a fire for this purpose;

(k)    A right to protect and care for sites and objects of significance in the Determination Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others).

4.    Subject to paragraph 5, in the Exclusive Area, the native title rights and interests confer the right to possession, occupation, use and enjoyment of that area to the exclusion of all others.

Qualifications on the native title rights and interests

5.    The native title rights and interests set out in paragraphs 3 and 4:

(a)    are subject to and exercisable in accordance with:

(i)    the laws of the State and the Commonwealth, including the common law; and

(ii)    the traditional laws and customs of the Yindjibarndi People;

(b)    do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination; and

(c)    do not confer any rights in relation to:

(i)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);

(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iv)    water captured by the holders of the Other Interests pursuant to those Other Interests.

6.    Subject to paragraph 4 the native title rights and interests set out in paragraph 3:

(a)    do not confer:

(i)    possession, occupation, use and enjoyment on the Yindjibarndi People to the exclusion of all others; or

(ii)    a right to control the access to, or use of, the land and waters of the Determination Area or its resources.

Areas to which ss 47A or 47B of the Native Title Act apply

7.    Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the land and waters described in Schedule 4.

The nature and extent of any other interests (s 225(c) Native Title Act)

8.    The nature and extent of the Other Interests are described in Schedule 5.

Relationship between native title rights and other interests (s 225(d) Native Title Act)

9.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 and the Other Interests apart from exploration licence 47/1349 is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

10.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 and exploration licence 47/1349 is that:

(a)    to the extent that the rights under the licence are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the rights under the licence continue to exist in their entirety, but have no effect in relation to the native title rights and interests to the extent of the inconsistency during the currency of the licence; and otherwise,

(b)    the existence and exercise of the rights under the licence do not prevent the doing of any activity required or permitted to be done by or under and in accordance with the native title rights and interests, and the doing of such activities prevails over the exercise of any rights under the licence to the extent of inconsistency with those rights.

Definitions and Interpretation

11.    In this determination, unless the contrary intention appears:

Commonwealth means Commonwealth of Australia;

Determination Area means the land and waters within the external boundary described in Part 1 of Schedule 1 and depicted on the maps at Schedule 3, but not including the Unclaimed Area;

Exclusive Area means that part of the Determination Area described in Part 2 of Schedule 1 and depicted on the maps in Schedule 3;

land has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of “waters”;

Other Interests means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule 5 and referred to in paragraph 8, as at the date of this determination;

Native Title Act means the Native Title Act 1993 (Cth);

resources means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin, and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed));

State means State of Western Australia;

Unclaimed Area means the land and waters described in Schedule 2 and shaded pink on the maps in Schedule 3;

underground water includes water that percolates from the ground;

waters has the same meaning as in the Native Title Act.

12.    In the event of any inconsistency between the written description of an area in Schedule 1 or 2 and the area as depicted on the maps at Schedule 3, the written description prevails.

54    It will be seen that the Yindjibarndi people have both exclusive and non-exclusive rights as determined above. The Yindjibarndi non-exclusive rights are listed in [3] of the Determination. The Yindjibarndi exclusive rights are described in [4] of the Determination. It will be necessary to refer in further detail to the Determination later in these reasons. The schedules to the Determination are included in Annexure A to these reasons.

1.6    The Determination Area

55    The Determination Area spans 2,469 km2. It is depicted below:

Map 1 – The Determination Area

56    The exclusive area is shaded in green (where the Yindjibarndi exclusive rights have been determined) and is described more fully in schedule 4 of the Determination (see Annexure A). Areas marked with diagonal hatching are those to which ss 47A and 47B of the Native Title Act have been declared to apply. These areas coincide with the exclusive area, as shown in schedule 1 to the Determination. The non-exclusive area is shaded in orange (where the Yindjibarndi non-exclusive rights have been determined).

57    The Determination Area is situated in the Pilbara. To its north is a large area which the Ngarluma and Yindjibarndi people were found to hold non-exclusive native title rights in proceedings concluded in 2007: Daniel v State of Western Australia [2005] FCA 536 (Nicholson J) as amended in Moses v State of Western Australia [2007] FCAFC 78; 160 FCR 148 (Moore, North and Mansfield JJ). Areas of land to the south of the Determination Area have been the subject of determinations in favour of other groups: see Warrie (formerly TJ) on behalf of the Yindjibarndi People v State of Western Australia [2017] FCA 803; 365 ALR 624 (Warrie (No 1)) at [10] (Rares J).

58    The Yindjibarndi Aboriginal Corporation RNTBC (YAC) is the prescribed body corporate for the Determination the subject of Daniel and Moses. As noted, YNAC is the prescribed body corporate for the Determination Area the subject of these proceedings. Prior to the Determination the subject of these proceedings (being Warrie (No 2)), YAC acted in its capacity as the agent for the Yindjibarndi people for their claim to the land the subject of these proceedings.

2.    THE COMPENSATION CLAIM

59    In this section I set out details of the area the subject of the compensation claim and the activities undertaken by FMG pursuant to the FMG tenements, being the future acts in respect of which YNAC claims compensation, comprising 16 miscellaneous licences, 9 mining licences, 3 prospecting licences and 8 exploration licences granted to FMG by the State. I describe the FMG tenements in further detail below.

60    YNAC specified nine separate heads of compensation as set out in the Applicant’s List of Heads of Compensation filed 1 December 2023.

61    It claims as economic loss:

(1)    loss of the economic value of the Yindjibarndi people’s native title rights and interests including the special value of the land to the Yindjibarndi people, being the sum which a reasonable miner or Government party, acting fairly and justly, would have been prepared to pay the Yindjibarndi people to obtain their assent to the grants of the FMG tenements, or what the Yindjibarndi people could fairly and justly have demanded for their assent to the infringement of their native title rights and interests. I refer to this later in these reasons as YNAC’s exchange value case;

(2)    the related loss of the opportunity of securing commercial benefits through the right to negotiate under subdivision P of Part 2 Division 3 of the Native Title Act;

(3)    loss of or damage to country and to ancient occupation, cultural and Dreaming sites and Dreaming tracks;

(4)    the estimated cost of psychological and other services required to treat the social disruption/division and related psychological trauma within the Yindjibarndi community; and

(5)    interest on past economic loss.

62    In its heads of compensation as pleaded at its Points of Claim, YNAC identified a further head of economic loss being for “legal and associated costs of these proceedings and the Yindjibarndi people’s legal and associated costs of: (a) opposing applications made by FMG to the National Native Title Tribunal (NNTT) under s 35 of the Native Title Act; (b) opposing the destruction of Yindjibarndi sites; (c) defending proceedings commenced by Wirlu-Murra Yindjibarndi Aboriginal Corporation in the Western Australian Supreme Court” and various other legal proceedings. This claim was abandoned in YNAC’s closing written submissions.

63    The heads of compensation claimed for non-economic or cultural loss are:

(1)    non-economic or cultural loss, being compensation for that aspect of the value of the land to the Yindjibarndi people which is inherent in the things which has been lost, diminished, impaired or otherwise affected by the compensable acts. What in the end is required is a monetary figure that the Australian community would consider as appropriate, fair and just in the circumstances.

(2)    what is “appropriate, fair or just” will have regard to the nature and extent of the damage to and destruction of Yindjibarndi country as well as to the commercial returns received by the State and FMG from the iron ore extracted from the Compensation Claim Area (defined below) and what other miners could have been expected to pay.

(3)    the component for non-economic or cultural loss will include compensation for:

(a)    the denial of the Yindjibarndi people’s dominion over their country and the denial of their rights to access, use, protect and manage their traditional country;

(b)    damage to and destruction of country and of ancient occupation, cultural and Dreaming sites and Dreaming tracks;

(c)    social disruption/division and the consequential damage to and impairment of important cultural practices and norms including social relationships (Galharra), reciprocity and mutual care (nyinyaard) and ritual practice (Birdarra law), which underpin Yindjibarndi society and are believed to have a common origin in the dreaming or Ngurra Nyujunggamu and the loss of connection to land; and

(d)    feelings of deep cultural loss that relate to identity, autonomy and personal status.

3.    THE CLAIMED COMPENSABLE ACTS

3.1    The Compensation Claim Area described

64    Although the claim is made in respect of the whole of the Determination Area, the pleaded compensable acts are limited to the FMG tenements. As such, it is convenient in these reasons to refer to the area of the land covered by the FMG tenements as the Compensation Claim Area. For the sake of clarity, the Compensation Claim Area is only the portions of the FMG tenements that are within the Determination Area. This is situated in a parcel within the Determination Area as depicted below.

Map 2 – The FMG Tenements – Large-Scale Map

65    In the map above, the exclusive area is shaded green and the non-exclusive area is shaded orange. What can be seen from the various hatchings is that the majority of the FMG tenements are within the exclusive area, with some extending beyond the boundaries of the Determination Area entirely.

3.2    Details of the FMG tenements

3.2.1    Introduction

66    The evidence of two FMG employees, Stuart Badock and Christopher Oppenheim, provides details about some of the licences and the activities carried out by FMG pursuant to those licences. Mr Badock is a qualified geologist who has been involved with FMG’s mining operations at the Solomon Hub Project since January 2010, by which time FMG’s exploration operations at the Solomon Hub Project were advanced and involved work delineating and defining the extent of the iron ore resources there. I refer to his evidence further in relation to the exploration licences below. Mr Oppenheim is a General Manager – Resource Definition at FMG, is a qualified geologist, and has held various positions at FMG since 2011. His background is outlined in more detail at section 25 below.

3.2.2    Mining leases

67    The mining leases are identified in the schedule below. Pursuant to the terms of the Mining Act, a mining lease, once granted, remains in force for a period of 21 years: s 78(1)(a). The holder has an option to renew, as of right, for a further 21 years: s 78(1)(b). The Minister has a discretion to renew for further periods of not more than 21 years: s 78(2). Current modelling suggests that those tenements are expected to have an operational life until 2045. Accordingly, the mining leases in respect of which compensation is sought are anticipated to have a further term of 25 to 35 years, depending on the date of initial grant.

68    A mining lease authorises the holder to use, occupy and enjoy the land of the lease for mining purposes (s 85(2)(a)) and to mine for and dispose of, any minerals located in or on the land and do all things that are necessary to effectually carry out mining operations: s 85(1)(a), (b) and (d). It also confers rights to take and divert certain waters and sink wells and bores, subject to the provisions of the Rights in Water and Irrigation Act 1914 (WA) (Water Act). The holder of the mining lease owns all minerals lawfully mined on its lease: s 85(2)(b). One exception applies. The Minister may grant a mining lease that authorises mining only for specified minerals: s 110. For all of the mining leases the subject of the present claim, the ministerial authorisation is limited to an authority to mine for iron with the exception of M47/1570-I, for which no authorisation has been given. No other mining tenement, save for a miscellaneous licence, which can apply concurrently with another mining tenement under s 91(8), can be granted over a mining lease: s 85(3).

69    These rights do not equate to a right to exclude everyone from the land the subject of the lease for any or no reason at all, but is rather an exclusive right to go into and under the land, during the currency of the lease, and to get and take away the iron ore found there: Western Australia v Brown [2014] HCA 8; 253 CLR 507 at [44]–[45]. In this regard, it is to be noted that the conditions attaching to each of the mining leases the subject of the present claim include a provision to the following effect:

… any right of the native title party… to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities

70    As I note further below, access to the some of the area covered by the FMG tenements has been restricted on this basis and the Yindjibarndi people are generally not able to access it. This is an area of some 135 km2.

71    By s 82(1)(ca) of the Mining Act, the holder of a mining lease is not permitted to use ground disturbing equipment on the lease unless a programme of work has been approved or the use of such equipment is dealt with in an approved mining proposal. Additional conditions in the mining leases provide that various plans of operations for the construction work such as the use of mechanised equipment must be approved. Additionally, the leases are subject to conditions for environmental management during and rehabilitation following the closure of the mine.

72    The basic information pertinent to the mining leases may be summarised as follows and is extracted from the statement of agreed facts. The calculations in the table below are approximate in nature, as were the calculations done in the statement of agreed facts (this document containing an agreed margin of error of ± 3%). The points of claim specify 9 mining leases:

73    It may be noted that no active mining occurred on mining lease M47/1513-I prior to its surrender. In addition, no active mining is occurring or has occurred on M47/1473-I and no active mining is occurring or has occurred on the portion of M47/1411-I that is within the Determination Area. Further, not all portions of the land subject to the mining leases included in the applicant’s claim have been or are impacted by mining operations or associated infrastructure.

74    The maps below depict the location of each of the mining leases (depicted in pink hatching) within the Determination Area.

    Map 3 – The Mining Leases – Large-Scale Map

    Map 4 – The Mining Leases – Inset Map

3.2.3    Miscellaneous licences (including alleged water management licences)

75    Like the mining licences, the miscellaneous licences, once granted, remain in force for 21 years with an option to renew for a further term of 21 years and a discretion on the part of the Minister to renew for further periods: Mining Act s 91B. A miscellaneous licence may be granted over land that is already the subject of an existing tenement: ss 91(1) and 91(7). Once granted, it must be continuously used for the purpose for which it is granted: s 91(3)(b). Similarly to mining leases, miscellaneous licences do not permit the holder to use ground disturbing equipment unless a programme of works has been approved and similar conditions apply for the making good of or prevention of damage to the land.

76    The works undertaken and purposes of the miscellaneous licences within the Compensation Claim Area consist primarily of access or haulage roads, conveyor belts to transport ore, systems to store ore, power line infrastructure, power stations, optic fibre cabling, water bores and water pipelines. Miscellaneous licence L1SA contains the rail network and associated infrastructure connecting the Solomon Hub Project with Port Hedland.

77    The points of claim specify 16 miscellaneous licences:

78    The basic information pertinent to the alleged water management licences, which are 13 of the miscellaneous licences discussed further below in section 7, may be summarised as follows:

79    In addition, the miscellaneous licences also include two power plant licences (for the specific purpose of a power generation and transmission facility) being L47/859 and L47/901 and a railway licence being L1SA which connects the Solomon Hub Project to Port Hedland.

80    The maps below depict the location of each of the miscellaneous licences (depicted in green hatching) within the Determination Area. I note that these largely sit further to the right of the Determination Area than the mining leases and these licences are the subject of more non-exclusive land.

Map 5 – The Miscellaneous Licences – Large-Scale Map

Map 6 – The Miscellaneous Licences – Inset Map

3.2.4    Exploration licences

81    An exploration licence will remain in force for an initial period of five years, but may be extended by the Minister for a further period of five years, and then a further two year period but if it is renewed, then before the sixth anniversary the holder must surrender 40% of the areas held: ss 61(1), 61(2), 65 of the Mining Act. The exploration licences permit entry on the land to explore for iron (authorised by the Minister pursuant to s 111 of the Mining Act) and may do so with vehicles, machinery and equipment necessary for doing so: s 66(a). Bores may be sunk, pits and trenches, holes and tunnels may be dug pursuant to s 66(b) of the Mining Act. Prior to conducting exploration, FMG is required to obtain approval for a programme of works, as noted by the State with reference to Mr Badock’s evidence. By s 63 of the Mining Act all holes, pits, trenches and other disturbances to the surface of the land that were caused from exploring and are likely to endanger the safety of any person or animal must be filled in or made safe.

82    Mr Badock gives evidence that FMG engages in two broad categories of exploration within the Compensation Claim Area: greenfield exploration and resource definition. Greenfield exploration involves low-intensity drilling in remote areas to identify potential iron ore resources. Most of this occurred in relation to the Solomon Hub Project prior to 2010 and since then the bulk of FMG’s exploration concerned resource definition drilling. Resource definition drilling involves drilling at much shorter intervals to determine the precise extent of a resource, understand its variability, improve knowledge about the resource and support the life of established mining operations.

83    Mr Badock explains that upon the grant of a tenement, a geologist will seek to understand the geological prospectivity and then generate a potential exploration target. This involves the conduct of a desktop analysis using past geological mapping from the Geological Survey of Western Australia, third party data and geophysical dataset. The geologist will geologically map the surface bedrock in-field by travelling to the site. If it is found acceptable to explore, the exploration team will apply for heritage approval of the target. The exploration team will then liaise with the heritage team, which will organise for the programme to be cleared by an approved anthropologist and archaeologist in consultation with traditional custodians. FMG will then obtain an approved programme of works from the Government of Western Australia Department of Mines, Industry Regulation and Safety (DMIRS) before exploration commences. The application for a programme of works outlines the holes proposed to be drilled, the duration of the activities, the result of the environmental desktop assessment and the strategies proposed to ensure compliance with legislative obligations, protection of local flora and fauna and proposed rehabilitation activities.

84    Mr Badock gives evidence that the Solomon Hub Project was identified in 2006 and the scope of the resource has been well defined and FMG has identified the areas which are economical to mine and has determined that no promising or positive results exist in the Compensation Claim Area outside the footprint of the Solomon Hub Project.

85    YNAC’s points of claim specify the following exploration licences:

86    The maps below depict the location of the exploration licences (depicted in brown hatching) within the Determination Area:

Map 7 – Exploration Licences – Large-Scale Map

Map 8 – Exploration Licences – Inset Map

3.2.5    Prospecting licences

87    A prospecting licence remains in force for a period of four years and may be renewed for one further period of four years: s 45 Mining Act. If a prospecting licence has retention status, it may be extended by a further period(s) of four years: s 45(1a)(b). It may not exceed 200 hectares: s 40.

88    The rights conferred by a prospecting licence are similar to those for an exploration licence and include authorisation for the holder to enter the land with vehicles and equipment and sinking bores and digging pits, trenches, holes and tunnels: s 48 Mining Act. However, none of the prospecting licences that form part of the compensation claim permit the holder to prospect for iron ore without Ministerial authority.

89    YNAC’s points of claim specify the following 3 prospecting licences:

90    The maps below depict the location of the exploration licences (depicted in blue hatching) within the Determination Area.

Map 9 – Prospecting Licences – Large-Scale Map

Map 10 – Prospecting Licences – Inset Map

3.2.6    The date when the FMG tenements were granted

91    Below is a table setting out the date of grant of the various FMG tenements.

3.3    The Infrastructure on the Solomon Hub Project

92    The infrastructure located across the mining leases is described in a document titled FMG Respondents’ mining tenements and infrastructure (provided in compliance with the Court’s order 3 of 11 October 2022), filed by FMG on 13 February 2023 (FMG Infrastructure Document). A reference below to an FMG tenement commencing with the letter “M”, for example, as “M47/1409-I” is a reference to a mining lease. A reference to an FMG tenement commencing with the letter “E”, for example, as “E47/1319-I” is a reference to an exploration licence. A reference to an FMG tenement commencing with the letter “L”, for example, as “L47/361” is a reference to a miscellaneous licence.

93    The FMG Infrastructure Document provides the following relevant information. Infrastructure which is located across more than one FMG tenement comprises:

(1)    four major mine pits, being the:

(a)    Kings Mine Pit (located across mining leases M47/1409-I and M47/1453-I);

(b)    Trinity Mine Pit (located across mining leases M47/1409-I and M47/1475-I);

(c)    Firetail North Mine Pit (located across mining leases M47/1413-I and M47/1473-I); and

(d)    Firetail South Mine Pit (located across mining leases M47/1413-I, M47/1431-I, and M47/1453-I).

(2)    transport or service infrastructure, including conveyor belts used to transport ore (the Primary Overland Conveyer, located across mining leases M47/1413-I and M47/1431-I, and the Queens Conveyor, located across mining leases M47/1409-I and M47/1411-I), a haul road named Middleton’s Pass located across mining leases M47/1431-I and M47/1453-I, and an access road named Craigie Gorge Road located across mining leases M47/1413-I and M47/1431-I;

(3)    two deposits of mining waste material, being the Kings Waste Dump (located across mining leases M47/1409-I and M47/1453-I) and the Trinity Waste Dump (located across mining leases M47/1409-I and M47/1475-I);

(4)    a Tailings Storage Facility (located across mining leases M47/1409-I, M47/1431-I and M47/1453-I) or tailings dam, used to store “tailings” or product material generated from processing iron ore; and

(5)    a stockpile area designated for storing run-of-mine ore before it is processed (located across mining leases M47/1409-I and M47/1431-I).

94    In addition to this major infrastructure, there is also infrastructure located on each of the mining leases which is not located across more than one lease, such as building or camp sites, dams and diversion channels or drains, crushing hubs and transport or service infrastructure.

95    With the exception of a borefield and water pipeline(s) located in E47/1399-I and a borefield located in E47/1398-I, there is no infrastructure located in the exploration licences.

96    With the exception of a laydown or hardstand area and transport or service infrastructure located in L47/362, an access road located in L47/367, and powerline infrastructure located in L47/914, there is no infrastructure located in the alleged water management licences.

97    A scalable map of the Solomon Mine Hub showing the various FMG tenements is extracted below:

Map 11 – FMG Infrastructure Document Map 1 – FMG Tenements

98    A scalable map depicting the Solomon Hub Project infrastructure that has been constructed on each of the relevant FMG tenements is below:

Map 12 FMG Infrastructure Document Map 2 – Solomon Hub Project Infrastructure

3.4    Overlapping tenements

99    The Determination Area is 2,469 km2. The area of the FMG tenements within the Determination Area is 563 km2. Within the area of the FMG tenements is an area that the parties refer to in their submissions as the Solomon Hub Project. Although this area was not well described by YNAC, in its closing submissions FMG acknowledges that the area of the nine mining leases and three of the miscellaneous licences (being the railway licence (L1SA) and two power licences (L47/859 and L47/901) make up an area to which access is prevented (SHP secure area). In closing submissions, FMG submitted that this occupies approximately 150.47 km2. However, it is apparent that FMG’s calculation of this area was in fact a sum of each of the tenement areas, and did not account for overlap between the tenements making up the SHP secure area. When overlap is accounted for, the net area of the SHP secure area is 135.48 km2 (taken from a summary of the areas contained in the expert report of Mr Jaski, which I accept for the purpose of identifying the net area of the mining leases, railway and power plant licences). I infer that this generally represents the area of the Solomon Hub Project and refer interchangeably to the SHP secure area and the Solomon Hub Project in these reasons. I note that FMG also accepted that access might be prevented to other partes of the land when intermittent exploration activities were being conduct.

100    There is significant overlap between the various future acts relied upon by YNAC. All of the alleged water management licences overlap with at least one of the FMG tenements that make up the SHP secure area. Furthermore, of the eight exploration licences, E47/1333-I, E47/1334-I, E47/1398-I, E47/1399-I and E47/3464 overlap to some extent with the SHP secure area. Exploration licences E47/1319-I, E47/1447-I and E47/3205-I do not overlap with it at all. The prospecting licences all overlap with the railway licence (L1SA). Outside of the Solomon Hub Project there are also areas of overlap.

101    The expert evidence to which I refer later in these reasons identifies each of the FMG tenements and addresses the physical impact the activities of FMG have had on the land within each.

102    The degree of overlap between the tenements is apparent from the maps which are set out in section 3.2 above, and the following inset of a map showing the overlap between the tenements. The blue hatching shows prospecting licences, the pink hatching shows mining leases, the green hatching shows miscellaneous licences and the brown hatching shows exploration licences. As with other maps above, the exclusive area is shaded in green and the non-exclusive area is shaded in orange.

Map 13 – The FMG Tenements – Inset Map

3.5    Commencement, duration and anticipated reach of the Solomon Hub Project

103    Mining commenced on the Solomon Hub Project in October 2012. There is no fixed date for the closure of the mine, but on current modelling, it is expected to have an operational life until 2045.

104    To the extent that the Solomon Hub Project may expand in the future, the expansion within the Compensation Claim Area is generally localised to areas already affected by the existing mining operations and infrastructure. Additional evidence about the future use by FMG of the land within the FMG tenements is addressed later in these reasons. The map below, which is taken from the evidence of Mr Meaton depicts in yellow the existing footprint of the mine and in red the areas to be mined from 2020 to 2040, showing the boundary of the Compensation Claim Area in purple:

Map 14: Meaton Report – Solomon Hub Project – FMG Closure Plan Pit Layouts

105    It will be observed that areas of the mining activity that are to the south of the purple line are not within the Compensation Claim Area.

3.6    Closure and rehabilitation of the land

106    There is no dispute that the Solomon Hub Project has many years yet to run with its estimated closure due in 2045. Included in the evidence is a document entitled Solomon Mine Closure Plan, dated 20 September 2022 (Mine Closure Plan). It is scant on detail, however, it refers to the conduct of progressive rehabilitation activities during the operational phase of the Solomon Hub Project and then outlines the process from closure to relinquishment. No steps have actually been identified and there is only general discussion regarding relinquishment. Closure is said to commence when mining and ore processing ceases, and this is declared by notifying regulators and key stakeholders. According to the document, discussions with environmental regulators will then commence with annual and triennial environmental reporting obligations maintained until the authorities give notice that the activities can be reduced or cease. Decommissioning appears to involve the removal of buildings and other structures, which is estimated to take “around” two years to complete. Thereafter “rehabilitation activities” will commence. No detail is provided. The Mine Closure Plan says:

Rehabilitation activities are expected to take between 20 – 25 years to complete due to the significant backfill operation to achieve closure landforms and the scale of the Solomon Hub.

107    The section entitled “Post-closure monitoring” is set out below:

Following the cessation of decommissioning and earthwork activities, operational monitoring programs can be wound up and ceased, in accordance with licenses, permits etc. Where triggers for the cessation of monitoring are not included within the operational monitoring plans, discussions will be held with the relevant regulatory authorities to define how to conclude monitoring. At this stage, no cessation triggers have been identified within the existing management plans.

Post-closure monitoring and maintenance continue until it can be demonstrated to environment regulators that the completion criteria have been met. Following the cessation of closure activities, it is currently estimated that it will take 20 years to demonstrate that most of the completion criteria have been achieved. It may take significantly longer for the pit completion criteria to be demonstrated.

Access roads to the site will need to be maintained throughout the post monitoring period, so as to provide safe access for pit monitoring activities. Remotely sensed vegetation monitoring has been utilised in the completion criteria monitoring suite so that access to other areas of the site can be removed.

108    Further uncertainty arises from consideration of the Mine Closure Plan when it comes to the section entitled “Relinquishment of land management liability and tenure”, which says:

When all the completion criteria have been met, closure will be considered to have been successfully implemented and relinquishment processes, which includes transfer of liability and management to the next land-user, will commence. The process for tenure relinquishment of closed mines is still being defined by the Government of Western Australia.

Note that ‘closure’ is anticipated to take a minimum 20 years from the point at which the site is declared closed to the start of the relinquishment process.

109    Accordingly, closure of the mine may be in 2045. Unspecified rehabilitation activities which include some form of backfill to achieve “closure landforms” will take a further 20–25 years (2065–2070) and then further, unspecified “completion activities” are estimated to take a further 20 years (2085–2090) although they may take much longer (2100 or longer). During this time, access roads will be maintained.

110    In terms of relinquishment of the Solomon Hub Project, the Mine Closure Plan also provides for “Post-mining land use” and under the heading “Cultural use” it provides:

Traditional Owners regularly access culturally significant areas in the local area, to maintain traditional law and connection to country. This connection to land is the basis for the formal recognition of Traditional Owner native title rights and interests, including the Land Access Agreements Fortescue with the Eastern Guruma and Martu Idja Banyjima Peoples. These agreements include references to closure outcomes (see Table 12) and hence establish the postmining land use for Solomon. The connection to land, including access to sites of significance within the mine disturbance envelope, will be maintained as a post-mining land use.

This land-use outcome will be achieved by removing infrastructure and rehabilitating the land to a safe, geotechnically stable, non-contaminating and ecologically viable landscape that is congruous with the adjacent land uses and can be managed similarly to adjacent areas.

Fortescue has committed to maintain flow to Kangeenarina Creek to maintain riparian habitat features during operations and at closure as discussed in the Trinity Backfill Surface Domain Closure Strategy (Section 5.16.2).

Where groundwater connection has been lost to maintain permanent groundwater fed pools in Weelumurra and Kangeenarina Creek, supplementation has commenced to main these systems. Supplementation will remain until such time that below water table pits (Queens, Kings and Trinity) are backfilled and groundwater flows to permanent pools are self sustaining.

Where access to significant places where access has been lost due to mine development, access will be reinstated in agreement with Traditional Owners.

111    In concurrent evidence (to which I refer in further detail below), Mr Meaton and Mr Jaski considered the effect of ongoing impairment following closure of the Solomon Hub Project. Mr Jaski, who has considerable experience with mining, agreed with Mr Meaton (who accepted that he is not an expert on mine closures) that in an arid environment like the Pilbara, rehabilitation of the land has not been very successful. He said mine operators are only required to rehabilitate pits up to the level that does not impact on the water table, so they backfill to a level where the water table is restored. That can still leave pits of great depths. As Mr Meaton went on (with the agreement of Mr Jaski):

So they’re not filling - backfilling the pits and there are large waste dumps of processed material and the rehabilitation efforts to restore those are generally not as successful as would like, so the landform itself is significantly altered.

There is a well-known example in the Pilbara. The original mine at Goldsworthy, the company finished mining there and that pit has been – that pit is hundreds of metres deep, and it is now full of acid water. The geology in that pit had – suffers from what we call acid rock drainage. The pit is acidic. It’s a lovely blue colour, but you will lose your sun tan if you hop into it. So there has been discussion for years over whether that tenement can now be handed back to the government. I understand the government’s very reluctant to take that tenement back again because there is an ongoing liability with the condition of the pit. So that is an example to people in the area that the rehabilitation is not as successful as we would like.

112    Mr Jaski agreed with this summary of the risks involving rehabilitation.

113    The evidence indicates that in November 2010, FMG applied for environmental approval to develop the Solomon Hub Project, with production commencing from the Firetail mine pits (being Firetail North Mine Pit and Firetail South Mine Pit) in fiscal year 2013 and production commencing in the Kings Valley mine pits (including Kings Mine Pit and Trinity Mine Pit, as well as Zion and Valley of the Queens) in the fiscal year 2016.

114    This lengthy time span suggests that differences in the commencement date of an act may not, in the broader scheme, be significant in relation to compensation, as accepted by YNAC in its closing submissions. However, this will be a matter for consideration in assessing compensation in each individual case. I return to this later in these reasons when considering the valuation dispute between the parties.

3.7    Royalties paid to the State by FMG

115    The State provided an affidavit of John Sharman, Royalty Assessment Manager with the DMIRS affirmed 29 September 2023, which was read by YNAC. Mr Sharman manages the team responsible for ensuring royalty returns and production reports from miners are lodged on a timely basis and that payments are made in line with those returns. He was asked to prepare a spreadsheet which sets out the royalties received by the State from FMG in respect of the nine mining leases granted to FMG in the Determination Area and notes that they form part, but not the entirety of the Solomon Hub Project. He observes that no mining activity has occurred on M47/1473-I or M47/1570-I and that M47/1513-I is a “dead” tenement, having been surrendered on 31 March 2020 in favour of M47/1570-I. His spreadsheet does not refer to these leases because no iron ore has been extracted or obtained from these tenements.

116    Mr Sharman notes that there are a number of live mining leases associated with the Solomon Hub Project that do not fall within the Determination Area, of which iron ore is being extracted only from M47/1474-I and no information is provided in relation to that lease.

117    Mr Sharman provides an overview of the operation of the royalties framework and gives evidence that:

(a)    the relevant mineral extracted from the mining leases is iron ore;

(b)    after extraction, the iron ore is crushed and screened, with the lower quality ore then taken for further processing at a beneficiation plant;

(c)    the crushed and screened ore is then blended with the beneficiated ore so that a desirable grade and quality of iron ore is achieved; and

(d)    all iron ore produced or obtained from the mining leases is then transported by rail to the port at Port Hedland for export.

118    As a result of these matters, and the application of the Mining Act and Mining Regulations 1981 (WA), Mr Sharman gives evidence that:

(a)    the first sale point for royalty value occurs on the shipment date of the ore, being the day on which the ship transporting the ore first leaves Port Hedland;

(b)    the terms of the first sale are evidenced by a bill of lading and the invoices relating to the sale and export of the ore; and

(c)    the royalty value of the iron ore obtained from the mining leases is calculated in accordance with r 86AD(2)(a) of the Mining Regulations and calculated on the gross invoice value of the iron ore, less shipping costs for the ore.

4.     GROUND DISTURBANCE OF THE SOLOMON HUB PROJECT

119    On 14 August 2023, the Court conducted a view and on-site hearing that involved visiting 12 locations within the Solomon Hub Project. The following summary is drawn from a description in the second report of Dr Palmer, which was received without objection. It refers to locations on agreed maps which were received as Exhibit G.

120    The Court and parties travelled in escorted convoy from Kangi Camp, an accommodation village, to location 3, which afforded a view of the Trinity Mine Pit. Senior Yindjibarndi men and women performed a short ritual to introduce the visitors to the country. Stanley Warrie addressed me and detailed his emotional response to the transformation of the landscape, to which I refer further later in these reasons. The convoy then travelled to locations 4 and 5, situated proximate to the Ganyjingarringunha wundu (Kangeenarina Creek) and location 6. Location 7 afforded a view of the Firetail mining areas and associated infrastructure. The convoy then went to location 8, being a cave, and location 9. At a number of these locations, Yindjibarndi witnesses gave evidence concerning the significance of these sites. After a break for lunch the convoy travelled to location 10, being a gorge and cave which is also a burial site. It then went northwest to view the tailings storage facility (location 12) and viewed the tailings dam, under which a further site has been buried.

121    The affidavit of Sophie Kilpatrick affirmed 27 March 2024 annexes a number of photographs taken during the view, some of which are reproduced below:

(a)    A view of the convoy and ore processing facility on the drive to the Trinity Mine Pit:

(b)    A view of Kings ore processing facility:

(c)    A view of Firetail Pit at location 7:

(d)    The rail loading station:

(e)    View from the tailings dam of Firetail South Mine Pit :

122    The operations of the Solomon Hub Project are massive. The scale of the machinery depicted is hard to describe. The hills, valleys and flats of the earth have been drastically altered to accommodate rail lines, storage facilities, dams, roads and pits. The mine pits can only be described as immense. They are deep and wide. Dr Palmer was asked to assume that the mines that make up the Solomon Hub Project within the Compensation Claim Area (being the Kings Mine Pit, Trinity Mine Pit, Firetail North Mine Pit, Firetail South Mine Pit) as well as Zion and Valley of the Queens (that are outside of the Determination Area) together have a production capacity of 75 million tonnes of iron ore per annum. I was not directed to evidence as to how much of the ground must be blasted, dug, loaded and processed to provide such an annual yield, which is then transported by rail to Port Hedland. The number for production capacity of 75 million tonnes each year does little to inform the reader of the scale of the operation. It is difficult to perceive that much remains of the original landscape within the footprint of the operation of the project. Within it, signs provide warnings as to when blasting will take place. Dust rises high above the operations. Trucks damping down the roads travel along it constantly, as do vehicles large and small with flashing hazard lights. The operations continue day and night. The size and the scale of the equipment operated is such that it is plainly an area where there are significant occupation, health and safety considerations. No doubt for that reason, access to the site is closely controlled by FMG and the boundary of the area of the mine entirely fenced off. The Yindjibarndi people are not permitted to enter without permission.

123    Fabian (“Charlie”) Cheedy is a Yindjibarndi man who gave oral and written evidence in the form of a witness statement signed 25 May 2023. He had worked at the Solomon Hub Project for 16 months as the operator of an excavator that has a bucket with a 75-tonne capacity. It takes three buckets to load an autonomous Caterpillar 793 truck, which will carry a payload of 250 tonnes. During a single shift he usually loaded 30,000 tonnes of ore, sometimes more. He says that he feels guilting working on the mine and that it is “breaking my wirrard” (or spirit, as further defined in section 23).

124    Charlie Cheedy gives the following description of his impression of the mine and its general effect on the country:

When I would look at the country where the Mine is, it was beautiful. You can see what the Mine are once looked like when you look at the area surrounding the Mine. The Mine site was full of waterways and permanent pools. They have all been destroyed now. Ganyjingarringunha wundu was a large creek that ran through the mine. It is dry now. There is no water in it. FMG has built a causeway up high off the ground along the creek bed.

There is a grout wall that has been built to stop the underground water coming in from Wirlu-Murra jinbi and Wirlu-Murra wundu (creek) into the Queens pit. Holes are dug vertically into the ground and grout or cement is poured into them to make the wall. The water is not flowing from Wirlu-Murra wundu or Ganyjingarringunha wundu like it once did. I have noticed that the water levels in these wundus are so low that they are dry or they are lower than I have ever seen them.

