In­stead of pay­ing a per­cent­age of the pro­duc­tion value, FMG pays dol­lars and even cents: 2.5 per tonne in the case of an agree­ment signed by six Nyiya­parli el­ders.

The Monthly (Australia) - - THE NATION REVIEWED -

Vance Hugh­ston says that the re­cent de­ci­sion in the Tim­ber Creek case in­di­cates that the com­pen­sa­tion for his Yind­jibarndi client could be very large be­cause the Fed­eral Court is now look­ing at com­pen­sa­tion in the same way as it would with per­sonal in­jury claims. That case, which was set­tled on ap­peal in July, in­volved 1.27 square kilo­me­tres of land where na­tive ti­tle had been ex­tin­guished by the build­ing of gov­ern­ment in­fra­struc­ture on sa­cred sites. The court awarded $500,000 for the value of the land (plus in­ter­est of $1.5 mil­lion), and an­other $1.3 mil­lion for the hurt the com­mu­nity had suf­fered due to the gov­ern­ment’s ac­tions. And in that case the tra­di­tional own­ers had only se­cured non-ex­clu­sive na­tive ti­tle.

Hugh­ston says the Yind­jibarndi would seek com­pen­sa­tion based on sec­tion 51 of the Na­tive Ti­tle Act, which talks about “just terms” com­pen­sa­tion. He ex­plains, “When the Fed­eral Court looked at [Tim­ber Creek], it ques­tioned whether there was a value in the land. They said the proper ap­proach is to com­pen­sate the na­tive ti­tle hold­ers for their hurt, the ef­fect it has had on them and their com­mu­nity. They used the anal­ogy of a per­sonal in­jury claim where the court tries to as­sess an amount of gen­eral dam­age which is com­pen­sa­tion for the pain and suf­fer­ing.

“It’s im­por­tant to see here that we [the Yind­jibarndi] have na­tive ti­tle rights and in­ter­ests of the strong­est kind. That’s why ex­clu­sive pos­ses­sion is so im­por­tant, a recog­ni­tion that you do have the right to con­trol who comes onto your land and what they do on your land. But more im­por­tantly, it recog­nises that your con­nec­tion, your spir­i­tual con­nec­tion, is of such a mag­ni­tude that it gives you this right of ex­clu­sive pos­ses­sion. We’re look­ing at not a sin­gle per­son, we’re look­ing at com­pen­sat­ing the whole of the Yind­jibarndi com­mu­nity. There’s prob­a­bly about 800 peo­ple, you’ve got to com­pen­sate them for past suf­fer­ing over this mine, and you’ve got to com­pen­sate fu­ture gen­er­a­tions.”

Hugh­ston says the Tim­ber Creek rul­ing talked about the prin­ci­ple of the de­fen­dant, in this case the de­vel­oper, be­ing able to say they had done the fair thing. If do­ing the fair thing means pay­ing the 0.5% that other min­ers have paid, then the cost over the life of the Solomon project would be in the or­der of bil­lions. “We are talk­ing a lot of money, yes.”

“The real dif­fi­culty for FMG,” says Hugh­ston, “is it has no idea what is go­ing to hap­pen in any fu­ture com­pen­sa­tion claims be­cause there is no prece­dent. The ar­gu­ment that we will put for­ward is a per­fectly sound le­gal ar­gu­ment. It may not ul­ti­mately be ac­cepted, but I think it has pretty good prospects.”

But Greg McIn­tyre, a se­nior coun­sel whose decades of na­tive ti­tle ex­pe­ri­ence in­cludes act­ing as the so­lic­i­tor on the Mabo case, says the Yind­jibarndi win puts na­tive ti­tle into un­charted ter­ri­tory.

“Other than Tim­ber Creek, there are no cases on how you value com­pen­sa­tion. In the case of min­ing, there’s no prece­dent,” he ex­plains.

FMG’s Nev Power agrees there’s very lit­tle le­gal prece­dent to go on. He also cites the Tim­ber Creek case, and adds that the com­pany al­ready pays a lot of money to the state in roy­al­ties, in­clud­ing $629 mil­lion in the 2016 fi­nan­cial year.

Im­por­tantly, too, he notes that “Na­tive ti­tle ex­pressly ex­cludes ref­er­ence to the value of min­er­als from cal­cu­la­tions of com­pen­sa­tion.”

McIn­tyre con­curs that any com­pen­sa­tion to be paid to the Yind­jibarndi would have to be linked to the value of the land, but that would ex­clude the min­eral rights.

“When you are talk­ing about min­ing leases, the ques­tion is to what ex­tent does the min­ing im­pede the ca­pac­ity to ex­er­cise na­tive ti­tle rights. They can make a com­pen­sa­tion ap­pli­ca­tion but it’s not go­ing to be based on the value of the iron ore.” But Deakin Univer­sity’s Jon Alt­man, who was called as an ex­pert wit­ness in the Tim­ber Creek case, says the de­ci­sion af­firms that com­pen­sa­tion can be paid for non-eco­nomic pain and suf­fer­ing, as well as the eco­nomic loss.

Asked about the role of Jus­tice Rares, McIn­tyre won­ders about the im­pact of the tac­tics used by FMG that have left the Yind­jibarndi com­mu­nity deeply di­vided.

“Rares was pretty con­cerned about a min­ing com­pany get­ting as heav­ily in­volved in in­ternecine dis­putes. That’s good, it’s good that the courts keep an eye on those things.”

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