The Federal Court has recently awarded $150 million in compensation for cultural loss and $100,000 for economic loss to Yindjibarndi native title holders for impacts caused by Fortescue Metal Group’s (FMG) development of the Solomon Hub Project.
The project which covers around 135 square kilometres of Yindjibarndi land, has generated an estimated $80 billion in revenue since breaking ground and is set to produce tens of billions of dollars more by the time its 36 tenements lapse in the mid-2040s.
This judgment marks the largest native title compensation payout in Australian history and is only the third time an Australian court has decided* a native title compensation claim.
The award comes after two other native title compensation decisions including $2.5 million awarded to the Northern Territory’s Ngaliwurru and Nungali peoples by the High Court in 2019 in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7, (known as the Timber Creek case), and following that $54 million awarded to Gudanji, Yanyuwa, and Yanyuwa-Marra traditional owners in February this year in Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 5) [2026] FCA 153for cultural loss associated with the McArthur River mine and related infrastructure (known as the McArthur River case).
Although being the highest amount awarded amongst the three decisions, commentators however have criticised the Federal Court’s decision, saying the amount is too little, particularly in respect to the already accrued and projected revenue of the large scale mining project.
Native title compensation calculations
The landmark case on native title compensation was the Timber Creek case, where the Court established a two-part methodology to calculations of compensation in respect to native title, namely, economic loss and cultural or spiritual loss, plus interest.
For economic loss, compensation is calculated as a proportion of what the land would be worth as freehold. This calculation can be fettered in instances when traditional owners hold ‘non-exclusive’ native title rights, where rights of First Nations peoples to access and use their traditional lands and waters coexist with the rights of other land users, such as farmers or mining companies. In the Timber Creek case, because the native title rights at issue were non-exclusive, the Court set them at 50 percent of freehold value.
The second component of compensation, being cultural or spiritual loss is calculated by a holistic assessment.
In the McArthur River case, the Federal Court described this type of loss as ‘intergenerational and enduring’, however this figure can vary significantly depending on the nature of the rights lost and the cultural significance of the affected country, taking into account the interconnected nature of sacred sites, Dreamings, and cultural practices across the landscape.
In the most recent Yindjibarndi case which is subject to appeal, Justice Stephen Burley’s judgment was largely based on cultural loss, including the destruction of about 140 spiritually linked sites, for which he awarded $150 million. By contrast, he awarded about $100,000 for economic loss, calculated from the land’s freehold value, notably not with reference to the profits generated by mining companies, an approach consistent with the with the approach taken in the McArthur River case.
This figure in respect to economic loss can be contrasted against the projected value of resources that could be extracted of more than $33 billion. Solomon Hub, which covers around 135 square kilometres of Yindjibarndi land, has already generated an estimated $80 billion in revenue and despite the $150 million compensation being the highest native title compensation awarded in Australia’s history, the amount is vastly less than the $1.8 billion the Yindjibarndi Ngurra Aboriginal Corporation originally sought.
National Native Title Council chair, native title and Aboriginal cultural heritage academic, anthropologist and senior knowledge holder Kado Muir (a Ngalia traditional owner), has questioned how the Court gauged the economic gains and developed an alternative framework for considering First Nations wealth, advocating for a sui generis approach based on customary economic modes capturing what Country produces over time for the people who hold rights in it, as opposed to limiting land value to merely a capital asset.
Due to cultural sensitivities and other reasons, there is limited detail currently available explaining the Court’s decision in the recent Yindjibarndi case in respect to its determination of the cultural loss component of compensation, however it is noted that that impacts to surface water outside the project area caused by dewatering were relevant to the assessment.
* There have been more than three native title compensation claims brought, however these have been settled rather than litigated. As such, there have only been three compensation decisions made by courts as litigated outcomes.