There are five pits at the Mine site. A pit is a big hole in the ground. There are different crews who run each pit. The pits are called Freddies, Firetail, Kings, Trinity and Queens. I have worked in all 5 pits. There are crushers at Kings, Queens and Firetail. Queens is the biggest pit at the Mine. If I needed to describe the size of Queens to a child I would say that it is as big as Roebourne. There are 7 diggers there at the moment. From the top of Queens to the bottom of Queens I estimate is about 300 metres.

125    As noted above, the Kings Mine Pit, Trinity Mine Pit, Firetail North Mine Pit and Firetail South Mine Pit are located within the Compensation Claim Area.

5.    RELEVANT STATUTORY PROVISIONS

5.1    Terms of the Native Title Act

126    This part of the reasons will address the relevant provisions of the Native Title Act and provide an overview of the legislative framework. Unless otherwise indicated, any references to legislative provisions in this section will be to the Native Title Act.

5.1.1    The preamble and objects

127    The preamble to the Native Title Act sets out the considerations taken into account by Parliament in enacting it and must be taken into account when considering its meaning: s 13(2)(b) Acts Interpretation Act 1901 (Cth); Griffiths HC plurality at [26].

128    The preamble recognises that the people whose descendants are now known as Aboriginal peoples and Torres Straight Islanders were the inhabitants of Australia before European settlement, that they have been progressively dispossessed of their lands, “largely without compensation” or “lasting and equitable agreement … concerning the use of their lands”. As a consequence, they have become, as a group, the most disadvantaged in Australian society. The preamble notes that the High Court has: (a) rejected the doctrine that Australia was terra nullius at the time of European settlement; and (b) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and (c) held that native title is extinguished “by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates”.

129    The preamble records that the people of Australia intend to rectify the consequences of past injustices by the special measures in the Native Title Act and to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

130    In this context the preamble makes the following observations that are particularly pertinent to claims for compensation:

Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

131    Section 3 relevantly identifies the main objects of the Native Title Act. The relevant objects to these proceedings are: (a) to provide recognition and protection of native title; (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and (c) to establish a mechanism for determining claims to native title.

132    The expressions “native title” and “native title rights and interests” as used in the Native Title Act involves a number of elements as described in s 223(1):

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

5.1.2    Future Acts

133    Future acts are broadly described in s 4(3)(b) to be acts done after the Native Title Act’s commencement (on 1 January 1994) that either validly affect native title or are invalid because of native title. They are distinguished from “past acts” which are mainly acts done before the commencement of the Native Title Act (s 4(3)(a)) and “intermediate period acts” that (broadly) are acts done before the judgment of the High Court in Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2 (s 4(5)).

134    A “future act” is defined in s 233(1) in complicated terms as follows:

(1)    Subject to this section, an act is a future act in relation to land or waters if

(a)     either:

(i)    it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

(ii)    it is any other act that takes place on or after 1 January 1994; and

(b)    it is not a past act; and

(c)    apart from this Act, either:

(i)    it validly affects native title in relation to the land or waters to any extent; or

(ii)    the following apply:

(A)    it is to any extent invalid; and

(B)    it would be valid to that extent if any native title in relation to the land or waters did not exist; and

(C)    if it were valid to that extent, it would affect the native title.

135    An “act” affecting native title is defined in s 226(2) of the Native Title Act and relevantly includes:

(b)    the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;

136    Section 227 describes how an act affects native title:

An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

5.1.3    Division 3 of Part 2 of the Native Title Act

137    Two substantial disputes emerge in the application of the provisions in Part 2 Division 3. The first concerns whether the alleged water management licences ought to be regarded as falling within subdivision H of Part 2, Division 3 (“Management of water and airspace”) or whether they fall within subdivision M (“Acts passing the freehold test”). I refer to this below as the water management issue. The second concerns whether any compensation claim applicable to those tenements that fall within subdivision M ought to be dealt with under the terms of the Mining Act with any claim being brought not in this court but before the Western Australian Mining Warden’s Court (the s 24MD issue). Various other substantial issues also arise by reference to s 24MD.

138    Division 3 of Part 2 of the Native Title Act addresses the validity of future acts and rights relating to future acts, including the right of native title holders to claim compensation in relation to future acts.

139    Section 24AA provides an overview of Division 3, including a list of each different type of future act and the provisions within Division 3 that concern the validation of those acts. The list in s 24AA(4) is as follows:

(a)    section 24FA (future acts where procedures indicate absence of native title);

(b)    section 24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases);

(c)    section 24GD (acts permitting off-farm activities directly connected to primary production activities);

(d)    section 24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases);

(e)    section 24HA (management of water and airspace);

(f)    section 24IA (acts involving renewals and extensions etc. of acts);

(fa)    section 24JAA (public housing etc.);

(g)    section 24JA (acts involving reservations, leases etc.);

(h)    section 24KA (acts involving facilities for services to the public);

(i)    section 24LA (low impact future acts);

(j)    section 24MD (acts that pass the freehold test—but see subsection (5));

(k)    section 24NA (acts affecting offshore places).

140    It is notable that s 24AA(5) provides that in the case of certain acts covered by s 24IC (permissible lease etc. renewals) or s 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of subdivision P, which provides a “right to negotiate”.

141    It is relevant to note two further aspects about Division 3 of Part 2 which are introduced in s 24AA. The first is that the Division provides that in general, valid future acts are subject to the “non-extinguishment principle”; the second is that the Division also deals with procedural rights and compensation for the acts (s 24AA(6)).

142    The “non-extinguishment principle” is defined in s 238. Section 238 provides, in relation to the non-extinguishment principle, that if the “act” affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly (s 238(2)). In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act (s 238(3)). If the act is partially inconsistent with the continued existence of those native title rights and interests, the native title continues to exist in its entirety, but those rights have no effect in relation to the act to the extent of the inconsistency (s 238(4)). However, if the act or its effects are later wholly or partially removed, then the native title rights and interests will again have full effect or partial effect to that extent (ss 238(6) and (7)).

143    Section 238(5) also provides that even though the native title rights and interests have no, or limited effect in relation to the act, the persons who are entitled in accordance with the traditional laws and customs to possess those rights continue to be the native title holders, subject to Division 6 of Part 2 (which broadly provides for prescribed bodies to hold native title on trust).

144    Section 238(8) assists to understand the duration of the non-extinguishment principle:

An example of the operation of this section is its application to a category C past act consisting of the grant of a mining lease that confers exclusive possession over an area of land or waters in relation to which native title exists. In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires (or after any extension, renewal or re‑grant of it to which subsection 228(3), (4) or (9) applies expires), the rights and interests again have full effect.

145    Important issues arise in the present proceedings from the application of Division 3 of Part 2. They mostly concentrate on subdivision H and subdivision M of Division 3 of Part 2, which are addressed in section 7 below. The non-extinguishment principle applies to the compensable acts the subject of the present claim.

5.1.4    Subdivision M – Acts passing the freehold test

146    Subdivision M is entitled “Acts passing the freehold test”. Section 24MA concerns legislative acts that affect native title and is not presently relevant. Section 24MB(1) sets out the “freehold test”:

Freehold test

(1)    This Subdivision applies to a future act if:

(a)    it is an act other than the making, amendment or repeal of legislation; and

(b)    either:

(i)    the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or

(ii)    the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters; and

(c)    a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

(i)    in the area to which the act relates; and

(ii)    of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Example: An example of a future act covered by this subsection is the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it.

147    There is no dispute that each of the FMG tenements (that is, the claimed compensable acts) satisfy the “freehold test”. That is because the parties accept that:

(a)    none concern the making, amendment or repeal of legislation;

(b)    each could be done in relation to the land in the Compensation Claim Area if the Yindjibarndi people instead held ordinary title to it;

(c)    each relates to an “onshore place” within s 240(a) of the Native Title Act; and

(d)    the Aboriginal Heritage Act 1972 (WA) is a law of the State that makes provision of the kind referred to in s 24MB(1)(c).

148    Section 24MD governs the treatment of acts that pass the freehold test. Set out below are ss 24MD(3) and (4):

Non-extinguishment and compensation

(3)    In the case of any future act to which this Subdivision applies that is not covered by subsection (2) or (2A):

(a)    the non‑extinguishment principle applies to the act; and

(b)    if the following conditions are satisfied:

(i)    the similar compensable interest test is satisfied in relation to the act; and

(ii)    the law mentioned in section 240 (which defines similar compensable interest test) does not provide for compensation to the native title holders for the act;

the native title holders are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

(4)    The native title holders may recover the compensation from:

(a)    if the act is attributable to the Commonwealth:

(i)    if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

(ii)    if not—the Crown in right of the Commonwealth; or

(b)    if the act is attributable to a State or Territory:

(i)    if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

(ii)    if not—the Crown in right of the State or Territory.

149    The “similar compensable interest test” identified in s 24MD(3)(b)(ii) is defined in s 240 as follows:

The similar compensable interest test is satisfied in relation to a past act, an intermediate period act or a future act if:

(a)    the native title concerned relates to an onshore place; and

(b)    the compensation would, apart from this Act, be payable under any law for the act on the assumption that the native title holders instead held ordinary title to any land or waters concerned and to the land adjoining, or surrounding, any waters concerned.

150    Subdivision P of Division 3 of Part 2 concerns the right to negotiate, which is addressed later in these reasons.

5.1.5    Division 5 of Part 2 – Determination of compensation

151    Division 5 is entitled “Determination of compensation for acts affecting native title etc”. Within that Division, s 48 provides that compensation payable in relation to an act under Division 3, which concerns future acts, is only payable in accordance with Division 5. Sections within Division 5 provide the criteria for determining compensation (s 51); the limit on compensation (s 51A); and an entitlement of a claimant to “just terms compensation” (s 53).

152    The provision under which the present claim to compensation is advanced is s 51, which provides:

51 Criteria for determining compensation

Just compensation

(1)    Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

Acquisition under compulsory acquisition law

(2)    If the act is the compulsory acquisition of all or any of the native title rights and interests of the native title holders, the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place.

Compensation where similar compensable interest test satisfied

(3)    If:

(a)    the act is not the compulsory acquisition of all or any of the native title rights and interests; and

(b)    the similar compensable interest test is satisfied in relation to the act;

the court, person or body making the determination of compensation must, subject to subsections (5) to (8), in doing so apply any principles or criteria for determining compensation (whether or not on just terms) set out in the law mentioned in section 240 (which defines similar compensable interest test).

Compensation not covered by subsection (2) or (3)

(4)    If:

(a)    neither subsection (2) nor (3) applies; and

(b)    there is a compulsory acquisition law for the Commonwealth (if the act giving rise to the entitlement is attributable to the Commonwealth) or for the State or Territory to which the act is attributable;

the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria set out in that law for determining compensation.

Monetary compensation

(5)    Subject to subsection (6), the compensation may only consist of the payment of money.

Requests for non-monetary compensation

(6)    If the person claiming to be entitled to the compensation requests that the whole or part of the compensation should consist of the transfer of property or the provision of goods or services, the court, person or body:

(a)    must consider the request; and

(b)    may, instead of determining the whole or any part of the compensation, recommend that the person liable to give the compensation should, within a specified period, transfer property or provide goods or services in accordance with the recommendation.

Where recommendation not complied with

(7)    If the person does not transfer the property or provide the goods or services in accordance with the recommendation, the person claiming to be entitled to the compensation may request the court, person or body to determine instead that the whole or the part of the compensation concerned is to consist of the payment of money.

Where recommendation complied with

(8)    If the person does transfer the property or provide the goods or services in accordance with the recommendation, the transfer of the property or provision of the goods or services constitutes full compensation for the act, and the entitlement to it is taken to have been determined in accordance with this Division.

153    Section 51A provides a “freehold cap” on compensation:

51A Limit on compensation

Compensation limited by reference to freehold estate

(1)    The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters.

This section is subject to section 53

(2)    This section has effect subject to section 53 (which deals with the requirement to provide “just terms” compensation).

…

154    YNAC relies on s 53 as an alternative basis for its claim to compensation. It provides:

53 Just terms compensation

Entitlement to just terms compensation

(1)    Where, apart from this section:

(a)    the doing of any future act; or

(b)    the application of any of the provisions of this Act in any particular case;

would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by this Act, from:

(c)    if the compensation is in respect of a future act attributable to a State or a Territory—the State or Territory; or

(d)    in any other case—the Commonwealth;

as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.

Federal Court’s jurisdiction

(2)    The Federal Court has jurisdiction with respect to matters arising under subsection (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

5.2    Terms of the Mining Act

155    Several issues in dispute concern the terms of the Mining Act.

156    Section 8 of the Mining Act sets out the following definitions of “mining tenement”, and “occupier”, “owner” and “private land”:

mining tenement means a prospecting licence, exploration licence, retention licence, mining lease, general purpose lease or a miscellaneous licence granted or acquired under this Act or by virtue of the repealed Act; and includes the specified piece of land in respect of which the mining tenement is so granted or acquired;

occupier in relation to any land includes any person in actual occupation of the land under any lawful title granted by or derived from the owner of the land.

owner in relation to any land means —

(a)    the registered proprietor thereof or in relation to land not being land under the Transfer of Land Act 1893 the owner in fee simple or the person entitled to the equity of redemption thereof; or

(b)    the lessee or licensee from the Crown in respect thereof; or

(c)    the person who for the time being, has the lawful control and management thereof whether on trust or otherwise; or

(d)    the person who is entitled to receive the rent thereof.

private land means any land, other than Commonwealth land, that has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple thereof (not being a pastoral lease or a lease or concession otherwise granted by or on behalf of the Crown for grazing purposes only or for timber purposes, a diversification lease or a lease of Crown land for the use and benefit of the Aboriginal inhabitants) but —

(a)    in relation to mining for minerals other than gold, silver and precious metals, for the purposes of Division 3 of Part III, does not include land alienated before 1 January 1899, except as provided in that Division; and

(b)    other than in so far as the primary tenement may be treated as private land in relation to mining for gold pursuant to a special prospecting licence or mining lease under section 56A, 70 or 85B, does not include land that is the subject of a mining tenement; and

(c)    no land that has been reserved for or dedicated to any public purpose shall be taken to be private land by reason only that any lease or concession is granted in relation thereto for any purpose.

157    Section 123(1), (2A) and (3)–(6) provide:

(1)    On and after the coming into operation of the Mining Amendment Act 1985, in so far as the mineral is by virtue of section 9 the property of the Crown or the mining is authorised under this Act no compensation shall be payable in any case, and no claim lies for compensation, whether under this Act or otherwise —

(a)    in consideration of permitting entry on to any land for mining purposes; or

(b)    in respect of the value of any mineral which is or may be in, on or under the surface of any land; or

(c)    by reference to any rent, royalty or other amount assessed in respect of the mining of the mineral; or

(d)    in relation to any loss or damage for which compensation can not be assessed according to common law principles in monetary terms.

…

(2A)    A reference in subsection (2) to mining shall be construed as including a reference to marking out in connection with an application for a mining tenement.

(3)    The amount of compensation payable to the owner of private land or to an occupier of Crown land or private land may be determined by agreement, but in default of agreement —

(a)    if the owner or occupier, respectively, and the person liable for payment of the compensation so consent, may be determined by the warden’s court, without requiring any formal proceedings to be taken, pursuant to a claim made in the prescribed manner; and

(b)    in any other case, shall be determined by the warden’s court in formal proceedings, upon the application of the owner, the occupier or the person liable for the payment of the compensation.

(4)    Subject to subsection (1) and subsection (7) and taking into account the matters referred to in section 124 and section 125, the amount payable under subsection (2) to which an owner or occupier may be found to be entitled may include compensation for —

(a)    being deprived of the possession or use, or any particular use, of the natural surface of the land or any part of the land; and

(b)    damage to the land or any part of the land; and

(c)    severance of the land or any part of the land from other land of, or used by, that person; and

(d)    any loss or restriction of a right of way or other easement or right; and

(e)    the loss of, or damage to, improvements; and

(f)    social disruption; and

(g)    in the case of private land that is land under cultivation, any substantial loss of earnings, delay, loss of time, reasonable legal or other costs of negotiation, disruption to agricultural activities, disturbance of the balance of the agricultural holding, the failure on the part of a person concerned in the mining to observe the same laws or requirements in relation to that land as regards the spread of weeds, pests, disease, fire or erosion, or as to soil conservation practices, as are observed by the owner or occupier of that land; and

(h)    any reasonable expense properly arising from the need to reduce or control the damage resulting or arising from the mining,

and where the use for mining purposes of aircraft over or in the vicinity of any land (whether or not private land) occasions damage that damage shall be deemed to have been occasioned by an entry on the land thereby affected.

(5)    If any private land or improvement thereon adjoining or in the vicinity of land where mining takes place is injured or depreciated in value by the mining or by reason of the occupation of any portion of the surface or enjoyment by the holder of a mining tenement or of any right of way, the owner and occupier of the private land or improvements thereon are entitled severally to compensation for all loss or damage thereby sustained and the amount of compensation shall be determined in the manner provided in this section.

(6)    Where mining operations are carried out on or under any land the subject of a mining tenement and damage is thereby caused to the surface or part of the surface of any private land comprised within the boundaries of the land the subject of the mining tenement belonging to the same or another owner, or to any improvement on any such private land, not being damage already determined under this Part, the owner and occupier of the private land or improvement are entitled severally to compensation for all loss or damage thereby sustained, and the amount of the compensation shall be determined in the manner provided by this section.

158    Section 125A provides:

(1)    If compensation is payable to native title holders for or in respect of the grant of a mining tenement, the person liable to pay the compensation is —

(a)    if an amount is to be paid and held in trust, the applicant for the grant of, or the holder of, the mining tenement at the time the amount is required to be paid; or

(b)    otherwise, the applicant for the grant of, or the holder of, the mining tenement at the time a determination of compensation is made.

(2)    If, at the relevant time, there is no holder of the mining tenement because the mining tenement has been surrendered or forfeited or has expired, a reference in subsection (1) to the holder of the mining tenement is a reference to the holder of the mining tenement immediately before its surrender, forfeiture or expiry.

(3)    In subsection (1) —

grant includes extension or renewal;

native title holders has the same meaning as in the Native Title Act 1993 of the Commonwealth.

6.    DOES SECTION 24MD(3) OF THE NATIVE TITLE ACT APPLY?

6.1    Introduction

159    FMG and the State dispute that YNAC is entitled to compensation under s 51 of the Native Title Act because the prerequisites of s 24MD(3)(b)(ii) are not met. That subsection requires:

Non-extinguishment and compensation

(3)    In the case of any future act to which this Subdivision applies that is not covered by subsection (2) or (2A):

…

(b)    if the following conditions are satisfied:

(i)    the similar compensable interest test is satisfied in relation to the act; and

(ii)    the law mentioned in section 240 (which defines similar compensable interest test) does not provide for compensation to the native title holders for the act;

the native title holders are entitled to compensation for the act in accordance with Division 5.

160    There is no dispute that the requirement under s 24MD(3)(b)(i) of the “similar compensable interest test” is satisfied for the FMG tenements. The only dispute concerning the application of this provision concerns s 24MD(3)(b)(ii) and whether the law mentioned in s 240 of the Native Title Act, which is the Mining Act, provides for compensation to the native title holders for the acts. If it does not, then the provisions of the Native Title Act will govern the grant of compensation. If it does, then the terms of the Mining Act will govern the grant of compensation.

161    Section 123(3) of the Mining Act broadly provides that any contested claim for compensation is to be determined by the warden’s court constituted under the Mining Act with the consequence that if the requirements of s 24MD(3)(b)(ii) of the Native Title Act are not met, then the warden’s court is the appropriate forum for the present claim.

162    As noted earlier in these reasons, YNAC holds the land of the Determination Area on trust for the Yindjibarndi people.

163    The relevant provision of the Mining Act which is said by the State and FMG to provide for compensation to the Yinjibarndi people is section 123(2). Section 123(2) provides:

Subject to this section and to sections 124 and 125, the owner and occupier of any land where mining takes place are entitled according to their respective interests to compensation for all loss and damage suffered or likely to be suffered by them resulting or arising from the mining, whether or not lawfully carried out in accordance with this Act, and a person mining thereon is liable to pay compensation in accordance with this Act for any such loss or damage, or likely loss or damage, resulting from any act or omission on his part or on the part of his agents, sub-contractors or employees or otherwise occasioned with his authority.

(Emphasis added)

164    Whether s 123(2) of the Mining Act provides for compensation turns on whether YNAC is an
“owner” or “occupier” of the land within the Compensation Claim Area. For the reasons set out below, I find that YNAC is not entitled to compensation under s 123 of the Mining Act, and therefore the conditions set out in s 24MD(3)(b)(ii) are satisfied.

6.2    The submissions

165    The State submits that, since the date of the Determination, YNAC may be regarded as the “owner” as that term is defined in s 8 of the Mining Act for all of the land in respect of which it holds exclusive native title rights and interests. The State accepts that YNAC cannot be an “owner” in respect of the non-exclusive area, citing Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [317] (Ward HC), but submits that YNAC must be considered to fall within the meaning of “occupiers” of the land in respect of which it holds non-exclusive rights, regardless of when they were granted. In the alternative, the State submits that if it is not accepted that YNAC falls within the definition of “owner” in relation to the exclusive area, then it is also an “occupier” in respect of that land, as well as the land in respect of which it holds non-exclusive rights. The State relies on observations of the Court in Ward HC and also Margaret River Resources Pty Ltd v His Honour Warden Calder SM [2008] WASCA 238 at [27] in support of its submission.

166    FMG does not join in the State’s submission that YNAC may be considered to be an “owner” in respect of the land where it holds exclusive rights, but otherwise contends that YNAC may be regarded to fall within the meaning of “occupier”. It is FMG’s position that it is inconvenient that certain issues are resolved in the warden’s court while others are resolved in the Federal Court, and that as the Yindjibarndi people are occupiers, the matter should all be dealt with in the warden’s court.

167    YNAC submits that it is possible that as native title holders under the Determination holding exclusive rights to possession, occupation, use and enjoyment of the land to the exclusion of all others, they may arguably appear to fall within the definition of “owner”, but contends that on any view they could not be identified as “occupiers”, citing Ward HC at [559] (McHugh J). However, regardless of the application of the definitions, YNAC submits that the Mining Act does not provide for compensation for them in respect of the grant of the FMG tenements because the Mining Act does not confer an entitlement to compensation for native title holders for several reasons to which I refer in more detail below.

6.3    Consideration

168    This issue, and a number of other issues considered in these reasons, concerns questions of statutory construction. I summarise the relevant approach to construction as follows.

169    The task of statutory construction must begin, and end, with a consideration of the statutory text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39], quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]. That does not mean, of course, that (per SAS Trustee Corporation v Miles [2018] HCA 55; 265 CLR 137 at [64]):

… the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context.

170    Fundamentally, legislation must be construed as a whole to ensure that the construction is consistent with the “language and purpose of all the provisions of the statute”: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69].

171    The context of a provision includes its purpose. Regard to purpose is required both by the Acts Interpretation Act 1901 (Cth) (s 15AA) and by common law (see, e.g., SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14]). As was observed in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.

172    Thus, as was observed in Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; 254 CLR 247 at [42], the task of statutory construction may require “some appreciation of the pre-existing law and the legislative history of relevant provisions” and furthermore that “[u]ndoubtedly, questions of policy can inform the Court’s task of statutory construction” (citing Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [80]–[93]).

173    In my view, a number of features of the Mining Act serve to demonstrate that that Act does not provide for compensation for native title holders as required by s 24MD(3)(b)(ii), and also that YNAC is neither an “owner” or “occupier” of land within s 123(2) of the Mining Act.

174    First, the entitlement to compensation under s 123(2) is for loss and damage “suffered or likely to be suffered by them resulting or arising from the mining”. By contrast, the requirement under s 24MD(3)(b)(ii) of the Native Title Act is that there be compensation “for the act”, being the future acts, and their impact on the native title rights and interests of the traditional owners as required by s 51(1) of the Native Title Act.

175    The term “mining” is defined to include fossicking, prospecting and exploring for minerals, and mining operations: s 8 Mining Act. In contrast, s 24MD(3)(b)(ii) of the Native Title Act does not direct attention to mining per se, but to the “acts”, being the future acts as defined under the legislative framework (explained above in section 5.1.2). Under s 51(1) of the Native Title Act, the compensation includes “any loss, diminution, impairment or other effect” which the grant of the FMG tenement may have on the native title rights and interests. It is apparent that the focus of compensation under the Mining Act is quite different to the focus under the Native Title Act, and that the acts in respect of which compensation are sought are different. The Mining Act provides recompense for loss and damage “from the mining” and not the impairment or other effects on the native title rights and interests of the native title holders. In my view s 123(2) of the Mining Act does not provide for compensation “to the native title holders for the act”.

176    FMG and the State contend that the admission by YNAC that the “similar compensable interest test” within s 24MD(3)(b)(i) is satisfied precludes it from advancing this point. However, I am not persuaded that this is so. The acceptance under that test that compensation would, apart from the Native Title Act, be payable under s 123 of the Mining Act on the assumption that YNAC held ordinary title, does not serve to establish that as the holder of native title the Mining Act does provide compensation to YNAC for the future acts. That requires consideration of the application of s 123(2) absent the assumption of ordinary title.

177    The State submits that YNAC erroneously focusses on whether s 123 of the Mining Act provides compensation to the native title holders as if their native title rights and interests were instead “private land”, which the State says is the wrong question. It submits that the correct question is whether s 123 of the Mining Act provides compensation to native title holders, with the categorisation of land as “Crown land”, “reserve land” or “private land” under the Mining Act being irrelevant to that question. However, in my view that oversimplifies the question under s 24MD(3)(b)(ii), which not only requires that the Mining Act provide for compensation to the native title holders, but also that it provide compensation to them for the act, being the future act the subject of the claim.

178    Secondly, the definition of the term “owner” as set out in s 8 does not fully characterise who is entitled to compensation under s 123 of the Mining Act. The term “owner” is defined to mean any of the four categories within the definition set out in s 8 of the Mining Act which is set out in section 5 above. The categories in (a), (b) and (d) are plainly not relevant to the holders of native title rights and interests: Ward HC at [317]. Category (c) however is more open, as it is:

[T]he person who for the time being, has the lawful control and management thereof whether on trust or otherwise.

179    In Ward HC the majority of the High Court said at [317]:

… Native title holders may, in an appropriate case, fall within par (c). However, all of the land in respect of which the relevant mining leases were granted had been the subject of various pastoral leases. As previously mentioned, the grants of those pastoral leases extinguished the native title right to control access to the land. Therefore, the relevant native title holders could not be described as having the "lawful control and management" of the land under par (c) above; they were not "owners" for the purposes of the WA Mining Act. It follows that the holders of native title in respect of the land subject to the various mining leases were not entitled to compensation under the WA Mining Act as "owners" of the relevant land. This result is no different from that which would obtain in respect of any holder of rights and interests that did not amount to the "lawful control and management" of the land. The RDA is therefore not engaged on this basis.

180    The entitlement of an “owner” to compensation is qualified in s 123(3), which makes plain that it is only the owner of private land who is able to claim compensation from the warden’s court in the absence of agreement between the parties.

181    There is a clear distinction drawn in the Mining Act between “private land” and “Crown land”. Division 3 of Part 3 of the Mining Act addresses private land, which is defined in s 8 and may broadly be understood to mean land that has or may be alienated from the Crown as any estate of freehold and does not include a pastoral lease, a lease for grazing purposes or a lease of Crown land for the use and benefit of Aboriginal inhabitants. The FMG tenements are located on Crown land which is defined (broadly) to be all land with the exception of: land which has been granted in fee simple; land that has been reserved or dedicated for a public purpose (subject to some exceptions); land that is the subject of any lease granted by the Crown; or land that is a townsite: s 8 Mining Act.

182    The Mining Act makes no provision in s 123(3) or otherwise for an “owner” who is not the owner of “private land” to claim or otherwise receive compensation (other than as an “occupier”). There is – as one might expect – no provision for payment of compensation to an “owner” of Crown land who is not the Crown.

183    Accordingly, were YNAC to be considered to fall within the definition of “owner”, there would be no mechanism by which it could achieve an order for the payment of compensation under the Mining Act. In my view this supports the conclusion that s 123 of the Mining Act does not provide for compensation to YNAC as an “owner of land” within s 24MD(3)(b)(ii) of the Native Title Act.

184    Thirdly, YNAC does not meet the description of an “occupier” within s 123(2) of the Mining Act.

185    The term “occupiers” in s 8 (“includes any person in actual occupation of the land under any lawful title granted by or derived from the owner of the land”) was considered in Ward HC where at [318] the majority said:

The question remains as to whether the native title holders may be described as "occupiers". It should also be observed that native title holders cannot satisfy the definition of "occupier" in respect of land as they do not occupy the land under any lawful title granted by or derived from the owner of the land. The Crown is not apt to be described as the "owner" of land the subject of native title and native title is not "granted by or derived from" the Crown. However, "occupier" is defined in s 8 so as to "include" the definition set out above. When the use of the term "includes" is contrasted with use of the term "means" in the definition of "owner", it may be that the Act does not limit what otherwise might be meant by the term "occupier". However, it is not necessary to reach any conclusion on this matter, nor is it necessary to determine whether the relevant native title holders were "occupiers" under the WA Mining Act.

(Emphasis added)

186    At [559] of Ward HC, McHugh J expressed the view that the native title holders cannot satisfy the definition of “occupier” as they do not occupy the land under any lawful title granted or derived from the owner. By contrast, in his dissenting reasons, Callinan J expressed the view that native title holders may come within “occupier” as it does not exclude occupation in accordance with its ordinary meaning of being in possession by having a physical presence on the land (at [854] of Ward HC).

187    It is apparent that the majority in Ward HC left open the breadth of the inclusive definition. However, for the reasons that follow, I am not persuaded that the breadth left open applies to bring YNAC within the meaning of “occupiers”.

188    In Western Australia v the Commonwealth [1995] HCA 47; 183 CLR 373 (“The Native Title Act Case”) the majority made the following observation at pp 442–443:

The Mining Act 1978

For the purposes of the Mining Act, land is divided into “Crown land”, reserved land and “private land”; Mining Act s 8 and see s 24. Crown land is open for mining; Mining Act s 18. As such, the holder of a Miner’s Right may enter Crown land without notice, prospect for minerals, peg out land and apply for a mining tenement; Mining Act ss18, 20. Some areas of Crown land are exempt without the consent of the occupier or warden, including parts of pastoral leases within 400 m of wells, bores or other water works made by the pastoral lessee; Mining Act s 20(5)(e). As any land that might be subject to s 7 rights falls within the definition of Crown land and as the Aboriginal holders of s 7 rights do not appear to answer the statutory description of “occupier” (Mining Act s 8), the Aboriginal holders may be disturbed without notice by prospectors armed with a Miner’s Right.

(Emphasis added and footnotes added with semicolons)

189    This point was reinforced at p 446 where the majority said that s 7 rights:

… do not appear to bring the holders thereof within the definition of “occupier” whose occupation must be under a “lawful title granted by or derived from the owner of the land”.

190    In these passages the reference to “s 7 rights” is taken from the Land (Titles and Traditional Usage) Act 1993 (WA) and refers to the security of possession and enjoyment of rights under legislation that does not include the Native Title Act. However, it is apparent from s 7, which is set out at pages 434–435 of The Native Title Act Case, that s 7 purported to extinguish the native title rights and interests that existed prior to the Land Act 1993. As a result, the passage set out above may be regarded as an indication that the majority did not consider that the holders of native title rights and interests fall within the definition of “occupier” because they do not derive their rights from the owner of the land.

191    In Margaret River Resources, the Western Australian Court of Appeal noted in passing that the terms “occupier” and “owner” are wide enough to include a person who does not necessarily have a legal or equitable interest in the land itself (at [27]). In my review, this does not answer the present question. In Tisala Pty Ltd v Hawthorn Resources Ltd [2022] WASC 109, Hill J conducted a review of the Mining Act and considered that the meaning of “occupier” in the context of s 20(5)(c), could only include a party in actual occupation of the land in question under a lawful title granted by or derived from the State, as owner of the Crown land in question (at [84]). Her Honour considered that the terms of s 20(5)(c) warranted the conclusion that, despite the use of the word “includes” in the definition, read in the context of the particular section under consideration the definition was exhaustive. That construction also does not directly address the question applicable in the context of s 123 of the Mining Act.

192    The State and FMG submit that the ordinary meaning of “occupier” (being in possession by having a physical presence on land) should be applied and that the findings in Warrie (No 1) as upheld in Warrie FC support the contention that YNAC is an occupier of the land.

193    However, in my view the emphasis in the definition of “occupier” (inclusively) on it being any person in actual occupation of the land “under any lawful title granted by or derived from the owner of the land” tends to suggest that Parliament did not have native title holders in mind when the term was drafted. That is apparent from a brief survey of the terms of the Mining Act.

194    For instance, s 20(5) of the Mining Act provides that without consent by the “occupier”, a mining tenement or Miner’s Right does not entitle the holder thereof to (broadly) mine or explore or otherwise interfere with any Crown land that is situated within 100 m of land:

(a)    for the time being under crop;

(b)    used (inter alia) as a yard, stockyard, garden, plantation, airstrip or airfield;

(c)    in actual occupation and on which a house or other substantial building is erected;

(d)    the site of any cemetery or burial ground; or

(e)    which is under a pastoral or diversification lease within the meaning of the Land Administration Act 1997 that is situated within 400 m of the outer edge of any water works, race, dam, well or bore.

195    The exception to this prohibition is where the mining warden directs (unless the direction relates to the land at (c) above) or the mining is not less than 30 m below the lowest part of the natural surface of the land.

196    Various rights of passing and repassing over Crown land are permitted in ss 20(5)(f) and (g).

197    It is plain from the identification of the land within (a) to (e) that Western conceptions of “occupier” and usages are there contemplated. No room is left for the recognition of traditional native title rights and interests that might be exercised if the native title party was characterised as the “occupier”.

198    Similarly, in s 29(2), in respect of “private land” a mining tenement will not be granted in respect of that land – defined in (a) to (f) in similar terms to that in s 20(5)(a) to (e) – unless the “owner and the occupier of the private land” have consented in writing to the grant of the mining tenement (or unless the mining tenement is granted only in respect of that part of the private land which is not less than 30 m below the lowest part of the natural surface). I note parenthetically that unlike in the case of Crown land under s 20, in the case of private land (which plainly does not encompass the land of the Determination Area) the owners of such land may engage in negotiations and refuse to permit entry into their land. The learned authors of Hunt on Mining Law of Western Australia, M Hunt, T Kavenagh and J Hunt (5th ed, Federation Press, 2015) consider that it is possible for an owner of private land to negotiate substantial payments, making allowance for mineral values, from a miner in respect of an application for a mining tenement notwithstanding that the private landowner does not own the minerals: at 3.4.6. By this provision, whilst under s 123(1) compensation may not be sought in respect of the value of any mineral on or under the surface of the land or on the basis of a royalty, the operation of s 29(2) can, and does, lead to such payments being agreed between the owner or occupier of private land and aspirant miners.

199    By s 31 of the Mining Act, the holder of a permit is to give notice of a permit which has been granted on the first occasion that the person enters the land, but if not present shall display a copy of the permit in a prominent position “on the occupier’s dwelling or in a prominent position at the main entrance to the land” (s 31(1)(a)) and in any event within 48 hours cause a copy of the permit “to be sent by prepaid registered post to the occupier at his last known place of abode or business” (s 31(1)(b)). By s 33 an application for a mining tenement that relates to private land by a permit holder must give notice to the chief executive officer of the local government, “the owner and occupier” of the land and each mortgagee of the land (s 33(1)). Other related provisions of the Mining Act also refer to the occupier (ss 35(1), 40D(g), 41(2), 56A(2), 58(4)).

200    So far as one can tell, nowhere do the provisions referring to an “occupier” suggest that such a person is someone who occupies land as that concept is understood in the Native Title Act by reference to the native title rights and interests acquired by traditional usage and custom.

201    This point is amplified when one considers the type of occupation that was recognised by the Court in Warrie (No 1) at [262]–[267] and [289]–[302], where Rares J described the relationship of the Yindjibarndi people with the land in the Determination Area. The description includes people visiting the land to sing jowi songs, the engagement in practices to maintain their physical and spiritual connection with the country as well as camping, fishing, and other activities to maintain sacred sites. A distinction between these findings and the application of common law concepts of occupation, and the unique relationship between traditional owners and the land, is made in the following passage of the Full Court’s decision in Warrie FC:

462    It is clear that “occupy” is a term of long ancestry within the common law and that it describes a particular relationship to land and that “occupy” in s 47B(1)(c) means “actual occupation” or “occupation in fact”. However, contrary to FMG’s position, this does not mean that it is appropriate to derive from Wagga Wagga Motor Registry Claim and Berrima Gaol a specific standard or threshold that “requires a particular nature and degree of presence on the land” or is limited to what FMG described as “indigenous presence on the land…in a concrete real world sense, not simply in the sense of spiritual beliefs in respect of that land”. Similarly, we do not see these authorities as requiring a particular type of physical presence or intensity of use before there can be a conclusion of occupation in fact. While intensity of use may be one way of establishing that one or more persons treat the land as their own, it is not the only way to establish occupation.

