Yindjibarndi traditional owner Michael Woodley is preparing for another battle in the fight to win copyright payments from mining giant Fortescue Metals Group, a business run by Australia’s richest man. Andrew “Twiggy” Forrest.
Key points:
- The Yindjibarndi people received the native title, with exclusive possession, by the Federal Court over their lands in Pilbara in Western Australia.
- Negotiations over copyright payments by mining giant Fortescue Metals collapsed
- Now traditional landlords are still claiming compensation from the Federal Court
A campaign to prove the native title was successful in May 2020, when the High Court refused to hear appeals against two Federal Court rulings ruling that the Yindjibarndi had “exclusive possession” of the land, which includes the right to sue for economic and cultural losses.
However, negotiations on an indigenous land use agreement failed last year, and now the Yindjibarndi have returned to the Federal Court to seek a compensation decision.
The case could see Fortescue ordering millions of dollars in compensation to be paid to traditional landowners to exploit their land without agreement.
Woodley, the chief executive of Yindjibarndi Aboriginal Corporation, sees it as a historic case for the principle of free, prior and informed consent.
“I am awaiting the process now of having to tell our story in court, in terms of what responsibility lies with those responsible for mining in our country without having an agreement to use indigenous land.”
“A mining company that entered our country, did not do the right thing, was not respectful, refused to recognize the rights and laws of native titles and does not want to make an agreement based on what we consider industry standards “, he said. the ABC in an interview.
Yindjibarndi Aboriginal Corporation CEO Michael Woodley says native title compensation will help the community. (ABC News: Susan Standen)
FMG’s Solomon Hub mines are located in the Hamersley Range, on the iron ore-rich soil of the Pilbara region of northwestern Western Australia.
The National Native Title Court, an independent government agency, has asked traditional Pilbara owners to register their interest in participating in the native title compensation claim.
The court must determine whether the community is entitled to “compensation for the loss, deterioration, diminution or extinction of rights and interests of native ownership of the area,” according to the court.
Native title attorney Greg McIntyre SC, who was involved in the historic Mabo native title case, said it was unclear what compensation would be awarded if the court ruled in favor of Yindjibarndi.
“It will no doubt be argued that the value of the ore extraction process can be taken into account, and then its value off the ground.”
“But I’m sure there’s going to be a heated debate to contradict that, and Timber Creek doesn’t give any value to what has been done to increase the value of what could be taken out of the ground,” McIntyre said. .
A map of the YAC claim area in the Pilbara region of Western Australia. (ABC News: Emma Machan)
In 2019, the High Court issued its first decision related to compensation for the native title, which included how to put a price on the cultural loss in what is known as the Timber Creek case.
It awarded $ 2.5 million to the Ngaliwurru and Nungali villages of the Northern Territory for the impact of land subsidies 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 payment, with the legal process likely to take several years.
“One of the things we’re going to rely on to run this particular compensation case is look at the Timber Creek case,” he explained.
“This meant compensation in three areas: economic loss, loss of wealth, and then there is the spiritual and religious loss, which is the pain and suffering, with which companies have intentionally done to people while they were exploiting. our country, “Woodley said.
Fortescue Metals president Andrew Forrest owns more than a third of the company he founded. (AAP: Justin Benson-Cooper)
‘mining welfare’
Forrest, who owns more than a third of FMG, has publicly called “mining welfare” as compensation for the Yindjibarndi people.
He defended FMG’s position on compensation for native titles in an interview with ABC last year, saying the company was more focused on providing education, training and employment for Indigenous people and contracts for Aboriginal businesses.
“If I faced criticism, it’s because I don’t have relationships that are just about handing out buckets of money,” Forrest said.
“I’ve seen how this destroyed indigenous communities. I’ve seen how communities around the world were destroyed. And I don’t want to be responsible for that, just to solve a native title authorization issue for my company,” he said. to say. the ABC.
The ABC requested an interview with Fortescue Metals executives, but the company said its management team was at the Davos World Economic Forum in Switzerland this week and was too busy to talk.
Andrew Forrest will take over as CEO of FMG when Executive Director Elizabeth Gaines moves on to another position. (Supplied by: FMG)
In a statement, outgoing FMG executive director Elizabeth Gaines said the mine had seven agreements with Pilbara’s native headlines.
He said the agreements included preferential access to training, employment and business opportunities, as well as direct financial benefits.
“Fortescue remains open to negotiating a land access agreement for the benefit of all the people of Yindjibarndi on terms similar to the agreements Fortescue has in place with other groups of native titles in the region,” Gaines said in a statement.
“The native title compensation claim will have no impact on our current or future operations or mining ownership in the Solomon Hub, and we do not anticipate any material financial impact for the business in the event of any determination.”
Forrest will serve as interim chief executive for an interim term when Ms. Gaines leaves her position as chief executive in August to become the global ambassador for the FMG renewable energy group’s brand, Fortescue Future Industries.
Attorney James Fitzgerald negotiated native title agreements for traditional Western Australian owners with Rio Tinto and Woodside Petroleum.
The huge center of FMG’s Solomon Mine in the middle of the Western Australian Pilbara was built on the land of Yindjibarndi. (AAP: Will Russell)
He is now a legal advisor to the Australasia Center for Corporate Responsibility, a shareholder research and advocacy organization.
Fitzgerald said Fortescue’s treatment of the Yindjibarndi was paternalistic and an excuse for not complying with industry best practices.
“They’re entitled to that view, but it’s a 19th-century view, for most of us,” Fitzgerald said.
“This idea that, as you know, Aboriginal people have no right to benefit from the land that others are using is, frankly, ridiculous.”
“You know, inherent in that comment, by the way, is that … you can’t trust Aboriginal people to manage money,” Fitzgerald said.
Community division
The Yindjibarndi have been fighting for ownership of their land since 2003.
More than a decade ago, FMG funded another group, the Wirlu-Mirra Yindjibarndi Aboriginal Corporation, to sign agreements with the miner, a move that divided the community in the small town of Pilbara de Roebourne.
Woodley said attempts are being made to reconcile between the groups, but that it was still a difficult situation.
However, he hopes that eventually earning a Fortescue compensation will help his community heal.
“I think what this is likely to bring to the community is closure in a sense, but then a whole new discovery … as far as we can go forward, you know, so that will also give us that opportunity.”