The settlement package on the table before the Yindjibarndi compensation trial began was worth an estimated $376 million over the life of Fortescue's Solomon mine, National Indigenous Times can report, well above the $150.3 million the Federal Court ordered the company to pay this month.
Yindjibarndi Ngurra Aboriginal Corporation's (YNAC) advice to its members, issued as they prepare to decide whether to appeal the record award this Thursday, puts the offers Fortescue made at a fraction of that value.
In a question and answer document circulated on 1 July, YNAC described Fortescue's original offer as "capped at $4 million-a-year for the life of the mine" and told members they would have been worse off accepting it.
"If we had accepted FMG's 2012 offer, we would have received $60 million by today," the document reads. "We have spent approximately $4 million for our legal costs on this case and FMG wanted to pay us about $8 million in compensation before the judgment. In comparison, the Court has ordered FMG to pay us $150.3 million."
However, National Indigenous Times understands the offer made during early negotiations over Solomon was estimated to deliver more than $600 million in benefits over the life of the mine, including approximately $180 million in cash payments for community purposes covering Elders, education, training and housing, alongside business opportunities, rental benefits and employment and training support.
Had it been accepted, approximately $75 million in cash would have been paid by July 2026, against the $60 million YNAC cited to members.
Fortescue returned with a comprehensive proposal immediately before the trial began in 2023. It is understood the package was worth an estimated $376 million over the mine's remaining life: an immediate $90 million cash payment, mining royalties worth approximately $63 million, around $90 million through equipment ownership and leasing, a free interest in a solar project worth about $21 million, $12 million in scholarships and training, and up to $100 million in additional business opportunities.
Accepted in 2023, with about 21 years then remaining at Solomon, the proposal would have delivered more than $140 million in cash, business and training benefits by this month, with benefits continuing until mining ends. Fortescue gave evidence at trial that Solomon will operate until 2045.
The $8 million cited in YNAC's advice reflected Fortescue's strict legal position on cultural loss under the principles the High Court set in the Timber Creek case, National Indigenous Times understands, and was maintained in court while the far larger settlement proposal remained open.
The Federal Court's 1 July orders require Fortescue to pay $150,353,909: $150 million for cultural loss, $136,757 for economic loss and $217,152 in compound interest. Fortescue paid in full the day the orders were made, and the money sits in an interest-bearing account managed by YNAC while any appeals are resolved.
The award is the largest Native Title compensation ordered in Australian history, well beyond the $2.5 million awarded over Timber Creek in 2019 and the $54.7 million ordered against the Northern Territory Government in February over the McArthur River mine. Fortescue chairman Andrew Forrest said the company had spent 15 years trying to reach a settlement and wanted the money supporting Elders, families and the next generation as quickly as possible.
The orders followed findings that mining at Solomon, carried out without an agreement with the Native Title holders, destroyed or damaged culturally significant sites across Yindjibarndi ngurra. The claim sought $1.825 billion, and the Court's $150 million assessment of cultural loss sits far above the position Fortescue argued at trial. Yindjibarndi Group chief executive Michael Woodley has told members the economic loss component amounts to about 0.2 per cent of the mine's estimated revenue since 2012.
The judgment leaves the parties with a once-off payment and no agreement: no co-management, no business ownership and no commercial framework for the two decades of mining still to come, with no obligation on either side to negotiate one. Any future Fortescue mining lease application would give Yindjibarndi people the opportunity to negotiate or object through the National Native Title Tribunal, which could open wider negotiations over the current operations.
In response to detailed questions, citing YNAC chief executive's competing media and travel priorities this week, Yinjibarndi Aboriginal Corporation forwarded a recent Members Newsletter which included the following comments attributed to Mr Woodley.
"I think we all agree that no amount of money can compensate for the destruction and damage to hundreds of Yindjibarndi cultural places and practices caused by the mine," he said.
"These things are beyond price. However, we must try and overcome the reality that this damage has occurred.
"The remaining question is whether or not we lodge an appeal. Until we hear the legal advice from YNAC's legal team, that is a difficult question for any of us to answer."
Yindjibarndi PBC members meet at 9.30am next Thursday at Roebourne PCYC to hear that advice, ahead of a 26 August deadline to lodge. The parties remain free to reach an agreement over the existing mines at any time. Neither is required to.
