On 12 May 2026, the Federal Court delivered judgment in Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585. The Court has published a summary of reasons, with the full reasons to follow. Our observations below are based on the Court’s summary.
This is the third in a line of compensation cases, following Griffiths in 2019 and McArthur River earlier this year. Each case is important. Together, they are part of a developing picture of the damages that arise from impact on native title interests.
The emerging position is that the compensation has two limbs: economic loss, tied to freehold value, and cultural loss, arising from loss of traditional attachment to and connection with country, including spiritual sustenance from the land. This decision confirms this structure but raises the bar significantly for the quantum of damages available for the cultural loss component. The Court assessed cultural loss at $150 million, representing approximately 0.1 to 0.2% of FMG’s income from the project, based on the native title holders estimate of $80 billion. FMG has not confirmed that figure.
It seems likely that the decision will be appealed by one or more parties.
Notably, this is the first decision to deal with compensation for "future acts" under the Native Title Act (here, the grant of mining tenements) which adds to its significance. Further, unlike Griffiths and McArthur River, this case involved compensation for impairment to exclusive native title rights, with the Court concluding that the exclusive nature of the native title rights were relevant to the ‘cultural’ component of the compensation claim.
While Burley J applied the High Court's reasoning in Griffiths in assessing cultural loss, he declined to apply a mathematical comparison with the amount awarded in Griffiths (being $1.3 million in relation to an area of 1.27 square kilometres) on a literal, per-square-kilometre basis, describing the resulting figure of approximately $576 million in this case as excessive and instead arriving at a lower figure. A similar approach was taken in McArthur River, where an application of the rate per hectare established by Griffiths was found to be excessive in the circumstances. This approach to the application of Griffiths is likely to be closely scrutinised on appeal. More generally, the decision reflects the subjective element in valuing cultural damage, so the cultural loss component may be varied (potentially significantly) on appeal.
It is also worth noting that the Court found FMG, not the state, is liable to pay the compensation, pursuant to s 125A of the Mining Act, and that FMG's constitutional challenge to that provision was rejected. That finding is likely to be a further ground of appeal.
It is important, however, to look at these cases separately from the commercial agreements, some of which were the subject of evidence in the case. Compensation in advance is only one outcome those agreements may address. Specifically, those documents are in part to facilitate grant of tenure and approvals in timeframes that are shorter than would be the case if there were opposition to (say) environmental approvals. They also typically manage Aboriginal Cultural Heritage issues, including management of artefacts.
Looking at the result of this case, it sought to expand economic loss to capture the compensation that hypothetically would have been secured had there been an agreement, specifically through a percentage royalty on profits from the Solomon Hub Project. That argument was not accepted by the Court, which ordered approximately $100,000 for economic loss. A similar “hypothetical bargain” argument based on mining royalties was also rejected in McArthur River, indicating that the Court is likely to continue assessing economic loss on the basis of freehold value (discounted to reflect the value of the relevant native title rights compared with those of a freehold landowner).
Accordingly, and as expected, the key contributor to damages was cultural harm. This was measured by reference to a range of factors, including the destruction of 124 heritage sites and the removal of artefacts from 240 heritage places, damage to songlines, the impact of dewatering on groundwater and surface water, and the scale of physical disturbance across 563 square kilometres of the Determination Area. These considerations echo the McArthur River findings, where a significant river diversion and tailings contamination supported the cultural loss award.
Lay witnesses gave deeply personal evidence of the spiritual harm caused by the loss of connection to country. That appears to be the basis of his Honour’s conclusion that the compensation reflecting cultural harm amounts to $150 million.
Importantly, the Court found that there is no legal basis upon which the social division between the Yindjibarndi community groups arising from the mining and actions of the miner can be included in cultural loss as a result of the grant of the mining tenements.
Notably, the Court also awarded compound interest on the damages. This is likely to be significant. In Griffiths, the interest was calculated on a ‘simple interest’ basis, not a compound basis. Given that the grant of the tenements in question was in the early 2000s, that difference will make a three-to-four-fold difference in uplift.
We will provide a more detailed analysis of the Court’s reasons when the full decision becomes available. In the meantime, we have another data point to reference, but one must be mindful that there are several aspects of his Honour’s approach that will be susceptible to appeal.