Title: Battle for Red Dirt: Fortescue Mining Faces Native Title Compensation Challenge
In the Pilbara region of Western Australia, a contentious legal battle is unfolding between the Yindjibarndi people and the Fortescue Metals Group (FMG), one of the largest mining companies chaired by billionaire Andrew Forrest. The clash revolves around native title rights and the compensation owed to the Yindjibarndi for years of mining activities on their land without their consent.
The Yindjibarndi people cherish the red dirt of their ancestral homeland. For thousands of years, they have walked on this land, which holds deep spiritual significance and is embedded in their ancient songlines. The red dirt not only sustains the plants and animals crucial for their survival but also carries a profound responsibility for the Yindjibarndi to safeguard their country and community under the principles of Yingaardt and Galharra.
However, Australian law states that all minerals are owned by the state, empowering it to grant mining approvals and leases. This clashes with Yindjibarndi law, which emphasizes the people’s duty to protect their land and community. The collision between these conflicting ideologies lies at the core of a bitterly contested native title case, recently held in the Pilbara near Fortescue’s Solomon Hub operations.
The outcome of this high-stakes legal battle in the Federal Court will determine whether the Yindjibarndi native title holders are entitled to compensation for the years of mining conducted by Fortescue without their consent. Tina Jowett, the lawyer representing the Yindjibarndi Ngurra Aboriginal Corporation, highlighted that the compensation sought encompasses two types of destruction: the desecration of sacred sites and the harm inflicted upon the community as a whole.
In response, the attorneys representing the state of Western Australia argued that the Yindjibarndi’s compensation claim under the Native Title Act is misconceived. They suggested that if any payment is awarded, it should be made by Fortescue. FMG, on the other hand, acknowledges the Yindjibarndi’s entitlement to compensation but asserts that it should have been pursued through the warden’s court under the Mining Act, not the Native Title Act. Furthermore, Fortescue’s legal representatives argue that if compensation is awarded under the Native Title Act, it should be determined based on a hypothetical price for the loss of native title interests rather than iron ore royalties.
During the on-country hearings, Yindjibarndi elder Charlie Cheedy testified about their guiding principles and laws, particularly yingaardt, which emphasizes the respect one must give to others. Galharra, the paramount rule that all must follow, is the key to maintaining respect in Yindjibarndi law, according to Cheedy. He highlighted that respecting others should be driven by a selfless sense of giving, with no expectation of receiving anything in return.
The Yindjibarndi achieved their non-exclusive native title rights recognition in 2003, followed by the lodging of another claim over adjacent land. In 2017, the Federal Court acknowledged the Yindjibarndi’s exclusive possession over an extended area, including the majority of the Solomon mine. Fortescue’s unsuccessful appeals against this decision culminated in the High Court denying the mining company special leave to appeal in 2020.
Fortescue’s Solomon Hub, comprising the Firetail, Kings Valley, and Queens Valley iron ore mines, produces an annual range of 65 to 70 million tonnes. When planning the hub, Fortescue entered negotiations with the Yindjibarndi Aboriginal Corporation (YAC), which demanded 0.5% of future royalties – a standard rate among major iron ore miners in the Pilbara. However, Fortescue offered $4 million per year in royalties plus $6 million in housing, training, and employment programs. When YAC rejected this offer, Fortescue provided financial support to a break-away group, the Wirlu-Murra Yindjibarndi Aboriginal Corporation, which paid attendees $500 each to secure a deal with FMG.
Thus, Fortescue began mining without any agreement with YAC, the body recognized by the Federal Court as the appropriate native title body. This division between Yindjibarndi groups created significant rifts within the community, affecting families and leading to ongoing tensions, as Jowett explained. She emphasized that the religious, cultural, and economic significance of the area, as well as the destruction inflicted upon it, are akin to placing mines atop Sydney’s St Mary’s Cathedral, the Sydney Museum, and Hyde Park.
The Yindjibarndi people presented a compelling case during the on-country hearings, showcasing their deep connections to the land, their songlines, neighboring language groups, and each other through song and ceremony. Michael Woodley, CEO of the Yindjibarndi Ngurra Aboriginal Corporation, described the spiritual connections, culture, and songlines as integral components of the Yindjibarndi religion. He stressed that their fight for justice stems not from monetary interests but from a fundamental need for recognition and respect of Yindjibarndi law, as their people continue to live in impoverished conditions while FMG profits from their ancestral lands.
Over the past decade, Fortescue has reportedly extracted and shipped approximately $50 billion worth of iron ore from Solomon, all without providing a single cent of compensation to the Yindjibarndi. While Fortescue claims to have made past compensation offers and expresses its willingness to settle the matter, the question that now falls upon the court is determining the true value of this red dirt—a decision that will shape the landscape of native title rights and compensation for years to come.
In early 2024, closing submissions will shed light on the ultimate resolution of this high-profile legal battle. The implications extend beyond the immediate parties involved, highlighting the ongoing tension between Australian law and the preservation of First Nations’ cultural heritage and connection to the land—a complex relationship that demands careful consideration for a harmonious future.
