Within the airy, octagonal walls of a makeshift courtroom this week, Lyn Cheedy wiped away tears as she recounted to the court the awful spilt that fractured the community she calls her family.
Aboriginal and Torres Strait Islander readers are advised that this article contains the name of a person who has died.
The Yindjibarndi woman, an elder of a group of traditional owners hailing from the iron ore-rich hills of the Pilbara in Western Australia, was recalling a meeting that had taken place at the exact same spot in Roebourne 12 years ago.
It was a meeting to discuss the plans by a then fledgling miner known as Fortescue Metals Group (FMG) to develop an iron ore mine largely on Yindjibarndi land, about 300 kilometres south of Karratha.
It was also the meeting where the world as she knew it fell away.
“There was a lot of emotion, shouting at one another, arguing,” Ms Cheedy told the court.
“Since then, the fighting has been really bad — physically, mentally draining.
“We have been torn apart.”
That March 2011 meeting at the Roebourne Police and Community Youth Centre — better known as 50 Cent Hall — was revisited this week in testimony given before a landmark legal fight being waged by the Yindjibarndi Aboriginal Corporation (YAC) against FMG.
The Yindjibarndi are seeking unpaid royalties upwards of $500 million, plus damages that could total hundreds of millions more for the loss of sacred sites and spiritual connection to the land.
Native title itself on the stand
In their sights is Fortescue.
So too is the state government for allowing the mining in the first place despite the lack of any permission from the Yindjibarndi.
On trial in the Federal Court is not just the Yindjibarndi’s claim for compensation, but perhaps the very purpose of native title laws in Australia.
How the case is determined could have far-reaching implications for the ability of Aboriginal people to determine their own fate.
Marshall McKenna, a partner at law firm Gilbert and Tobin specialising in native title, said the case was entering unchartered legal territory.
“It is very significant,” Mr McKenna said.
“It will be the first case that sets down the benchmark for compensation to be paid under the Native Title Act by a miner.
“I think it will very much tell us a lot about how the industry will be engaging with traditional owners moving forward.”
During that fateful meeting 12 years ago, however, Ms Cheedy’s concerns were much more immediate.
She recalled in court how the Yindjibarndi people had, leading up towards that point, been largely together in their push for a better deal with FMG as it sought to get access to and mine their lands.
But under questioning from lawyer Tina Jowett, acting on behalf of YAC, she told how the meeting descended into acrimony.
On one side were the members aligned with YAC. On the other were those coalescing around a splinter group backed by FMG known as the Wirlu-murra Yindjibarndi Aboriginal Corporation.
‘My spirit has been broken’
Worse yet, she testified how the whole scene unfolded before her ailing father, Ned Cheedy, who at the time was the most senior Yindjibarndi elder and an “encyclopedia” on the group’s lore and customs.
“He stood up and tried to get people to listen to him,” Ms Cheedy recounted.
“But no one listened.”
Ned Cheedy died a year later, aged 105.
Ms Cheedy’s evidence was echoed by a procession of Yindjibarndi witnesses who told the court of the sadness and anger that had engulfed internal relations for more than a decade.
In 2013, FMG began production at its Solomon mining hub, from which it has dug up and shipped off iron ore reportedly valued at up to $50 billion.
In doing so, Fortescue had made its founder Andrew Forrest one of Australia’s richest people, with a fortune estimated at $13.5 billion.
To this day, the miner has never struck a compensation agreement with the Yindjibarndi people, nor been granted permission by YAC to carry out mining on their land.
Nevertheless, the mine is there, and Ms Cheedy said the Yindjibarndi cannot visit it without permission themselves.
“It’s like a door has been closed and locked and the key has been thrown away,” Ms Cheedy told the court this week.
“You can’t get back to the way things were, to where things were.
“I feel sad.
“My spirit has been broken.”
According to their lawyers, the Yindjibarndi would have been paid at least $340 million in past and future royalties for iron ore if FMG had struck a deal similar to those agreed to by other miners such as BHP and Rio Tinto.
On top of this, the Yindjibarndi are claiming interest and compensation for “non-economic losses” such as the damage or destruction of about 250 cultural and sacred sites — among them rock shelters showing signs of human continuous habitation dating back as far as 53,000 years.
