Fortescue ordered to pay Yindjibarndi traditional owners $150m in record native title payout

Burley travelled to the Pilbara, about 1,500km north of Perth, for an on-country court hearing to hear from Yindjibarndi community witnesses in 2023. Elders told him in those hearings that the land had become “barren” from mining activities.

Burley was also invited to view culturally significant sites. The court heard that 240 heritage sites had been relocated off country, with 140 cultural sites “completely destroyed”.

In his 350 page judgment, Burley found the Yindjibarndi suffered both tangible and intangible losses, and recounted that elders told the court their “Nurra, soul and spirit [were] destroyed”.

He said “significant damage had been done” to hundreds of cultural sites and artefacts and others had been “destroyed completely”.

“All was duly approved under government processes. However, none was done with the approval of YNAC,” Burley told the court.

Burley said he had heard “moving” evidence from senior elders and community members about the trauma, harm and suffering they had experienced as a result of the large open pit mines and associated infrastructure.

“The connection is deep and visceral … [to the] effect that their spirit or will is destroyed when they see harm done to their country as a result of the mining are plentiful and un-contradicted,” Burley said.

Lawyers for YNAC had argued that the community suffered profound cultural and spiritual harm not only from the mining operations, but also due to the rupturing of long-held community and family ties after the mining giant funded a “breakaway group” of traditional owners to secure land use agreements for their operations.

Fortescue did a deal with breakaway group Wirlu-Murra Yindjibarndi Aboriginal Corporation after YNAC refused their royalty offer, paying people $500 each to attend a meeting that voted in favour of the offer in 2010.

Federal court justice Stephen Burley being welcomed to Yindjibarndi country at an on-country court hearing at Bangkangarra in 2023. The smoking ceremony was performed by Stanley Warrie, Michael Woodley and Kevin Guiness. Photograph: Phil Davies/Juluwarlu/Yindjibarndi Aboriginal Corporation

FMG argued in its closing submissions that much of YNAC’s evidence of the non-economic loss detailed “social disharmony allegedly caused by FMG” during negotiations, and said that such losses were not able to be compensated under current native title laws.