463    In our view, to derive and impose a requirement by transplanting statements and conclusions made in the context of s 36(1)(b) of the ALR Act into the different context of s 47B(1)(c) of the Native Title Act would be to commit the very error repeatedly warned against. Whereas the enquiry under the ALR Act is concerned with determining whether the State is in occupation of the land, the enquiry under the Native Title Act is concerned with determining whether one or members of the claim group occupy the relevant area over which native title would otherwise be extinguished.

464    The proper approach, and the one outlined in Alyawarr, Moses and Banjima, to which we now turn, is one that is sensitive to the traditions of Aboriginal people and their unique relationship with their country. In that context, it is important that taxonomical categories of relationship, right or interest developed in an Anglo-Australian context (eg possession, use and occupation) are applied in a manner sensitive to the full complexity of the relationship between Indigenous peoples and their land. This does not mean they are devoid of content, only that the application of these concepts will necessarily be different in the context of the Native Title Act.

(Emphasis added)

202    This passage demonstrates that it would be an error to align the findings of Rares J in Warrie (No 1) that the Yindjibarndi people “occupy” the land within the meaning of ss 47A(1)(c) and 47B(1)(c) with a conclusion that, for that reason alone, YNAC is an “occupier” of the land within the differently expressed language of the Mining Act.

203    It is not necessary for me to determine the limits of the inclusive definition of “occupier” in s 8 of the Mining Act. For present purposes, it suffices to conclude that the native title rights and interests described in Warrie (No 1) do not serve to demonstrate that YNAC is an occupier within the meaning ascribed in the Mining Act as the incidents of occupation as found under ss 47A and 47B of the Native Title Act do not equate to the defined “occupier” contemplated in the Mining Act.

Accordingly, I conclude that s 123(2) of the Mining Act does not provide for the payment of compensation to the Yindjibarndi people and that the requirements of s 24MD(3)(b)(ii) of the Native Title Act are met. Compensation is to be determined and paid in accordance with the terms of Division 5 of Part 2 of the Native Title Act.

7.    THE WATER MANAGEMENT ISSUE (issue 10(c))

7.1    Introduction

204    The parties agree that most of the FMG tenements are valid future acts that fall within subdivision M. However, an issue between the parties concerns how the 13 alleged water management licences should be characterised for the purpose of the application of Division 3 of Part 5 of the Native Title Act.

205    Broadly speaking, FMG contends that the alleged water management licences fall within subdivision H of Division 3. YNAC (adopting submissions advanced by YMAC) and the State contend that they fall within subdivision M of Division 3. The material relevance of this distinction is that under subdivision H, it is the State that is liable to pay any compensation. Under subdivision M, it is (subject to questions of constitutional validity) FMG that must pay as a result of the operation of s 125A of the Mining Act.

206    For the reasons set out below, I reject the argument advanced by FMG that subdivision H applies and find that subdivision M applies to all of the FMG tenements.

7.2    The statutory provisions

207    The issue turns on the construction of s 24HA(1) and (2) of the Native Title Act, which relevantly provides:

Legislative acts

(1)    This section applies to a future act consisting of the making, amendment or repeal of legislation in relation to the management or regulation of:

(a)    surface and subterranean water; or

(b)    living aquatic resources; or

(c)    airspace.

In this subsection, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

Leases, licences etc.

(2)    This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:

(a)    is valid (including because of this Act); and

(b)    relates to the management or regulation of:

(i)    surface and subterranean water…

…

In this paragraph, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

208    The alleged water management licences were granted under s 91 of the Mining Act, which relevantly provides:

Grant of miscellaneous licence

(1)    Subject to this Act, and in the case of a miscellaneous licence for water to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act, the mining registrar or the warden, in accordance with section 42 (as read with section 92), may, on the application of any person, grant in respect of any land a licence, to be known as a miscellaneous licence, for any one or more of the purposes prescribed.

…

(6)    A miscellaneous licence shall not be granted unless the purpose for which it is granted is directly connected with mining.

209    Regulation 42B of the Mining Regulations pursuant to which the alleged water management licences were granted provides:

For the purposes of s 91(1), a miscellaneous licence may be granted for the use of land for one or more of the following purposes –

210    Thereafter is a list of 26 different purposes, including: (a) a road; (b) a tramway; (c) an aerial rope way; (d) a pipeline; (f) a conveyor system; (i) taking water; (ia) a search for groundwater; (j) hydraulic reclamation and transport of tailings; (k) an aerodrome; (o)    a drainage channel; (q) a minesite accommodation facility; (r) a bore; and (t) a water management facility.

7.3    The alleged water management licences

211    The purposes associated with the alleged water management licences are identified in section 3.2.3 above. They are somewhat varied, but each includes multiple different purposes. Each was granted by the State pursuant to Division 5 of Part IV of the Mining Act and the purposes prescribed in reg 42B of the Mining Regulations.

212    The arguments of the parties may be addressed by reference to two exemplar alleged water management licences, the purposes of which are:

L47/361: pipeline, power line, road, taking water, communication facility, bore field, aerial rope way, aerodrome, conveyor system, power generation, transmission facility and storage or transportation facility for minerals or mineral concentrate.

L47/801: a bore, a bore field, a communications facility, a pipeline, a power line, a pump station, a road, a water management facility, a workshop and storage facility, and taking water.

7.4    The submissions

213    FMG submits that the alleged water management licences must be understood to have been validated under subdivision H and not subdivision M. It submits that the word “relates” as it appears in s 24HA(2) should be construed broadly and that each of the alleged water management licences was granted under legislation that “relates to” surface and subterranean water. It submits that the fact that the legislation, and each of the alleged water management licences, also include other purposes does not disqualify s 24HA(2) from applying. It relies on BHP Billiton Nickel West Pty Ltd v KN (Deceased) and Others [2018] FCAFC 8; 258 FCR 521 (North, Dowsett and Jagot JJ) at [63] which states that s 24HA(2) “is concerned only with whether the future act was granted under legislation (meaning the specific provisions which authorised the relevant grant) that relates to the identified matters”. I note that BHP Billiton was appealed to the High Court on other issues which did not include s 24HA: Tjungarrayi v Western Australia [2019] HCA 12; 269 CLR 150.

214    YNAC and YMAC contend that each of the alleged water management licences are miscellaneous licences granted for multiple specified purposes. YMAC submits that the words “relates to” depend on the nature and purpose of the provision in question and the context in which it appears, citing PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36; 184 CLR 301 at 313. It submits that the statutory language and context support reading the words “relates to” narrowly such that none of the alleged water management licences can be regarded as falling within s 24HA of the Native Title Act. It also submits that subdivision M specifically provides for future acts like the alleged water management licences. The State submits that the position of FMG is incorrect, and submits that s 24HA(2) does not address the situation where provisions authorising the grant of the licences include other purposes that are not listed within s 24HA(2)(b).

7.5    Consideration

215    As noted above, the alleged water licences were granted under s 91 of the Mining Act. The prescribed purposes referred to in s 91(1) are set out in reg 42B of the Mining Regulations.

216    In BHP Billiton the Full Court was concerned, amongst other things, with licences granted under s 91(1) of the Mining Act and the Mining Regulations. The primary judge had considered that because s 91(6) required the purposes to be “directly connected with mining”, the prescription of water related purposes in the Mining Regulations also had to be directly connected with mining and so did not satisfy s 24HA(2) ([53]). The Full Court rejected that approach as being concerned too generally with the operation of the Mining Act as a whole ([54]). It said at [57] that:

[t]he issue is whether the legislation under which the future act was granted, wherever the legislation be found and whatever form it may take, relates to the management or regulation of the identified matters.

(Emphasis added)

217    The Full Court found at [59] that if the provision under which the future act is granted is legislation and relates to the management or regulation of water (as described in s 24HA(2)), then s 24HA(2) is engaged ([59]). In that case, the miscellaneous licences were granted pursuant to reg 42B(ia) (“a search for groundwater”) and so they were granted under legislation that relates to the management or regulation of subterranean water ([62]).

218    The Full Court found in relation to the licence in question (at [62]):

Against this background, it is readily apparent that miscellaneous licences L53/161 and L53/177 were granted under legislation that relates to the management or regulation of subterranean water. This is because s 91(1) of the Mining Act, taken with reg 42B(ia) of the Regulations, constitute legislation that relates to the management or regulation of subterranean water and the licenses were granted under those provisions. It does not matter that the licences also had to satisfy the requirement in s 91(6) of the Mining Act that “the purpose for which [they were] granted is directly connected with mining”. This means only that the purpose of “search for groundwater” for which a licence may be granted by operation of s 91(1) and reg 42B(ia) must be directly connected with mining. The requirement for that connection does not remove the provisions from the scope of s 24HA(2). Together, s 91(1) and reg 42B(ia) are legislation that relates to the management or regulation of subterranean water because they authorise the grant of a relevant act under which the licence holder may search for groundwater. There is no reason not to give the words “relates to the management or regulation of…” their natural and ordinary meaning. Legislation which provides for the grant of a licence to search for groundwater directly connected with mining is legislation which relates to the management or regulation of subterranean water.

219    BHP Billiton informs the correct approach to s 24HA(2), but does not determine the outcome. As I have noted, in BHP Billiton the licences in suit were granted for the single purpose of being to “search for groundwater”: at [50]. In this case, it may be seen that the exemplar licences concern a great deal more.

220    Licence L47/361 gives as miscellaneous purposes the following, which may be matched with the prescribed purposes identified in reg 42B of the Mining Regulations as follows:

(1)    pipeline – reg 42B(d);

(2)    power line – reg 42B(e);

(3)    road – reg 42B(a);

(4)    taking water – reg 42B(i);

(5)    communication facility – reg 42B(n);

(6)    bore field – reg 42B(s);

(7)    aerial rope way – reg 42B(c);

(8)    aerodrome – reg 42B(k);

(9)    conveyor system – reg 42B(f);

(10)    power generation and transmission facility – reg 42B(u); and

(11)    storage or transportation facility for minerals or mineral concentrate – reg 42B(v).

221    Adopting the approach in BHP Billiton, it is necessary to identify whether the grant of L47/361 is a future act consisting of the grant of a licence under legislation that relates to the management or regulation of surface and subterranean water. This involves consideration of the grant by reference to the particular subsections of reg 42B to which it applies. The question as posed is whether Licence L47/361 may be considered to have been granted under legislation that “relates to the management or regulation” of water, that being the specific legislative provisions which authorise the grant of the future act: BHP Billiton at [57].

222    In contrast to the facts of that case, the position is less clear where, as here, only two of the eleven legislative provisions authorising the grant of the future act relate to water management. In such a case the question arises as to whether the legislation pursuant to which the future act is granted “relates to” the specified purpose. In this regard, I accept that the closeness of the relationship required by s 24HA(2)(b) conveyed by the words “relates to” must be ascertained by reference to the nature and purpose of the provision and the context in which it appears: PMT Partners at [26] (Brennan CJ, Gaudron and McHugh JJ). In some circumstances, it may be considered that the words “relating to” are of wide import: Minister for Home Affairs v DLZ18 [2020] HCA 43; 270 CLR 372 at [43]. However, in each case the question is to be determined by context.

223    In my view the alleged water management licences do not satisfy the statutory requirement under s 24HA(2) of the Native Title Act.

224    First, s 24HA(2) only applies to future acts “consisting of” a licence under legislation that relates to the requisite purpose. The words “consisting of” suggest that the future act must be “made up of” a licence granted under legislation that relates to the management of water. Had Parliament meant otherwise, it could have chosen “including” or “comprising” rather than “consisting of” to describe the legislation granting the future act. I take this to be an indication that the whole of the future act under consideration must be granted under legislation that relates to the management of surface and subterranean water.

225    Secondly, as YMAC points out, within Division 3 Part 2 of the Native Title Act, the words “relates to” are used when a particular and singular subject matter is identified: see ss 24EBA(1)(a)(iii), 24JAA(1)(b) and 44D(1)(c). In contrast, where the relationship between the two things need not be exclusive, the term “relates to” is often used in conjunction with the words “to any extent”: see ss 24JAA(1)(a), 24KA(1)(a), 43A(1)(a)(ii) and 44A(2)(b). I accept that this construction involves reading “relates solely to” into s 24HA(2), but this appears to sit more conformably with the purpose of the section.

226    Thirdly, the scheme of the Native Title Act would be disrupted in a manner if FMG’s construction of s 24HA(2) is adopted, which in my view demonstrates that the nature and purpose of the provision is supported by a narrower construction of the words “relates to”.

227    I have noted above the hierarchy set within Part 2 of Division 3 between different types of future acts. Subdivision M is lower on the hierarchy than subdivision H. However, s 24MD(6B) provides:

If the act is:

…

(b)    the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining;

the following consequences also apply: …

228    The definition of “infrastructure facility” in s 253 includes “(g) a dam, pipeline, channel or other water management, distribution or reticulation facility”.

229    Sections 24MD(6B)(b) and 253 accordingly contemplate that a mining tenement granted for the purpose of the construction of an infrastructure facility may comprise a dam, pipeline or water management facility. If the construction propounded by FMG was to be accepted, then any mining licence that included such facilities would be caught by s 24HA(2) because they would include a purpose that led to a licence being granted under legislation that relates to the management of water. They could not thereafter arise for consideration under s 24MD. The consequence would be that s 24MD(6B) includes redundancy insofar as it concerns a licence of that type. Such a circumstance cannot have been the intention of Parliament unless such tenements were not considered to fall under s 24HA(2).

230    Fourthly, an act that falls within subdivision H contains a different regime for the validation of a future act to later subdivisions. Notably, not included within subdivision H is any obligation on the parties to negotiate with a view to reaching an agreement about the act. The right to negotiate is to be found, relevantly, from a future act that falls within subdivision M (see subdivision P and s 26(1)(a), (b) and (c)(i)). A consequence of construing s 24HA(2) in the manner propounded by FMG is that licences granted under legislation for multiple purposes, that include as one purpose the management or regulation of surface and subterranean water, would avoid the operation of the obligation to negotiate. This cannot have been the Parliamentary intention.

231    Furthermore, if s 24HA(2) were to apply in such circumstances, then procedural and other consequences set out in s 24MD(6A) and (6B) would be avoided, which include notification to a native title claimant, registered body corporate, any representative Aboriginal or Torres Strait Islander body and the registrar, provision for objection and consultation and the independent hearing of any objection and resolution: s 24MD(6B)(c)–(g).

232    Finally, a narrower construction of s 24HA(2) that addresses only a grant under legislation insofar as it relates only to the management or regulation of surface and subterranean water is in conformity with the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth). It explains that the amendments in Schedule 1 allow “a much more comprehensive regime for the validity of acts occurring in the future which affect native title” including “the regulation and management of water and airspace”. In bringing into effect Division H the Explanatory Memorandum says that the intention is to put beyond doubt the ability of governments to regulate and manage surface and subsurface water. In Chapter 10, it provides that subdivision H:

…does not deal with the management and regulation of the bed or subsoil under onshore and offshore waters…These matters are generally dealt with in proposed Subdivisions M and N… It is for this reason that the term ‘water’ is used rather than the term ‘waters’ (which is defined in section 253 to include the bed or subsoil.

233    This reference suggests that it was not intended by Parliament to pick up purposes for the grant of licences that are collateral or adjacent to the grant of licences under legislation that relates to surface and subterranean water. Non-exhaustive examples given in [10.6] refer to legislation regulating the dumping of materials into waterways, the use of water bores and the protection of drinking water.

8.    THE APPLICATON OF SECTIONS 47A AND 47B OF THE NATIVE TITLE ACT

8.1    Introduction

234    The parties are at issue as to whether and when the exclusive native title rights and interests set out in the Determination apply to the compensation claim.

235    Paragraph [7] of the Determination in Warrie (No 2) provides:

Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the land and waters described in Schedule 4.

236    There is no dispute that without this declaration, the native title rights and interests of the Yindjibarndi people would be non-exclusive only, because a number of prior acts served to extinguish exclusive native title, including three oil prospecting licences granted prior to 31 October 1975, two of which were granted in respect of the whole of the Determination Area. Prior pastoral leases also were granted.

237    YNAC contends that the effect of the declaration is that its claim to compensation may be advanced on the basis of its exclusive rights and interests and that the declaration has binding effect on the present parties for all purposes. It submits that it is an abuse of process for FMG or the State to contend otherwise, as the decision of the Court in Warrie (No 2) is binding on them. YMAC joins in the submission advanced by YNAC and also contends that ss 47A and 47B apply to claims for compensation, regardless of the effect of Warrie (No 2), that that such effect is from 2003, when the claimant application was lodged.

238    The State accepts that ss 47A and 47B have effect but contends that their application is from the date of the Determination, which is 13 November 2017 and not before, with the consequence that some of the compensable future acts occurred when only non-exclusive rights were available and others when exclusive rights applied.

239    FMG submits that ss 47A and 47B have no application to a claim for compensation, and submits that they are applicable only in respect of a claimant application and that the Court may not take into account prior extinguished rights in determining compensation. It denies that the decision in Warrie (No 2) provides the basis for any issue estoppel or the application of the principles of res judicata.

240    During the course of argument the parties referred to the decisions in Griffiths v Northern Territory of Australia [2014] FCA 256 (Mansfield J) (Griffiths 2014)¸ Griffiths v Northern Territory of Australia (No 2) [2015] FCA 443 (Mansfield J) (Griffiths (No 2)) and Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900; 337 ALR 362 (Mansfield J) (Griffiths (No 3)).

8.2    The statutory provision – s 47B

241    Although the parties refer to both ss 47A and 47B, for the purpose of considering the arguments advanced it is convenient to set out only s 47B, which provides:

Vacant Crown land covered by claimant applications

When section applies

(1)    This section applies if:

(a)    a claimant application is made in relation to an area; and

(b)    when the application is made, the area is not:

(i)    covered by a freehold estate or a lease; or

(ii)    covered by a reservation, proclamation, dedication, condition, permission of authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

(iii)    subject to a resumption process (see paragraph (5)(b)); and

(c)    when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

(2)    For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Effect of determination

(3)    If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(a)    the determination does not affect:

(i)    the validity of the creation of any prior interest in relation to the area; or

(ii)    any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

(b)    the non-extinguishment principle applies to the creation of any prior interest in relation to the area.

Renewals and extensions of leases

(4)    For the purposes of paragraph (1)(b), if, after a lease covering an area expires or is terminated, the lease is bona fide renewed, or its term is bona fide extended, the area is taken to be covered by the lease during the period between the expiry or termination and the renewal or extension.

Defined expressions

(5)    For the purposes of this section:

(a)    the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and

(b)    an area is subject to a resumption process at a particular time (the test time) if:

(i)    all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and

(ii)    when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose: and

(iii)    the Crown still had a bona fide intention of that kind in relation to the area at the test time.

8.3    Relevant findings in Warrie (No 1) and the declaration in Warrie (No 2)

242    One of the issues of fact between the parties in Warrie (No 1) was whether or not the preconditions to ss 47A(1) and 47B(1) had been satisfied. One aspect of the dispute was whether the evidence supported a finding that the Yindjibarndi people occupied areas the subject of the claim in accordance with ss 47B(1)(c) and 47A(1)(c). Justice Rares found that they did: Warrie (No 1) at [289]–[302]. That finding is now unimpeachable and is not challenged in these proceedings – indeed, the parties agree that the Court should adopt that finding pursuant to s 86 of the Native Title Act.

243    In Warrie (No 2), Rares J considered an argument advanced by FMG that after giving the declaration in [7] of the Determination (above), there be the following notation:

Note: Sections 47A and 47B apply in relation to that part of the determination area referred to in paragraphs 4 and 7 so that for all purposes under the Native Title Act in relation to the claimant application, including the making of this determination, prior extinguishment is to be disregarded, but otherwise native title would be wholly extinguished in those areas to which section 47A applies and the following areas to which section 47B applies: UCL 13, UCL 22 and UCL 24. In the other areas to which section 47B applies, the native title rights and interests are those referred to at paragraph 3.

(Emphasis added)

244    FMG argued before Rares J that the effect of ss 47A and 47B was “to revive native title rights that have been extinguished which happens on the making of the determination” and that the sections “operate to create different native title rights”, citing Gumana v Northern Territory [2005] FCA 50; 141 FCR 457 at [268]: Warrie (No 2) at [3]. FMG submitted that there could be occasions where a third party needed to know what the native title rights and interests were before and after a determination: Warrie (No 2) at [3]. His Honour rejected this argument (at [5]) because, in his view, a declaration of native title rights and interests made pursuant to ss 47A(2) and 47B(2) applies “for all purposes under this Act”, citing the decision of the Full Court in Banjima People v Western Australia (No 2) [2015] FCAFC 171; 328 ALR 637 at [35]. His Honour observed that when the Court applies either of ss 47A(2) or 47B(2) in making a final determination it is exercising judicial power by making a binding declaration of right by way of the adjudication of a dispute about rights and obligations arising from the operation of law upon past events or conduct, citing Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167 at 188. It is not creating any new rights when making a final determination of native title under s 225 of the Native Title Act, including when it specifies, in such a determination, the legal consequences for which ss 47A(2) or 47B(2) provide (at [8]).

245    His Honour concluded:

9    While a determination made under s 225 of the Act may be seen as a new development, it is not itself creative of any new rights or interests. Rather the determination recognises what has not been extinguished in accordance with the Act and so confirms the existing rights and interests in the land and waters, just as Mabo v Queensland (No 2) (1992) 175 CLR 1 recognised that at common law native title rights and interests in land and waters had survived the Crown’s acquisition of sovereignty and radical title (see 175 CLR at 69 par 3 per Brennan J).

10    A final determination is declaratory of the rights and interests that the Court has ascertained by applying the Act, and any other applicable law (whether statutory or judicially decided), to the facts as found by the Court.

11    For these reasons, the note should not be included in the final determination that I will now make.

(Emphasis added)

8.4    The submissions

246    YNAC contends that the effect of [7] of the Determination is to bind the parties to the conclusion that for the purposes of the compensation application any prior extinguishment of native title rights and interests in the exclusive area must be set to one side for all purposes. That is because, it submits, the Determination in Warrie (No 2) represents a judgment in rem binding on the world, citing Starkey v South Australia [2018] FCAFC 36; 261 FCR 183 at [198] (Reeves J, White J agreeing at [401]). As noted above, it submits that Warrie (No 2) binds the parties and that the principles of res judicata and issue estoppel apply, and it is an abuse of process to contend otherwise, citing Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393.

247    YMAC adopts the contentions of YNAC and further submits that in any event, the consequence of meeting the pre-conditions of ss 47A and 47B is that “any extinguishment” must be disregarded, not only for a claimant application but also for a compensation application. It submits that to the extent that the decision of Mansfield J in Griffiths 2014 found otherwise, it was incorrect and ought not to be followed. It submits that the correct date from which any exclusive rights ought to be attributed to the Yindjibarndi people as a result of ss 47A and 47B is the date of the filing of the claimant application, being 9 July 2003.

248    The State accepts that ss 47A and 47B apply to the present application but contends that the reasoning in Griffiths 2014 supports the proposition that compensable acts done in the exclusive area before the date of the Determination are compensable only for their effect on the non-exclusive native title, but that after the date of the Determination they are to be calculated by reference to the declaration of the exclusive native title rights and interests because, based on Northern Territory of Australia v Griffiths [2017] FCAFC 106; 256 FCR 478 (Griffiths FC), it is only on and from the date of the Determination that the exclusive native title rights and interests in the s 47B declaration arise. The State otherwise submits that the dicta of Rares J in Warrie (No 2) at [6] that “by force of ss 11(1), 47A and 47B(2) no extinguishment of native title rights and interests ever occurred…” was wrong at law, citing Griffiths FC at [229], [231] and [233]. It also contends that no res judicata or issue estoppel arises because the reasoning in Warrie (No 2) was directed to a claimant application and does not bind the parties as to the current, subsequent, compensation application. Accordingly, to the extent that the reasoning of Rares J could be said to apply to the current application, it was obiter dicta.

249    FMG contends that in Griffiths 2014, Mansfield J correctly found that s 47B did not apply not the claimant’s compensation application, following a textual analysis of s 47B and the observation of his Honour that a claim group might recover twice for the one loss if in a determination, extinguishment was ignored, and then ignored again in an application for compensation for the effects of acts on native title rights and interests unaffected by any prior extinguishing acts through the operation of s 47B: Griffiths 2014 at [67]–[72], [73]. FMG submits that it cannot be liable to compensate for acts for which it was not responsible and YNAC’s claim for compensation cannot be determined on the supposition that the Yindjibarndi people have exclusive rights over the exclusive area because of the grant of the FMG tenements, noting that in Griffiths FC the Full Court decided that there was no right to interest once the claim group had a determination of native title under s 47B. It also disputes that the principles of res judicata, issue estoppel or abuse of process apply.

8.5    Consideration

8.5.1    Sections 47A and 47B apply to claims for compensation

250    Section 47B falls within Division 4 of Part 2 of the Native Title Act, which is headed “Other provisions relating to native title”. Sections 47, 47A and 47B have similar application. They provide for circumstances in which the extinguishment, by certain acts, of the native title rights and interests in relation to an area the subject of an application must be disregarded.

251    Section 47 applies to the case where, “an application under section 61 is made in relation to an area”, and a pastoral lease is held over the area the subject of the application by any of the persons who made the application claiming to hold native title, other persons with whom they claim to hold native title (or a trustee, on behalf of those persons or a company whose only shareholders are any of those persons).

252    Section 47A applies if a “claimant application” is made (s 47A(1)(a)) and if the area covered by the application is reserved or held on trust or vested for the benefit of Aboriginal people or Torres Strait Islanders (s 47A(1)(b)) and one or more members of the claim group occupy the area at the time of the application (s 47A(1)(c)).

253    Section 47B also applies if a “claimant application” is made (s 47B(1)(a)) and if the claim covers vacant Crown land (s 47B(1)(b)) and one or more members of the claim group occupy the area at the time of the application (s 47B(1)(c)).

254    The distinction between a “claimant application” in ss 47A and 47B on the one hand and the broader expression “application under s 61” on the other, was observed to be material by Mansfield J in Griffiths 2014 at [69].

255    As I have noted, the Determination was made at the same time that the decision in Warrie (No 2) was delivered, following findings of fact by Rares J in Warrie (No 1) that ss 47A and 47B applied to the claimant application advanced by the Yindjibarndi people.

256    The question that first arises is one of statutory construction as applied to the facts of this case, namely whether a declaration under s 47B(2) has effect in relation to the present claim for compensation. In my view it does.

257    For ease of reference, I repeat s 47B(2) below:

For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interest in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

258    Whilst s 47B(1) provides that s 47B applies if a “claimant application” is made, I would not read a declaration made under s 47B(2) as being confined in its effect to the outcome of a claimant application such that it does not have application in the context of a compensation application. The statutory language “[f]or all purposes under this Act in relation to the application” is broad. The words “in relation to” ought not to be understood to mean “for the purposes of a claimant application only”. I have earlier referred to PMT Partners and DLZ18.

259    In my view, a more natural reading of the phrase “in relation to”, understood with the words in s 47B(2) that follow and the statutory context in which s 47B appears, is that for all purposes under the Native Title Act associated with the claimant application any prior interest in relation to the area is to be disregarded. That would include the naturally following application for compensation lodged by the native title holders after they have received the declaration of right flowing from their claimant application.

260    The policy and purposes of the Native Title Act indicate that a broader rather than narrower understanding of the compensation provisions should be adopted. As the preamble notes:

The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.

Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.

261    The literal consequence of meeting the pre-conditions in ss 47A(1) or 47B(1) is that “any extinguishment” must be disregarded. Moreover, the revival of native title pursuant to s 47B is plainly material to compensation. It would be an odd result to find that under s 47B(2) native title is revived for the purposes of a claimant application, a declaration of right is then made, and yet the native title holders are subsequently precluded from claiming compensation in respect of the revived rights.

262    This approach is consistent with the terms of Division 5 of Part 2 of the Native Title Act. An entitlement to compensation under s 51(1) of the Native Title Act is not merely compensation for the withdrawal of recognition by the creation of prior inconsistent interests (that is, extinguishment) but rather for “any loss, diminution, impairment or other effect” on the native title rights and interests. That is consistent with the non-extinguishment principle to which reference is made in ss 47A(3)(b) and 47B(3)(b). As YMAC submits, restoration of the previously extinguished native title through ss 47A and 47B does not of itself necessarily fully compensate for the effects of an extinguishing grant, including the dispossession suffered by the native title holders between the time of the grant and the time of the restoration of the native title, or the effects of activities undertaken during that time. That will be fact dependent.

263    Importantly for the present case, restoration alone of native title through ss 47A and 47B is not compensation for a future act done post-restoration, particularly when there is no relationship between the earlier extinguishing act and the later future act. I would not infer that recognition from a declaration under ss 47A or 47B that exclusive rights exist is a proxy for an award of compensation for loss incurred as a result of future acts that take place after such a declaration. As I observe later in these reasons, the prior pastoral leases and exploration licences in the Determination Area had little appreciable impact on the native title rights and interests of the Yindjibarndi people. Rares J found in Warrie (No 1) that they did not affect the ability of the Yindjibarndi people to occupy the land in accordance with the prerequisites to ss 47A and 47B (at [289]–[302]; see also [63]). On the facts of the present case, the dangers of double counting to which Mansfield J referred in Griffiths 2014 are far less relevant.

264    In addition, native title rights and interests are not created at the point of the making of a Determination, they are recognised, and at the point of recognition are found to always have existed: Members of the Yorta Yorta Aboriginal community v Victoria [2002] HCA 58; 214 CLR 422 at [75]–[76]. A construction of ss 47A and 47B that is consistent with this principle provides coherency.

265    Moreover, I do not understand anything in the secondary materials to gainsay such a conclusion. The Explanatory Memorandum for the Native Title Amendment Bill 1997 (Cth) which introduced s 47B into the Native Title Act states:

5.56    Section 47B is a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the court. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. The provision will allow a claim for vacant Crown land where the claimants are in occupation of the land, notwithstanding possible extinguishment by any historical act.

(Footnotes omitted, emphasis added)

266    The Explanatory Memorandum notes that the section contains two requirements, the first being (broadly) that the claim is made over vacant Crown land which is not covered by a freehold estate or lease. The second is that one or more members of the claim group occupy the land. It goes on:

5.60    If these requirements are met, the extinguishment by the creation of any prior interest is ignored for the purposes of determining the claim. Therefore, if the land had previously been subject to a freehold or a leasehold grant, then the extinguishing effect of that grant is ignored. Similarly, if the land had previously been subject to a pastoral lease, then the partial extinguishment effected by that grant is also ignored. This is the case even if these grants are validated under the Native Title Act, or are subject to the confirmation regime in the Act.

5.61    Of course the claimants will still need to establish the positive elements of their claim, that is that the land is their traditional land and that they have maintained their traditional connection to it.

(Footnotes omitted, emphasis added)

267    No part of the secondary materials suggests that, having successfully established their claim, the native title holders should be precluded from relying on the rights granted to advance a claim for compensation.

268    Accordingly, in my view the proper application of ss 47A and 47B is that, subject to the question of double counting, which is a matter to be determined on the basis of the facts of each case, those sections would apply such that any prior interest in relation to the area must be “disregarded”, including for the purposes of a compensation claim. The breadth of that word was considered by the Full Court in Banjima People (Mansfield, Kenny, Rares, Jagot and Mortimer JJ) at [35]:

The ordinary and natural meaning of “disregard” is “to treat as of no importance; to pay no attention to” (Oxford English Dictionary online, sense b.) and “to pay no attention to; leave out of consideration” (Macquarie Dictionary online, sense 1). The legislative command in s 47B(2) is to pay no attention to any extinguishment of native title rights and interests in relation to that area that are claimed in the application where that area satisfies one of the three criteria in s 47B(1)(b) and each criterion in s 47B(1)(a) and (c). Thus, the issue that we had to, and did decide, was whether each exploration licence met the exclusionary criterion in s 47B(1)(b)(ii), there being nothing else in issue that could defeat the application of the section. Accordingly, once we held that the exploration licences did not fall within the exclusion in s 47B(1)(b)(ii), s 47B(2) mandated that no prior interest, such as those referred to in the footnote to the State’s submissions, had any extinguishing effect on the native title rights and interests that the Banjima people claimed in their application.

(Emphasis added)

269    In Griffiths 2014, the Court considered several past acts, being the grant of three grazing licences issued on 15 July 1980, 1 July 1981 and 1 March 1988 over the areas of certain lots within the determination area (at [38]). Prior to the grant of those licences, exclusive native title had been extinguished over those lots by the grant in 1901 of a pastoral licence: Griffiths 2014 at [44]–[46] and the table annexed to that judgment at items 37–39. The native title determination was made on 26 August 2006: Griffiths 2014 at [4]. Ultimately, following an appeal (Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391), the native title holders were recognised as holding exclusive native title rights and interests in the lots: Griffiths 2014 at [5]. The conclusion reached by Mansfield J was that a claim for compensation in respect of the past acts would amount to double counting, though his Honour acknowledged that “there is scope to adjust the level of compensation”: Griffiths 2014 at [73]. However, that case was concerned with past acts. This is a point of factual distinction from the present case, which is sufficient to provide a basis for distinguishing the present proceedings from the outcome in that judgment.

270    However, regardless of the point of distinction, with some hesitation, for the reasons given above I consider the decision in Griffiths 2014 to be plainly wrong insofar as it stands for the proposition that a declaration made under ss 47A or 47B can never have application to a claim for compensation, and would not follow it, to the extent that it might otherwise be considered to be binding in the present case. I do not understand that aspect of the decision in Griffiths 2014 to have been the subject of appeal (see Griffiths FC at [232]). Accordingly, I do not consider that the findings in Griffiths FC relating to interest represent binding authority on the subject.

271    Accordingly, the operation of ss 47A and 47B in the present case is to enable the Yindjibarndi people to claim compensation on the basis that they hold exclusive native title rights within the exclusive area noted in the Determination.

8.5.2    No abuse of process to raise contrary arguments

272    YNAC contends that the submissions of FMG amount to a challenge to the determinative finding in [6] of Warrie (No 2) that there has never been an extinguishment of native title rights and interests in respect of those areas and waters the subject of the claim. It submits that the finding was correct and never appealed and that there is now res judicata or issue estoppel on that issue and it is an abuse of process to raise the issue in this proceeding. I disagree.

273    The context in which the dispute arose before Rares J was the application of ss 47A and 47B to the claimant application and a particular notation. It did not arise in the context of a claim for compensation. Had it done so, no doubt the decision in Griffiths 2014 would have been raised. Nor, in my view, may it be regarded an abuse of process to argue that the terms of [7] do not apply to a claim for compensation. That argument is not precluded by the language of [7] which provides that ss 47A and 47B apply to disregard any prior extinguishment. In my view it remained open to FMG to canvas arguments as to the effect of the application of ss 47A and 47B in the context of the present compensation application. Accordingly, the principles relevant to issue estoppel and abuse of process, which are conveniently summarised in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [18]–[26], are not presently applicable.

8.5.3    The relevant date is the filing date of the compensation application

274    I turn now to the question of when the effect of the recognition of rights under the Determination – including the exclusive rights – applies for the purpose of determining the compensation claim.

275    The provisions of the Native Title Act do not prescribe from when ss 47A and 47B apply. The three competing dates put forward by the parties are:

(1)    first, from the date of the Determination, which was made on 13 November 2017;

(2)    secondly, the date of the filing of the claimant application by the Yindjibarndi people, which was 9 July 2003;

(3)     thirdly, the date from which the native title rights and interests of the Yindjibarndi people began, which was since before colonisation.

276    In my view the preferable position is that the date of the filing of the claimant application applies. On the basis of the facts of this case it is unnecessary for me to decide if, in other circumstances, the date in (3) may apply.

277    First, the filing date of the claimant application is the operative date from which the native title rights and interests of the Yindjibarndi people were assessed in Warrie (No 1): see e.g. [4(3)], [152], [161], [179], [198]. This reflects the underlying purpose of the filing and subsequent registration of the claim (on 8 August 2003), which is to ensure that third parties are on notice of the claimed right from the time of filing. This may be seen in the processes detailed under s 66 of the Native Title Act, which requires the Native Title Registrar to give a copy of the application to third parties upon receipt of an application as soon as is reasonably practicable. Such notice is especially important where future acts post-date the date of lodgement of the claimant application. In addition, the Note to s 62(1) of the Native Title Act provides that “[t]he applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims”.