Doubts over legal standing linger
The Yindjibarndi argue that their exclusive possession, the highest form of native title, strengthens their position and gives weight to their claims for more compensation.
Outlining the case this week, the Yindjibarndi’s lead barrister Vance Hughston said his clients had been subjected to an injustice and they should be properly compensated for their losses.
“There is a massive iron ore mine on their country which has caused devastation, destruction and damage to their country, including many significant sites,” Mr Hughston said.
“[The Yindjibarndi are seeking] just terms compensation for the acquisition of their native title rights and interests.”
But underlying the legal push is serious doubt about the powers given to traditional owners by the Native Title Act, the law governing Aboriginal land rights.
In court this week, lawyers for both FMG and the WA government argued it was not the Native Title Act that was the most relevant to the case.
Rather, they argued it was WA’s Mining Act, which was drawn up during the 1970s in an era before native title was enshrined in Commonwealth law.
“We submit [that YAC’s] claim for compensation arises over misconceptions,” Brahma Dharmananda, counsel for Fortescue, argued in court.
“Compensation is payable by the state, not FMG.”
By trying to have the case decided on legal grounds set out in state legislation, native title expert Marshall McKenna said FMG and the government were attempting to minimise any liabilities they might have.
He argued this was because WA’s Mining Act denied native title holders any rights to the minerals in the ground.
Case to test cultural, spiritual values
This might mean that under the Mining Act the Yindjibarndi could expect to receive little more than the freehold value of the land, a sum likely to be just a tiny fraction of the mineral wealth exploited.
“Given that native title rights don’t include mineral rights and are limited to non-commercial rights … the dollar value of that interruption is not significant,” Mr McKenna said.
Of greater interest, he said, were the questions that would need answers in the event Justice Stephen Burley decided the Native Title Act took precedence.
In those circumstances, Mr McKenna said a key question would be the compensation payable to the Yindjibarndi for the loss of connection to their country.
He said these were matters that had never been fully tested in court, and whatever the judge found was likely to reverberate around the country for decades to come.
“The bigger component and the real interest in this case is the cultural value that has been lost, what has been called the loss of connection to country,” Mr McKenna said.
“And in this case, not only do you have open-pit mining, which is obviously an impact on country, but what’s been reported as over 250 heritage sites that have been destroyed in the process of mining.”
Crucially, in Mr McKenna’s opinion the case would almost certainly have to test whether Aboriginal people had any true power over the land they owned.
On this point, however, he said the wording of the Native Title Act, in his opinion, appeared to be clear.
“Short answer — no,” Mr McKenna said.
He said the Native Title Act required miners to negotiate with traditional owners before going on to their lands.
But he said companies were not obliged to strike a deal and could simply refer the bid to the National Native Title Tribunal after a certain period, which “most of the time is resolved in favour of the miner”.
Law and justice not always same thing
Such was the reality of the Native Title Act, Mr McKenna suggested it would have been unlikely to stop the destruction of Juukan Gorge in 2020, an act that drew international condemnation.
“To be quite honest, an arbitration under the Native Title Act would probably have approved a mining tenement over Juukan Gorge under the existing principles,” he said.
“That gives you the kind of veto that the traditional owners have had under the existing Act — very limited indeed.”
During proceedings this week, Justice Burley indicated he was heavily weighing questions that cut to the heart of Australia’s native title laws, asking why companies would strike deals with traditional owners if they did not have to or they did not “like the price”.
For Mr McKenna, the letter of the law might not, in fact, provide much succour to those advocating for Aboriginal empowerment and the right to self-determination.
In his opinion the economic imperative for companies to enter into agreements with native title holders could “fall away” if the court held there was no significant compensation payable.
But Mr McKenna said it would still be open to traditional owners to seek further changes to the law to strengthen Aboriginal rights and bring Australia into line with the principles outlined by the United Nations on the rights of Indigenous people.
In the meantime, he said there were big reasons to believe companies would want to engage on good terms with traditional owners.
“Ethical investors will potentially avoid miners who don’t engage with traditional owners even though the legal incentive to do so may be limited,” Mr McKenna said.
Next week, the Federal Court will conduct hearings in the heartland of Yindjibarndi country when it goes to the Solomon mining hub operated by FMG.
Loading…
If you’re unable to load the form, you can access it here.
Loading…