DAY 7: YINDJIBARNDI VRS FMG

Yindjibarndi elders with family outside court.

The West Australian Mining Act which limits compensation to the value of land is practically irrelevant in settlements between miners and Traditional Owner groups, Yindjibarndi witness Murray Meaton told the Federal Court yesterday.

Mr Meaton, an economist with decades of experience negotiating these settlements, told the Court that even the Government’s own advice to miners and native title parties made no mention of the Mining Act as a guide to how these agreements should be reached.

Mr Meaton gave impassioned testimony to the Court on Day 7 of the expert evidence about the impact of mining on traditional lands, indicating that this was another justification for miners to be pay substantial compensation.

The evidence forms part of the Yindjibarndi claim for substantial compensation for Fortescue’s mining of the Solomon hub region without the consent of the PBC, the Yindjibarndi Ngurra Aboriginal Corporation (YNAC). Fortescue has extracted more than $50 billion in iron ore from this region, and officially destroyed more than 240 heritage sites, while refusing to pay a cent of compensation to YNAC.

“In 20 years no-one has ever referred to Mining Act as the basis on which we are negotiating,” Mr Meaton said.

He referred to the Department of Mines flow chart and how it does not refer to the Wardens’ Court, which operates under the Mining Act, but instead “the State government expects that process under the Native Title Act will be done before they grant approval”.

"Anyone valuing this land will take into account the fact that it contains an estimated 2800 million tonnes of iron ore," he added. "I can't imagine anyone would look at this land and ignore the potential to which this land could have, which is the mining of that iron ore."

Mr Meaton said he was concerned that “the impact on the land is understated. The impact on the land is severe”. He said companies can clear vast areas of land and despite rehabilitation, “the land is never the same--the land has been severely degraded”.

“I have visited many of these areas. There are many examples of rehabilitated sites in arid environments that have not been very successful,” he said, adding that miners are only required to backfill pits to the water table, and they leave behind “large waste dumps of processed material”.

Legal counsel for FMG and the State government have relied on Section 123 1 (b) of the Mining Act to argue that Yindjibarndi are entitled to very limited compensation. This section states that compensation cannot be paid “in respect of the value of any mineral which is or may be in, on or under the surface of any land”.

However, this Act was passed in 1978 and it pre-dates the era of Native Title, which began with passage of that act in 1994.

An FMG expert, Campbell Jaski, said that “royalty comparators” were the result of “a bargain that combine a whole myriad of rights and obligations, some of which nothing to do with native title rights and interest”. The cost of delaying a project was one factor that spurred companies to reach agreements with native title groups.

The hearing continues today.