278    Secondly, assessing the rights as operating from the date the application was lodged is consistent with the policy objectives of the Native Title Act set out in the preamble, and the fact, as noted earlier in these reasons, that any native title rights and interests that exist are rights and interests that the processes under the Act will cause to be recognised as existing in a determination under s 225 of the Native Title Act: Yorta Yorta at [75]–[76] (Gleeson CJ, Gummow and Hayne JJ) (McHugh J agreeing at [127]–[128], [134]). That recognition is subject to any prior extinguishing acts.

279    Thirdly, such an approach is also consistent with other forms of registered rights, such as those arising under the Patents Act 1990 (Cth) (ss 65 and 67) and the Trade Marks Act 1995 (Cth) (s 72(1)), the purpose underlying such registration being to ensure that third parties are on notice of claimed rights from the time of filing, such rights being operative from that date upon their grant (following often lengthy and contested processes addressing their validity).

280    Fourthly, to conclude that the native title rights and interests set out in the Determination exist only from the date of those orders (being 13 November 2017) would provide an unwelcome incentive on the part of opponents to a claimant application to delay the conduct of proceedings in order to diminish the outcome of any compensation application. See, for instance, Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851 at [9] (Jagot J).

281    Finally, I do not consider that the findings of the Full Court in Griffiths FC as to the date upon which interest was payable (being from the making of the Determination) in respect of a crown lease represents binding authority as to date. In that case, the Full found (at [233]) that from the date of the Determination, the exclusive native title rights and interests of the claim group in the relevant area were recognised and that from that date the claim group “ceased to suffer any loss from the compensable act”. Contrary to the current proceedings and as noted above, no argument was presented before the Full Court to the effect that the primary judge (Mansfield J) erred in finding that s 47B did not apply to compensation claims: at [231]. Nor is the finding on the facts that loss had ceased applicable to the facts of the present case.

282    Accordingly, I find that the effect of ss 47A and 47B in the present case is to enable the Yindjibarndi people to claim compensation on the basis that they hold exclusive native title rights within the exclusive area noted in the Determination, and that this effect has operation from the date of the filing of the claimant application, which was 9 July 2003.

9.    APPLICATION OF S 51 OF THE NATIVE TITLE ACT

283    In section 3 above I have identified the claimed compensable acts which are, generally, the FMG tenements. I have found in sections 6 and 7 that all of the compensable acts fall within s 24MD(3) of the Native Title Act with the consequence that YNAC is entitled to compensation for those acts in accordance with Division 5 of Part 2 of the Native Title Act.

284    I have in section 8 found that ss 47A and 47B apply from the date of the claimant application with the consequence that YNAC is able to advance its claim for compensation on the basis that its exclusive native title rights and interests as well as its non-exclusive native title rights and interests pre-date the commencement of each of the FMG tenements.

285    In light of these findings, the statutory framework for the compensation claim is governed by s 51 of the Native Title Act.

286    Section 51(1) of the Native Title Act relevantly provides that the entitlement to compensation under Division 3 is, subject to subsection (3), an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

287    In Griffiths HC the plurality observed that s 51(1) is the “core provision” (at [41]) and that three specific aspects of s 51(1) warrant attention. First, that the person or persons who hold native title are entitled to compensation under s 51(1) for any loss, diminution, impairment or other effect of the act on their native title rights and interests (at [42]). Secondly, the Native Title Act does not expressly provide the date upon which the entitlement to compensation arises, or the date on which the value of the native title rights and interests being extinguished (in that case) is to be determined. But as the entitlement to compensation is for the act itself, and the validation provisions deem the (there, extinguishing) act to be valid from the time of the act, the date for the assessment of the compensation is the date of the act (at [43]). Thirdly the plurality recognised the bifurcation in terms of the assessment of compensation between economic loss and non-economic, or cultural loss:

44    Next, s 51(1), in its terms, recognises the existence of the two aspects of native title rights and interests identified in s 223(1) to which reference has already been made – the physical or material aspect (the right to do something in relation to land) and the cultural or spiritual aspect (the connection with the land) – as well as the fact that the manner in which each aspect may be affected by a compensable act may be different.

45    Both aspects are addressed in terms by s 51(1) providing for an entitlement on just terms to compensation to the native title holders for "any loss, diminution, impairment or other effect of the act on their native title rights and interests" (emphasis added).

(Emphasis in original)

288    Section 51(3) of the Native Title Act provides:

If:

(a)    the act is not the compulsory acquisition of all or any of the native title rights and interests; and

(b)    the similar compensable interest test is satisfied in relation to the act;

the court, person or body making the determination of compensation must, subject to subsections (5) to (8), in doing so apply any principles or criteria for determining compensation (whether or not on just terms) set out in the law mentioned in section 240 (which defines similar compensable interest test).

289    The compensable acts the subject of the present claim do not amount to the compulsory acquisition of native title and the similar compensable interest test is satisfied. Accordingly, each of the requirements of (a) and (b) of s 51(3) are met. Subsections 51(5) to (8) are presently not relevant. I have earlier noted that the law mentioned in s 240 of the Native Title Act is the Mining Act. There is no dispute that by operation of s 51(3) of the Native Title Act, s 123 of the Mining Act is the provision identified in s 51(3).

290    Section 123(1) of the Mining Act provides, in effect, that no compensation shall be payable for permitting entry on to any land for mining purposes or in respect of the value of any mineral which is or may be on or under the surface of the land or by reference to any rent or royalty assessed in respect of the mining of the mineral.

291    I have set out in section 5.2 the terms of s 123 of the Mining Act. For convenience I repeat s 123(2):

(2)    Subject to this section and to sections 124 and 125, the owner and occupier of any land where mining takes place are entitled according to their respective interests to compensation for all loss and damage suffered or likely to be suffered by them resulting or arising from the mining, whether or not lawfully carried out in accordance with this Act, and a person mining thereon is liable to pay compensation in accordance with this Act for any such loss or damage, or likely loss or damage, resulting from any act or omission on his part or on the part of his agents, sub-contractors or employees or otherwise occasioned with his authority.

292    The parties accept that a bifurcated assessment of loss, as prescribed in Griffiths HC, is required in the present case. They also accept that, notwithstanding the application of s 51(3) and the constraints applicable by virtue of the operation of s 123 of the Mining Act, the principles set out in Griffiths HC insofar as the concern the assessment of economic loss and non-economic loss apply.

10.    INTRODUCTION TO THE ECONOMIC LOSS CLAIM

10.1    The principal claim advanced – the exchange value case

293    I have in section 2 above identified the various heads of claim advanced by YNAC. Each is separately considered below. However, a number of threshold issues arise before the factual matters in dispute can be identified.

294     The bulk of the submissions going to economic loss, both directed to factual and legal issues, focussed the loss of the economic value assessed as the sum which a miner or Government party would have paid the Yindjibarndi people to obtain their assent to the grant of the FMG tenements as identified in (1) of the heads of claim.

295    In this respect, the claim advanced by YNAC is that the economic value of the native title rights and interests lost or suppressed by the grant and operation of the FMG tenements equates to the negotiation or exchange value of those interests. This is, it submits, calculated by reference to what miners in the Pilbara commonly and routinely agree to pay native title parties for their assent to mining on their country pursuant to negotiations conducted under subdivision P of Division 3 of Part 2 of the Native Title Act. YNAC submits, with reference to authorities that describe “special value” (see, eg Vyricherla Narayana Gajaptiraju (Raja) v Revenue Divisional Officer, Vizagapatam [1939] AC 302 at 312), that the land has a “special value” which the Yindjibarndi people could have expected to be able to exploit by entering into a mining agreement with a miner or government party. YNAC relies on evidence as to commonly negotiated percentage amounts of royalties received by the holders of native title rights in the Pilbara to support its submission that economic loss under head (1) should be determined by reference to a percentage of the value of the minerals extracted from the Solomon Hub Project. I refer to this as YNAC’s “exchange value” case.

296    It puts forward two alternatives:

(a)    if FMG is liable to pay, compensation is determined by reference to the “comparable agreements” entered into by mining companies and native title claimants under s 31(1)(b) of the Native Title Act, being the subdivision P Agreements (which I have defined later in these reasons). YNAC submits that, having regard to those agreements, compensation is to be assessed as a percentage of the revenue earned by FMG from the sale of minerals obtained from the FMG tenements which it assesses at [REDACTED]. I refer to this as the Revenue Share Amount;

(b)    if the State is liable, compensation is determined either by reference to the Revenue Share Amount or alternatively, by the formula set out in s 38 of the Mining Act, being 90% of the rents and royalties paid and payable by FMG to the State in respect of the FMG tenements. I refer to this below as the s 38 Mining Act Amount which is assessed at [REDACTED] in YNAC’s closing submissions, although this figure will be further discussed below in section 12.5.

297    By contrast, the State and FMG contend that the principles or criteria for determining compensation set out in s 123 of the Mining Act and also the principles set out in Griffiths HC establishing what amounts to “just terms” compensation within s 51(1) of the Native Title Act make clear that compensation for economic loss must be calculated by reference to the freehold value of the land, and that a percentage based compensation based on the value of the iron ore extracted from the Compensation Claim Area has no role to play. FMG contends that the maximum value of the freehold land the subject of the FMG tenements is $800,873 plus simple interest. The evidence of three experts, Mr Hall, Mr Jaski and Mr Preston, was relied upon by FMG and the State to support the position that they adopted.

10.2    Summary of the approach taken to the exchange value case

298    The division between the parties in relation to compensation for economic loss is fundamental, and gives rise to a number of points of principle and fact which I address in these reasons. By way of summary, I address the following matters.

299    First, YNAC contends that s 51(1) takes precedence over s 51(3) such that the “just terms” compensation requirement in s 51(1) applies to and overrides the compensation requirement under s 51(3) and, most particularly, the limitations in s 123(1) of the Mining Act. The State and FMG dispute that this is so.

300    Secondly, YNAC contends that, as a matter of construction, s 123 of the Mining Act is confined to loss or damage arising “from the mining” and is not an entitlement to compensation for “any loss, diminution, impairment or other effect” of the grant of the tenements on native title rights and interests. YNAC also submits that ss 123(5) and (6) of the Mining Act confer on an owner and occupiers of “private land” rights of compensation not conferred on native title holders, because the land in which native title rights and interests exist is not “private land”.

301    I address both of these arguments in sections 9 to 11 below.

302    Thirdly, central to a number of arguments advanced by YNAC is the contention that by not providing for compensation in a form of a percentage of the value of minerals extracted by reference to its exchange value approach, “just compensation” is not provided and Griffiths HC is not followed. The State and FMG contend that, regardless of whether compensation is assessed solely by reference to s 51(1) or by reference to s 51(3) of the Native Title Act (and thereby s 123(2) of the Mining Act), the Yindjibarndi people will receive compensation on just terms as contemplated in Griffiths HC and that accordingly the argument based on the Racial Discrimination Act does not arise.

303    In section 12 below, entitled “The just terms compensation issue”, I consider whether YNAC’s exchange value approach for economic loss falls within s 51(1) of the Native Title Act as that provision has been interpreted in Griffiths HC on a conceptual level. Later in these reasons I turn to the facts of the case as advanced by the expert witnesses and consider whether the case as advanced by YNAC is proved methodologically and factually. I conclude that on both levels, the case advanced by YNAC cannot succeed.

304    Fourthly, YNAC contends that it has an entitlement under s 53(1) of the Native Title Act to compensation equal to the amount claimed in its exchange value case. I address this argument in section 13 below.

305    Fifthly, YNAC contends that s 123(1) of the Mining Act is invalid pursuant to s 109 of the Constitution because it conflicts with the terms of the Native Title Act. I address this argument in section 14 below.

306    Sixthly, YNAC contends that if the application of s 51(3) of the Native Title Act and s 123 of the Mining Act would result in compensation that is other than on just terms, then s 45 of the Native Title Act and the terms of the Racial Discrimination Act will apply to ensure that the determination is made on just terms by reference to s 51(1) of the Native Title Act. I refer to this below as “The Racial Discrimination Act issues” which I address in section 15 below.

307    Seventhly, FMG contends that s 125A of the Mining Act is invalid pursuant to s 109 of the Constitution because it conflicts with the terms of the Native Title Act. This would have the consequence that the State, not FMG, is liable to pay any compensation. I address this issue in section 16 below.

308    Eighthly, I consider in section 17 the heads of economic loss identified in (2) to (4) of the Applicant’s List of Heads of Compensation, as well as the consideration of whether simple or compound interest should apply, before turning more generally to the factual case on economic loss more generally.

309    Ninthly, I consider in section 20 the issues relating to overlapping tenancies and the operation of s 49 of the Native Title Act.

310    After addressing these matters I turn to consider the expert evidence relied upon by YNAC of Mr Meaton and Mr Miles and the evidence given by FMG’s experts, Mr Hall, Mr Lonergan, Mr Preston and Mr Jaski, before addressing the final question of quantum for economic loss.

11.    CONSTRUING S 51(1) OF THE NATIVE TITLE ACT AND S 123 OF THE MINING ACT

11.1    YNAC’s submissions

311    YNAC submits that the reasoning in Griffiths HC establishes that s 51(1) of the Native Title Act is the “core provision” in respect of compensation for acts impacting native title rights and interests and that it recognises in s 51(1) the existence of two aspects of these rights: the physical or material aspect, being the right to do something in relation to land; and the cultural or spiritual aspect, being the connection with the land, noting that the manner in which each aspect may be affected by a compensable act may be different; Griffiths HC at [41], [44] (plurality). Both aspects are addressed by the broad terms of s 51(1).

312    YNAC advances several points of construction referable to the operation of s 51(3) of the Native Title Act. First, that despite the words in s 51(1) stating that it is “[s]ubject to subsection 3”, it is s 51(1) that supplies the statutory entitlement to compensation, whereas s 51(3) merely directs what principles or criteria must be applied in determining that compensation. As a result, s 51(1) remains applicable to the claim such that any claim for compensation under s 51(3) must satisfy the requirement that it is on “just terms” and addresses both of the aspects of rights identified in Griffiths HC, being compensation for economic loss and compensation for spiritual or cultural harm. Secondly, the terms of the Mining Act do not supply any “principles or criteria for determining compensation” as required by s 51(3). The Mining Act sets out principles and criteria for determining compensation for the “act of mining” and not the relevant “act” under s 24MD(3) being the act of the grant of the FMG tenements. Thirdly, s 51(3) does not provide that only the principles set out in the Mining Act are to be applied and ultimately the principles or criteria that should apply are those set out in Griffiths HC, namely that compensation be paid on “just terms”.

11.2    Consideration of the construction issue

313    As noted above, the entitlement to compensation on just terms in s 51(1) is qualified by the terms of s 51(3) that compensation calculated by reference to the criteria set out in the law mentioned in s 240 (the similar compensable interest test), which is s 123 of the Mining Act. Given the wording of s 51(3), this is to be applied “whether or not on just terms”.

314    I have found in section 6 of these reasons that the reference in s 123(2) of the Mining Act to the “owners and occupiers” is not a reference that includes the holders of native title rights and interests. However, the terms of s 51(3) require that any principles or criteria for determining compensation in respect of an act on native title rights and interests must be those set out in s 123 of the Mining Act. Given that a prerequisite for the operation of s 24MD(3) is that the Mining Act does not provide for compensation to the native title holders, the operation of s 51(3) of the Native Title Act necessarily requires that s 123 of the Mining Act be read as if it does nonetheless provide principles or criteria for determining compensation.

315    Accordingly, to apply the similar compensable interest test, one must proceed on the assumption that the Yindjibarndi people are entitled to compensation in accordance with s 123(2) of the Mining Act and apply the principles or criteria set out in s 123 of the Mining Act on that basis. In this context, in my view the word “compensation” in s 123(2) should be given the same meaning that it is given in s 51(1) of the Native Title Act, that being a well-established word with a conventional meaning: Griffiths HC at [262]–[263] (Edelman J) which the High Court applied to the particular circumstances of the Native Title Act; Griffiths HC (plurality) at [87], [136].

316    In that sense, although s 123(2) provides that the “owner and occupier of any land where mining takes place are entitled according to their respective interests to compensation for all loss and damage suffered or likely to be suffered by them resulting or arising from the mining”, the words owner and occupier should be understood, as a result of the fiction imposed by s 51(3), to be the native title holders and the italicised words resulting from or arising from the mining are to be read as if they apply to the future act to which s 24MD(3) refers, being the grant of the FMG tenements, and the activities on the land thereafter.

317    So understood, in my view YNAC’s argument that s 123(2) does not provide principles or criteria for determining compensation for the future acts the subject of the compensation claim cannot succeed. To the contrary, when understood in light of the reasons in Griffiths HC, s 123 of the Mining Act provides for compensation for both of the separate incidents of native title rights and interests, as defined in s 223(1) of the Native Title Act.

318    On its face, s 123 of the Mining Act may be understood to provide the following “principles or criteria for determining compensation” as follows:

(1)    Pursuant to s 123(2) the holders of native title rights and interests are entitled to compensation for all loss and damage suffered or likely to be suffered by them resulting or arising from the mining;

(2)    This entitlement is subject to the terms of s 123(1), which provides that no compensation shall be payable in any case, and no claim lies for compensation “whether under this Act or otherwise” —

(a)    in consideration of permitting entry on to any land for mining purposes; or

(b)    in respect of the value of any mineral which is or may be in, on or under the surface of any land; or

(c)    by reference to any rent, royalty or other amount assessed in respect of the mining of the mineral; or

(d)    in relation to any loss or damage for which compensation can not be assessed according to common law principles in monetary terms.

(3)    Section 123(4) relevantly provides that the amount payable under s 123(2) to which an owner or occupier may be found to be entitled “may include” compensation for eight specified matters which most relevantly include: being deprived of the possession or use, or any particular use, of the natural surface of the land or any part of the land (s 123(4)(a)); damage to the land or any part of the land (s 123(4)(b)); severance of the land or any part of the land from other land of, or used by, that person (s 123(4)(c)); any loss or restriction of a right of way or other easement or right (s 123(4)(d)); and social disruption (s 123(4)(f)). These are all matters referable to cultural loss. Furthermore, each of the criteria in s 123(4) are non-limiting and inclusive. As I note in relation to my consideration of cultural loss, the principles applicable to the assessment of cultural loss as set out in Griffiths HC are able to be applied conformably with the requirements of s 123(2) of the Mining Act.

319    YNAC submits that the only “principles or criteria for determining compensation” within s 123 are those set out in s 123(4) and on this basis contends that s 123(1) – which would prohibit the advancement of its exchange value case – may be set to one side. However, this submission ignores the plain language of the section, which in both ss 123(2) and 123(4) say that the provisions are “subject to subsection (1)”. I am unable to agree that the limitations expressed in s 123(1) are not “principles or criteria for determining compensation” in the form of negative stipulations, just as the considerations in s 123(4) are positive stipulations. Both are principles or criteria to be applied.

320    Although in Griffiths HC the plurality at [41] identified that s 51(1) of the Native Title Act is the “core provision” for determining compensation, that observation does not provide a legitimate mandate to ignore the plain language of s 51(3), or to set to one side the clear language of s 123 of the Mining Act. Two immediate reasons for this are apparent. First, s 51(3) is express in its terms, and cannot be so easily set to one side. The second is that whatever else may be said in Griffiths HC, the Court was there, and specifically in the passage at [41], considering the meaning of s 51(1) generally in the context of s 51(4), not in the context of s 51(3).

321    Accordingly, I reject the construction argument put by YNAC.

322    YNAC further contends that, as a matter of construction, s 123 of the Mining Act is confined to loss or damage arising “from the mining” and is not an entitlement to compensation for “any loss, diminution, impairment or other effect” of the grant of the tenements on native title rights and interests. However, the requirement of s 51(3) of the Native Title Act is that in making a determination of compensation the court must, apply any principles or criteria for determining compensation within (here) s 123 of the Mining Act. Section 123 plainly provides criteria for determining compensation. I accept that where s 123(2) states that compensation is for “loss and damage suffered or likely to be suffered by them resulting or arising from the mining” this is conceptually different to compensation envisaged under s 51(1) for the “loss, diminution, impairment or other effect” of the future act on the native title rights and interests, being the grant of the FMG tenements. But the premise underlying the (agreed) application of s 51(3) in this case is that the similar compensable interest test in s 240 of the Native Title Act has been satisfied. There accordingly can be no dispute that compensation would, apart from the Native Title Act be payable under s 123 of the Mining Act on the assumption that the native title holders instead held ordinary title to the land concerned. Any argument that s 123 of the Mining Act does not provide compensation is accordingly precluded.

323    Furthermore, in my view there is no practical difference in the present case between provision of compensation for the mining and compensation for the future act. The entire premise of the exchange value case for compensation for economic loss advanced by YNAC is that it is the effect of the grant of the FMG tenements, and more particularly the physical effects of the Solomon Hub Project on the land in the Compensation Claim Area that has led to the claim.

324    I now turn to consider the submission advanced by YNAC to the effect that the application of s 51(3) by reference, in particular to s 123(1) of the Mining Act cannot lead to the grant of compensation on “just terms”.

12.    THE JUST TERMS COMPENSATION ISSUE

12.1    Introduction

325    Although YNAC seeks compensation for economic loss based on the different heads of claim identified in section 2 of these reasons, by far the most significant is that arising from its exchange value case. As I have noted, YNAC contends that in the present case “just terms” compensation within s 51(1) should be calculated by reference to the exchange value of the native title rights and interests of the Yindjibarndi people. It submits that this value may be determined having regard to what miners in the Pilbara commonly and routinely agree to pay native title parties for their asset to persons mining on their country. In this regard, YNAC relies on the evidence of Mr Meaton going to such mining agreements reached in negotiations entered pursuant to subdivision P (that is, the subdivision P Agreements) and the evidence of Mr Meaton and Mr Miles in evaluating compensation on the basis of a percentage value of the free on board (FOB) revenue of the iron ore mined by FMG. On this basis, YNAC contends that the determination of compensation that FMG is liable to pay will differ from the compensation that the State would be liable to pay, depending on the Court’s findings in relation to the issue of who is liable to pay compensation.

326    The State and FMG fundamentally disagree with this method of valuation of native title rights and interests. They submit that on the facts of the present case the assessment of economic loss must be on the basis of the freehold value of the land the subject of the compensation claim with appropriate percentage reductions to account for those areas that are not subject to exclusive rights and also having regard to the percentage degree of impingement on those rights and interests, with recognition that the non-extinguishment principle applies. They submit that Mr Preston’s valuation of the freehold value of the land provides the proper basis for just terms compensation and that this is supported by the evidence of Mr Hall and Mr Jaski. Both submit that given that the native title rights and interests were not extinguished and applying the principles in s 51A of the Native Title Act, compensation for economic loss must be below the value of the land over which the compensable acts were done. The State contends that economic loss for the compensable acts should be $128,114.28 with FMG saying that this amount is at most $95,197.

327    In this section, I consider whether just terms compensation in s 51(1) permits YNAC’s exchange value theory of compensation. Later, I consider the expert evidence going to economic loss and whether, if the exchange value case were to be valid, the evidence is sufficient to permit reliance on evidence of agreements reached between traditional owners and miners pursuant to subdivision P, the evidence supports the conclusion asserted by YNAC.

328    I conclude in this section that the exchange value approach adopted by YNAC is not an approach to compensation for economic loss that is supported by the correct application of s 51(1) or Griffiths HC. In later sections I conclude that the evidentiary basis for such an assessment is not made out. I then consider the appropriate amount of compensation required on the basis of the freehold value of the land, as proposed in the submissions of the State and FMG.

12.2    The submissions on the exchange value case

329    YNAC submits that the reasoning of the plurality in Griffiths HC at [84] provides scope for the Spencer test to be adapted to the present case. The plurality at [84] described this test as:

the sum which a willing but not anxious purchaser would have been prepared to pay to a willing but not anxious vendor to obtain the latter’s assent to the infringement, or, to put it another way, what the Claim Group could fairly and justly have demanded for their assent to the infringement…

(Footnotes omitted)

330    It submits that Griffiths HC proceeded on the basis of an agreed starting point where the freehold value of the relevant parcels of land was the baseline of economic value of the native title rights and interests (plurality at [3], Gageler J at [242], Edelman J at [294]). That is not so here. The negotiation or exchange value of the Yindjibarndi people’s native title rights and interests is the appropriate starting point for valuation. It submits that the economic loss may be assessed in accordance with the framework set by the Native Title Act in circumstances where subdivision P of the Native Title Act provides for a miner and the traditional owners to negotiate the assent of the traditional owners to mining on their land. It submits that the negotiation or exchange value is to be assessed at 1% of the FOB actual and forecast mining revenues of FMG within the Compensation Claim Area.

331    YNAC submits that the economic value is the amount that a reasonable miner would pay to obtain a native party’s assent to the suppression of their native title for the life of a mine. This, it submits, can be determined by reference to the many subdivision P Agreements between iron ore miners and native parties in the Pilbara, which establish that there are common or industry standards for the payment of financial benefits to native parties in exchange for their consent and support for a mining project.

332    In relation to the application of s 51A, YNAC submits that the hypothetical freehold estate in the land the subject of the FMG tenements for the purposes of determining the uppermost limit of the “freehold cap” imposed by s 51A of the Native Title Act must be determined on the assumption that the freehold estate includes minerals and that the highest and best economic use of the land upon which to base the valuation must take into account those minerals. It submits that the land may have a value to an owner above the market value of the land itself, being a “special value” calculated by reference to what a willing but not anxious buyer pays for the land rather than fail to attain, citing Pastoral Finance Association Ltd v The Minister [1914] AC 1083, 1088 (Lord Moulton). It further cites the reasoning of Dixon CJ in Turner v Minister for Public Instruction [1956] HCA 7; 95 CLR 245 at 267.

333    In that regard, YNAC submits that a hypothetical freehold estate would exclude a reservation of minerals to the State, citing Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400; 10 ARLR 235 (Perilya 2015) at [82], [85], [89] (Leeming JA, Bathurst CJ agreeing at [1], Macfarlan JA agreeing at [2], [3]) with the consequence that the land would include minerals, citing Perilya Broken Hill Ltd v Valuer-General (No 6) [2015] NSWLEC 43; 10 ARLR 222 at [22] (Biscoe J) (upheld on appeal in Perilya 2015). Nullagine Investments Pty Ltd v Western Australia Club Inc [1993] HCA 45; 177 CLR 635 at 665 (Deane, Dawson and Gaudron JJ). It submits that properly understood, the evidence of Mr Preston and Mr Hall establishes that if the hypothetical freehold estate in the land includes minerals, then, from a valuation perspective, it is appropriate to account for the minerals in the valuation.

334    YNAC submits that the “highest and best use” of the land is as a mine, citing Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415.

335    It also cites The Minister v Matford Nominees (1973) 2 NSWLR 58 at 59–60 wherein it was said by Else-Mitchell J that “the value of land at any point of time will reflects its potentiality for the best and highest or most profitable use to which it can be put”.

336    YNAC submits therefore that if the hypothetical freehold estate includes minerals and the highest and best economic use of the land upon which to base the valuation is a mine, then the appropriate valuation method for the land would be to use a discounted cash flow method using revenues produced from any mine on the land, also drawing on parts of the evidence of Mr Meaton. YNAC relies on Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265; 8 ARLR 256 (Perilya 2013) to support this proposition.

337    FMG responds that a royalty calculated by reference to a percentage of mining revenue cannot be the measure of compensation under ss 51(1) or 51(3) of the Native Title Act or s 123 of the Mining Act. It submits that Griffiths HC is binding authority that compensation for economic loss is determined by reference to the objective economic value of their rights and interests, which excludes minerals as they do not have rights or interests to these. It submits that the Spencer approach contemplates a hypothetical agreement between buyer and seller where the hypothetical bargain is about the exchange value and any special value of the Yindjibarndi people’s native title rights and interests. This can never be a demand for a price for the State’s mineral rights. In Griffiths HC, the plurality said that a fee simple estate has the greatest economic value of any estate in land and that, consistently with the aim of the Native Title Act, the economic value of full exclusive native title in land must be equated to the economic value of a freehold title in that land, citing the plurality in Griffiths HC at [67], [68]. In that context, it submits that ss 51 and 51A are to be read together as providing that compensation payable for economic loss is to be measured by reference to and capped at the compulsory acquisition value of a freehold estate in the subject land; Griffiths HC at [54] (plurality); [240], [242], [248] (Gageler J); [271] (Edelman J).

338    FMG submits that in the subdivision P agreements, negotiation parties can negotiate any commercial agreement they wish. The outcome of that freedom to bargain does not reflect an entitlement to compensation, a point that it submits was made by Lee J in Brownley v Western Australia (No 1) [1999] FCA 1139; 95 FCR 152 at [53] (in this matter discussing the then s 23 of the Native Title Act). Further, it cites Gomeroi People v Santos NSW Pty Ltd [2024] FCAFC 26; 303 FCR 153 (Gomeroi FC) at [112] (Mortimer CJ, Rangiah J agreeing at [244] and O’Bryan J agreeing at [317]):

While the distinction may not be quite as binary as the submissions suggest, it can be accepted that the ability of native title holders, or registered claimants, to pursue payments as part of their statutory right to negotiate serves a different and wider purpose from the ability to seek compensation for the doing of certain acts under Div 2 of Pt 5 of the NTA, although the two purposes are not mutually exclusive and there may be some overlap.

339    FMG disputes the proposition put by YNAC that “special benefit” as understood in Griffiths HC should reflect the benefit conferred on the acquirer of the right, citing Boland v Yates [1999] HCA 64; 167 ALR 575, Callinan J at [292]:

The special value of land is its value to the owner over and above its market value. It arises in circumstances in which there is a conjunction of some special factor relating to the land and a capacity on the part of the owner exclusively or perhaps almost exclusively to exploit it.

See also Boland at [78]–[83] (Gleeson CJ); [354] (Callinan J).

340    FMG further submits that the Yindjibarndi people cannot seek compensation based on the value of the minerals in the land because even a freehold owner does not own them as they are, under the relevant legislation, reserved to the State of Western Australia; Land Act 1898 (WA) s 15. In this regard, FMG disputes the proposition put by YNAC that “land” here includes the minerals in the ground, citing Royal Sydney Golf Club v Federal Commissioner of Taxation [1955] HCA 13; 91 CLR 610 at 621, 624 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ).

341    FMG also takes issue with YNAC’s reliance on the judgments in Perilya 2013, and Perilya 2015 as these cases rely on NSW legislation where minerals can be privately owned, unlike Western Australia; see Perilya 2013 at [23], [74]–[75] (Leeming JA); Perilya 2015 at [88] (Leeming JA) in support of that proposition. This, FMG submits, provides a complete answer to the s 51A issue.

342    The State advances similar arguments to those advanced by FMG. It submits that Griffiths HC leaves no scope for deviation from a valuation of economic loss by reference to the freehold value of the land and that YNAC, despite adopting a Spencer-like language in its attempts to quantify economic loss by a negotiation or exchange value, in effect repudiates the approach of Griffiths HC by failing to ascertain the value to the owner of the native title rights and interests and instead fixes upon the benefit to the State and FMG from carrying out the compensable acts. It submits that the approach instead in Griffiths HC is to “put the Claim Group, so far as money can do, in the position in which they would have been if the native title had not been extinguished” (plurality at [136]). This, it submits, is starkly demonstrated by YNAC’s submission that compensation payable will vary depending on whether FMG or the State is liable to pay (ie whether compensation is determined by the Revenue Share Amount or the s 38 Mining Act Amount). It emphasises this by pointing out that if the State had compulsorily acquired all native title rights and interests in the Compensation Claim Area, the economic loss, it submits, would have involved a straightforward application of Griffiths HC and the maximum compensation been capped pursuant to s 51A at $800,873 being Mr Preston’s valuation of the freehold value, yet on the basis of the present claim, the amount sought is many times that value.

12.3    Consideration

343    In the present case, compensation arises from the application of s 24MD(3) where the similar compensable interest is satisfied but s 123 of the Mining Act, being the applicable law, does not provide for compensation for the holders of the native title rights and interests. The consequence is that Division 5 of Part 2 of the Native Title Act applies.

344    Section 51(1) provides the core provision for compensation: Griffiths HC at [41]. It is tethered to no concept beyond the entitlement to compensation on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

345    Section 51(2) provides that if the act is the compulsory acquisition of native title rights and interests the court, in determining compensation on just terms, may have regard to any principles or criteria for determining set out in the law under which the compulsory acquisition takes place. By contrast, s 51(3) provides that if the relevant act is not the compulsory acquisition of native title rights and interests and the similar compensable interest test is satisfied in relation to that act, then the court must in determining compensation, apply any principles or criteria for determining compensation, whether or not on just terms, set out in the law to which that test applies (here, being s 123 of the Mining Act).

346    If ss 51(2) and (3) do not apply and there is a compulsory acquisition law for the Commonwealth to which the act is attributable, then by s 51(4), the court may apply any principles or criteria set out in that law for determining compensation.

347    Section 51A provides that total compensation under Division 5 of Part 2 for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters. This “freehold cap” applies only to the economic aspect of compensation; Griffiths HC (plurality [50], [54]; Edelman J at [331], [332]).

348    In this regard, the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) provides at [24.8] in relation to s 51A:

The maximum compensation native title holders can get in these circumstances will be capped at the same level that a person with freehold title would have got if their land was compulsorily acquired … This provision equates native title with freehold title for the purposes of the compensation provisions, but it does not mean that native title will be regarded in all circumstances as equivalent to freehold. In addition, it does not mean that compensation would be payable at the capped level (e.g. compensation for extinguishment of co-existing native title rights would probably be significantly less than the capped level). The compensation needs to be assessed on a case-by-case basis having regard to the nature of the native title rights and interests affected.

349    The connection between s 51 and the cap in s 51A was referred to in Griffiths HC at [54] by the plurality:

…Given that the Native Title Act is a Commonwealth Act which, under Div 5, equates native title rights and interests to freehold for the purposes of dealing with native title, and is intended to provide compensation for the extinguishment of those rights and interests on just terms to all native title holders affected by a compensable act, ss 51 and 51A are to be read as providing that the compensation payable to the native title holders is to be measured by reference to, and capped at, the freehold value of the land together with compensation for cultural loss. Principles or criteria set out in a compulsory acquisition law for the Commonwealth, or for the State or Territory to which the compensable act is attributable, may be of assistance but they are not determinative of the issues arising under s 51(1).

(Emphasis added)

350    Section 53 provides a “backstop” to s 51, providing that where the doing of any future act or the application of any provisions of the Native Title Act would result in a paragraph 51(xxxi) acquisition of property on other than just terms, the person is entitled to such compensation or compensation in addition to any otherwise provided by the Native Title Act from the State as is necessary to ensure that the acquisition is made on just terms. I address this provision later in these reasons.

351    As YNAC submits, in Griffiths HC all parties accepted that the economic value of the native title rights and interests should be determined by conventional economic principles and, in particular, the application of the Spencer test, “adapted as necessary to accommodate the unique character of native title rights and interests and the statutory context”; at [66] (plurality). They also agreed before the High Court that the valuation of the economic loss should (with the exception of one of the 39 lots of land) be valued on the basis of its freehold value; Griffiths HC at [65]. That leaves open the possibility that in circumstances where no such concession is made, the reasoning of the High Court may not apply. That is the course that YNAC urges.

352    The Spencer test is applied at common law as a measure of determining the exchange value of land and was set out by Griffith CJ in Spencer at 432:

… the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring “What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?”

353    At common law, freehold ownership, being an estate in fee simple, is the most ample estate which can exist in land, and as such it confers the greatest rights in relation to land and the greatest degree of power that can be exercised over the land. For that reason, the plurality in Griffiths HC considered at [67] that:

… it ordinarily has the greatest economic value of any estate in land. Lesser estates in land confer lesser rights in relation to land and, therefore, a lesser degree of power exercisable over the land; and, for that reason, they ordinarily have a lesser economic value than a fee simple interest in land.

354    Contrary to the submission advanced by YNAC, I do not consider that the word “ordinarily” was meant to indicate that in out-of-the-ordinary cases, a different valuation that exceeded the value of an estate in fee simple was available. Rather, it was contrasting that estate with lesser estates in land which confer lesser rights and observing that ordinarily those lesser rights have a lesser value.

355    As [67] of Griffiths HC makes clear, by noting that the freehold is the most ample estate which can exist in land, the Court did so to illustrate that as such it “ordinarily has the greatest economic value of any estate in land”; see also Gageler J at [242], [248].

