Native title compensation for mining, petroleum and renewables projects

In this article we examine the decision in Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585 and comment on its implications for the calculation of native title compensation for mining, petroleum and renewables projects.

The Federal Court is expected to order FMG pay Yindjibarndi Ngurra Aboriginal Corporation, RNTBC (YNAC):

• (in the vicinity) of $100,000 for economic loss; and
• an amount of $150 million for non-economic or cultural loss.

The award is in satisfaction of YNAC’s native title compensation claim in respect of the grant of mining tenements associated with FMG’s Solomon Hub Project, a large iron ore mine in the Pilbara, Australia.

Only a Summary of the decision has been published by the Court. The Decision and final orders are to be published following calculation of the final award and redaction for confidentiality. This note will be updated following publication of the Judgment. 

The Summary reveals an ‘orthodox’ approach to the calculation of native title compensation and mirrors the approach taken by the High Court in the Timber Creek decision.

Set out below is a summary of findings on key issues.

Methodology. The calculation methodology or formula mirrors Timber Creek:

Compensation = Economic Loss + Interest on Economic Loss + non-economic or cultural loss

Economic loss. Economic loss was valued based on the freehold value of the land with allowances made for duration of the tenements, the non-extinguishment principle and the level of the impact on the native title rights and interests. 

Non-economic loss / cultural loss. The Summary included comments on the following matters as relevant to the determination of the amount of $150 million:

• Lay Evidence. The effect of the mining operations on the attachment Yindjibarndi people have to the land.
• Land Disturbance. Impact to the land caused by the Solomon Hub Project, some 240 heritage places, 124 of which have been completely destroyed and ‘many more’ have been dug up or covered by mine infrastructure.
• Environment. In particular the dewatering associated with the mine and its effect on creeks and surface water.
• Scale. The tenements cumulatively covered 563km² of which the 135.48km² formed the Solomon Hub Project.

Who pays? The Court applied section 125A of the Mining Act. Section 125A (in general terms) requires that the holder of the relevant tenement at the time of the compensation determination pay the compensation. Note: the position is different for each State or Territory.

Royalty or production payment. Not available under the Native Title Act.

Compound interest. Compound interest was awarded. In Timber Creek the High Court left open the possibility of compound interest where it was supported by the evidence.

Agreement Benchmarking. The Summary does not refer to ‘benchmarking’ or the practice of considering the amounts of compensation that have been agreed elsewhere. The fact that it is not referenced suggests that it has no role in a compensation assessment by the Court.

Relativity and the Timber Creek precedent. Timber Creek applied to 1.27km² of non-exclusive native title land. The Court found that if Timber Creek was applied ‘literally’ (i.e. scaled to the same area), the award would be $576 million. This was held to be excessive.

Commentary

By applying the approach of the High Court in Timber Creek, the Court has provided a pathway for proponents to value native title compensation that does not involve a royalty. While the calculation of cultural loss and the availability of compound interest will be fact specific, this decision sets a notional ‘bookend’ for an award of native title compensation for a very large mining project on land subject to exclusive native title. This will assist the calculation of native title compensation for projects that have a smaller footprint, have underground components, or are over non-exclusive native title.