• Hannah Phillips

Mining Companies Meet a New Obstacle in Native Title

Steven Rares, the Federal Court judge who is Australia’s leading judicial authority on native title, has reached a decision that’s likely to affect the future of mining in the Pilbara.

He’s ruled that native title applies over the mining leases of Fortescue Mining, Rio and Hancock Prospecting in the Pilbara.

The claim for exclusive native title was first lodged by the Yindjibarndi Aboriginal Corporation in 2003 and covers about 2,700 square kilometres of land just north of Karijini National Park.

“I have found that the Yindjibarndi are entitled to exclusive native title rights and interests over all of the unallocated Crown land in the claimed area and the Yandeeyara Reserve, except for a small area occupied by the Tom Price railway,” Justice Steven Rares ruled.

“This includes the unallocated Crown land occupied by FMG’s Solomon Hub mine.”

Native title expert Richard Bartlett said it was a “landmark” case that would set a precedent for others.

“It certainly is a landmark case with respect to settling compensation in relation to an existing mine, because it will guide us on principles and will be of very great interest in that respect,” Professor Bartlett said.

Justice Rares’ decision is an attempt to get some consistency into the way that native title is dealt with.

It follows an earlier decision by him to revoke a deal between a company and a group of so called traditional owners and to recover money paid to them so that it can be fairly distributed to all the native title owners.

In the case of the Solomon Hub land, Andrew Forrest has engaged in a campaign of trying to divide the Yindjibarndi native title group by favouring one tribe, the Wirlu-Murra, over the other traditional owners.

The Rares decision reinforces the pre-eminence of the existing Yindjibarndi traditional owners while, at the same time, imposing a duty on them to protect the interests of all the native title owners.

Andrew Forrest had previously offered $200 million to the Wirlu-Murra for social and cultural support.

Seen in this context the claim by Yindjibarndi Land Corporation for a similar amount of money to settle claims under the native title legislation does not seem outrageous.

It is also consistent with Fortescue Mining’s claim that the judgement will have no commercial impact on it, since it would already have made provision in its accounts for the payment.

However Nev Power the CEO of Fortescue has said they may appeal to the High Court to get a clear direction on the extent of native title and the rights of native title claimants.

The law on these matters is long overdue for clarification.

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