356    The plurality set out the essential methodology underlying the valuation of economic loss and cultural loss:

84    … Just as compensation for the infringement of common law land title rights and interests is ordinarily comprised of both a component for the objective or economic effects of the infringement (being, in effect, the sum which a willing but not anxious purchaser would be prepared to pay to a willing but not anxious vendor to achieve the latter's assent to the infringement) and a subjective or non-economic component (perhaps the most common instance of which is an allowance for special value), the equality of treatment mandated by s 10(1) of the Racial Discrimination Act, as reflected in s 51 of the Native Title Act, necessitates that the assessment of just compensation for the infringement of native title rights and interests in land include both a component for the objective or economic effects of the infringement (being, in effect, the sum which a willing but not anxious purchaser would have been prepared to pay to a willing but not anxious vendor to obtain the latter's assent to the infringement, or, to put it another way, what the Claim Group could fairly and justly have demanded for their assent to the infringement) and a component for non-economic or cultural loss (being a fair and just assessment, in monetary terms, of the sense of loss of connection to country suffered by the Claim Group by reason of the infringement).

(Footnotes omitted, emphasis added)

357    In applying that test, the plurality acknowledged that it was not providing a direct assessment of the economic value of the native title rights and interests concerned but rather a proxy measure based on what a willing but not anxious purchaser would consider the exchange value for the “infringement” (at [84]), “lawful extinction” (at [85]), or “extinguishment” (at [85], [96], [104] and [136]) of the native title rights and interests. It equated a right to exclusive possession with the value of the most ample estate known to the common law because that was the best that could be done. This provided “economic equivalence” between the value of what is lost and the compensation which is paid, estimated in a “broad-brush” way; Griffiths HC at [87] by the plurality.

358    This reflects the general precept of the Native Title Act of equality of treatment between native title rights and other rights and interests where equivalent; Griffiths HC at [265] (Edelman J). The Native Title Act adopts the legal rights and interests of persons holding other forms of title as the benchmarks for the treatment of the holders of native title; the Native Title Act Case at p 483 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). Thus, in the Native Title Act Case the plurality identified the similar compensable interest test as an example where, for a future act, compensation would be payable under the law for the act on the assumption that the native title holders instead held ordinary title to the land; the Native Title Act Case at p 483, fn 371.

359    The plurality in Griffiths HC recognised that there is a degree of artificiality about an adapted Spencer test where, as here, the claim group would plainly not have been at all interested in selling their native title rights and interests and where no one could lawfully have bought them.

360    Nonetheless, in Griffiths HC it was considered that the native title rights and interests had a “recognisable economic worth which lay in the sum that might fairly and justly have been demanded for their lawful extinction in favour of the Crown” (plurality at [85]). That statement indicates that one must be cautious about applying the notion of “compensation” too literally in the context of s 51(1) of the Native Title Act and drawing a clear line, as may be done in other cases, between “compensation” and “restitution”.

361    Whilst, as FMG submits, the purpose of compensation is to place in the hands of the owner the full money equivalent of the thing lost, not the gain or benefit recovered by the State or FMG; Nelungaloo Pty Ltd v Commonwealth [1947] HCA 58; 75 CLR 495 at 571 (Dixon J), it cannot be said that the outcome of the Spencer test reflects any more than the value to the purchaser of the notional fee simple estate. In this regard, the plurality was cognisant of the fact that the application of the Spencer test does not directly compensate for the value of native title rights and interests, because those rights and interests cannot be lawfully sold, and the traditional owners would not have an interest in selling them in any event. Accordingly, the circumstances of the application of the Spencer test may be considered at a point removed from a compulsory purchase of freehold land in the case where, as here, native title rights and interests are not wholly extinguished.

362    As the plurality said:

85 … it is no more artificial to seek to assess their economic value by means of the Spencer test of what a willing but not anxious purchaser would have been prepared to pay to a willing but not anxious vendor in order to buy them (or, more accurately, to obtain the latter's assent to their extinguishment) than it is to apply the Spencer test to the assessment of just compensation for the compulsory extinguishment of, say, a general law easement or profit à prendre.

(Footnotes omitted)

363    The valuation by reference to the amount that a willing purchaser would have been prepared to pay for consensual extinguishment of the rights focusses attention on the value of the rights “obtained” by the purchaser by reference to the construct of land valuation despite the fact that native title rights and interests are quite different in concept and are incapable of being devolved. This feature of the reasoning of the plurality serves to demonstrate that conceptually the application of the Spencer test is loosely tethered to the notion of compensation, because it is not the lost value to the notional vendor – here the Yindjibarndi people – that is being assessed, but rather the value gained by the purchaser.

364    That point is perhaps amplified by the recognition by the plurality that such a valuation will vary according to the location of the land and its desirability to purchasers. So, in a high density area of Australia, a willing purchaser would be likely to pay more to achieve the extinguishment of native title rights and interests than in a remote area; Griffiths HC per the plurality at [96]. The idea that the value of purchasers of a higher density land for the acquisition of native title rights and interests will increase the compensation payable demonstrates the point that it is the value to the willing purchaser and not the unwilling vendor that is being valued, a point noted by Edelman J, writing separately, at [277]–[284], see McArthur River at [552].

365    Furthermore, the conception of “highest and best use” of land valuation is by reference to the use that may be made of the land according to Western concepts – it is the use to which a notional purchaser of the land may put the land. As the plurality recognised in Griffiths HC at [101], what is being evaluated for the purposes of the quantification of economic loss portion of the compensation is the economic value of the unencumbered, freely alienable freehold title, and despite native title rights and interests being inalienable, this inalienability is not relevant to the assessment of the land’s economic value.

366    Central to the case advanced by YNAC is the proposition that, in the circumstances of the present case, the application of the Spencer test involves none of the artificiality identified in Griffiths HC at [85] because, it submits, the evidence reveals that native title parties in the Pilbara are prepared to enter into negotiations and to agree to the grant of mining tenements over the land for the effective extinguishment of their rights and interests. Miners can, and do, negotiate and reach agreement with native title holders. It relies on the evidence of Mr Meaton in this regard. Accordingly, YNAC submits that there is no need to confine the assessment of economic loss to the freehold value of the land, because the exchange value of the native title rights and interests held by the Yindjibarndi people is the negotiation value that a miner would be prepared to pay to them for their approval to the grant of the mining lease.

367    For present purposes I assume that the factual proposition summarised above has been established. Even so, and despite the care with which this proposition was put, I am unable to accept it as correct for the following reasons.

368    First, in Griffiths HC the plurality repeatedly emphasised that the objective economic value of native title rights and interests equates to the objective economic value of the freehold estate in land: see, for example, [3(1)], [51], [74]. Although that was no doubt in part because the claim in that case was brought in the context of s 51(4) of the Native Title Act, aspects of the decision are not expressed to be confined to the application of that sub-section and may be considered to be of more general application. For instance, when considering the freehold cap in s 51A, the plurality observed:

51    When introducing s 51A as part of the 1998 amendments to the Native Title Act following this Court's decision in Wik Peoples v Queensland, Senator Minchin said that the "underlying premise of the Native Title Act is to equate native title with freehold for the purposes of dealing with native title" and the cap "should reflect the compensation payable if native title amounted to freehold". Under the general law, the compensation for the compulsory acquisition of land comprises the freehold value of the land as well as compensation for severance, injurious affection, disturbance, special value, solatium or other non-economic loss.

(Footnotes omitted, emphasis added)

369    This language provides a signal that one may not go beyond freehold value in assessing compensation for economic loss, see also Griffiths HC at [52]. As I have noted, the plurality emphasised (at [67]), that at common law, freehold ownership is the most ample estate which can exist in land, conferring the greatest rights in relation to land, and for that reason it has the greatest economic value. That point was further emphasised at [90], in a different context:

…As was earlier explained, s 51A of the Native Title Act read in context and with regard to the purpose of Div 5 of Pt 2 of the Native Title Act equates the economic value of full exclusive native title to the economic value of a freehold interest. If, therefore, the Claim Group had had a full exclusive native title in the subject land, the economic value of their native title as required to be determined by the Native Title Act would have been the freehold value of that land as determined by Mr Copland.

370    These clear statements are difficult for a court of first instance to reconcile with the case advanced by YNAC. In this regard, it may be noted that the exchange value based on a small percentage royalty as calculated by reference to the subdivision P Agreements is not submitted by YNAC to arise from any intrinsic native title right to negotiate under subdivision P itself.

371    Secondly, the native title rights and interests of the Yindjibarndi people do not include a right to the minerals. The Determination provides in [5(c)(i)] that the native title rights and interests do not include any rights in relation to minerals as defined in the Mining Act or in its predecessor, the Mining Act 1904 (WA).

372    Since 1899 all minerals in the land the subject of the Determination Area, including iron ore, have belonged to the State. There would be an oddity about determining compensation (payable either by the State or FMG) by reference to minerals owned by the State.

373    This may be briefly explained by reference to the applicable legislation. Section 3 of the Western Australia Constitution Act 1890 (Imp) gave management and control of the “waste lands” of Western Australia and the proceeds of the sale and disposal of those lands, including all royalties, mines and minerals to the legislature of the colony of Western Australia. Pursuant to ss 3, 4 and 15 of the Land Act 1898 (WA), which came into effect on 1 January 1899, those lands (relevantly being Crown lands) could be conveyed by Crown grant but with a reservation for minerals, which continued to belong to the Crown. Under s 117 of the Mining Act 1904 (WA), relevantly all minerals, including iron ore, on any land that had not been alienated in fee simple before 1 January 1899, became the property of the Crown. Pursuant to s 3(1) of the Mining Act, the Mining Act 1904 was repealed, but under s 9(1)(b) all minerals on any land that had not been alienated in fee simple before 1 January 1899 continue to be the property of the Crown: see Ward HC at [165]–[168], [384]–[385] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Accordingly, since the Land Act 1898, minerals cannot form part of the grant of a fee simple estate. By extension, they cannot form part of the fee simple in respect of the land the subject of the Compensation Claim Area or the Determination Area more broadly.

374    In this regard, in Ward HC the plurality of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) at [382] considered the intersection between traditional Aboriginal law, custom or use relating to petroleum. After observing that there was no such use concerning any of the substances dealt with under the Mining Act 1904 and the Mining Act (after assuming that ochre is not a mineral), it concluded that even if such a right had been established, those rights would have been extinguished by s 117 of the Mining Act 1904 and s 9 of the Petroleum Act 1936 (WA).

375    The plurality in Ward HC went on at [384]:

As has already been pointed out, by s 3 of the Western Australia Constitution Act:

"The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all royalties, mines, and minerals, shall be vested in the legislature of that colony."

(Emphasis added)

All minerals and petroleum, on or under Crown lands, were thus subject to legislative disposition. Reserving them to the Crown and vesting "property" in them in the Crown had several consequences. First, it was no longer necessary (if it ever had been necessary) to consider questions of prerogative rights to some but not all minerals. Thenceforth, upon the subsequent alienation of land by the Crown, all minerals on or under the land would remain vested in the Crown. Secondly, the Crown could, and did, deal with minerals separately from the land and could thereafter, and did, grant separate rights to search for and recover them. But unlike the fauna legislation considered in Yanner v Eaton, the vesting of property in minerals was no mere fiction expressing the importance of the power to preserve and exploit these resources. Vesting of property and minerals was the conversion of the radical title to land which was taken at sovereignty to full dominion over the substances in question no matter whether the substances were on or under alienated or unalienated land.

(Footnotes omitted)

376    Accordingly, any native title rights and interests to minerals in Western Australia which may have existed following the enactment of the Western Australia Constitution Act 1890 (Imp) and the Land Act 1898 were wholly extinguished by the introduction of s 117 of the Mining Act 1904, including the right to minerals that the Yindjibarndi people may have held in the Determination Area.

377    Thirdly, the reliance on the subdivision P Agreements fixes attention solely on the benefit to the miner (or the State) from the grant of the future acts. It fixes no attention on the value of the native title rights and interests that are the subject of the Determination. Griffiths HC at [85] plainly found that the value of the freehold value of the land is a proxy for the value of the relevant native title rights and interests. In my view the exchange value approach of YNAC strays too far to be supportable within the reasoning in Griffiths HC.

378    Fourthly, the approach of YNAC leads to inconsistent outcomes, depending on the identity of the party paying. In the present case, the claim for compensation against FMG is valued by YNAC on the basis of a 1% royalty at [REDACTED] and the claim against the State, based on the s 38 Mining Act assessment at [REDACTED]. This provides an extreme example of how detached the assessment proposed is from the value of the native title rights and interests concerned.

379    Another example of the disconnect between the native title rights and interests of the Yindjibarndi people and the exchange value approach of YNAC is that the value of the impact on native title rights and interests will change, depending on whether the mining project succeeds or fails, the international pricing of the mineral extracted and the other factors that affect the mining operations.

380    Fifthly, the approach propounded by YNAC would lead to an incongruous outcome that the compensation for economic loss for the suspension of native title rights and interests in the present case would far exceed – by a multiplier of over 100,000 – the compensation for economic loss arising had there been a compulsory acquisition and extinguishment of the native title rights and interests of the Yindjibarndi people. If the economic loss of the Yindjibarndi people were to be assessed on the basis of a compulsory acquisition of their native title rights and interests pursuant to s 51(4) of the Native Title Act, as was the case in Griffiths HC, then the maximum recoverable for loss of exclusive rights and interests would be the freehold value of the land, as assessed by Mr Preston. Whilst not determinative, it is a persuasive measure against the exchange value proposed.

381    Sixthly, the approach adopted by YNAC provides a complex and difficult metric for assessing compensation for economic loss to the holders of native title rights and interests. Whilst that does not, of itself, preclude it from being correct, it is contrary to the reasoning as set out by the plurality in Griffiths HC at [92]:

There is, too, a further, pragmatic reason to eschew the sort of approach favoured by Mr Lonergan. An opinion of the kind that the Northern Territory commissioned Mr Lonergan to produce is a complex and expensive exercise, and, as experience shows in litigation, where one party introduces an expert report of that complexity and expense it more often than not leads to another party commissioning another expert to produce a similarly complex and expensive report to rebut the thrust of the first, leaving it to a trial judge, often after extensive cross-examination of both experts at further considerable cost, to decide between the two. That degree of complexity and cost can be avoided if economic value is determined by the comparatively simple and relatively thrifty means of assessing the freehold value of the subject land and applying the appropriate percentage discount according to the nature of the native title rights and interests in suit. Given the presumably limited resources of most native title claimants, such simplicity and economy is surely to be encouraged.

382    One aspect of the complexity is the adoption of a measure that begins with the assumption that there is a standard rate of royalty for a particular region of Australia and a particular industry. That involves the assumptions – and difficulties of proof – to which I refer in further detail in section 19 below. Moreover, the exchange value approach does not accommodate circumstances where – even in the Pilbara – mining tenements are granted which generate no mining income, or where the mining tenements concerned do not involve any prior agreements under subdivision P. For example, miscellaneous licences which attract the procedural rights contained in s 24MD(6B) of the Native Title Act but not subdivision P. Although in the present case, YNAC relies on project-wide compensation assessment and does not seek to value the claim by reference to each individual future act involved in the Solomon Hub Project (a matter to which I return below), as a matter of broader principle it may be seen that the complexities involved are considerable.

383    Finally, it will be recalled that s 51(3) requires that in making the determination of compensation the Court must apply any principles or criteria for determining compensation set out in, here, the Mining Act. That mandatory requirement applies, “whether or not on just terms”. By s 123(1), a claim for compensation under s 123(2) is not able to be based, inter alia, upon the value of any mineral that is or may be under the surface of the land or by reference to any rent, royalty or other amount assessed in respect of the mining of the mineral. Plainly enough, that language also precludes the application of the exchange value case as advanced by YNAC. However, as I have noted, in my view, the principles relevant to the application of s 51(1) of the Native Title Act in the present case in any event preclude the exchange value case advanced by YNAC.

384    Accordingly, I reject the exchange value approach as a matter of the application of the principles set out in Griffiths HC to s 51(1). For the reasons set out in section 19, I also find that the evidence advanced does not support the exchange value case sufficiently to warrant a conclusion, on the hypothesis that my reasoning above is incorrect, that the claim is made out.

12.4    YNAC’s argument based on s 51A of the Native Title Act

385    Section 51A(1) of the Native Title Act provides:

(1)    The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters.

386    YNAC first submits that s 51A does not apply to the present proceedings because the compensable acts here have not extinguished any, let alone all, of the native title rights and interests of the Yindjibarndi people.

387    It further submits that if s 51A does apply to its present claim, s 2B of the Acts Interpretation Act 1901 (Cth) defines the term “land” in any Commonwealth Act as including “corporeal hereditaments” which would include minerals, citing Nullagine Investments at 656 (Deane, Dawson and Gaudron JJ)in support of the proposition that the ownership of freehold estate is the equivalent of “full ownership” of the land. It submits that a hypothetical freehold estate would exclude a reservation of minerals to the State, citing Perilya 2015 with the consequence that the land would include minerals, citing Perilya Broken Hill Ltd v Valuer-General (No 6) [2015] NSWLEC 43; 10 ARLR 222 at [22] (Biscoe J) (upheld on appeal in Perilya 2015) and that that properly understood, the evidence of Mr Preston and Mr Hall establishes that if the hypothetical freehold estate in the land includes minerals then, from a valuation perspective, it is appropriate to account for the minerals in the valuation.

388    These arguments are only put as a reason why, should the value of economic loss be in accordance with YNAC’s exchange value theory in either the Revenue Share Amount approach or the s 38 Mining Act Amount approach, the freehold cap in s 51A is not exceeded. YNAC made clear in [69] of its closing submissions in reply that it does not claim compensation for economic loss determined by reference to a freehold estate in the land covered by the FMG tenements.

389    As I have rejected the exchange value case, it is not necessary for me to address these arguments. However, in my view the first argument is plainly incorrect. The language of s 51A(1) indicates that the maximum compensation payable if all native title were extinguished is the amount payable if there were a compulsory acquisition of a fee simple estate in the land. Where the native title rights and interests are not extinguished, a lesser amount would be payable. This accords with the reasoning in Griffiths HC at [67] (plurality). Accordingly, s 51A(1) has clear application to the present case.

390    Furthermore, a similar argument based on Perilya 2015 was considered by Banks-Smith J in McArthur River at [665]–[691] and, with respect, cogently rejected. I adopt the reasoning of her Honour in likewise rejecting the argument now advanced by YNAC.

12.5    Conclusion regarding the exchange value approach

391    For the reasons given above, in my view, the terms of s 51(1) do not enable economic loss in accordance with head (1) to be valued by reference to the exchange value by either the proposed Revenue Share Amount approach or the s 38 Mining Act Amount approach. Put another way, in applying Griffiths HC, the calculation of economic loss by reference to the baseline of the freehold value of the land, the Yindjibarndi people will, by definition, receive compensation on just terms as contemplated in s 51(1).

13.    SECTION 53(1) OF THE NATIVE TITLE ACT

392    Section 53(1) of the Native Title Act provides:

53 Just terms compensation

Entitlement to just terms compensation

(1)    Where, apart from this section:

(a)    the doing of any future act; or

(b)    the application of any of the provisions of this Act in any particular case;

would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by this Act, from:

(c)    if the compensation is in respect of a future act attributable to a State or a Territory—the State or Territory; or

(d)    in any other case—the Commonwealth;

as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.

393    Two arguments are advanced by YNAC on the basis of s 53(1) of the Native Title Act.

394    In the first, YNAC contends in its points of claim that in the alternative to its entitlement to compensation under s 24MD(3) of the Native Title Act and in the alternative to its claim on the basis of s 45 of the Native Title Act, it has an entitlement under s 53(1) of the Native Title Act to compensation. It relies on three contentions. First, that the FMG mining leases are future acts that have resulted in a s 51(xxxi) acquisition of the property of the Yindjibarndi people. Secondly, that the Yindjibarndi people are entitled to such compensation or further compensation as is necessary to ensure that the acquisition of property – being their native title rights and interests under the Determination – is made on s 51(xxxi) just terms. Thirdly, that just terms compensation requires an award of compensation that accords with its pleaded case for economic loss and cultural loss, most particularly by reference to what I have defined above as its exchange value case.

395    The State and FMG deny each of these contentions.

396    For present purposes it is necessary to address this argument on the basis only of the second and third contentions, assuming, as I do, that the grant of the FMG mining leases are acts that have resulted in an acquisition of property in accordance with s 51(xxxi) of the Constitution.

397    The premise underlying YNAC’s argument is that s 51(3) of the Native Title Act, when applied in conjunction with s 123 of the Mining Act, cannot result in an award of compensation under s 51(1) of the Native Title Act that is on just terms. That argument has been discussed and resolved adversely to the position advanced by YNAC in section 12 above. In short, I have determined that s 51(1) when understood in light of Griffiths HC precludes the success of the exchange value argument (and its analogues) because an award of compensation for economic loss based on the freehold value of the land as determined by the application of the Spencer test is on just terms. The contention advanced by YNAC by reference to s 53(1) is based on the same exchange value case and must be rejected on the same basis, namely that the award of compensation under s 51(1) is not on other than just terms.

398    The second argument advanced by YNAC is that if s 51A of the Native Title Act provides a cap on the amount of compensation to which the Yindjibarndi people would be entitled on the basis of its exchange value case, then s 53(1) will operate to top up the compensation available on the basis that otherwise, there would be an acquisition of property on other than just terms. This too must be rejected on the basis that my findings as to economic loss are such that the s 51A freehold cap is not reached and accordingly there is no occasion to consider the second argument. Had it been necessary to go further, this argument would also have failed because just terms compensation for economic loss does not require that the exchange value case succeed.

14.    THE VALIDITY OF S 123(1) OF THE MINING ACT

399    YNAC advances an alternative case based on s 51 of the Native Title Act, s 109 of the Constitution and s 123 of the Mining Act.

400    It will be recalled that s 123(1) of the Mining Act places a restraint on the operation of s 123(2) because by its terms it provides that no compensation shall be payable in any case, and no claim lies for compensation, whether under the Mining Act or otherwise:

(a)    in consideration of permitting entry on to any land for mining purposes; or

(b)    in respect of the value of any mineral which is or may be in, on or under the surface of any land; or

(c)    by reference to any rent, royalty or other amount assessed in respect of the mining of the mineral; or

(d)    in relation to any loss or damage for which compensation can not be assessed according to common law principles in monetary terms.

401    YNAC submits that s 123(1) is invalid by reason of s 109 of the Constitution because it is inconsistent with the terms of the Native Title Act and in particular s 51.

402    There is a logical difficulty with the argument advanced by YNAC, because s 51(3) by its terms provides for the application of the principles or criteria for determining compensation by reference, here, to the Mining Act and does so whether or not those principles or criteria are on just terms. The internal reference to the Mining Act is unlikely to correlate with a s 109 inconsistency of the type asserted.

403    Furthermore, I have above concluded that the exchange value case, which is premised upon the subdivision P agreements providing an exchange value for the native title rights and interests, cannot succeed because of my conclusions as to the correct construction and application of s 51(1) of the Native Title Act.

404    That conclusion also precludes a finding of s 109 inconsistency as it has been articulated by YNAC because the inconsistency asserted is not to be found.

405    Accordingly, I reject this argument.

15.    THE RACIAL DISCRIMINATION ACT ISSUES

15.1    Introduction

406    YNAC advances two alternative arguments under the terms of the Racial Discrimination Act by reference to s 45 of the Native Title Act.

407    The first proceeds on the assumption that the preconditions of s 24MD(3)(b)(ii) do not apply and that the terms of s 123 of the Mining Act apply because a lesser entitlement is conferred on native title holders without regard to the unique character of native title. In that case, it contends that this Court should nonetheless determine that the Yindjibarndi people are entitled to compensation under the terms of the Native Title Act by operation of s 45, when considered in conjunction with the operation of the terms of the Racial Discrimination Act. In the points of claim, YNAC pleads that s 10(1) of the Racial Discrimination Act will operate to confer a right of compensation on the Yindjibarndi people to eliminate the disparity which would otherwise exist under the Mining Act between the enjoyment of their native title rights and interests and the enjoyment of ordinary title under that act. It further submits that under s 45 of the Native Title Act that right of compensation under the Racial Discrimination Act is to be determined in accordance with s 50 of the Native Title Act as if the entitlement arose under the Native Title Act. YNAC contends that the Mining Act does not provide parity of treatment to the Yindjibarndi people as the exclusive holders of native title rights and interests over land because it does not provide them with parity of treatment with the holders of ordinary land and does not provide compensation that has regard to the unique character of their native title rights and interests.

408    The second argument proceeds on the assumption that s 51(3) of the Native Title Act applies to the assessment of compensation and that accordingly the principles or criteria for compensation under s 123 of the Mining Act are applied. YNAC submits that compensation so awarded cannot amount to just terms compensation within s 51(1) of the Native Title Act because the operation of ss 123(1)(a), (b) and (c) of the Mining Act would preclude the success of its exchange value case. It also submits that s 123 precludes an award of compensation for cultural loss.

409    The State accepts that where the operation and effect of a law results in the unequal enjoyment of rights by persons of different races, s 10 will operate to enhance the enjoyment of those rights to the extent necessary to eliminate the inequality, citing Mabo v Queensland (No 1) [1988] HCA 69; 166 CLR 186 at 217 (Brennan, Toohey and Gaudron JJ). The State relies on the plurality in Ward HC at [108] (fn 628) to argue that this may be achieved in one of two ways: by either topping up the rights to the level needed to eliminate any inequality in the enjoyment of those rights or, if the impugned law imposes a discriminatory burden or prohibition on persons of a particular race that cannot be so recompensed, therefore invalidating the law due to inconsistency under s 109 of the Constitution: Gerhardy v Brown [1985] HCA 11; 159 CLR 70 at pp 97–9 (Mason J).

410    However, the State raises a threshold issue regarding the operation of the Racial Discrimination Act in the context of the terms of the Native Title Act. In this regard, the State first submits that YNAC’s argument cannot succeed because the Racial Discrimination Act does not have any residual operation in relation to matters with which the Native Title Act deals. It submits that the Racial Discrimination Act does not intervene or operate to produce a different compensation entitlement than that provided by the Native Title Act. That is because the protection offered by the Racial Discrimination Act is limited to ensuring that native title holders are able to enjoy their rights and interests equally with the enjoyment of the holders of ordinary title. By governing the recognition, protection, extinguishment and impairment of native title, the Native Title Act removed the vulnerability of native title – previously extant at common law – to defeasance by providing a comprehensive code, conformity with which is essential to extinguish or impair native title, citing the Native Title Act Case at pp 453, 463 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

411    The State first submits that the code in the Native Title Act in respect of future acts, including provisions as to the entitlement to compensation, applies on its terms and cannot be altered by s 10 of the Racial Discrimination Act, even if those provisions are inconsistent with the Racial Discrimination Act. It secondly submits that in any event, the Native Title Act is a “special measure” for the purpose of s 8(1) of the Racial Discrimination Act, as the Preamble makes plain. Accordingly, s 10 of the Racial Discrimination Act does not apply to the Native Title Act, citing Durham Holdings Pty Ltd v State of New South Wales [1999] NSWCA 324; 47 NSWLR 340 at [74]–[85] (Spigelman CJ, Handley JA agreeing at [109], Giles JA agreeing at [110]); the Native Title Act Case at pp 483–4 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

412    FMG does not join with the State in its first two arguments. FMG and the State dispute that the Mining Act does not have regard to the unique character of native title rights and interests with the consequence that s 10 of the Racial Discrimination Act and s 45 of the Native Title Act apply. They submit that the Mining Act does not discriminate on racial grounds and that accordingly, s 10 has no application. Otherwise, FMG submits that if there is any disparity that results in s 10(1) of the Racial Discrimination Act applying, the consequence under s 45(2) of the Native Title Act is that the State, not FMG, is liable for any compensation arising. For the reasons set out in more detail below, I find that the threshold argument should be determined in favour of YNAC and that its arguments identified are, as a matter of theory, available under the Native Title Act. In relation to the first point raised by YNAC, I find that if, contrary to the conclusion that I have reached that s 24MD(3) does not provide a source of compensation in the Native Title Act, then the effect of s 123(2) is arguably discriminatory in that owners of ordinary land have preferable or better treatment to the holders of native title rights and interests. I reject the second argument advanced by YNAC.

15.2    Relevant provisions of the Native Title Act

413    Section 7 of the Native Title Act provides:

Racial Discrimination Act

(1)    This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.

(2)    Subsection (1) means only that:

(a)    the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and

(b)    to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.

(3)    Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.

414    Section 45(1) of the Native Title Act provides:

RDA compensation to be determined under this Act

(1)    If the Racial Discrimination Act 1975 has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation, in so far as it relates to the effect on native title, is to be determined in accordance with section 50 as if the entitlement arose under this Act.

15.3    Relevant provisions of the Racial Discrimination Act

415    Section 8 of the Racial Discrimination Act provides a “special measures” exception to the operation of the Racial Discrimination Act:

Exceptions

(1)    This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).

416    Section 10 of the Racial Discrimination Act, which is in the same Part as s 8, provides:

Rights to equality before the law

(1)    If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2)    A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

(3)    Where a law contains a provision that:

(a)    authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or

(b)    prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;

not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.

417    Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969):

4.    Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

418    Article 5 of the Convention relevantly provides:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

…

(d)    Other civil rights, in particular:

(v)    The right to own property alone as well as in association with others;

419    The State does not dispute that the Convention rights in Article 5(d)(v) extend to native title rights and interests within the Native Title Act.

15.4    Relevant provisions of the Mining Act

420    The title of the Mining Act is “an Act to consolidate and amend the law relating to mining and for incidental and other purposes”. It addresses in detail a number of matters relevant to the present case.

421    Part I (“Preliminary”) includes definitions of various terms used: s 8. Section 9(1)(a) relevantly provides that subject to the Mining Act, all precious metal existing in its natural condition is property of the Crown and s 9(1)(b) provides that all other minerals in their natural condition on or below the surface of any land that was not alienated in fee simple from the Crown before 1 January 1899 are the property of the Crown.

422    The term “mining tenement” is defined in s 8 to mean a prospecting, exploration or retention licence, a mining, general purpose or miscellaneous lease granted or acquired under the Mining Act and includes the land in respect of which the mining tenement is granted or acquired.

423    Part 2 deals with “Administration, mineral fields and courts” and Part 3 is entitled “Land open for mining”. Part 3 is divided into three divisions.

424    Division 2 refers to “Public reserves, etc. and Commonwealth land”.

425    Section 29(1) (from Division 3 of Part 3) provides:

Subject to this Act, but notwithstanding any other Act or law, a mining tenement may be granted in respect of an area that consists of private land only or partly of private land and partly of any other land and the authority conferred thereby on the holder thereof may be exercised by that holder in respect of any such land.

15.5    Consideration of the threshold issue

426    In Ward HC the plurality observed of s 10(1) of the Racial Discrimination Act:

105    …That to which the sub‑section in terms is directed is the enjoyment of rights by some but not by others or to a more limited extent by others; there is an unequal enjoyment of rights that are or should be conferred irrespective of race, colour or national or ethnic origin. "Enjoyment" of rights directs attention to much more than what might be thought to be the purpose of the law in question. Given the terms of the Convention which the RDA implements (the International Convention on the Elimination of all Forms of Racial Discrimination) that is not surprising. The Convention's definition of racial discrimination refers to any distinction, exclusion, restriction or preference based (among other things) on race which has the purpose or effect of nullifying or impairing (again among other things) the enjoyment of certain rights. Further, the basic obligations undertaken by States party to the Convention include taking effective measures to nullify laws which have the effect of creating or perpetuating racial discrimination. It is therefore wrong to confine the relevant operation of the RDA to laws whose purpose can be identified as discriminatory.

(Footnotes omitted)

427    Where the operation and effect of a law results in the unequal enjoyment of rights by persons of different races, s 10 of the Racial Discrimination Act operates to enhance the enjoyment of those rights to the extent necessary to eliminate the inequality. This may happen in one of two ways, as the plurality discussed in Ward HC at pp 99–100, referring to the decision of Gerhardy at p 98 (Mason J). The first is where racial discrimination arises under or by virtue of a State law because it omits to make enjoyment of a right universal, by failing to confer it on persons of a particular race. If so, then s 10 operates to confer that right on persons of that particular race: Ward HC at [106] (plurality); Gerhardy at p 98 (Mason J). The second is where the law in question imposes a discriminatory burden or prohibition which is directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race. In that circumstance, s 10 confers a right on persons prohibited by that law to enjoy the human right or fundamental freedom enjoyed by others. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State law such that the State law is invalid by operation of s 109 of the Constitution; the plurality of Ward HC at [107], [108]; Gerhardy at pp 98–9 (Mason J).

428    The arguments advanced by YNAC concerns the first. If its contentions are made out, s 10 of the Racial Discrimination Act may operate to confer equality of treatment on the Yindjibarndi people by conferring a right to compensation upon them but without invalidating the provision of the Native Title Act; Ward HC at [106], [108] (plurality).

429    This consequence was described by the plurality in Ward HC on some of the facts in that case, where the effect on native title of vesting reserves under the Land Act 1933 (WA) was considered. It was found that at the time of vesting, the only interests in the land which could be affected by the vesting and the holder of which would not be entitled to compensation would be native title rights and interests (at [252]). The vesting of the reserve in that case was valid, but the Racial Discrimination Act would supply to native title holders a right of compensation for that which is lost upon vesting (at [253]). A further example in Ward HC is more directly relatable to the present case. The plurality at [313] observed that the Mining Act provided in s 123(2) for compensation to be payable to the “owner” and “occupier” of land the subject of mining operations. Even though that Act does not, on its face, differentiate between the holder of native title rights and interests and the holders of other forms of title, if the effect of that Act is that the holders of native title rights and interests do not enjoy the same rights as others and if they cannot be properly described as “occupiers”, then s 10 is engaged; Ward HC at [311], [320] (plurality). I have found in section 6.3 above, that the Yindjibarndi people satisfy neither description. The consequences of this are explored later in this section.

430    In its first threshold argument, the State submits that the Racial Discrimination Act can have no operation in respect of the Native Title Act, including the provisions concerning compensation, because, in summary, the more specific provisions of the code contained in the Native Title Act relating to future acts supersede the provisions of the Racial Discrimination Act. For the following reasons I disagree.

431    First, the contention is contrary to the terms of the Native Title Act. Section 7 makes plain that the Native Title Act is to be construed subject to the provisions of the Racial Discrimination Act (s 7(1)), meaning that the provisions of the Racial Discrimination Act apply to the performance of functions and exercise of powers conferred by the Native Title Act (s 7(2)(a)). Section 7 also provides that any ambiguity in the Native Title Act should be construed consistently with the Racial Discrimination Act if that would remove any ambiguity (s 7(2)(b)). This adds little to the debate. However, s 7(3) provides that subsections 7(1) and 7(2) do not affect the validation of past acts or intermediate period acts in accordance with this Act. Whatever this sub-section means in relation to those acts, it is apparent that by electing in s 7(3) not to state that ss 7(1) and (2) do not affect the validation of future acts, the legislature allowed for the potential operation of ss 7(1) and (2) in relation to future acts.

432    As the plurality in Ward HC observed at [99]:

One effect of this section is that, contrary to what otherwise might follow from the fact that the NTA is a later Act of the federal Parliament, the NTA is not to be taken as repealing the RDA to any extent. The significance of s 7(3) is to make it clear that, notwithstanding the continued paramountcy of the RDA stated in the earlier sub‑sections, the effect of the validation achieved by the NTA is to displace the invalidity which otherwise flowed from the operation of the RDA. It is unnecessary to consider whether s 7 may have other operations.

(Emphasis added)

433    Section 45(1) of the Native Title Act provides:

If the Racial Discrimination Act 1975 has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation, in so far as it relates to the effect on native title, is to be determined in accordance with section 50 as if the entitlement arose under this Act.

(Emphasis added)

434    Accordingly, this provision allows for the application of the Racial Discrimination Act in circumstances where the Racial Discrimination Act has the effect that compensation is payable to native title holders in respect of an act that validly affects native title. The language “as if the entitlement arose under this Act” indicates that the entitlement under s 50 of the Native Title Act cannot arise under that Act. Rather, as the State submits, s 45 applies only where an entitlement to compensation arises outside the Native Title Act. As the plurality in Ward HC observed, this section takes what otherwise would be a right to compensation under State or Territory law, being a right brought into existence by the operation of the Racial Discrimination Act and transmutes it into a right to compensation under Division 5 of Part 2 of the Native Title Act. In practical terms, but for s 45 of the Native Title Act, compensation would arise under s 10 of the Racial Discrimination Act; Ward HC at [321]. Whilst YNAC submits that the emphasised words in s 45 do not exclude the possibility of s 45 applying where the Racial Discrimination Act operates within the Native Title Act to provide a right of compensation, I consider this too long a bow to draw based on the language of the provision.

