A small Native Title group in Western Australia’s Pilbara are a decade into a battle with one of the country’s most lucrative mining companies, Fortescue Metals Group (FMG), owned by Andrew ‘Twiggy’ Forrest.
The outcome of a legal appeal could herald a new era in compensation over land usage, as Indigenous people have never won compensation from a mining company.
Last year, the Yindjibarndi Aboriginal Corporation (YAC) won their Native Title claim to exclusive possession of their lands.
During an on Country determination in November last year, Justice Rares acknowledged the history of Yinjidbarndi and their connection to the land.
“The Yindjibarndi people not only possess today, but also have continuously possessed, since before the British Crown claimed sovereignty over Australia, specific native title rights and interests in the claimed area that have not been wholly or partially extinguished,” he said.
But within weeks of the court’s decision, FMG lodged an appeal. If the company's appeal fails, the YAC have for compensation for mining their land without permission.
'Mutual benefit'
Yindjibarndi Country is rich in iron ore which Forrest's company began large-scale commercial mining in 2013.
Five years earlier, the YAC were in negotiations with FMG over royalty payments for mining their land.
The YAC were seeking parity with the WA government, which is 5 per cent of production value. FMG declined their request, to which the YAC reduced their claim to 2.5 per cent. This was also declined by the group.
The YAC then requested 0.5 per cent, which is the industry standard for Pilbara iron ore royalties for Traditional Owners. The mining group, again, declined.
Instead, FMG offered a capped amount at $4 million per year plus employment, training and housing benefits to the value $6.5 million per year, regardless of the level of company profits.
Sitting with NITV’s The Point, Mr Michael Woodley the YAC CEO says he wanted a better deal for the Yindjibarndi people.
“We said to Fortescue Metals, we don’t support the agreement that you put on the table,” he said.
“The agreement needs to be, first and foremost, an agreement that has mutual benefit for all parties… I’m talking about today, tomorrow and 200 years down the track.”
During the initial offer stages, FMG was planning the development of their Solomon Iron Hub mine - an open-cut iron ore mine.
“We said to Fortescue Metals, we don’t support the agreement that you put on the table ... The agreement needs to be, first and foremost, an agreement that has mutual benefit for all parties."
Under the Native Title Act, Traditional Owners have the right to negotiate land usage ‘in good faith’ for six months. In this instance, no agreement was reached within the six month period, which eventuated in the mining company requesting a mining lease from the WA government. The lease was granted in 2011.
FMG started developing the Solomon Iron Hub mine on Yindjibarni Land. According to Fortescue's website, the infrastructure hub currently comprises of two mines: the Firetail and the Kings Valley, which together have production capacity of 70 million tonnes each year.
FMG meeting divides community
While the Solomon Iron Hub site was under construction, the battle between Yindjibarndi people hit boiling point when YAC group members walked away from the corporation.
This was at the time when the mining lease granted by the state government was being appealed.
The break-away group formed the Wirlu-murra Yindjibarndi Aboriginal Corporation and continued to negotiate directly with FMG.
A month after the new group were formed in March 2011, FMG convened a meeting inviting Traditional Owners to speak with their representatives in the town of Roebourne. Very quickly the meeting broke down; questions were being asked of cultural legitimacy and who had the right to speak for Country, with people yelling and Elders walking out.
Footage of the meeting was uploaded online. Roebourne residents said that after the meeting, the divide within their small community was evident.
“It wasn’t tense, it was more sad that you saw families break up and not speak to each other, have disagreements and confrontation. It was just a sad time in our community; we were all powerless really, in trying to find a solution because nobody would want to give in to the position that they were holding at the time,” Mr Woodley said.
Despite the involvement of the Wirlu-murra Yindjibarndi Aboriginal Corporation, in 2013, the federal court ruled YAC as the sole representative for the Yindjibarndi people. In the same year, FMG's Solomon Iron Hub-the mine on Yindjibarndi Land-began operations and the mining company has since made $4 to 5 billion a year in gross revenue from its production.
Mr Michael Woodley, who is also a senior Yindjibarndi lore man, reflected on more than a decade of conflict with the mining giant and the company’s impact on his Country.
“The only thing we have right— that gives any meaning to us, that gives us our identity - is our Country,” Mr Woodley said.
“We simply do not exist without our Country, and I say this because all Indigenous people of the land share the same views.”
Yindjibarndi Native Title determination
In July last year, the Federal Court awarded YAC exclusive possession of their land claim, but up until that point they only had non-exclusive possession, which meant they had to co-exist with other interests, including mining companies.
The win was a huge victory for the Yindjibarndi people and their supporters. The federal court accepted the Yindjibarndi have a continuous and unbroken connection to their land since colonisation.
In the determination Justice Rares stated: "I have found that the Yindjibarndi are entitled to exclusive native title rights and interests over all of the unallocated crown land in the claimed area and the Yandeeyara Reserve, except for a small area occupied by the Tom Price railway.
Michael Woodley at the On Country determination in November, 2017. (Ngaarda Media) Source: Ngaarda Media
"This includes the unallocated crown land occupied by FMG's Solomon Hub mine.
"That is because I am satisfied that the Yindjibarndi established ... that a manjangu (or stranger) still has to obtain permission from a Yindjibarndi elder before entering or carrying out activity on Yindjibarndi Country."
Fortescue 'never challenged' native title
Late last year, FMG lodged an appeal against the judge’s decision in the Federal Court.
In a written statement to The Point, CEO of Fortescue Metals Group Ltd Elizabeth Gaines said the mining company has a strong history of working with Traditional Owners.
“While Fortescue has never challenged the Yindjibarndi Aboriginal Corporate’s right to Native Title, our decision to appeal the Federal Court’s decision on a number of points of law relates to the concept of exclusive possession which has potentially wide-ranging implications,” Ms Gaines said.
The YAC has always maintained that they will sue FMG for compensation.
Their compensation claim cannot be lodged until the appeal is determined. The matter is still before the courts. If the YAC were to be successful in their compensation claim, they will become the first ever Aboriginal group to win compensation from a mining company.
“We stand, still true to our belief and we’ll take on any challenge, if anything these things just empower us,” Mr Woodley said.
The Point has contacted Wirlu-Murra Yindjibarndi for comment.
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