Fortescue Metals Group (FMG) is considering appealing a 2017 Native Title decision to the High Court after their appeal was thrown out by the full bench of the Federal Court.

In 2017, Justice Steven Rares found the Yindjibarndi people of Western Australia’s Pilbara region had exclusive possession Native Title over approximately 2,700 square kilometres of land that partly includes FMG’s profitable iron ore Solomon Hub mine.

FMG appealed the decision in the Federal Court with five judges throwing the appeal out in October.

Yindjibarndi Aboriginal Corporation (YAC) CEO Michael Woodley said retaining exclusive possession of country has given Yindjibarndi people “a sense of reconnecting.”

“It feels like a missing part of our spirit and soul settling back into our Ngurra country which fulfils our hearts and minds with peace and peaceful dreaming,” Mr Woodley said.

“We also feel empowered by the belief and pride that we continue to play a small part in our history as Indigenous Australians to maintain our stance against dispossession, as it is the real sin of [this] country.”

Now FMG potentially faces a large compensation claim from Yindjibarndi Traditional Owners, with the Federal Court’s decision prompting FMG CEO Elizabeth Gaines to consider appealing to the High Court.

Ms Gaines told NIT while FMG has never challenged the Yindjibarndi’s rights to Native Title, the company has some concerns.

“Our consideration of a potential appeal of the recent decision relates to our concern that the Court has lowered the bar for what is required to demonstrate exclusive possession Native Title and that this will have potentially wide-ranging implications for investment in new development in regional and remote Australia,” Ms Gaines said.

Mr Woodley said he finds FMG’s position “counterproductive, short-sighted and careless.”

“We also believe that this is the end of the road for FMG’s appeal process because it won’t reach the High Court as all five judges in the Full [Federal] Court have dismissed FMG’s appeal.”

Should YAC lodge a compensation claim, FMG may be found liable, as the Australian legal system has begun to establish precedents for Indigenous compensation claims.

The Timber Creek High Court decision in March saw Ngaliwurru and Nungali Native Title holders successfully claim over $2.5 million in compensation for economic, cultural and spiritual loss.

No official precedents in the resources sector have been set in relation to compensation for mining impairment as yet.

“This current matter only deals with our Native Title exclusive rights, not compensation. One would then hope that FMG be forthcoming in recognising Yindjibarndi’s compensation application to all FMG shareholders and investors, and that there is a potential liability facing the company,” Mr Woodley said.

“The compensation application is only a matter of time before we submit to the Federal Courts and then it’s not a matter [of] if, but when as per the High Court’s decision in the Timber Creek case, that compensation will be granted.”

Should the appeal reach the High Court, the legal battle between the two organisations will enter its 12th year.

Ms Gaines said FMG remains open to establishing an Indigenous Land Use Agreement (ILUA) with the Yindjibarndi community to ensure a share in the economic opportunities and compensation that other Native Title holders partnering with the mining conglomerate have access to.

“Fortescue works constructively with Aboriginal people to manage and protect over 5,000 Aboriginal heritage places across our operations,” Ms Gaines said.

Mr Woodley said YAC will wait for FMG’s appeal process to finish before submitting an application for compensation early next year.

By Hannah Cross