435    Regardless of the position under s 45 of the Native Title Act, the provisions above do indicate on their face that the Racial Discrimination Act is to have a continuing operation after the passing of the Native Title Act. One would be slow to conclude that, in light of the specific references in the Native Title Act, that the Racial Discrimination Act has no operation (as the State contends) absent a specific mandate to consider otherwise.

436    Secondly, in my respectful view, the cases cited by the State do not provide that mandate. In the decision of the plurality in the Native Title Act Case their Honours were considering the constitutional character of the Native Title Act in the context of reliance by the State of Western Australia upon the provisions of the Racial Discrimination Act to challenge the validity of the Native Title Act (at p 483). The form of the Native Title Act was that which applied before Wik and the significant amendments to that Act that followed that decision.

437    The plurality in the Native Title Act Case observed that the provisions of the Native Title Act replace the protection afforded previously by the interaction of the common law and s 10 of the Racial Discrimination Act. After addressing in summary form the scheme of the features of the Native Title Act that are relevant to consideration of its constitutional character (at pp 453–9), the plurality observed that the effect of the Act is to remove common law defeasibility of native title, and secure the Aboriginal people and Torres Strait Islanders the enjoyment of their native title subject to the prescribed exceptions which provide for native title to be extinguished or impaired. The plurality noted at p 462 that the relationship of the Native Title Act with the Racial Discrimination Act has two aspects: first, the Native Title Act validates or permits the validation of past acts that were not of full force and effect because of the operation of the Racial Discrimination Act. Secondly, the Native Title Act affords protection to the holders of native title who had previously been protected by the Racial Discrimination Act. They noted that the regime established by the Native Title Act was now more specific and more complex than the regime under the Racial Discrimination Act (at p 462). However, before the passing of the Racial Discrimination Act the common law operated to provide protection to the holders of native title rights and interests. The Racial Discrimination Act did not alter the common law relating to native title (at p 463). Section 10 of the Racial Discrimination Act simply added statutory protection to the common law rights so that the holders of native title were able to enjoy their title equally with the enjoyment of other title by the holders thereof. The plurality said at page 463:

… Thus the Racial Discrimination Act protects native title holders against discriminatory extinction or impairment of native title. The Native Title Act on the other hand, protects native title holders against any extinction or impairment of native title subject to the specific and detailed exceptions which that Act prescribes or permits. The constitutional character of the Native Title Act is not to be determined by reference to the regime established by the Racial Discrimination Act, much less by reference to an estimate of whether it was necessary to replace it. …

(Emphasis in original)

438    The focus of the plurality was directed to the submission that the Native Title Act as a code was of itself discriminatory, not whether incidents of the operation of the Native Title Act might be discriminatory under the Racial Discrimination Act. In this context, the plurality said at p 483 that it is difficult to identify the legal purpose of s 7(1) of the Native Title Act, although it is clear that the Native Title Act does not either retrospectively or prospectively repeal the Racial Discrimination Act.

439    In rejecting the argument advanced by Western Australia that s 7(1) of the Native Title Act may be used as a vehicle for the destruction of the substantive provisions of the Native Title Act in relation to future acts, the plurality said that the argument faced considerable obstacles. First, that it was “not easy to detect any inconsistency” between the Native Title Act and the Racial Discrimination Act, the Native Title Act providing “the mechanism for regulating the competing rights and obligations of those who are concerned to exercise, resist, extinguish or impair the rights and interests of the holders of native title” (at p 483). In so doing, the plurality found that the Native Title Act adopts the legal rights and interests of persons holding other forms of title as the benchmarks for the treatment of holders of native title (at p 483). This conclusion does not assist the State in the present case. In saying that it was not easy to see any inconsistency between the Acts, the plurality was not finding that it may not be possible to do so in a given situation.

440    Thirdly, the plurality found that if there were any discrepancy in the operation of the two Acts, the Native Title Act “can be regarded either as a special measure under s 8 of the Racial Discrimination Act or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act” (at pp 483–4). I return to consider the “special measure” argument advanced by the State. However, it is apparent that the plurality did not, as the State now submits, find that the entirety of the Native Title Act is a “special measure” under the Racial Discrimination Act, such that none of its provisions may be subject to consideration of the operation of the Racial Discrimination Act.

441    Fourthly, the plurality considered that even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation. The plurality went on at p 484:

… The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. But it is only to that extent that, having regard to s 7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act.

Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s7(1) cannot be construed as intending to nullify those provisions. …

442    The qualified acceptance that the Native Title Act prevails over the Racial Discrimination Act addresses the argument then before the Court to the effect that the Racial Discrimination Act operated to invalidate the Native Title Act. In my view this language does not amount to a finding that the Racial Discrimination Act has no operation in the context of the Native Title Act. To the contrary, the passage invites consideration of the particular inconsistency that is alleged to arise between the Native Title Act and the Racial Discrimination Act and to apply its terms.

443    This conclusion is supported by the reasoning in Griffiths HC. One aspect of the case advanced by the native title claim group in that case was to contend that s 10(1) of the Racial Discrimination Act required that its non-exclusive native title rights and interests be valued in no different way from exclusive native title rights and interests and therefore at no less than freehold value; the plurality in Griffiths HC at [73]. No part of the Court’s rejection of that argument relied on the proposition that the Racial Discrimination Act had no application to the Native Title Act. To the contrary the plurality proceeded on the assumption that the Racial Discrimination Act had application to the compensation provisions of the Native Title Act saying in [84]:

…the equality of treatment mandated by s 10(1) of the Racial Discrimination Act, as reflected in s 51 of the Native Title Act, necessitates that the assessment of just compensation for the infringement of native title rights and interests in land include both a component for the objective or economic effects of the infringement … and a component for non-economic or cultural loss…

444    The State next challenges the continued application of the Racial Discrimination Act on the basis that s 10(1) of the Racial Discrimination Act must be read in conjunction with s 8(1) of the Racial Discrimination Act which excludes “special measures” to which paragraph (4) of the Convention applies. It submits that the whole of the Native Title Act is such a “special measure”.

445    For the reasons that follow, I do not agree that s 8(1) has the ambulatory effect for which the State contends.

446    The Preamble states in terms that the Native Title Act, together with the initiatives announced at the time of its introduction, is intended, for the purposes of Article 1.4 of the Convention and the Racial Discrimination Act to contain special measures for the advancement of the protection of Aboriginal people and Torres Strait Islanders.

447    In Gerhardy, the High Court considered whether s 19 of the Pitjantjatjara Land Rights Act 1981 (SA) was rendered invalid (or otherwise affected) by the Racial Discrimination Act. In concluding that it was not, the Court concluded that the Act in question was a special measure to which Article 1(4) of the Convention applies thereby ensuring that the Act was valid ( Gibbs CJ at pp 88–9, Mason J at p 106, Murphy J at p 108, Wilson J at p 113, Brennan J at pp 140–1, 143).

448     Chief Justice Gibbs said at p 88:

… The proviso that such measures should not lead to the maintenance of separate rights for different racial groups cannot be intended to prevent special rights being conferred for the purpose mentioned in the article; it must be intended to prevent such rights from being maintained, i.e., kept in force. In my opinion, the words of both limbs of the proviso should be read together. The proviso as a whole appears to be designed to prevent such special rights as are granted from being indefinitely maintained or continued after the special measures have achieved their objective.

449    Justice Brennan provided a detailed review of whether or not a provision amounted to a “special measure” at pages 132–142. That term is not a defined term in the Racial Discrimination Act but his Honour at pages 132–3 drew its meaning from Article 2 of the Convention which required the State Parties to, when the circumstances warrant, take in:

…the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

(Emphasis added)

450    His Honour observed that a “special and concrete measure” will be such a step taken by a State Party in performance of an obligation under Article 2(2) of the Convention and noted at p 133:

… The class to be benefited by a special measure must be a racial or ethnic group or individuals belonging to the group. The sole purpose of a special measure is to secure such “adequate advancement” or “adequate development and protection” of the benefitted class as is necessary to ensure “equal enjoyment or exercise of human rights and fundamental freedoms”. The occasion for taking a special measure is that the circumstances warrant the taking of the measure to guarantee that the members of the benefited class shall have “the full and equal enjoyment of human rights and fundamental freedoms”… From these conceptions, the indicia of a special measure emerge. A special measure confers a benefit on some or all members of a class, the membership of which is based on race, colour, descent, or national or ethnic origin, for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms.

(Footnotes omitted)

451    Justice Brennan then identified four indicia of a “special measure”. The first is that the beneficiaries are natural persons, not a corporation (at p 133). The second is that, although Article 1(4) refers to “racial or ethnic groups”, it should be understood as referring to the several categories of race, colour, descent or national or ethnic origin mentioned in Article 1(1) in order for Article 1(4) to be read symmetrically with Article 1(1) (at p 134). The manifest purpose of Article 1(4) is to exempt from the definition of “racial discrimination” those distinctions which are made for the sole purpose stated in that paragraph (at p 134). The third, is that the purpose of a legislative measure can be collected from its terms and from the operation which it has in the circumstances in which it applies, but international law does not require that these be regarded as the only sources from which the purpose of a measure can be collected (at p 135). Brennan J went on to say at p 135:

… Any fact which shows what the persons who took or who promoted the taking of a measure intended it to achieve casts light upon the purpose for which it was taken provided the measure is not patently incapable of achieving what was so intended. The intention of those persons is a matter of fact. The finding of facts in order to determine the scope or validity of a law raises a particular problem that does not arise on the finding of the facts in issue between litigating parties. It will be necessary presently to examine that problem but, for the moment, it suffices to say that the purpose of a measure may not be, or may not be merely, a question of construction.

452    It is apparent that a general statement of purpose, such as that set out in the Preamble to the Native Title Act will not be determinative. The particular operation of the “measure”, in the context of the Act as a whole, will be relevant.

453    The fourth indicium is described by Brennan J at p 137 as being whether there is a need to take the measure and does the measure “secure no more than adequate advancement?”. This, his Honour said is to be contrasted with the third. While the third is concerned with the purpose of taking the measure, the fourth is concerned with the need for the measure to be taken (at p 137). A measure taken for the purpose mentioned in Article 1(4) by the legislature is not a special measure “if there is no occasion for taking a special measure”. His Honour explained at p 137:

The third and fourth indicia of a special measure involve questions of fact and opinion. Is the object which the measure is intended to secure “adequate advancement” of the kind mentioned in Art. 1(4) and is the protection given the beneficiaries “necessary in order to ensure [them] equal enjoyment or exercise of human rights and fundamental freedoms”? To determine whether the measure in question is intended to remove and is necessary to remove inequality in fact (as distinct from formal inequality), the circumstances affecting the political, economic, social, cultural and other aspects of the lives of the disadvantaged group must be known and an opinion must be formed as to whether the measure is necessary and likely to be effective to improve those circumstances.

454    The State cites the decision of the New South Wales Court of Appeal in Durham in support of its position. That case considered the provisions of the Coal Acquisition Act 1981 (NSW). A challenge was brought on the basis that s 6(3) of the Coal Acquisition Act was inconsistent with s 10 of the Racial Discrimination Act by reason of the combined operation of that Act and the Native Title Act, based on the proposition that, as just terms were made available to Aborigines under the Native Title Act, to deprive coal owners of just terms would be inconsistent with the operation of s 10(1) of the Racial Discrimination Act (Spigelman CJ at [54]–[55]). The argument failed because the plaintiff, as a corporation, was not a “person of a particular race, colour or national or ethnic origin” and accordingly s 10 did not apply (Spigelman CJ at [63], [64]).

455    A further submission was advanced in Durham to the effect that s 10(1) of the Racial Discrimination Act applied in the context of s 51(1) of the Native Title Act, seeking to distinguish Gerhardy, contending that, if contrary to its submissions, the New South Wales legislature had the power to expropriate without just compensation, the Native Title Act conferred on holders of native title protection against expropriation that was not equal to that enjoyed by members of other races, but greater (Spigelman CJ at [81]). In rejecting that argument, Spigelman CJ said that the submission concentrated too narrowly on one specific matter, being compensation for the acquisition of property and to say that any different treatment with respect to that matter, considered separately, cannot answer the description of a “special measure” in circumstances where there is not equality with respect to the enjoyment or exercise by others of that particular matter when considered separately. However, he said at [84]:

The reference to “equal enjoyment or exercise of human rights and fundamental freedoms” extends to the full gamut of issues that can arise under that composite phrase. A unique measure, involving affirmative action or positive discrimination with respect to one particular aspect of conduct, may be justified for the purposes of ensuring “equal enjoyment or exercise” of other kinds of human rights and fundamental freedoms. So, relevantly, special provision in relation to matters of property for a group which has been traditionally deprived in various respects, including economic respects, can be justified as a “special measure” to permit the enjoyment of rights and freedoms unrelated to economic considerations alone, let alone limited to considerations with respect to the acquisition of the property itself.

456    As a consequence, his Honour considered that the Native Title Act is a “special measure” and so s 8 operated to deprive s 10 of the Racial Discrimination Act of any relevant effect “for the purposes of” that case (Spigelman CJ at [85]). These last words serve to confine the reasons to the particular circumstances before the Court of Appeal, however, the findings as to the Native Title Act amounting generally to a “special measure” are persuasive.

457    It is apparent from the reasoning of Brennan J in Gerhardy that the question of whether or not the object of scrutiny amounts to a “special measure” within s 8 of the Racial Discrimination Act is not to be determined simply by accepting a statutory statement to that effect, such as appears in the Preamble to the Native Title Act. Whilst that goes to the indicium as to purpose, other matters must be taken into account.

15.6    YNAC’s first Racial Discrimination Act argument

458    My conclusion that s 123(2) of the Mining Act in section 6 above does not provide for the payment of compensation to the Yindjibarndi people means that it is not necessary for me to address this argument, however, in case I am wrong in my conclusion, I do so below.

459    If s 123(2) were to be the source of compensation, YNAC submits that the section is discriminatory in two ways. First, because the terms of the Mining Act provide a lesser entitlement to compensation for the Yindjibarndi people as traditional owners to that conferred on other people who hold other interests for the same land. In this regard, it submits that the Mining Act draws a distinction between the owners of private land and traditional owners.

460    In this regard, YNAC contends that several provisions of the Mining Act provide that the owner and occupier of “private land” has rights and benefits that are not available to the holders of native title such that the operation of s 51(3) has discriminatory effect. This may be examined by reference to the following provisions of the Mining Act, to which I have made some reference in section 6 above.

461    Section 29(1) relevantly provides that a mining tenement may be granted in respect of “private land” but contains the proviso in s 29(2) that except with the consent in writing of the owner and occupier of the land concerned, a mining tenement shall not be granted in respect of land used for the purposes described which include if the land is within 100 m of, land which is: (a) under cultivation; (b) the site of a cemetery or burial ground; (c) the site of a dam, bore, well or spring; (d) the subject of a substantial improvement erected; or (f) a separate parcel of land of 2,000 m2 or less: unless the mining tenement is granted in respect of land at least 30 m below the lowest part of the natural surface of that private land.

462    This right of veto has been said to provide the basis upon which land owners and occupiers could negotiate substantial payments from a prospective miner based on the value of the minerals on the land, notwithstanding that s 123(1) of the Mining Act prohibits compensation being paid on that basis, a point noted by the authors of Hunt on Mining Law at [3.4.6]. The learned authors observe that there have been several attempts to remove or modify this right of veto, but to no avail.

463    Other provisions in Division 3 of Part 3 concern: the grant of permits in respect of private land (s 30); the giving of notice to the owner or occupier of private land over which a permit has been granted “on the first occasion that the holder” enters upon the land after the issue of the permit (s 31(1)) or; the sending of a notice to the address of an owner (s 31(3)) and the rights conferred by a permit (s 32(1)). Section 33 provides that a permit holder may apply for a mining tenement that relates to private land by notice to local government, the owner and occupier of the private land and to any mortgagee, unless the application concerns land at least 30 m below the surface of the land. The owner and occupier of the private land are entitled to be heard in relation to any application for the mining tenement (s 33(2)).

464    It is in this context that one comes to s 123 of the Mining Act which, as I have noted, by s 123(1) circumscribes the compensation available under s 123(2) preventing any claim for compensation “in consideration of permitting entry on to any land for mining purposes”. That prohibition does not apply at the earlier stage when an application for a mining tenement has been made in respect of private land.

465    Accordingly, taken as a whole, the effect of the terms of the Mining Act to which I have referred provide substantial benefits to the owner or occupier of private land by reference to this right of veto. The remuneration package available for the grant of a mining tenement where surface mining is involved may be considerable and could amount to something like the quantum of the exchange value case advanced by YNAC in the present case. Had I found that s 24MD(3)(b)(ii) of the Native Title Act was not satisfied, it may be that the operation of s 123(1) of the Mining Act, taken in the context of the provisions of the Mining Act as a whole, has a discriminatory effect on the Yindjibarndi people as the traditional “owners” or “occupiers” of land that is not private land when compared with owners and occupiers of private land. However, it is unnecessary to consider the consequences that might flow from this conclusion at this point.

15.7    YNAC’s second Racial Discrimination Act argument

466    The second argument advanced by YNAC is, in effect, that if the operation of ss 123(1) and (2) of the Mining Act precludes it from succeeding in its exchange value case, then it will be deprived of receiving just terms compensation to which it would otherwise be entitled under s 51(1) of the Native Title Act. That submission is predicated on the contention, which I have rejected, that just terms compensation under s 51(1) permits YNAC to succeed in its exchange value case. Accordingly, it is unnecessary to consider this argument further.

16.    WHO PAYS COMPENSATION? THE VALIDITY OF S 125A OF THE MINING ACT

16.1    Introduction

467    The State contends that if there is a liability to pay compensation in accordance with ss 24MD(3)(b) and 51 of the Native Title Act, by operation of s 24MD(4)(b)(i) of the Native Title Act then by operation of s 125A of the Mining Act the relevant FMG respondent (which I refer to below as “FMG”) is liable. At [237(b)(ii)] of its amended points in response, the State sets out of the different FMG respondents it contends are liable for which tenements, which I do not propose to repeat here. FMG contends that s 125A is invalid and that the State is accordingly liable to pay. It submits that because s 125A(1) purports to provide that any and all liability to pay compensation is payable by the applicant for the grant of or the holder of a mining tenement, the section is directly inconsistent with a number of provisions of the Native Title Act and thereby invalidated by force of s 109 of the Constitution.

468    For the reasons set out below, I consider that FMG is liable to pay under s 125A of the Mining Act and that that provision, insofar as it concerns liability to pay compensation in respect of future acts under s 24MD(4)(b) of the Native Title Act, is valid.

16.2    Consideration

469    Section 24MD(3) of the Native Title Act relevantly provides that in the case of any future act to which subdivision M of Division 3 of Part 2 of the Native Title Act applies (and that is not covered by sub-ss (2) or (2A)), if conditions (a) and (b) are met, then the native title holders “are entitled to compensation for the act in accordance with Division 5”.

470    Section 24MD(4) of the Native Title Act relevantly provides:

Who pays compensation

(4)    The native title holders may recover the compensation from:    

…

(b)    if the act is attributable to a State or Territory:

(i)    if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation —that person;

(ii)    if not —the Crown in right of the State or Territory.

471    Section 125A(1) of the Mining Act is a law of the State that meets the requirement of s 24MD(4)(b)(i). It provides:

(1)    If compensation is payable to native title holders for or in respect of the grant of a mining tenement, the person liable to pay the compensation is –

(a)    if an amount is to be paid and held in trust, the applicant for the grant of, or the holder of, the mining tenement at the time the amount is required to be paid; or

(b)    otherwise, the applicant for the grant of, or the holder of, the mining tenement at the time a determination of compensation is made.

472    Section 109 of the Constitution provides:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

473    In order for it to succeed in its argument, FMG must contend that s 125A of the Mining Act is wholly inconsistent with terms of the Native Title Act. Otherwise, to the extent there is inconsistency, the section will be rendered inoperative only to the extent of the inconsistency and only for as long as the inconsistency continues: Heli-Aust Pty Ltd v Cahill [2011] FCAFC 62; 194 FCR 502 at [55]. As the plurality explained in the Native Title Act Case at p 465 [107]:

…[t]he effect of s 109 on a State law that is inconsistent with a law of the Commonwealth is not to impose an absolute invalidity. On the contrary, the State law remains valid though it is rendered inoperative to the extent of the inconsistency, but only for so long as the inconsistency remains. The extent of the inconsistency depends on the text and operation of the respective laws.

(Citations omitted)

474    It will be recalled that s 24HA(2) of the Native Title Act relevantly provides for a future act that concerns the grant of a water management licence. Subsection 24HA(5) provides that “[t]he native title holders concerned are entitled to compensation for the act in accordance with Division 5” and s 24HA(6)(b) provides that the compensation is payable by, if the act is attributable to a State or Territory, the State or Territory. The essence of the submission of FMG is that the breadth of s 125A(1) of the Mining Act is such that the holder of the mining tenement will be liable to pay compensation, regardless of the terms of s 24HA(6). It refers also to ss 45 and 53(1) of the Native Title Act as other examples where provision is made for the State to be liable and which do not provide for the State to pass on liability to another person. It also refers to ss 52(5) and 52A(4) of the Native Title Act, which require that if the NNTT imposes a condition on a s 38 determination that security by bank guarantee be given or money be held on trust, and there is then a determination of compensation and there is a shortfall in the amount required to pay that compensation, the State is required to pay the shortfall. It submits that this is also inconsistent with s 125A.

475    FMG submits that while it is open to the Court to adopt a construction by reference to statutory purpose, such a construction must not depart too far from the statutory text, citing Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [35]–[40] (French CJ, Crennan and Bell JJ). In oral submissions, senior counsel for FMG referred to the Native Title (New South Wales) Amendment Act 1998 (NSW), which inserts s 281B into the NSW mining legislation to pass on liability for compensation specifically for s 24MD of the Native Title Act. FMG submits that the State in the present case is arguing that similar wording should be read into s 125A, and to do so would disregard the Western Australian Parliament’s broader intention.

476    Section 125A was introduced into the Western Australian Parliament in late 1998 in response to the 1998 amendments to the Native Title Act which introduced the future acts regime, including Division 3 of Part 2 of that Act. It was by those amendments that s 24MD(4)(b) of the Native Title Act was introduced which gave power to a State or Territory to make provision for another person to pay compensation. No other provision within Division 3 confers that power. So it is that, taking as an example, s 24HA operates to different effect.

477    Section 125A of the Mining Act was introduced by amendment under s 16 of the Acts Amendment (Land Administration, Mining and Petroleum) Act 1998 (WA). At the time that it was introduced, Kevin Prince, Minister for Police said (Western Australia, Parliamentary Debates, Legislative Assembly, 15 October 1998, 2188):

The Bill also contains amendments to the Mining Act, the Petroleum Act and the Petroleum (Submerged Lands) Registration Fees Act. These amendments shift the compensation liability of future acts onto the holder of the mining or petroleum title. The Native Title Act provides that when compensation is payable to native title holders, it shall be paid by the State unless the liability has been passed on to another party. This amendment will provide a statutory basis for passing that liability onto title holders.

(Emphasis added)

478    It is tolerably clear that the Parliamentary intention of s 125A was directed to circumstances where the Native Title Act allowed a State or Territory to pass on its liability to another party.

479    It is clear from these materials that there was no intention that s 125A would be in conflict with the terms of the Native Title Act. That intention is also reflected in s 7 of the Interpretation Act 1984 (WA) which provides that:

Every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power to the intent that where any enactment thereof, but for this section, would be construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power.

480    The provisions of the Interpretation Act apply to every written law unless express provision is made to the contrary or the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application: s 3(1) of the Interpretation Act.

481    In light of these matters, I consider that it is open to construe s 125A in a manner that is consonant with the policy and purposes for which it was granted and so as to recognise that it does not exceed the limits of State power. That course would involve reading s 125A as passing on the State’s liability solely in the circumstance where the Native Title Act provides for that to occur, but not more broadly. I do not consider this to be “too far reaching” a construction, as was submitted by FMG, but rather one that is consistent with the statutory purpose behind s 125A.

482    Alternatively, it is open to construe s 125A as inconsistent with terms of the Native Title Act only to the extent that it is inconsistent with those terms. Plainly enough, s 125A is not inconsistent with s 24MD(4)(b) of the Native Title Act. To the extent that s 125A is potentially inconsistent with s 24HA(6) and the other provisions of the Native Title Act cited by FMG, I consider that s 125A can have operation apart from those provisions: Wenn v Attorney-General (Vict) [1948] HCA 13; 77 CLR 84 at p 122 (Dixon J). I do not accept the submission advanced by FMG that s 125A is wholly inconsistent with the terms of the Native Title Act such that it must be considered to be invalid as a whole. In my view the State Parliament did not intend that the mining tenement holder pay compensation whenever compensation for or in respect of the grant of a mining tenement is payable under the Native Title Act. It intended only that such liability fall upon the tenement holder in circumstances where the Native Title Act provided for the State to pass legislation to that effect, which is confined to the circumstances under s 24MD(4)(b). That is the course that I prefer.

483    Accordingly, in my view s 125A of the Mining Act is valid to require that FMG pay any compensation to which YNAC is entitled in accordance with s 24MD(3) of the Native Title Act.

17.    THE REMAINING HEADS OF ECONOMIC LOSS

17.1    Introduction

484    The further heads of compensation for economic loss (in addition to the exchange value case outlined head of (1)) are:

(a)    the related loss of the opportunity of securing commercial benefits through the right to negotiate under subdivision P of Division 3 of Part 2 of the Native Title Act (head 2);

(b)    loss of or damage to country and to ancient occupation, cultural and Dreaming sites and Dreaming tracks (head 3);

(c)    the estimated cost of psychological and other services required to treat the social disruption/division and related psychological trauma within the Yindjibarndi community (head 4); and

(d)    interest on past economic loss (head 6; as noted earlier in this judgment, head 5 (costs of associated legal proceedings) was abandoned by YNAC).

485    I address each in turn below.

17.2    Loss of opportunity to secure benefits (head (2))

486    Above I have addressed YNAC’s first claimed head of compensation for economic loss, being the exchange value argument. However, YNAC also asserts a further head of compensation for economic loss, described in its pleadings (and as head 2 of economic loss in its heads of compensation) as:

The related loss of opportunity of securing commercial benefits through the right to negotiate under Subdivision P of Part 2, Division 3 of the Native Title Act 1993 (Cth).

487    YNAC cites [35] of its points of claim in relation to this head of compensation, which pleads that the economic value of the Yindjibarndi people’s right to negotiate under subdivision P of Division 3 of Part 2 of the Native Title Act has been diminished or impaired because the FMG tenements were granted without the Yinjibarndi people’s consent or receipt of any compensation.

17.2.1    The submissions

488    YNAC’s argument appears to be that the loss of the financial benefits (beyond direct royalties) which the Yindjibarndi community would have expected to receive from the mine is a compensable form of economic loss, both in connection with its right to negotiate under subdivision P and the loss of opportunity to negotiate with other miners generally. In its submissions, YNAC identifies its loss of the opportunity to secure commercial benefits from the right to negotiate as a separate form of economic loss to the exchange value argument. In oral submissions, counsel for YNAC described this loss as a distinct “add-on” to its economic loss arguments. YNAC contends that the right to negotiate under subdivision P is a valuable right which attaches to the Yindjibarndi people’s native title rights and interests. Notably though, YNAC accepts that the right to negotiate is not itself a native title right or interest. In support of its argument, YNAC refers to Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 at [25] and [33] (plurality), in which the High Court found that the right to negotiate is a “valuable right” that accrues to the native title holders (despite not forming part of the native title rights and interests). YNAC submits that this argument extends to the economic value of the Yindjibarndi people’s negotiation position in a non-statutory sense, in that the opportunity value of this position was lost once the grants were made to FMG.

489    YNAC’s argument appears to be that the loss of the financial benefits (beyond direct royalties) which the Yindjibarndi community would have expected to receive from the mine is a compensable form of economic loss, both in connection with their right to negotiate under subdivision P and the loss of opportunity to negotiate with other miners generally.

490    In supplementary submissions filed following the delivery of judgment in McArthur River, YNAC submits that this head of compensation was advanced on a similar basis to the economic loss claimed in McArthur River. However, it submits that in McArthur River, the applicant advanced its claim for economic loss on the basis that it was the loss of a chance to negotiate a hypothetical bargain with the miner in those proceedings and the Northern Territory under the Mining Act 1980 (NT). In contrast, YNAC’s economic loss claim is located as the loss of a chance to negotiate within the Native Title Act rather than characterising it as the loss of a chance to negotiate with FMG and the State. It submits that due to this differing characterisation, the Court’s reasoning in McArthur concerning the difficulties in assessing compensation by reference to a hypothetical outcome of a statutory negotiation process is not relevant to the Yindjibarndi people’s claim.

491    The State and FMG’s submissions largely address the second head of compensation together with the first head of compensation. In summary, they submit that as a first point, the loss of an opportunity to negotiate under subdivision P is not a native title right or interest and does not form part of the compensable loss in respect of the future acts. This remains the case regardless of whether the purported loss relates to the opportunity to negotiate with FMG, or with some other hypothetical miner). They also submit that even if that was the case, YNAC did have the opportunity to negotiate an agreement with respect to those acts and that all necessary procedures contained in subdivision P were complied with, such that the acts are valid future acts (being the basis on which this case has proceeded). The NNTT did not find in relation to any of the tenements that FMG had failed to negotiate in good faith. Accordingly, the respondents submit that the fact that no agreement was reached and the future acts were subsequently granted without the Yindjibarndi people’s consent does not equate to a “loss of opportunity” to negotiate and secure commercial benefits.

492    The State also notes that under the relevant provisions of the Mining Act, YNAC had no ability or right to negotiate with any person other than FMG with respect to the compensable acts, and so any submission that there was a loss of opportunity to negotiate more broadly is baseless. It observes that the priority regime under ss 18, 23, 27 and 105A of the Mining Act in respect of tenements applied for over the same area means that there can only ever be one miner with whom a native title party could negotiate an agreement with at any particular time. Similarly, FMG submits that at the time the FMG tenements were granted, the good faith negotiation period had expired and no other miner would negotiate with YNAC when the grant of the FMG tenements was imminent, and hence no opportunity has been identified that was lost as a result of the gran.

17.2.2    Consideration

493    The conceptual difficulty with the characterisation advanced by YNAC is the same which I have addressed in some detail in section 12 under the “just terms compensation” heading. However branded, in my respectful view a calculation of economic loss by reference to a value based on subdivision P agreements is not sustainable given that in Griffiths HC compensation for economic loss is tethered to the freehold value of land. That this is only a question of branding, rather than substance, is demonstrated by the fact that YNAC relies on the same evidence in support of its claim under the loss of opportunity head as it does under its exchange value heading.

494    Furthermore, I accept the submission of the State and FMG that rights under subdivision P form neither part of the native title rights and interests of the Yindjibarndi people nor arise as a consequence of a future act, a matter that I consider in more detail under when considering the claim advanced in relation to social disruption (see section 26.7 below).

495    Accordingly, this head of compensation must have the same fate as the exchange value case.

17.3    Loss or damage to country (head (3))

17.3.1    The submissions

496    YNAC advances as (3) of its heads of compensation for economic loss that it is entitled to “damages for economic loss arising from loss of or damage to country and to ancient occupation, cultural and Dreaming sites and Dreaming tracks”. It cites in support of its claim an article by the Hon J Jagot, Compensation for Economic Loss (2022) 96 ALJ 832 (ALJ article) at p 843. It contends that there is an objective component of loss that may be calculated separately to the exchange value of the land that is not merely subjective loss of the type considered under the rubric of cultural loss. As expressed in closing submissions, the claim is confined to two forms of loss arising from first, site destruction and secondly, destruction of Dreaming tracks.

497    In relation to the first, YNAC relies on the agreement reached in a joint report dated 12 October 2024 between archaeology experts Professor Peter Veth and Dr Caroline Bird on the one hand (who were retained by YNAC) and Mr Douglas Williams on the other hand (who was retained by FMG):

3    Within the Solomon Hub Project, 249 sites have been subject to s 18 consents under the Aboriginal Heritage Act 1972 (WA) and recorded to site identification level in accordance with the requirements of the s 18 process. The majority of these have been destroyed.

4    Many sites and archaeological places (greater than 285) have been salvaged in whole or in part as mitigation. This represents a substantial effort to mitigate the loss of cultural material.

(Emphasis added)

498    The term “salvage” is a reference to “Aboriginal sites or heritage places that have been subject to archaeological or cultural salvage… The salvage process will involve removal and preservation of artefacts or other significant cultural material from the location”.

499    YNAC submits that, as a result of the damage to Aboriginal sites (a term broadly defined in ss 4, 5 of the Aboriginal Heritage Act 1972 (WA)), the social and cultural value of these sites has been diminished. It also refers to the unapproved destruction of a site, based on the statement of agreed facts at [25] in which it is agreed between the parties:

Following the disturbance of a Yindjibarndi place (a jinbi [permanent spring]) by FMG during ground clearance work associated with the SHM, on 16 August 2007 a meeting was held involving representatives of FMG and the Yindjibarndi Council. A three point-document was signed by those present relating to the incident and regarding future involvement of Yindjibarndi people in heritage survey work with FMG.

500    In relation to the second part of this head of compensation, YNAC contends that it should receive compensation for economic loss on the basis of the damage to six Dreaming tracks, including the destruction of the portions of the Bundut as well as jowis, relying on the evidence of the anthropologist, Dr Kingsley Palmer.

501    In terms of valuation, YNAC submits that compensation for the destruction of the sites ought to be assessed by reference to amounts payable for the unlawful destruction of sites that would be required under to the Aboriginal Heritage Act and the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) s 34(1). Under s 17 of the Aboriginal Heritage Act, a site excavated, destroyed, damaged or concealed without consent, or an artefact altered, damaged, removed, destroyed or concealed in a manner not sanctioned by relevant custom without consent may be prosecuted. Under s 57(1)(b), proven offences by a body corporate incur a penalty of $50,000 for a first offence, $100,000 for a subsequent offence and, in any case, a daily penalty of $1,000. Under the Northern Territory Aboriginal Sacred Sites Act a person who without authority carries out work on a sacred site may incur a maximum of penalty of $350,000.

502    Based on these metrics, YNAC claims under compensation head (3) for economic loss as follows, being YNAC’s estimate of the penalty that FMG is liable to pay for the destruction of sites in the land the subject of the Solomon Hub Project within the Compensation Claim Area, which should be paid for the purpose of discouraging body corporates from destroying sites:

503    FMG submits that it is not clear why there should be extra compensation for the economic loss caused under this head of compensation when there is a claim for cultural loss which will be payable when applying Griffiths (No 3) at [234], [323] and that the assessment by YNAC of loss by reference to statutory penalties, in circumstances where the acts of FMG were lawful and authorised under Ministerial consent given under s 18(3) of the Aboriginal Heritage Act, is misconceived. If damage to and destruction of sites and Dreaming tracks is compensable as economic loss at all, FMG submits that no proper attempt has been made to value the “actual and objective loss experienced by all” as contemplated in the ALJ Article.

504    The State submits that the claim under compensation head (3) is not a form of economic loss but reflects the kinds of losses which (it accepts) may be considered in assessing cultural loss. By taking into account this head in assessing economic loss, YNAC offends the principle against double compensation, citing Griffiths HC at [105] (plurality). Otherwise, the State joins in challenging the methodology of YNAC in calculating compensation by reference to penalties awarded for contravention of the Aboriginal Heritage Act, rather than by reference to principles applicable to the award of compensation and says that there is no evidence before the Court that indicates that FMG have not complied with the requirements of that Act. It further disputes the factual basis for the claim in respect of damage and destruction to some of the six Dreaming tracks.

17.3.2    Consideration

505    The passage upon which YNAC relies in the ALJ Article is at p 843:

But it does not follow accepting that compensation is payable for this kind of loss, that “cultural loss” is wholly and only one-sided (from the perspective of the holders of the rights and interests) and non-economic.

As discussed, there is another potential aspect of “the sense of loss of connection to country suffered by the Claim Group”. It involves recognising that the sense of loss is not a mere “sense” (as in a perception or feeling) at all. That is, the loss is not merely subjective, experienced only by the holders of the native title. It involves an actual and objective loss experienced by all.

