A claim for compensation from the Yindjibarndi people over mining on their lands in Western Australia's northwest is misconceived and should be dismissed, the Federal Court has been told.
The native title owners have been engaged in a protracted dispute over compensation related to the Fortescue Metals Group's Solomon iron ore hub in the Pilbara, which is expected to continue operations until at least 2033.
In written submissions added to the court file on Tuesday, the West Australian government said there was no dispute between the parties that there was some entitlement to compensation.
But it argued any rights to payments arose under the Mining Act and not under the Native Title Act.
"It follows that the claim for compensation in this court should be dismissed and, instead, any application must be made to the Warden's Court under the Mining Act," the government's submissions said.
Outlining the case for the Yindjibarndi in Roebourne on Monday, Vance Hughston SC said Fortescue's operations had caused devastating destruction, impacting on about 250 significant Aboriginal sites.
He said the Indigenous owners were entitled to compensation for economic loss, which could be the responsibility of Fortescue or the government, and also for cultural or spiritual loss.
In the case of economic loss, if Fortescue was found to be responsible, then the amount of compensation could be calculated on the basis of what other miners had paid in similar circumstances.
If the government was liable, then it could be determined on what a reasonable administration would be willing to pay.
In the case of cultural loss and the loss of access to the land, a monetary figure should be applied based on what the Australian community would consider appropriate and fair in the circumstances.
Responding to the question of cultural loss, the state government said the Yindjibarndi had not outlined the nature of the damage to significant sites and the consequence of any destruction on their spiritual connection to country.
"It is not enough, in the first respondent’s submission, to point to the mere destruction of a site to found a claim for cultural loss," the government said.
The Yindjibarndi were awarded exclusive native title rights to their land, including where the Solomon hub sits, in 2017.
Fortescue began mining in 2013, but could not reach an agreement with the registered native title holders.
The company has since exhausted all legal avenues of appeal, with the High Court in 2020 refusing it special leave to appeal again and upholding a previous decision of the Federal Court.
The hearings in Roebourne have been set down for two weeks. On Monday next week, the court will also visit the mine site.
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