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Further to the Federal Court’s landmark compensation ruling earlier this year, Fortescue Mining has joined the Yindjibarndi Ngurra Aboriginal Corporation and the state of Western Australia in launching its own appeal against the decision.
The latest appeal means all primary involved parties have now lodged formal appeals to the full court of the Federal Court.
On 1 July, the Federal Court made orders requiring the mining giant to pay more than $150 million in compensation for cultural and economic loss related to mining activity on Yindjibarndi Ngurra (Yindjibarndi Country) since 2012.
As reported, the court’s acknowledgement of cultural loss and determination that Fortescue was liable was welcomed by the Yindjibarndi Ngurra Aboriginal Corporation (YNAC), but group CEO Michael Woodley did note that the final compensation amount did not reflect the value or wealth generated from the land.
The YNAC was the first body to appeal the decision, filing a notice of appeal on 25 August following a unanimous member vote. The appeal seeks a royalty-based economic valuation and higher cultural loss compensation and acknowledgement of overall community impact that may be closer to its original $1.8 billion claim.
In a statement on 30 July, Woodley said: “The decision represents the strong connection between Yindjibarndi people and our Ngurra, and what we hold as the key value of our community – that is, a successful future for the next generations.”
“We believe the intentions of the Native Title Act are that First Nations people are legally recognised to speak for Ngurra and share in the benefits that flow from it.
“Ultimately, the members decided today that having come this far, the only option was to keep fighting.”
The West Australian government was the second body to appeal the decision, with Attorney-General Dr Tony Buti confirming the action in a statement on 26 August.
“The WA government has filed an appeal of the Federal Court of Australia’s Yindjibarndi native title compensation decision, following Yinjibarndi Ngurra Aboriginal Corporation’s decision to appeal the same judgment,” Buti said.
“Native title compensation is a complex and emerging area, and it is important that we have clarity on the law to support future negotiations and native title settlements across the state.”
“The WA government acknowledges the impact of mining on Country and supports Yindjibarndi receiving proper compensation from mining proponents for these activities.”
While the statement did not outline on what grounds it is appealing the decision, the state originally argued for a lowered compensation limit of $10 million.
As reported by ABC, Fortescue announced the launch of its appeal on 16 September.
A spokesperson told media outlets: “Our cross-appeal restates positions we put forward at trial and seeks clarity on aspects of the judgment that we believe are inconsistent with existing legal principles and precedent.”
Further, the spokesperson said Fortescue remains focused on resolving “this long-running dispute”, adding: “We paid the full compensation award within 24 hours because we wanted the money to reach the Yindjibarndi community as quickly as possible.”
Responding to the appeal, the YNAC chief executive said: “It confirms what we already know, which is that sadly we have to continue to fight for our rights.”
“You either respect First Nations or you don’t.”
According to YNAC, mining activity by Fortescue is anticipated to continue until 2045.