The proposition that a person need not share a culture for the person to accept that the continued existence, vitality and richness of the culture has economic value does not seem inherently radical. …

506    I accept that occasions may arise where an objective value of loss of culture may arise and that it is possible for it to sound in compensation within the context of economic rather than cultural loss. However, in my view that has not been established in the present case. The evidence upon which YNAC relies is examined in detail in my consideration of compensation for cultural loss. There, I accept that the damage and destruction of cultural and heritage sites is a powerful aspect of the subjective loss that the Yindjibarndi people have suffered as a result of the compensable acts. However, the evidence upon which YNAC relies does not serve to provide any point of distinction between a valuation as economic loss and loss for the same damage under the rubric of cultural loss. I note that the highpoint of the evidence is the agreed position of the archaeological experts that:

…the body of sites [within the Solomon Hub Project], collectively, is regionally significant and is able to contribute to nationally important issues in the field of First Nations Archaeology and specifically the occupation of the arid zone of Australia.

507    Other evidence relied upon by YNAC from the anthropologist, Dr Palmer, concerns the damage done to the same sites and the interruption of Dreaming tracks which overlap entirely with the claim for cultural loss and which is most appropriately addressed under that heading.

508    I accept that harm to a body of archaeological sites that are considered to be regionally significant as archaeological sites is capable of forming a part of economic loss insofar as it has a separately measurable economic value. However, then the question posed would be how to value any economic loss arising from the destruction of such sites. As a part of Australia’s archaeological record, they may be regarded as of some value, possibly significant value, but the assessment of economic loss does not have the impressionistic aspects that cultural loss permits. The solution offered by YNAC is a valuation calculated on a per site and per Dreaming track amount drawn from the amount of penalty that would be levied on FMG for breaches of the Aboriginal Heritage Act. No breach is alleged or has been proven. Such amounts are inherently punitive rather than compensatory. Absent further evidence to suggest a calculation, I am not able to put a figure on the economic loss that might arise from the destruction of a regionally significant body of archaeological sites within the Compensation Claim Area.

17.4    Psychological trauma (head (4))

17.4.1    The submissions

509    YNAC contends that the Yindjibarndi people are entitled to compensation for economic loss for the cost of psychological and other care arising from the trauma caused to them by the grant of the FMG tenements. This claim is based on the evidence of Dr Jeffrey Nelson who gives his opinion that the current division in the Yindjibarndi community includes costs for a psychological intervention strategy that includes administrative staff, psychologists, housing, travel and a healing centre. Based on his evidence, YNAC claims:

510    FMG submits that the psychological injury described by Dr Nelson is not a compensable economic loss.

511    The State submits that the loss claimed is not a compensable form of economic loss because it does not represent a loss referable to the rights of the Yindjibarndi people in relation to the land and waters as contemplated under s 223(1)(a)–(c) of the Native Title Act. It submits that for a number of reasons, in any event, Dr Nelson’s evidence should be afforded little weight and that he has no expertise in establishing such a health and wellbeing centre and therapeutic program and as such cannot accurately provide the estimates upon which YNAC relies. FMG makes similar submissions. It too challenges the veracity of the evidence of Dr Nelson in calculating the cost of the intervention strategy and his qualifications to provide such an estimate. FMG also notes that the claim includes $1.74 million per year for 60 years as “ongoing costs” and submits that such a figure that is unjustified.

17.4.2    Consideration

512    YNAC claims as a further head of economic loss the sum of $112,140,000 for care arising from the trauma caused to them by the grant of the FMG tenements. To the extent that this is compensable, in my view it too must be consigned to assessment under the heading of cultural loss. I address this, including the evidence of Dr Nelson, in further detail below.

17.5    Interest on the claim for economic loss (head (6))

17.5.1    Introduction

513    YNAC pleads that it is entitled to compound interest on compensation calculated from the date of the first compensable act up until the date when the determination of compensation is made: points of claim [46(d)]. The State and FMG contend that simple interest on compensation payable for economic loss is appropriate on the basis of s 51 of the Federal Court of Australia Act 1976 (Cth) and that it should be calculated at the rate set out in the Federal Court’s Interest on Judgments Practice Note (GPN-INT) (Interest Practice Note).

514    The essence of the submission advanced by YNAC is that the reasoning of the Court in Griffiths No 3 and also Griffiths HC permits, in suitable circumstances, an award of compound interest for economic loss, consistent with the observation of the High Court in Hungerfords v Walker [1989] HCA 8; 171 CLR 125 at [41] (Mason CJ and Wilson J). It relies on the evidence of Michael Woodley at [244]–[265] of his witness statement signed 5 June 2023 and annexures to this document being MW-67 and MW-68 to provide an evidentiary basis for the conclusion that compound interest should be awarded. It relies on the evidence of Mr Meaton to provide the calculation of interest based on its exchange value case. As I have rejected the exchange value case, it is unnecessary for me to consider the evidence of Mr Meaton.

17.5.2    The evidence

515    The evidence of Michael Woodley is directed to the commercial arrangements of organisations within the Yindjibarndi community. Michael Woodley manages and oversees the day-to-day operations of YNAC and also YAC. He is also the Chief Executive Officer of Yindjibarndi Nation Limited (YNL). YAC is the prescribed body corporate for the Yindjibarndi part of the Ngarluma Yindjibarndi determination and, as I have noted earlier, YNAC is the prescribed body corporate for the Determination in the present case. Michael Woodley is also chairperson of the Ngarluma Yindjibarndi Foundation Ltd, an organisation set up through an agreement between the Yindjibarndi people, Ngarluma people and Woodside Energy, in 1998.

516    Michael Woodley gives evidence that in August 2013, YAC, the Yindjibarndi #1 applicant and Rio Tinto entered into an agreement to permit Rio Tinto to put the Robe and Hamersley railway lines to go through Yindjibarndi country. During the course of negotiations, from 2011, the YAC board started working on a strategy for dealing with the benefits that were to come from Rio Tinto so that they could be used to generate wealth, jobs and training for the community. It developed a model called the “three Cs” that focusses on “community, culture and commercial” which ties in the Rio Tinto Agreement with the activities of YAC. A participation agreement (Rio Tinto Participation Agreement) between YAC, the Yindjibarndi #1 applicant and Rio Tinto was entered into in August 2013. Michael Woodley annexes a diagram of the structure setting out the “three Cs Principle” which depicts the scope of the organisational arrangements. In June 2014, YAC published an organisational prospectus that set out the three Cs model and the corporate structure that had by then been established and describes the activities contemplated.

517    Michael Woodley explains that money paid by Rio Tinto to YAC under the Rio Tinto Participation Agreement was paid into the Yindjibarndi People Community Trust and the Yindjibarndi Commercial Trust in fixed proportions. He explains that since 2013, the Yindjibarndi people have engaged in a number of commercial ventures which may be summarised as follows:

(1)    Yurra Pty Ltd was established as a joint venture with Liam Wilson from Port Hedland. It began as a landscaping and ground maintenance business and has diversified and grown since then. It has been in operation for over 10 years and now employs 170 staff (one third of whom are Indigenous) and in the financial year ending 30 June 2022 earned revenue of $57 million. The business includes commercial cleaning, rail maintenance, civil construction and building construction and maintenance;

(2)    In 2016, a joint venture between Yurra and Geraldton Building Services and Cabinets (GBSC) was established to re-develop the Victoria hotel site at Roebourne using an Indigenous training model including courses, traineeships, apprenticeships and employment. Of the approximately 30,000 hours worked on the site, more than 10,000 of those were performed by Indigenous people. The joint venture has since worked on other significant projects in the region, including the Walgu Park in Karratha. Yurra has acquired a majority interest in GBSC;

(3)    In 2013, the Yindjibarndi people acquired the Victoria Hotel in Roebourne for $2.5 million through Yindjibarndi Wealth Pty Ltd (a commercial arm of their corporate structure). In 2016, the Yurra joint venture began refurbishing part of the hotel and building a modern addition. The project cost was $8.9 million funded in part by Federal and State Government grants. The amount of $4.5 million was funded from the Rio Tinto Participation Agreement. The new building called “The Ganalili Centre” resulting from this project was opened in September 2019. At the time of his statement, construction was underway on the Ganalili Accommodation and Training Facility;

(4)    In 2021, the Yindjibarndi people and Rio Tinto began to modernise their arrangements and entered into a new agreement in 2022. Under it, Rio Tinto is to pay the Yindjibarndi people $20 million per year for 10 years. In a newsletter published to the Yindjibarndi people in April 2023, YAC and YNAC described how the funds are to be distributed, to both Yindjibarndi Community and Commercial Ltd (YCCL) and Yindjibarndi Nation Limited (Management & Delivery) (YNL). The money received by YCCL (after $1 million is repaid to Rio Tinto for a loan monies owed) funds both: a community trust that goes to future funds and community distribution; and a Yindjibarndi Capital and Wealth Trust. Monies received by YNL were to be distributed to support a range of programs, projects and new initiatives that cover the three Cs Principle.

(5)    Included in the newsletter is a summary of the community interactions and the commercial activities conducted by YAC and YNAC. The reference on the right hand side to “Yurra” concern the commercial activities of Yurra Pty Ltd. The reference to “car hire” is to a franchise operation for car rental operated in Karratha and Port Hedland with new operations planned. The reference to “water” and “Yiyangu” are described by Mr Woodley as early-stage projects in water and renewable energy.

17.5.3    Consideration

518    In Griffiths (No 3), Mansfield J concluded that the Court could award compound interest on the market value of the notional sale value of the native title rights and interests if the claim group demonstrated that it would have applied the funds received as compensation “as working capital in a business or trade and that business or trade would have been successful to a significant degree” (emphasis added): at [253]. Such interest would be awarded if the Court decided that it was appropriate to secure fair compensation or compensation on just terms, on the basis that interest is awarded as part of the compensation: at [252], [254]. His Honour was not persuaded that the evidence supported a finding that the native title holders would either have invested the money on a compound basis (at either “superannuation” or “risk-free” rates) or in any enterprise which would have longer term been productive of economic earnings at sufficient levels to deviate from an award of simple interest: at [275]. Although there was evidence of commercial activity, his Honour was not persuaded that the claim group, if they had received the market value of the land when their native title rights were affected by the compensable acts, would have used those monies by investing them without any expenditure, accumulating the interest year by year, to the present time or alternatively, used the monies so received to undertake a commercial activity which would have been profitable to the same or a greater degree: at [277].

519    In Griffiths FC, the Full Court observed that the primary judge’s findings in this regard were not challenged, noting that his decision may not have been the conclusion that they reached: at [209].

520    In Griffiths HC the plurality considered, without deciding, that it may be that an award of compound interest would be warranted to compensate for the lost opportunity of investment or to defray the costs of doing business, by analogy with damages awarded at common law to compensate for expenses incurred or opportunity costs arising from moneys paid away or withheld as a result of breach of contract or negligence. However, it noted that there was “sparse” evidence that the claim group would have invested the compensation at a profit and no sufficient that the claim group incurred costs that could have been avoided with the aid of an earlier payment of the compensation: at [133], see also Edelman J at [341].

521    On the basis of the reasoning of the Courts in Griffiths, it is apparent that the point of principle is not settled.

522    In Wallersteiner v Moir (No 2) [1975] 2 WLR 389 at pp 393–394 (as cited by Mansfield J in Griffiths (No 3)), Lord Denning said the following regarding the grant of compound interest:

On general principles I think it should be presumed that the company (had it not been deprived of the money) would have made the most beneficial use open to it: cf Armory v. Delamirie (1723) 1 Stra. 505. It may be that the company would have used it in its own trading operations; or that it would have used it to help its subsidiaries.

523    Scarman LJ further notes at p 410:

The question whether the interest to be awarded should be simple or compound depends upon evidence as to what the accounting party has, or is to be presumed to have done with the money. As Lord Hatherley L.C. said in Burdick v. Garrick, 5 Ch.App.233, 241:

“the court does not proceed against an accounting party by way of punishing him for making use of the plaintiff’s money by directing rests, or payment of compound interest, but proceeds upon this principle, either that he has made, or has put himself into such a position as that he is presumed to have made, 5 per cent., or compound interest, as the case may be.”

524    The evidence of Michael Woodley, I accept, does not provide a complete accounting record of investments made and their yield. However, it does demonstrate that YNAC is part of a group of companies that is and has been actively engaged in corporate activity with an investment strategy that puts its funds into mixed assets including business activities and cash reserves held on trust. One of its business is Yurra. The Yindjibarndi people via Yindjibardni Wealth own 66.7% of Yurra via its commercial trust. Yurra in turn owns 75% of GBSC Yurra. Yurra generated an income of $57 million in the financial year ending 30 June 2022. There are plans to integrate Yurra and GBSC businesses into a multidisciplinary contracting and services group with a target revenue of over $200 million per year. The flowchart indicates that monies earned from businesses such as Yurra are subsequently invested into the Yindjibarni Wealth Pty Ltd. I am satisfied that YNAC would have used the funds to the most beneficial effect open to them and would not simply have applied them to an interest bearing account. Accordingly, I am satisfied that YNAC is entitled to compound interest on the economic loss compensation amount, calculated from the date of each of the future acts.

18.    THE EXPERT VALUATION EVIDENCE

18.1    Introduction

525    In the dispute regarding the assessment of economic loss YNAC called two expert witnesses and FMG relied on the evidence of three. All were cross-examined. I found these witnesses to be attentive and careful, each doing their best to assist the court. Below, I summarise the effect of their written evidence.

18.2    The YNAC expert reports

18.2.1    Murray Meaton

526    Murray Meaton AM is a minerals economist. He holds a Bachelor of Science in Agriculture and a Bachelor of Economics. In the 1970s and 1980s, he held various research and policy positions in government, including as a policy economist for the Department of Agriculture of Western Australia from 1978 to 1982 and 1984 to 1986. From 1987 until 1996, he was Director of the Department of Minerals and Energy. Since 1997, he has participated in over 200 negotiations between traditional owners and mining companies concerning land access, minerals, oil and gas, acting for both sides of the ledger.

527    Mr Meaton gave two reports, dated 22 March 2023 and 15 October 2024 and three joint expert reports, one with Mr Hall and two with Mr Jaski. Mr Meaton’s first report contains his substantive expert opinion evidence. In his second report, Mr Meaton responds to a request asked to prepare a compound interest calculation based on the agreed sales revenues for historic and forecast production from the FMG tenements within the Compensation Claim Area.

528    Mr Meaton joined with Mr Jaski in the preparation two joint reports dated 22 March 2024 and 1 October 2024 and a joint report with Mr Hall dated 22 March 2024 (Hall/Meaton JER).The 1 October 2024 joint report, was prepared based on the assumption (contrary to Mr Jaski’s view) that a royalty payment based on the value of the iron ore produced in the Solomon Hub Project is appropriate. Mr Jaski’s preferred approach is explained below. Mr Meaton gave concurrent evidence separately with each of Mr Hall and Mr Jaski, during which he was cross-examined.

529    In his first individual report, Mr Meaton said that his consulting business, Economics Consulting Services, was engaged to provide advice on the royalty rates that other mining producers pay as a matter of course to Indigenous groups in the Pilbara and elsewhere to obtain their consent to mining activities on land where those Indigenous groups possess or assert that they possess native title rights and interests. More specifically, he was asked to provide his opinion, based on desktop research, as to how much revenue FMG had derived from the Solomon Hub mine, the proportion of that mine which is on the Determination Area and how much further revenue it could expect to derive from that mine for its life.

530    Mr Meaton relied on figures from various reports prepared by FMG and consulting firm Wood Mackenzie to project the future production of the Solomon Hub Project. By overlaying maps of ground disturbance caused by the Solomon Hub Project on a map of the Determination Area, Mr Meaton estimated that 55% of the surface area of the ground disturbance caused by the Solomon Hub Project fell within the Determination Area. Based on the figures then available to him, Mr Meaton provided an estimate of the total production to date of the Solomon Hub Project and a forecast of future production.

531    He also considered iron ore prices and revenue, informed by reports prepared by FMG. Future prices and exchange rates were forecast using data from the Australian Government Office of the Chief Economist.

532    Mr Meaton was next asked, in the event that FMG had reached an agreement with the Yindjibarndi people for payment of royalties in accordance with any common or standard practice for such agreements in the Pilbara, what would the approximate value of the royalty component of that agreement be to the Yindjibarndi people in monetary terms?

533    In answer, Mr Meaton considered his involvement in negotiations between indigenous owners and mining companies and the royalty rates of which he was aware that had been negotiated in agreements between the holders of native title rights and interests (and claimants for such rights and interests) on the one hand, and mining companies on the other, seeking permission for future acts under the Native Title Act. He said that such agreements mostly include a mix of benefits for the indigenous claimants consisting of: (a) royalties based on the value of minerals sold; (b) fixed cash payments; (c) employment and training opportunities; and (d) business development assistance and in his opinion a negotiated mining agreement in respect of the Compensation Claim Area would include a mix of all of these benefits.

534    In his report, he says that he has been involved in native title negotiations since 2004 and he has accumulated financial details of over 100 future mining agreements, 44 of which are iron ore projects. He gives evidence that he selected from his records 38 such agreements, negotiated between 2006 and 2021, located in the Pilbara, where the mines concerned were for the extraction of iron ore and manganese. I refer to these below as subdivision P Agreements. These subdivision P Agreements applied to land under a registered claim or with determined non-exclusive native title rights, but none applied to land with determined exclusive native title rights. Based on his understanding of these agreements, he gave the opinion that royalty rates agreed between Indigenous owners and miners have ranged from 0.05% to 1.0% of the sales revenue. He said that the average rate is 0.55% of the FOB sales revenue, with the most common rate in the Pilbara “by far” being 0.5%.

535    In Appendix C to his report, Mr Meaton explains that he has calculated an average royalty rate agreed in the Pilbara region based on the subdivision P Agreements, which he says were executed between 2006 and 2020. He says that close to 60% of projects fell in the range of 0.50% to 0.60% based on the FOB sale value of the iron ore, and notes that the rate of 0.50% has been publicly quoted as that used by Rio Tinto. He also notes that projects with long mine lives and scale can provide a wider range of benefits including more employment and business opportunities than smaller projects.

536    Mr Meaton was asked to assume that the value of exclusive native title rights and interests equates to 100% of the value of an unencumbered freehold estate and non-exclusive native title rights and interests equate to 50% of those interests, based on Griffiths HC; plurality at [107], Gageler J at [241], [294]. Noting that the subdivision P Agreements only included land under a registered claim or with determined non-exclusive native rights, he then expressed the following conclusion:

Given the relationship assumed between exclusive and non-exclusive rights, Economics Consulting Services considers that the 0.5% royalty rate most commonly used in the iron ore sector should be increased to 1% for Traditional Owners who have firstly, had their rights recognised in a determination and secondly, those determined rights include a right of exclusive possession.

(Emphasis added)

537    Relying on the reasoning in Griffiths HC, which will be further explored in section 18.3 he calculates simple interest on the basis that the Yindjibarndi people have been deprived of royalty payments since production commenced. Interest was calculated using methodology and rates published in the now revoked Federal Court’s Practice Note CM 16 Pre-Judgment Interest (PN CM16), being the Practice Note that applied when production from the Solomon Hub mine commenced. Simple interest was calculated for each six-month period starting from the next half year in which the compensation was payable.

538    Mr Meaton then proceeded to place a dollar value on those royalties, based on the figures that he had been provided. Those figures were subsequently updated. YNAC, the State and FMG agreed that up to 30 June 2023, the State has received [REDACTED] in royalties from that portion of the Solomon Hub Project that falls within the Compensation Claim Area. Production data was produced on discovery by FMG in April 2024. Mr Meaton and Mr Jaski prepared their 1 October 2024 report based on the updated information. Although the underlying data relied upon in the production of the 1 October 2024 report was not tendered, no objection was taken to their report and Mr Meaton and Mr Jaski were not cross-examined about it. That report sets out the figures proposed by Mr Meaton, based on calculations of royalties at 0.55% of the FOB sales value of historical and future iron ore extracted from the Compensation Claim Area (being Mr Miles’ valuation as the appropriate royalty rate) and 1.0% (being Mr Meaton’s valuation as the appropriate royalty rate).

539    Following this, in his second report Mr Meaton was asked to prepare a compound interest calculation in the event that the applicant establishes that compound interest ought to apply to compensation awarded. Interest calculations were provided based upon royalty rates of 0.55% and 1.0% of the FOB sales value.

540    The final tables displaying interest calculations implementing simple and compound interest from Mr Meaton’s second report are as follows:

[REDACTED]

18.2.2    Mr Miles

541    Brian Miles has been working in real estate as a valuer since the 1970’s, including seven years as a licensed real estate agent and salesman, and has specialised since that time in valuing broad acre rural property in Western Australia, residential commercial and industrial properties and pastoral, plant and machinery and businesses.

542    Mr Miles provided two expert reports, one dated 31 January 2024 entitled “Valuation Report, Yindjibarndi country, Hamersley Road, Mount Sheila, WA 6751” (Miles report) and the other dated 18 March 2024, entitled “Applicant’s expert valuer’s short response to the FMG Respondents’ expert valuation reports”. He cooperated with Mr Hall in the preparation of a joint expert report dated 22 March 2024 (Miles/Hall JER) and with Mr Jaski in the preparation of a joint expert report dated 22 March 2024 (Miles/Jaski JER) and gave concurrent oral evidence with both of those witnesses during which he was cross-examined.

543    Mr Miles was instructed that YNAC holds in trust for the Yindjibarndi people the native title rights and interests in the Determination Area and that it holds those rights exclusively in the exclusive area. He was referred to the FMG tenements and informed that the native title rights and interests have been diminished by the grant of those tenements and by the activities carried out under them. He was asked to assume a number of matters going to: the life of the Solomon Hub Project; production levels of iron ore from the Solomon Hub Project; that the grant of the FMG tenements has caused and will continue to cause significant physical interference with the Yindjibarndi people’s rights of occupation, use and enjoyment of the land; and, that there is a common or standard practice for miners to enter into compensation agreements (that mostly include a mix of benefits) with native title parties to secure their consent to mining activities on land and waters where the native title party either possesses, or asserts that they possess, native title rights and interests. Mr Miles was further asked to assume that those agreements include royalties payable based on the FOB price at Port Hedland with a range from 0.05% to 1.5% of the FOB sales revenue. Mr Miles was provided with an explanation of key principles emerging from Griffiths HC, the compensation provisions in the Native Title Act and s 123 of the Mining Act as well as subdivision P of the Native Title Ac.

544    Mr Miles was asked to write a report giving his opinion as a valuer as to the “highest and best use of the land” the subject of the FMG tenements and what would be a reasonable method for assessing the economic loss component of the compensation payable to the Yindjibarndi people by either FMG or the State. He was asked in particular whether a fair and reasonable method of valuing economic loss would be by reference to the royalties which miners in the Pilbara commonly agree to pay native title parties in return for their consent to mining on their traditional lands and waters.

545    In answer, Mr Miles considers that the highest and best use of the Determination Area is as the traditional country of the Yindjibarndi people with this not being comparable to the use of pastoral land by pastoralists. He says that the best available measure of value of the native title rights and interests is what other native title holders have agreed to accept for the impact of mining on the exercise and enjoyment of equivalent native title rights and interests, in a context where compensation to landholders for the impact of mining in Western Australia is almost always resolved by agreement. He calculates this by reference to an annual royalty likely to be agreed between FMG or the State and the Yindjibarndi people which he calculates to be based on a “lost royalty cash flow” or “compensation royalty” going into the future based on a rate of 0.55%. In his second report, Mr Miles explains that he assessed the highest and best value of the land based on the indications of the value of the Yindjibarndi people’s rights to use the land for traditional purposes, which he inferred from the amounts which other indigenous groups in the same region had received to allow their own rights to be supressed and their country damaged.

546    Mr Miles provided his valuation as an “overall practical approach” based on the mining activity in the Solomon Hub Project being in full operation from 2012. Mr Miles notes in his report that whilst Mr Jaski and Mr Preston consider that the valuation date is the date of the grant of each of the FMG tenements, he made a general estimate of the past, current and future mining in the Determination Area to which exclusive native title applies. He accepted that this is less precise, but in his opinion is a fair and reasonable basis of how compensation should be considered.

547    Mr Miles adopts an approach wherein the expected cashflow based on the 0.55% royalty from 2024 to 2045 was discounted back to present value using a suitable discount factor and margin within the range of 17% to 22%, ultimately adopting a 20% discount factor over the 17 years to 2045. This method produced a figure of $480,000,000 comprising $350,000,000 for lost royalties from 2013 to 2022 and $130,000,000 for future discounted royalties from 2023 to 2040. Whilst Mr Miles notes that mining is estimated to be completed in 2037, he calculates royalties until 2040, noting that he was asked to assume that the production of iron ore from the Solomon Hub Project may extend beyond 2040, an inference based upon information within FMG’s Mine Closure Plan. Further to this, Mr Miles incorporated a re-investment rate of 2.5% for the royalties over the 9 years from 2013 to 2022.

548    Mr Miles gives evidence that in his experience, where mining companies have purchased entire freehold properties for mining purposes, including surrounding lands, a premium value is paid. In his opinion, this premium value could reflect one and a half times the normal agricultural value of the freehold land, if not more. If the freehold land was owned as part of “old system title” that predates 1 January 1899 in Western Australia, then under the Mining Act payment of all rents and royalties received by the Crown less one-tenth to the owner of the freehold parcel would apply: Mining Act ss 37(1), 38(2). He expresses the view that given that the Yindjibarndi people’s native title rights and interests have been determined to have been in existence since well before January 1899, it might be argued that the Yindjibarndi people should be paid on the same basis. He expresses the view that if terms of compensation for loss and damage to the subject land for mining activities does not include payments of a royalty commonly paid by miners in the Pilbara, he would not consider that just terms compensation had been provided, deeming any valuation based on the freehold value of pastoral lease property as not appropriate as in his view this is not equivalent to either freehold or native title rights and interests.

18.3    The FMG expert reports

18.3.1    Mr Hall and Mr Lonergan

549    Martin Hall is a director at Lonergan Edwards & Associates, a valuation firm. He and another director of the same firm, Wayne Lonergan, were engaged by the solicitors for FMG to provide an expert valuation report in relation to the compensation claim and together provided a report dated 5 March 2024 (Hall/Lonergan report). Mr Hall holds a Bachelor of Science degree in mathematics and is a qualified actuary. From 1982 until 2002, he acquired experience in insurance, superannuation and asset-liability management. Since 2002, he has been a director at Lonergan Edwards & Associates. Wayne Lonergan holds a Doctor of Science in Economics from the University of Sydney, where he is an Adjunct Professor in the Faculty of Economics and Business, School of Business, and is a founding director of Lonergan Edwards & Associates, which commenced its operations in 2000. Prior to this, he was a corporate finance partner at Coopers & Lybrand (now PricewaterhouseCoopers). Cumulatively, he has over 46 years of experience in corporate finance and valuations.

550    At my direction, only one author of the Hall/Lonergan report was invited to give concurrent evidence at the hearing and FMG nominated Mr Hall. He was involved in the preparation of two joint reports with Mr Meaton, as well in the Miles/Hall JER and gave oral evidence with Mr Meaton and Mr Hall during which he was cross-examined.

551    In the Hall/Lonergan report, the authors record that they were asked five questions. The first and second concerned how the entitlement in s 51 of the Native Title Act to compensate on just terms the native title holders for any loss, diminution, impairment or effect of the grant of the FMG mining tenements on the native title rights and interests of the Yindjibarndi people should be calculated and to provide their calculation of such compensation. The third and fourth concerned the method of calculating non-economic or cultural loss and how such loss should be determined. The authors conclude that this calculation is outside their expertise. The fifth invited response to the reports of Mr Meaton and Mr Miles.

552    The Hall/Lonergan report proposes a framework for the assessment of compensation which, in summary, involves the incorporation of the following steps: (a) assessing the expected extent and timing of interruption to native title economic usage; (b) quantifying the actual loss of cash flow by period; (c) calculating the present value of those economic losses; (d) applying the Mining Act principle of compensating for the value lost (pursuant to s 123(4)(a)); (e) applying a cap of the freehold land value (pursuant to s 51A of the Native Title Act); and (f) adding interest at Court rates from the date of loss to the payment date.

553    As part of their report they consider Griffiths HC. They express the view that prior negotiated agreements between mining companies and native title rights holders over compensation for infringement of native title rights and interests are not reliable indicators of market value for a number of reasons being:

(a)    each negotiation relates to different losses and circumstances;

(b)    there is likely to be an element of “anxiety” on the part of the miner over delays in commencing mining operations can have large adverse economic consequences. That anxiety diminishes when an agreement (I interpolate, under subdivision P) is not reached and the delays are fully incurred;

(c)    mining agreements are likely to include an element of “public relations” for the mining company;

(d)    many of the negotiations occurred prior to mining, so there would have been an element of shared risk if the project did not proceed;

(e)    the native title rights and interests do not include any rights in relation to minerals, as noted in the Determination, and so compensation for their value cannot be related to the loss incurred as a result of infringement of their rights; and

(f)    there is little or no information publicly available to assess the nature or value of the rights for other claim groups or and the hypothetical impact that the relevant mining tenements in question would have on those rights as compared to the rights in this case.

554    They ultimately conclude that the present value of exclusive use of the native title rights and interests will equal the loss as if it were freehold land, converging towards full freehold land market value loss in perpetuity. For non-exclusive native title rights and interests, the authors give the opinion that the value will be significantly less than 50% of the freehold land market value, because the non-exclusive rights afforded by the Determination are such that the native title group would have limited access or control over the valuable economic uses of the land and as such this would generate little or no economic benefit.

555    In response to the question as to whether they could calculate compensation, they noted that they were not able to reliably estimate compensation arising from the infringement to native title rights in this case as they did not have reliable information about the net market rent for the relevant land, nor information regarding the economic benefits arising each year from the non-exclusive native title rights.

18.3.2    Mr Preston

556    Gregory Preston is a valuer and the chair and managing director of Preston Rowe Paterson, a valuation firm that he established in 1988. He has been working in real estate since 1979.

557    Mr Preston prepared a valuation report dated 5 March 2024 and subsequently swore an affidavit dated 27 March 2024 which rectified some calculations that he had made. He was cross-examined. He was a careful witness who was prepared to make concessions. He accepted that whilst his report gives an opinion on the value of pastoral property, he had no experience in valuing such properties in his resume, had never valued a pastoral property in Western Australia and in his long career may have valued six such properties in 42 years. Even so, no evidence was filed in answer to Mr Preston’s valuation and no submission was advanced to suggest that he was not qualified to give the valuation evidence in his report. I accept his evidence.

558    Mr Preston was asked to provide a valuation per hectare of the land the subject of the FMG tenements insofar as they are located within the Determination Area. For that purpose, he was provided with a spreadsheet from FMG titled “20230821 FMG Tenement Data and EL Overlap Change Analysis.xlsx”, which he relied upon to determine the area in hectares of each of the FMG tenements. He was also provided with maps identifying the location of each of those tenements. In addition, Mr Preston was provided with explanations of the compensation provisions in the Native Title Act and s 123 of the Mining Act, as well as s 241 of the Land Administration Act 1997 (WA).

559    Mr Preston conducted an analysis of the degree to which the FMG tenements overlap with the Determination Area and concluded that the total area within the Determination Area is about 89,155.9 hectares. He valued each tenement as if it was compulsorily acquired at the date of its grant as if it was freehold. In preparing his report Mr Preston assumed that the land the subject of the FMG tenements does not include any right to or interest in any mineral in, on or under the surface of the land, nor did it include any right to any rent, royalty or other amount in respect of the mining of any such mineral from the land the subject of those tenements. He considers that the fundamental question for him to answer is:

…what would have been payable for the land the subject of each of the FMG tenements if that land had instead been compulsorily acquired by the State at the time of each of the FMG tenements were granted, assuming a freehold estate in the land was instead compulsorily acquired?

560    His approach and conclusions may be summarised as follows:

(1)    the highest and best use of the land as freehold is for rural purposes, consistent with its zoning;

(2)    sales of pastoral leaseholds in the area provide appropriate comparable values. In addition to reviewing the boundaries of the Determination Area by helicopter, he considered the sale of 13 pastoral leaseholds within the Pilbara region between 2007 and 2022 for the purpose of focussing on central and eastern Pilbara rather than coastal pastoral leases which, as a result of their location, are closer to the main highway network and tourist facilities (this proximity meaning that coastal pastoral leases have a higher sales rate per hectare);

(3)    sales were analysed on an improved basis with adjustments undertaken for time. He firstly adjusted the sales to a common date of 31 October 2023 (being the date that the valuation was prepared) and then adjusted this back to the commencement date of each tenement;

(4)    for central and eastern Pilbara sales the unadjusted sales rates (ie assessed as at the commencement date of each tenement) per hectare range from $8.50 to $26.62 per hectare. When adjusted to a common date of 31 October 2023, the sales rates per hectare range from $2 to $367;

(5)    the present value of the pastoral lease rental payable to the Western Australian Government should be added to the sale value;

(6)    further adjustments were made accounting for the terrain, vegetation and rainfall of the FMG tenements, making assessments of the vegetation of the relevant tenements with the use of satellite imagery and inspections of the land by helicopter. Land with poorer vegetation was deemed to be of lesser pastoral value, whereas better vegetated land was attributed a higher value, in line with inland Pilbara sales;

(7)    adopting a valuation per hectare of between $5.14 and $21.35, he concluded that cumulative market value of the FMG tenements insofar as they overlap with the Determination Area may be valued and in his report gives the total of $780,402. In a schedule to his report he gives the total as $800,873. On the basis of the information in the report, it is difficult to reconcile these figures.

561    In cross-examination, Mr Preston was asked about his understanding of what is “freehold land” and indicated that he understood that this is the land excluding minerals, these usually being reserved to the Crown. It was on that basis that he had provided his valuation. He accepted that if the valuation needs to take into account any minerals on it, this would have been a different exercise. He would have to take into account the present cashflow, any special value, severance and solatium.

562    Mr Preston was asked about his consideration of “highest and best value” and accepted that it reflects the potential for financial reward. He was taken to page 86 of his report and the zoning table for the Ashburton Shire where the zoning of the land the subject of his valuation was listed. In the report, most of the land the subject of the Compensation Claim Area is zoned as rural. Within that rural zoning, it is noted that one such permitted use for rural land is “extractive”, which Mr Preston in oral evidence accepted is a reference to mining. Mr Preston gave evidence that this was a discretionary use that would depend on approvals but accepted that given that for the Compensation Claim Area it was known that such approval had been granted.

563    Further, when questioned about the adjustments he made regarding the vegetation of the FMG tenements, Mr Preston did accept that given the sporadic rainfall in the Pilbara, the amount of vegetation in the tenements could change from month to month.

18.3.3    Mr Jaski

564    Campbell Jaski is a partner in the Corporate Value Advisory practice of PricewaterhouseCoopers Australia Partnership. He holds a Bachelor of Science (Geology), a Master of Business Administration and is an accredited business valuation specialist with the Chartered Accountants Australia and New Zealand. He began his career as a geologist working for what is now Rio Tinto Ltd from 1992 until 2004, before taking various managerial roles in the mining industry. Since about 2008, he has specialised in the valuation of businesses, shares and intangible assets, such as mineral rights, water rights and mining royalties. Mr Jaski estimates that he has prepared more than 400 expert reports and given evidence concerning mining, valuation and quantum matters in a range of legal proceedings.

565    Mr Jaski prepared an expert report dated 5 March 2024, cooperated with Mr Meaton in the provision of two joint reports dated 22 March 2024 and 1 October 2024 report and with Mr Miles in the preparation of a joint report dated 22 March 2024. Mr Jaski gave oral evidence during which he was cross-examined.

566    In his expert report, Mr Jaski responds to questions asked by the solicitors representing FMG. He was asked how to determine and calculate compensation on just terms pursuant to s 51(1) of the Native Title Act, as well as the determination of compensation required by s 51(3). In this regard, he was asked to consider the legislative framework concerning the determination of native title compensation set out in the Native Title Act and the Mining Act. His attention was also drawn to the reasoning in Griffiths HC and the decision in State of Western Australia v Brown [2014] HCA 8; 253 CLR 507. He was also asked to calculate a range of compensation for economic loss based on these matters. He was also invited to comment of the expert reports of Mr Meaton and Mr Miles and was asked to calculate the amount of compensation that would be payable if all of the land underlying the FMG tenements was valued at $21.35 per hectare, that being the upper value of the land valued by Mr Preston.

567    In answer, Mr Jaski recognised the bifurcated compensation approach employed in Griffiths HC separating compensation for economic loss and cultural loss and acknowledged that he is not qualified to provide an opinion in relation to cultural loss. In relation to economic loss, he refers to s 51(3) of the Native Title Act and s 123 of the Mining Act and then, in summary, addresses the following matters.

