FEDERAL COURT OF AUSTRALIA
Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585
JUDGMENT SUMMARY
In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the full reasons for judgment, which will be made available on the Court's website at a later date following redactions for confidentiality and cultural sensitivity. This summary will also be made available there.
Overview
This is a claim for compensation brought by Yindjibarndi Ngurra Aboriginal Corporation, RNTBC (YNAC) under the terms of the Native Title Act 1993 (Cth).
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, described in more detail in the judgment.
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.
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.
YNAC separately seeks compensation for cultural loss that it has suffered from the grant of the mining tenements. For this it seeks $1 billion.
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. FMG takes a similar approach and argues that additional discount factors mean that the claim cannot exceed $95,197.
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.
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]).
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 432adapted as necessary to accommodate the unique character of native title rights and interests and the statutory context: Griffiths HC at [66] (plurality).
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).
I consider both in some detail in the 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.
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).
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.”
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.”
Synopsis of the main legal issues and their outcome
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.
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 of the judgment that it is the terms of the Native Title Act that should apply.
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 of the judgment I conclude that the position advanced by YNAC and the State is correct.
There is a significant dispute about whether the exclusive rights set out 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 of the judgment 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.
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.
I conclude in section 12 of the judgment 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.
The reasoning in section 12 concludes 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).
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.
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 the judgment.
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 the judgment.
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 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.
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 of the judgment I conclude that there is no s 109 inconsistency and that accordingly FMG is liable to pay any compensation.
YNAC raises several other arguments in support of its claim for compensation for economic loss. I address these in section 17. One is a claim for compound interest on any damages awarded. In section 17.5 I conclude that, on the facts of the present case, it is available.
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).
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.
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 of the judgment. 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.
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 disturbance caused by the Solomon Hub Project. In section 24, I review aspects of the effect of that 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.
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 of the judgment, 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.
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 those 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 divisionand that it is an effect that is compensable. The State and FMG contend that it is not. In section 26 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.
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. 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.
I refer to, but do not find determinative, a comparison between the two available cases where compensation has been awarded. One is Griffiths HC where the subject land area was 1.27 km2 and non-exclusive rights applied. The 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.
Synopsis of the award and orders that I will make
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.
I have concluded that the claim for cultural loss should be assessed in the amount of $150 million.
The judgment contains 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 it 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.
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.
JUSTICE STEPHEN BURLEY
12 May 2026
