11 September 2026
5 min read
#Native Title & Indigenous Cultural Heritage, #Property & Development, #Renewable Energy
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The State of Western Australia and the Yindjibarndi Ngurra Aboriginal Corporation (YNAC) have each filed a notice appealing the Federal Court’s decision on native title compensation awarded for mining in the Pilbara region of Western Australia.
On 1 July 2026, the Federal Court awarded $150 million for cultural loss, together with $136,757 plus interest for economic loss, for the impact on native title of mining tenements granted as part of Fortescue’s Solomon Hub Project in the Pilbara: Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585.
The case is only the third major judicial assessment of native title compensation in Australia and the first to determine compensation for future acts. It is also the largest cultural loss award to date.
For native title holders, miners and governments, the judgment provides important guidance on how compensation may be assessed where native title rights have not been extinguished but have been substantially impaired by long-term resource projects.
The Yindjibarndi People commenced their native title claim in 2003.
In 2017, the Federal Court recognised both exclusive and non-exclusive native title rights across parts of their traditional lands in the Pilbara. During the claim period, the State of Western Australia granted mining leases, exploration licences, prospecting licences and other miscellaneous licences to Fortescue-related entities. The tenements enabled the development and operation of the Solomon Hub Project, a major iron ore operation that commenced before Fortescue and the Yindjibarndi People had reached a land use agreement.
YNAC sought compensation from both the State and Fortescue under the Native Title Act 1993 (Cth) for the effect of those tenements on the Yindjibarndi People’s native title rights and interests. The claim exceeded $1.8 billion in compensation, including $1 billion for cultural loss and more than $800 million for economic loss.
YNAC argued that economic loss should be calculated by reference to what a reasonable miner would have paid to obtain the native title party’s consent, including royalty-style benefits linked to the value or profitability of the project.
The Court rejected that approach. Justice Burley held that compensation should not be assessed by valuing the commercial benefit to Fortescue of obtaining consent or project certainty. Instead, the Court’s task was to assess the effect of the relevant acts on native title rights and interests.
The Court adopted a freehold-value-based methodology, consistent with the High Court’s approach in Griffiths. His Honour treated exclusive native title rights as capable of being valued at 100% of the freehold value, while non-exclusive rights were treated as capable of being valued at 50% of the freehold value. The Court then applied further discounts to reflect the nature, duration and practical impact of each tenement; the fact that native title was not extinguished; and the need to avoid duplicating compensation where tenements overlapped.
The Court awarded economic loss of $136,757. Justice Burley also awarded compound interest of $217,152, recognising that compensation paid at the time of the relevant future acts would likely have been held or invested for the benefit of the native title holders.
The most significant aspect of the decision is Justice Burley’s award of $150 million for cultural loss. The Court accepted the extensive evidence of the Yindjibarndi People’s spiritual relationship with country, rejected a site-by-site approach, and assessed the harm by reference to the effect of the Solomon Hub Project on one ‘connected’ cultural landscape.
His Honour described the Solomon Hub Project as a “vast hole in the canvas”, applying the metaphor used in Griffiths to explain that harm to country cannot be measured only by reference to individual acts or sites. The cultural loss award was intended to reflect the seriousness of the harm to the Yindjibarndi People’s connection to country as a whole, particularly given the substantial area of exclusive native title rights affected by the project.
Justice Burley accepted that the mining project had caused profound spiritual harm and found that many heritage places had been destroyed or severely disturbed, parts of culturally significant creek systems and water places had been affected, songlines and ceremonial practices had been impaired, and access to country had been substantially restricted.
The Court also accepted that the loss was not merely temporary, finding that, even if physical access was restored after mine closure and rehabilitation, the spiritual relationship with the affected country had been permanently altered.
The Court found that Fortescue, rather than the State of Western Australia, is liable to pay the compensation.
Section 24MD of the Native Title Act permits the State to legislate to pass compensation liability to another person in certain circumstances. The Court held that section 125A of the Mining Act 1978 (WA) validly operates to make the mining tenement holders liable for compensation arising from the grant of the relevant mining tenements.
The respective appeals are yet to be heard by the Full Federal Court.
If you have any questions about native title claims, please get in touch with us.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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