568    First, relying on Griffiths HC at [56] (plurality) he considers that the appropriate valuation date is the date of the grant of each of the separate FMG tenements, being dates ranging from 2 June 2007 for the earliest exploration licences until 11 August 2021 for the most recent of the prospecting licences.

569    Secondly, he relied upon the expert report of Mr Preston in the determination of the freehold value of the land the subject of the FMG tenements as at their grant date.

570    Thirdly, he considered the rights and interests of the Yindjibarndi people by reference to the Determination in Warrie (No 2), recognising the distinction between exclusive and non-exclusive rights. He was asked to consider his valuation on the basis of two scenarios. In the first, he was asked to consider that the exclusive rights have been extinguished and in the second, they have not.

571    In relation to the second scenario, Mr Jaski considers that exclusive rights confer a right of exclusive possession and equate to the rights of “owners”. Mr Jaski says that it is his opinion the Yindjibarndi non-exclusive rights should be considered to be perpetual and valuable but essentially usufructuary, ceremonial and non-exclusive, conveying a right or liberty to occupy the land, but being devoid of the right of admission, exclusion and commercial exploitation, equating these rights to that of “occupiers”. He refers to Griffiths HC at [106] (plurality), and notes that the relevant non-exclusive rights in that proceeding were found to be worth “no more than 50 per cent” of the freehold value of the land.

572    On that basis, relying on the reasoning in Griffiths HC at [3], [106] (plurality) Mr Jaski considers that the objective economic value of the exclusive native title rights and interests in the Compensation Claim Area equate to the objective economic value of an unencumbered freehold estate in that land whereas the non-exclusive rights equate to a maximum of 50% of the that unencumbered freehold value. In his report he refers to this as a “rights and interests factor”.

573    Fourthly, he applies an “impairment factor”, which is a measure that adjusts the economic value of the native title rights and interests based upon the impact that the granting of each of the FMG tenements has had on these native title rights and interests. He groups the FMG tenements into six categories being: (1) mining leases; (2) power plant licences; (3) railway licence; (4) alleged water management licences (the miscellaneous licences that are not the power plant licences or railway licence, being the subject of discussion in section 7); (5) exploration licences; and (6) prospecting licences.

574    Mr Jaski assesses the impairment factor by taking consideration of: the mining activities that have already taken place on each of the FMG tenements (including the associated infrastructure) and may take place in the future; his own experience in managing exploration programs and operating mine sites and how this may impact the land and the rights and interests of native title holders; the FMG Infrastructure Document that provides details of the infrastructure located across the Solomon Hub Project; and the affidavits of Stuart Badock and Christopher Oppenheim who provide details of FMG’s activities and infrastructure within the Solomon Hub Project.

575    Based on this information, Mr Jaski considers, as a percentage range, the impairment factor appliable for each category of FMG tenement proposing a lowest and highest impairment factor for each category of tenement as set out in the following table:

The percentages in the non-exclusive area columns reflect Mr Jaski’s assumption that the Yindjibarndi non-exclusive rights are to be valued at 50% of the freehold value of the land.

576    Fifthly, Mr Jaski considered the freehold value of the land as determined by Mr Preston, broken down by reference to the hectares applicable to each FMG tenement. Mr Jaski’s approach was to count any overlapping area once and for that overlapping area to apply the higher of the two tenements’ impairment factor, which as he says results in the higher of the two potential compensation amounts for that overlapping land.

577    Mr Jaski was provided with an Excel workbook by FMG entitled “FMG Tenement Workbook” demonstrating areas of overlap between the FMG tenements in the Determination Area. Mr Jaski was instructed that this workbook should be preferred over the applicant’s area figures contained within their compensation application and the State’s area figures contained in Annexure A of their amended points of response, filed 14 July 2023. He notes that the figures vary between these documents because the applicant’s and the State’s figures do not take into account where a tenement is partially held by a non-FMG entity, so that area by FMG’s calculations should be excluded. In addition to this Mr Jaski relied upon geographical figures and maps covering each FMG tenement, as detailed in Mr Preston’s valuation report and visually inspected the area overlaps. Mr Jaski accepts that this is not a perfect method and estimated that approximately 5% of his overlapping calculations may be the subject of conjecture, which I assume to mean that he allowed for a 5% margin of error. As part of this section, he notes that excluding overlapping land, the net Compensation Claim Area excluding overlapping land is 56,313 hectares, of which 23,979 hectares is land to which the Yindjibarndi people have exclusive rights, and 32,334 hectares is land to which the Yindjibarndi people have non-exclusive rights.

578    Sixthly, Mr Jaski takes into account the temporary nature of the impairment of the native title rights and interests implementing a “deprival factor”, noting that the FMG tenements are granted for a fixed period of time, with the potential for extensions, rather than being instances of permanent impairment or extinguishment of those rights and interest. He notes that this is a relevant further consideration in this case given that in Griffiths HC, the non-exclusive native title rights were extinguished. He says that this is a complicated task to perform and in order to determine this applies a concept in corporate finance and valuation theory known as the “time value of money”. This theory is the recognition that a dollar today is worth more than a dollar in the future because of inflation and the opportunity cost to invest that dollar and earn a return. If this dollar was to be invested it has the potential to earn a return on that investment over time. He uses this “time value of money” theory with the expected or required rate of return to determine the appropriate deprival factor.

579    Mr Jaski notes that this is an imperfect exercise, given the land within the Determination Area has limited commercial or economic potential based upon its composition and remote location and said he was unable to find direct evidence of the required returns of either the land the subject of the FMG tenements or comparable land. In his report, he summarised the approximate range of the required rates of return for a variety of property assets in Australia based on his own experience. This is set out in the table below. In light of the general property ranges in this table, Mr Jaski undertook his loss assessment using a 5% required rate of return and a 10% required rate of return.

580    In addition, Mr Jaski considered the requirements of the conditions set out in the FMG tenements for FMG to rehabilitate the land. He considers that even if rehabilitation does not return the land to its pristine condition prior to the grant of the FMG Tenements, any legacy effects from mining after they have been surrendered or lapse will not materially affect its economic value. However, he considers it necessary to consider the impact on the economic value of the native title rights and interests that arise from the temporary impairment of those rights. He formulated a range of deprival factors for each of the FMG tenements which he applied to the respective unencumbered freehold value of the land.

581    Seventhly, Mr Jaski calculated simple interest to reflect the time value between when the entitlement to compensation arose (being the grant date of each FMG tenement) and 30 June 2023, which he gave as a proxy date for the date of judgment in these proceedings. He relies upon Griffiths HC (plurality at [3], [133], Edelman J at [255]), as authority that simple interest should be awarded.

582    In the result, Mr Jaski gives a range for economic loss plus simple interest for the Compensation Claim Area as being between $83,259 and $248,659 (dependent on the impairment and deprival factors) and, on the assumption that there are no exclusive native title rights and interests in respect of the Compensation Claim Area, in the range from $53,264 to $161,203.

583    Mr Jaski also responded to each of Mr Meaton’s report and Mr Miles’ report.

18.4    Summary of the differences between the experts

584    In their joint expert reports and oral evidence, the experts articulated their points of difference. Their differences often concerned different interpretations of Griffiths HC and the terms of the compensation provisions of the Native Title Act as well as the effect of subdivision P concerning the right to negotiate. For obvious reasons, none of these experts was able to resolve the legal question as to the appropriate mechanism for determining compensation for economic loss.

18.4.1    Hall and Meaton

585    Mr Hall and Mr Meaton fundamentally differed as to methodology, based on their respective views as to the legal landscape.

586    Mr Hall considers that the reasoning in Griffith HC mandates that the economic value unimpaired of the exclusive native title rights and interests of the Yindjibarndi people is the same as the freehold land value, with economic loss compensation to reflect that, with economic loss compensation somewhat less where non-exclusive rights apply. He says that the right to negotiate under subdivision P expired after the FMG tenements had been granted, with FMG satisfying all the requirements for those grants including the required negotiation periods. Mr Hall accepts the evidence of Mr Preston that the highest and best use is as pastoral land and accepts his valuation of that land but disagrees with Mr Meaton that the highest and best use of the land involves mining activities or minerals because, as per the Determination, the Yindjibarndi do not have rights to the minerals in the land.

587    On the other hand, Mr Meaton considers that Pilbara iron ore agreements provide a relevant benchmark of value of the land in the Compensation Claim Area. He used the sample of subdivision P Agreements negotiated between 2004 and 2022 and chose royalty agreements that were similar in size to the Solomon Hub Project. He considers that industry agreements reflect the highest and best value of the land the subject of the native title rights and interests of the Yindjibarndi people, saying that the highest and best use of the land is based upon what the land can be used for in the generation of economic value.

588    Mr Hall and Mr Meaton engaged with each other on a number of points of difference, on the assumption that mining royalties were relevant to assessing economic loss. In summary, Mr Hall gave evidence that the mining agreements could not be of assistance because: (a) they relate to different circumstances; (b) they include aspects other than for loss to claim groups, such as avoiding delay in the commencement of a mining project (“anxious miners”) and developing good relations between traditional owners and the mining company; (c) they concern rights to minerals, yet the holders of the native title rights and interests do not hold rights and interests to minerals under the ground; and (d) compensation based on mineral value is barred under the Native Title Act which by s 51(3) applies the terms of the Mining Act principles or criteria for determining compensation.

18.4.2    Hall and Miles

589    The differences between Mr Hall and Mr Miles arising from the Miles/Hall JER were broadly similar to those between Mr Hall and Mr Meaton. Central to Mr Miles’ criticism was that by pinning his valuation to the higher and best use of the land assessed by Mr Preston as “pastoral”, Mr Hall assessed the value of the land as contrary to the existing use which is mining and which produces economic value output for the long term mining programmes of the FMG tenements. This was explored in cross-examination. As part of this Mr Hall noted that given that the Yindjibarndi people do not have rights to the minerals in the land, they cannot themselves mine the land, meaning that they cannot be found to have a right to mine being impaired. It was Mr Miles’ view that given that the Yindjibarndi people’s rights have been impaired by virtue of the mining, that compensation should take into account all possibilities of the value of the suppression of those rights.

18.4.3    Jaski and Meaton

590    The fundamental differences between the opinions of Mr Jaski and Mr Meaton are expressed in their joint expert report of 22 March 2024 and may be summarised as follows:

(1)    Mr Jaski considers that the value of the land in the Compensation Claim Area and the value of the minerals lying in it are separate assets. He says that the owner of the land is not entitled to extract or share in the profit from mineral extraction and also that ownership of the land is not required for the mining lease holder to extract minerals. Mr Meaton considers that the freehold value of the land must take into account the mineral potential and given their exclusive possession rights the Yindjibarndi people are entitled to a share of any future revenue.

(2)    Mr Jaski considers (using his methodology for calculating compensation) that the impairment factor for the land the subject of the mining leases is 90% to 100%. He says that whilst there may be ongoing impairment as a result of the legacy of the mining, the economic impact of this legacy will be small, given the low economic value of the land itself. He notes that as part of his methodology for calculating compensation, the “deprival factor” takes into account the length of time that native title rights and interests have been impaired for, which would include the impacts of the legacy of the mining. Mr Meaton considers that the “impairment factor” is 100% because of the long-term impacts that the mining will have on the land. He says that after the life of the mine, the land will be permanently degraded with many open pits and waste dumps, this permanent degradation being far more than a temporary impairment of rights. He says that a damages factor must be added to compensation to reflect the fact that the land would be degraded when it is returned to the Yindjibarndi people.

(3)    Mr Jaski valued the land in the Compensation Claim Area having regard to the freehold value of the land. He did not consider it necessary to value individual native title rights and interests because his starting assumption is that exclusive rights are to be valued at 100% of the freehold value and non-exclusive rights have a maximum value of 50% of the freehold value. He then determined how the FMG tenements have impacted or will impact those freehold values over the life of the Solomon Hub Project. Mr Meaton valued the economic loss component by reference to a royalty from the revenue from the minerals extracted from the land, having regard to prior agreements in the Pilbara region reached between traditional owners of land and mining companies.

(4)    Mr Jaski disagrees with Mr Meaton as he says that native title royalty agreements under subdivision P are not comparable for valuation purposes, noting that those agreements are likely to incorporate value to economic loss, non-economic loss, risk of project delay and specific positive and negative contractual obligations which are not related to the compensable act. He said that it would be very difficult to determine what portion of a native title royalty agreement would relate to the economic loss component and what portion relates to any or every other component. Mr Meaton said that the benchmark to determine “just terms” compensation pursuant to s 51(1) of the Native Title Act is by using mining industry agreements.

18.4.4    Jaski and Miles

591    In addition to the points of difference between the various experts highlighted above, the following differences were highlighted in the Miles/Jaski JER:

(1)    Mr Jaski assesses economic compensation with the date of the granting of the FMG tenements as the appropriate valuation date. He says that this is consistent with the approach taken in Griffiths HC at [56] (plurality). Mr Miles says that the valuation date “starts in 2012/2013”. This is when access was granted for mining infrastructure to be installed.

(2)    Mr Jaski calculated simple interest on the compensation amount from the date of the compensable acts, relying on the reasoning in Griffiths HC at [3] (plurality). Mr Miles’ approach was to adopt a re-investment rate of 2.5%, in other words, adopting a compound interest approach.

(3)    Mr Jaski notes that there were data discrepancies in Mr Miles’ calculations, which he was unable to subsequently reconcile. Mr Miles says that he relied upon mining information on the Solomon Hub Project from DMIRS and that his calculations may need correction.

18.4.5    The Jaski/Meaton Royalty calculations

592    I have summarised the differences between Mr Jaski and Mr Meaton concerning the calculation of economic loss. In order to reduce the area of disagreement between them on purely mathematical questions, they were asked to discuss, and endeavour to agree to a set of calculations of economic loss based on the assumption that Mr Meaton’s royalty-based assessment method was correct. They did so and produced the 1 October 2024 report, details of which are summarised below.

593    Mr Jaski and Mr Meaton largely agree on the calculations noted below, subject to the points noted below:

(a)    Historical sales of ore were calculated as historical dry metric tonnes (DMT) volume shipped from the Compensation Claim Area based on figures provided by FMG and future sales were forecast from figures provided by FMG;

(b)    Historical DMT was allocated to each relevant FMG tenement using figures provided by FMG and future DMT was based on the same proportionate allocation as for the historical DMT;

(c)    Historical pricing figures used were those provided by FMG and forecast future pricing relies on figures provided from the Office of the Chief Economist’s iron ore FOB sales forecast dated March 2024, discounted to reflect the discounted price that FMG historically received for its iron ore products compared to the standard product reference used by the Office of the Chief Economist;

(d)    Mr Meaton considers that the appropriate royalty rate should be 1% of the FOB sales value of iron ore extracted from the Determination Area. Mr Miles considers that the royalty rate should be 0.55%. Mr Jaski does not accept that a royalty rate is appropriate. However, the experts used both figures in their calculations;

(e)    A discount rate of 12.24% was applied to future royalty-based payments, reflecting FMG’s weighted average cost of capital at 30 June 2023 (being 9.5% plus a premium of 2.74%) to reflect the additional risk associated with future production from Solomon Hub Project compared to the total production risk across all operations. The experts disagree about the assessment date for compensation. Mr Meaton discounted the future royalty-based payments back to “the present date” which relevant to this report was 1 January 2024, whereas Mr Jaski discounted the future royalty-based payments back to the grant date of the relevant tenement.

(f)    The experts similarly disagree about whether a discount should be applied in respect of past production, disagreeing about whether compensation for historical payments should be assessed as at the date of the grant of the tenements or the date of judgment. Mr Meaton did not discount historical royalty-based payments, but Mr Jaski discounted them back to the tenement grant date. The experts do however agree that if the appropriate assessment date is the date of grant of the tenements then a discount rate of 6.76% should be applied, representing the risk free 10-year government bond as at 30 June 2023 (being 4.02% plus a premium of 2.74%) to account for the lower risk of historical payments.

(g)    The experts agree that simple interest based on pre-judgment interest at Federal Court rates should be applied to historical royalty-based payments up to 31 December 2023. However, they disagree as the value to which interest is applied. Mr Meaton applied pre-judgment interest to the undiscounted value of the historical royalty-based payment from each year of production until 31 December 2023. Mr Jaski applied pre-judgment interest to the discounted value of the historical royalty-based payment for that period.

594    The calculations of Mr Jaski and Mr Miles are set out in a table at the conclusion of the report as follows:

[REDACTED]

595    As can be seen above, calculations were made at 0.55% and 1.0% FOB sales value of the iron ore extracted. The differences in the figures between Mr Meaton and Mr Jaski account for their differing approaches to discount rates and interest. Mr Meaton’s calculations are such that a royalty at 0.55% FOB sales value would result in [REDACTED] and [REDACTED] at 1.0% FOB sales value. Mr Jaski’s calculated royalties of [REDACTED] for 0.55% FOB sales value and [REDACTED] for 1.0% FOB sales value.

19.    THE EVIDENCE DOES NOT ESTABLISH THE EXCHANGE VALUE AMOUNT

19.1    Introduction

596    In this section I consider whether, if I am incorrect in reasoning in section 12 that YNAC’s exchange value is unsound in principle, the evidence adduced by YNAC would establish its entitlement to compensation in the amount claimed.

19.2    The submissions

597    YNAC submits that the common or industry standard for iron ore miners in the Pilbara is to pay native title parties 0.5% and above of FOB revenue as part of a package of benefits. This is established, it submits, by Mr Meaton’s evidence and the several extracts of agreements in evidence. YNAC puts three alternatives of FOB value forward based on 0.5%, 0.55% and 1% FOB revenue and arrives at dollar amounts for those based on the 1 October 2024 report.

598    YNAC submits that 0.5% is the starting point for the application of its adapted Spencer test, which then needs to be adjusted to 1% to have regard for the exclusive native title rights and interests of the Yindjibarndi people over a substantial portion of the Solomon Hub Project, as well as the fact that the Yindjibarndi people have no agreement with FMG to provide other financial benefits over and above royalties, to protect their cultural heritage or to cover their right to be consulted about activities on the land.

599    YNAC criticises aspects of Mr Preston’s evidence, submitting that he failed to take into account important matters in his valuation methodology, particularly noting that “extractive industries” are permitted for the relevant land, which under the Shire of Ashburton’s Town Planning Scheme is zoned as rural.

600    The State joins FMG in submitting that subdivision P of the Native Title Act granting the right to negotiate and the subdivision P Agreements are not synonymous with compensation referred to in Division 5 of Part 2 of the Native Title Act. Instead, they submit that subdivision P simply provides a platform for parties to those agreements to engage in broad ranging negotiations in good faith. Whilst s 33(1) of the Native Title Act recognises the possibility that a profit sharing or royalty payments may be included in negotiations, the fact that such voluntary negotiations may be reached does not indicate that compensation under Division 5 of Part 2 of the Native Title Act is properly calculated on that basis. In this regard, the State relies on Brownley where Lee J at [50] whilst acknowledging that s 33(1) agreements may have a compensatory aspect, said that they may represent more than that.

601     The State submits that the purpose of s 33(1) is not to determine the manner in which compensation should be assessed under Division 5 of Part 2 of the Native Title Act. A matter on which a native title party is entitled to negotiate under s 33(1) is not to be confused with the entitlement to compensation under Part 2; see Brownley at [53] (Lee J). It submits that “at best” it is a tool to incentivise negotiated outcomes in that it allows the parties to agree certain types of payments that cannot be ordered by the Tribunal in arbitration or form the basis of a determination of compensation by the Federal Court under Division 5 of Part 2 of the Native Title Act.

602    The State emphasises that the subdivision P right to negotiate does not form part of the native title rights and interests conferred by the Determination. It is a procedural right that is provided under the Native Title Act, as noted by Kiefel J in State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371; 125 FCR 89 at [153] (Beaumont J agreeing at [89], Lee J agreeing at [109]).

603    Each of the State and FMG submit that even if permitted by Griffiths HC, in the present case the freehold value of the land is a more appropriate comparator for the assessment of compensation under Division 5 of Part 2, than a hypothetical subdivision P Agreement. The State said that if a hypothetical subdivision P Agreement were to be an appropriate comparator there must be sufficient similarity between the subdivision P Agreements and the benefits obtained from these agreements such that they provide a consistent or standard comparator that can be used to assess compensation.

19.3    Methodological problems with the “exchange value” case

604    The approach of YNAC is predicated on the assumption that there is a “standard” royalty payable by miners in the Pilbara region of Western Australia. Much is concealed in the seductive simplicity of that submission. YNAC relies primarily on the evidence of Mr Meaton to support its contentions in this regard. Accordingly, I first review that evidence before addressing other matters of concern arising from YNAC’s submissions.

19.3.1    Challenges to Mr Meaton’s methodology

605    As I have noted in section 18.2.1 above, Mr Meaton’s first report draws on his experience since 2004, being involved in native title negotiations leading to “future act” agreements. He gives evidence that he has accumulated financial details of over 100 future act mining agreements of which 44 are iron ore projects and that he selected 38 of those agreements as most relevant to his report, being reports concerning agreements reached in the Pilbara for iron ore and manganese mines negotiated between 2006 and 2021 – being the subdivision P Agreements. Mr Meaton then makes a series of generalisations which are said to be based on his knowledge of those agreements:

(1)    that all such agreements included cash payments, also described as defined benefit or milestone payments, ranging in total over the life of the mine from $30,000 to $10 million, with an average of $1.4 million;

(2)    that all included some form of royalty on production. Where they were set out in a form other than value-based royalty (such as cents per tonne), a royalty equivalent was estimated based on the FOB sale price of iron ore at the time of the negotiations.

(3)    that the royalty rates ranged from 0.05% to 1% of the FOB sale revenue with an average of 0.55%; and

(4)    that the most common royalty by far in the Pilbara is 0.5% of FOB sale revenue.

606    The State and FMG challenged the basis upon which Mr Meaton reached these conclusions. His business, Economics Consulting Services, was issued a subpoena for production of all documents from which he derived the financial details of the 44 iron ore projects mentioned in [29] of his report. Sixty documents were produced. Included in that production was a spreadsheet that Mr Meaton prepared, apparently to assist in the understanding of his report and in understanding the documents produced. In his oral evidence, he explained that the spreadsheet is an extract taken from a larger spreadsheet that he has maintained for over 20 years. He described the spreadsheet as a “living document” intended to reflect the negotiations at the time saying:

The way I select a sample: the company will say to me or the traditional owners will say to me, “here’s a proposal for a new project. The company has applied for a mining lease. In applying for the mining licence, the company has indicated to the department that they have a resource of so many million tonnes, which is sufficient to justify the commercial development of a mine… can you tell us which projects would fairly relate to this project?” Now, if I’m going to include it, the first thing I need is the data on those other agreements. Secondly, I look for comparability. So in this case, for comparability, I said, “Well, they should all be Pilbara agreements. Do I have enough Pilbara agreements? Yes. They should all be iron ore. Have I got enough iron ore agreements? Yes.” And so my sample will be Pilbara iron ore agreements.

607    FMG put into evidence the spreadsheet and a sample of the documents produced by Economics Consulting Services (Exhibit K) and used these documents as the basis for the cross-examination of Mr Meaton.

608    The spreadsheet consists of four pages. On page one, each of 44 different projects is listed, identifying by date (ranging from 2004 to 2021) the client (mostly traditional owners), the mining company involved, the traditional owner parties and the “project”. Page two includes a column listing “project revenue” [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], the “FOB rate”, which Mr Meaton explained in his oral evidence is an “agreed FOB rate” [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] and “total defined benefits”, which Mr Meaton also referred to as “milestone payments” [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

609    From page three onwards, Mr Meaton examined in more detail 38 of these 44 projects, which form the basis of the subdivision P Agreements. Page four of the spreadsheet ranks the transactions in order of size based on project revenue and includes several tables. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

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611    Of the items listed in the spreadsheet, only three are, on their face, concluded and signed agreements. Mr Meaton explained that whilst his role was to assist in negotiations, acting variously as representative of the traditional owners or the mining company, he was rarely provided with the final terms. However, he said that he was often involved in the project at a later stage and informed of the outcome of negotiations. As a result, he was unable to produce copies of the final signed agreements, but he updated his spreadsheet to what he believed to have been the outcome at the time that the contract was negotiated.

612    I have no doubt that the information contained in the spreadsheet as produced and the information in the larger spreadsheet from which Mr Meaton extracted information for the purpose of answering the subpoena is a useful resource for Mr Meaton in the performance of his role as an advisor. However, the spreadsheet and the documents produced fall well short of supplying sufficient transparency to enable the figures relied upon by Mr Meaton to be tested and supported in the face of forensic examination in legal proceedings. In saying this, I mean no criticism of Mr Meaton’s professionalism in the performance of his role as an advisor in the negotiation of agreements.

613    However, I have considerable reservations about accepting on face value the generalisations to which I have referred above. In this regard, I make the following further observations, drawn from valid criticisms advanced by the State and FMG.

614    First, as I have noted, only three final agreements were produced by Mr Meaton to support the data in the spreadsheet. The balance of the documents were draft agreements, advices provided by Economics Consulting Services to clients, letters or other preparatory documents. It is apparent from Mr Meaton’s evidence that much information was provided to him by word of mouth from third parties. I do not accept that this is a reliable indicator of the final agreements actually reached. The agreements and draft agreements in evidence indicate that they are often very lengthy and include complicated provisions going to payments to be made. Without production of the final form of agreements reached, the accuracy of figures represented as their outcome could not be tested and the evidence adduced amounted to no more than hearsay.

615    Secondly, the spreadsheet appears to reflect only the expected status of the negotiations at a point in time, not necessarily the concluded or final agreement between the parties. In this regard, Mr Meaton gave evidence that he had a “reasonable level of confidence” that the numbers in the spreadsheet reflect “what we expected at the time” and further, in relation to some of the figures, that the spreadsheet reflects the stage of the negotiation in which he was involved (although he did not produce notes of the meetings that he attended).

616    Thirdly, the documentation produced by Mr Meaton in response to the subpoena was selective (as noted in the passage from the transcript set out above) and, he freely and properly accepted, incomplete. Although required to produce all documents from which he derived the financial details of the 44 iron ore projects mentioned in his report, he gave evidence that:

…given that at that stage, I had three companies threatening me because I may reveal confidential information, I took the approach that I should reveal the least number of documents which demonstrated the point that we were trying to make. So you’re quite correct. I did not provide all documents. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] So I selected the document which I thought best illustrated the point.

617    It is reprehensible that companies threaten a witness who presents evidence to assist the court if that is the correct characterisation of what happened. Frequently, third party confidential information is produced to the court and protections are placed to ensure that the information remains confidential. I was not asked to review the conduct that gave rise to Mr Meaton’s evidence in this regard, or to consider whether it might amount to a form of contempt of court and so make no further comment on the subject. Whilst Mr Meaton’s response to the subpoena as set out above might be understandable at a human level, if such threats had been made, nonetheless the selective production of documentation tends to undermines the ability of the parties and the court to assess the accuracy of the assertions made based on the incomplete documents.

618    Fourthly, there were unexplained calculations or assumptions made by Mr Meaton in the preparation of the spreadsheet. For instance, during the course of cross-examination, Mr Meaton accepted, when taken to specific documents, that the royalty percentages recorded in the spreadsheet did not reflect the figures in the documents produced in respect of that particular transaction or that no documents had been produced to support the rate in the spreadsheet. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] Mr Meaton also acknowledged there was one instance where an agreement was reached over 10 years ago where he could not recall the information he relied upon to calculate the FOB rate.

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620    Mr Meaton further explained:

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In order to compare the agreements, I need to convert them all into the – a common basis, and by far the most common basis is in terms of the value, the - the value-based royalty. So I convert these specific rates into the value-based royalty based on the value at the time of the iron ore. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

621    Regrettably, none of this information, or the calculations to which Mr Meaton referred, is included in his expert report. In the absence of information that Mr Meaton relied upon, with reference to his calculation methods, this meant that his information could not be scrutinised or tested.

622    These matters give me cause for concern that Mr Meaton’s statement that the “average” royalty paid in the Pilbara in the subdivision P Agreements reached between traditional owners and mining companies is a royalty based on 0.55% of the FOB sales value of iron ore extracted. I do not consider that YNAC has proved its case in this respect. Not only is it not established on the basis of the evidence and the expert reports of Mr Meaton, it suffers the further methodological problem – that I refer to further below – that the universe of iron ore agreements in the Pilbara has not been surveyed to produce such an average. Indeed, Mr Meaton’s evidence is that he was selective in choosing the sample of 38 agreements the subject of the production in answer to the subpoena.

623    This provides a further difficulty for the case advanced by YNAC which is that the asserted 0.5% “standard” royalty is little more than an anecdotal figure “known” by those in the industry. YNAC relies on the oral evidence of Mr Jaski that in his experience, 0.5% is the “starting point” for native title mining negotiations such that negotiations are “centred around’ this royalty rate. However, the case presented by YNAC is not to be proved by anecdotal evidence. The arguments that it presents, when considered as a matter of substance, seek findings of fact as to rates deployed and conditions applied. For the reasons given, I am unable to make the findings of fact that are advanced by YNAC based on the evidence of Mr Meaton.

624    Finally, it is appropriate that I revisit the opinion evidence of Mr Meaton as to the appropriate percentage exchange value for the native title rights and interests.

625    The evidence of Mr Meaton is to the effect that the Yindjibarndi people should be entitled to receive compensation calculated on the basis of a 1% royalty for the suppression of their native title rights and interests. His opinion is that the starting rate of 0.5% should be doubled due to the fact that the Yindjibarndi people hold exclusive native title over a large part of the Determination Area and that this right carries with it the right to exclude others. I have not accepted on the basis of the evidence before me that it may be found that a “standard” rate of 0.5% applies to agreements in the Pilbara. Nor do I accept that, if 0.5% was a standard rate, it would be appropriate simply to double it to 1.0% in the case of the Yindjibarndi people. That is said to apply across the entirety of the Compensation Claim Area, for all operations of the Solomon Hub Project, without any allowance being made for the difference between exclusive rights and non-exclusive rights, yet, the determination of the percentage is based on no assessment of the value of the native title rights and interests, and strays far from the approach in Griffiths HC.

19.3.2    Challenges to Mr Miles’ methodology

626    The evidence of Mr Miles does not rise higher than that of Mr Meaton. Unlike Mr Meaton he did not adduce evidence of prior negotiations or agreements. In his expert report he referred to a ‘benchmark royalty rate” for native title groups which is “believed to be” 0.5% of production from relevant mines with some paid up to 0.8%, citing a Business News article. In his oral evidence, he accepted that he was briefed with that article. Although he said that he relied on other agreements to support that figure, none were put into evidence. He did in his report under the heading “Royalty Evidence” list seven agreements as relevant to his opinion but he accepted that none of them identified a benchmark of 0.5%, accepting that the term “benchmark” was “a bit over the top” but that it has been stated as “the general ballpark where many of the royalty rates has been established”. However, he later accepted that his report does not disclose a process of reasoning about why this came to be a “benchmark” and volunteered that it was an emotive term and could be backed up with more information to support it. He further accepted that he had not seen any of the royalty agreements to which he referred in his report and that they did not provide support for his benchmark figure.

627    Mr Miles offers his view that an appropriate royalty for the Yindjibarndi people to be paid would be 0.55% but did not support it by reference to the value of the native title rights and interests of the Yindjibarndi people. For substantially the same reasons given in relation to the evidence of Mr Meaton’s evaluation of 1.0% royalty, I am unpersuaded that 0.55% of the FOB sales value of the iron ore is an appropriate measure for compensation for economic loss.

19.3.3    Further methodological problems with the approach of YNAC

628    It is plain from the oral evidence given by Mr Meaton, and the content of Exhibit K, there is much more to the subdivision P Agreements than the agreement to furnish a percentage royalty based on iron ore sales in return for the extinguishment or suppression of the native title rights and interests of the traditional owners.

629    First, the subdivision P Agreements were reached as a result of negotiations between traditional owners and mining companies prospectively for the grant of approval by the State for future acts within Division 3 of Part 2 of the Native Title Act. The evidence of the experts indicates that included within the factors leading to the negotiated outcome are, on the part of the mining company:

(a)    the desire of the mining company to avoid delay in the development of the project, recognising that negotiations can be protracted well beyond the 6-month period allowed for negotiations to be concluded in subdivision P;

(b)    the desire of the mining company to have the traditional owners participate in heritage surveys, as well as assistance from the traditional owners in terms of environmental approvals and also other forms of cooperation in the conduct of the mining activities proposed. [REDACTED] [REDACTED] [REDACTED] [REDACTED]

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(c)    the desire by both parties to address matters that go beyond the simple approval from the traditional owners for the mining activities. In 2009, Mr Meaton gave advice to the effect that one aspect of the consideration provided by mining companies to traditional owners is the desire to be “good neighbours”. Although in his oral evidence, he said that this is not the view that he now holds, in the Hall/Meaton JER he says that “Good Neighbour agreements … ensure a harmonious and sustainable working relationship between the parties over what can be a multi-generation project”. I accept that in the negotiation of at least the earlier subdivision P Agreements (upon which the “standard rate” is said to be based), a desire to show goodwill toward the traditional owners is at least one component going to the consideration provided in the agreements;

(d)    the interest of the traditional owners to receive benefits in the form of up-front or other payments and employment that extend beyond the royalty payments. Whilst Mr Meaton and YNAC dismissed these as accounting for a small part of the consideration given by mining companies, relative to the large sums agreed by way of a royalty, these payments form part of the agreed amounts.

630    Secondly, the evidence indicates that agreements reached, as exemplified by the subdivision P Agreements often feature the clauses that encourage the mining company to reach an agreement with the native title party that go well beyond the permission required for the future acts alone by:

(a)    consenting to the doing of all activities under the interests, approvals, authorisations and future acts the subject of the agreement. This can also include an acknowledgment by the native title party that all of the existing interests, approvals, authorisations and future acts are valid.

(b)    encompassing any and all consents that may be required under any State or Commonwealth law applicable or required for the mining company’s operations;

(c)    preventing the native title group from making inconsistent claims against or challenge the miner’s operations, as well as preventing the making of adverse public comments against the mining company;

(d)    the native title party agreeing to forego some or all of its procedural rights under the Native Title Act, such as the right to negotiate; and

(e)    where the native title party agreeing to be prevented or restricted from amending their native title claim or determination in a way that would affect consents given under the subdivision P Agreement, or alternatively the native title party must seek consent from the mining company prior to seeking these amendments.

631    Thirdly, neither the evidence of Mr Meaton nor the submissions of YNAC satisfactorily address the fact that the payment of a royalty in the subdivision P Agreements does not distinguish between economic loss or cultural loss. Neither the assessment based on Mr Meaton’s opinion that the economic loss based on a 1% royalty payment nor the assessment based on Mr Miles’ opinion that a 0.55% royalty payment is appropriate to address economic loss does not answer that problem.

632    Fourthly, YNAC relies on the subdivision P Agreements selected by Mr Meaton as being “common” or an “industry standard”. I understand YNAC to contend by this that there is a commonality between the terms and conditions reached such that the agreements may be regarded as in respect of comparable transactions for the purposes of deriving an average royalty payment of 0.55% that would be applicable in calculating compensation for the Yindjibarndi people in respect of the Compensation Claim Area. However, YNAC did little to support the contention of comparability in its submissions or in the evidence adduced. Whilst it may be accepted that the subdivision P Agreements identified and referred to by Mr Meaton in the Exhibit K documents reflect negotiations between traditional owners and miners in the Pilbara in respect of iron ore mines, I would not, absent evidence, assume that each of the different factors above remain as constants, regardless of the parties, mining rights, or other local factors involved. To the contrary, I would assume that the particular interests, and the amounts that the mining companies are prepared to pay, would vary according to their particular interests and imperatives and the particular interests of the traditional owners with whom they are negotiating.

633    Fifthly, YNAC made no attempt to establish that the native title rights and interests of the traditional owners in the agreements was similar or the same as the native title rights and interests of the traditional owners in other agreements.

634    Sixthly, there is a methodological difficulty in referring to “standard” terms when there is no evidence to support the contention that the universe of relevant agreements is not in evidence. As I have noted above, Mr Meaton provided a selection of the agreements of which he was aware to support the figures he relied upon. Yet for YNAC to establish a baseline or benchmark royalty rate, much more is required. Without an understanding of other agreements reached, it is unsafe to make the kind of generalisation that YNAC exchange value approach requires as its starting point.

635    In support of its submission as to an “industry standard” rate of 0.5% for the subdivision P Agreements, YNAC relies, in addition to the evidence of Mr Meaton and Mr Jaski, on only extracts from four specific sets of documents being: