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Yindjibarndi traditional owner Michael Woodley is gearing up for another battle in the fight to win royalty payments from mining giant Fortescue Metals Group, a business led by Australia’s richest man, Andrew “Twiggy” Forrest.
Key points:
- The Yindjibarndi people were awarded native title, with exclusive possession, by the Federal Court over their land in the Pilbara in Western Australia
- Negotiations over royalty payments by mining giant Fortescue Metals fell apart
- Now traditional owners are pressing ahead with a compensation claim in the Federal Court
A campaign to prove native title was successful in May 2020, when the High Court refused to hear appeals against two Federal Court judgements that ruled the Yindjibarndi had “exclusive possession” of the land, which includes the right to sue for economic and cultural loss.
However, negotiations over an Indigenous Land Use Agreement fell through last year, and now the Yindjibarndi have returned to the Federal Court to ask for a ruling on compensation.
The case could see Fortescue ordered to pay millions of dollars in compensation to the traditional owners for mining on their land without an agreement.
Mr Woodley — the chief executive of the Yindjibarndi Aboriginal Corporation — sees it as a landmark case for the principle of free, prior and informed consent.
“A mining company coming into our country, not doing the right thing, not being respectful, refused to acknowledge native title rights and laws, and don’t want to do an agreement based on what we consider to be industry standards,” he told the ABC in an interview.
FMG’s Solomon Hub mines are on the Hamersley Range in the iron ore-rich soil of the Pilbara region in north-west Western Australia.
Traditional owners in the Pilbara have been asked to register their interest in taking part in the native title compensation claim by the National Native Title Tribunal, an independent government agency.
The court must determine whether the community is eligible for “compensation for the loss, impairment, diminution or extinguishment of native title rights and interests in the area”, according to the tribunal.
Native title lawyer Greg McIntyre SC — who was involved in the landmark Mabo native title case — said it was unclear how much compensation would be awarded if the court decided in the Yindjibarndi’s favour.
“But I’m sure there will be a fierce debate seeking to contradict that, and Timber Creek doesn’t place any value on what may have been done to increase the value of what might be taken out of the land,” Mr McIntyre said.
In 2019, the High Court handed down its first decision relating to native title compensation, which included how to put a price on cultural loss in what is known as the Timber Creek case.
It awarded $2.5 million to the Ngaliwurru and Nungali people in the Northern Territory for the impact of land grants and public works on their native title rights.
With the new case in its early stages, Mr Woodley would not speculate on the size of any payout, with the legal process likely to take a few years.
“One of the things that we will be relying on in running this particular compensation case is looking at the Timber Creek case,” he explained.
“That made compensation on three areas: economic loss, heritage loss, and then there’s the spiritual and religious loss, which is the pain and suffering, with what companies have intentionally done to the people while mining our country,” Mr Woodley said.
‘Mining welfare’
Mr Forrest, who owns more than one third of FMG, has publicly called compensation for the Yindjibarndi people “mining welfare”.
He defended FMG’s stance on native title compensation in an interview with the ABC last year, saying the company was more focused on providing education, training and employment for Indigenous people, and contracts for Aboriginal firms.
“I have seen how that destroyed Indigenous communities. I’ve seen how it’s destroyed communities all over the world. And I don’t want to be responsible for it, just to solve a native title clearance problem for my company,” he told the ABC.
The ABC requested an interview with Fortescue Metals’ executives, but the company said its leadership team was at the World Economic Forum in Davos in Switzerland this week and too busy to talk.
In a statement, outgoing FMG chief executive Elizabeth Gaines said the miner had seven agreements in place with native title holders across the Pilbara.
She said the deals included preferential access to training, employment and business opportunities, as well as direct financial benefits.
“Fortescue remains open to negotiating a Land Access Agreement to the benefit of all Yindjibarndi people on similar terms to the agreements Fortescue has in place with other native title groups in the region,” Ms Gaines said in a statement.
Mr Forrest will take over as executive chairman for an interim period when Ms Gaines steps down in August from her chief executive role to become a global brand ambassador for FMG”s renewable energy arm, Fortescue Future Industries.
Lawyer James Fitzgerald negotiated native title deals for traditional owners in Western Australia with Rio Tinto and with Woodside Petroleum.
He is now legal counsel at the Australasian Centre for Corporate Responsibility, a research-and-shareholder-advocacy organisation.
Mr Fitzgerald said Fortescue’s treatment of the Yindjibarndi was paternalistic and an excuse not to meet industry best practice.
“This idea that, you know, Aboriginal people are not entitled to benefit from the land that’s being used by others is, frankly, ridiculous.”
“You know, inherent in that comment, by the way, is that … Aboriginal people can’t be trusted to manage money,” Mr Fitzgerald said.
Community split
The Yindjibarndi have been fighting for ownership of their land since 2003.
More than a decade ago, FMG funded a another group — the Wirlu-Mirra Yindjibarndi Aboriginal Corporation — to sign deals with the miner, a move that split the community in the small Pilbara town of Roebourne.
Mr Woodley said that reconciliation attempts between the groups were being made, but that it was still a difficult situation.
However, he is hopeful that finally winning compensation from Fortescue will help his community heal.
“I think what that will probably bring to the community is closure in one sense, but then a whole new discovery … in terms of what we can achieve moving forward, you know, so that’ll give us that opportunity as well.”
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