Andrew Forrest just lost a major royalties fight over native title involving Fortescue’s Solomon mine

Fortescue chairman Andrew ‘Twiggy’ Forrest. Photo: Tony McDonough/FMG.

Andrew Forrest and Fortescue Metals Group (FMG) have lost a major legal battle over native title rights at his Solomon mine in Western Australia’s Pilbara region.

This afternoon the Federal Court upheld exclusive rights to the Yindjibandi people. The decision finalises and extends their claim over the region and also involves Rio Tinto and Gina Rinehart’s Hancock Prospecting. It also opens the door on possible legal action for royalties from Fortescue’s multi-billion-dollar mine.

The iron ore-rich Solomon Hub in the Hamersley Ranges is 60km north of Tom Price and 120km west of the Chichester Hub.

In a statement to the ASX following the verdict, Fortescue said expects it will have no impact on the current and future operations or mining tenure at the Solomon Hub.

“We have no commercial concerns and do not anticipate any material financial impact following the Court’s determination,” the company said

The Yindjibarndi Aboriginal Corporation (YAC) was granted native title over the area by Justice Robert Nicholson in 2003 and was subsequently seeking exclusive rights, but when the new case began in 2015, the Western Australian government argued the Yindjibarndi had no legal entitlement to any native title rights or interests in the claimed area beyond the non-exclusive rights — a position supported by FMG, which has had its own decade-long battle with YAC over royalty payments from

The long-running legal battle had pitched local Aboriginal communities against each other after FMG and the YAC failed to reach agreement over royalty payments.

When a breakaway group more amenable to the royalty terms FMG was offering, the Wirlu Murra Yindjibarndi Aboriginal Corporation (WMYAC), emerged six years ago, it received financial support from the company and sparked a battle for control of native title in the area.

Three people of Aboriginal heritage, Lindsay and Margaret Todd and their sister, Phyllis Harris, claimed that they and their family were Yindjibarndi and were supported by FMG as part of the case. Justice Stephen Rares concluded that they failed to prove that they had Yindjibarndi ancestry.

At the heart of the case was whether a “manjangu” (stranger) needed to obtain permission to enter the land.

“I am satisfied that the Yindjibarndi established, on the evidence and in accordance with decisions of the Full Court given after the decision of Justice Nicholson, that a manjangu (or stranger) still has to obtain permission from a Yindjibarndi elder before entering or carrying out activity on Yindjibarndi country,” Justice Rares said.

“I have also found that, apart from the licence for the Tom Price railway, none of the exploration licences issued to the various mining companies operated to derogate from the Yindjibarndi’s native title which is preserved, unaffected by those licences, under s 47B(2) of the Native Title Act.

“I also found that one of those licences, issued to FMG in 2012, is not valid to affect native title in any event.”

The land granted to the Yindjibarndi. Source: Federal Court.

The Yindjibarndi Aboriginal Corporation was seeking a 5% annual royalty from FMG, while Wirlu-murra was prepared to accept an offer of $4 million in royalties, plus additional financial support for housing, businesses and training.

A Supreme Court battle ensued and last year the Yindjibarndi Aboriginal Corporation was placed in receivership by justice Rene Le Miere.

Last month Fortescue announced $100 million in new works to Aboriginal business and joint ventures around the Solomon project.

It included $65 million in partnership with Yindjibarndi-owned businesses, including a Thiess-Wirlu-murra Yindjibarndi Enterprises joint venture infrastructure maintenance works on the project, which is estimated to be worth up to $280 billion during the mine’s lifetime.

At the time Fortescue CEO Nev Power said the works “will provide employment and business opportunities for our Traditional Owner and Native Title groups”.

“We are particularly proud of our ongoing partnerships with Yindjibarndi People through the Wirlu-murra Yindjibarndi Aboriginal Corporation, as they work toward a better future for their community by embracing training, jobs and business opportunities,” he said.

In his Federal Court judgment today, Justice Rares granted exclusive title rights to the Yindjibarndi, including unallocated Crown land occupied by FMG’s Solomon Hub mine.

Following the decision, the company said: “Fortescue will continue its approach of providing training, employment and business development opportunities for Aboriginal people to ensure the strength of its business benefits the communities in which it operates”.