Two worlds collide in bitter native title legal fight

To the Fortescue Metals Group - the mining company founded and chaired by billionaire Andrew Forrest - and the state of Western Australia, that red dirt means one thing: iron ore.

To the Yindjibarndi people, it's much more complex and layered.

Their ancestors have walked that red dirt for thousands of years. It holds their spirits. It's part of their ancient songlines.

That red dirt nourishes plants and animals that have sustained Yindjibarndi people for generations, and they have an obligation to look after it.

In Australian law, all minerals are owned by the state which can grant exploration and mining approvals and leases.

In Yindjibarndi law, the people have a responsibility to look after their country and each other under Yingaardt and Galharra.

And the collision between these two conflicting ideas is at the heart of a bitterly contested native title case, which held on-country hearings near Fortescue's Solomon Hub operations in the Pilbara earlier in August.

The high-stakes Federal Court case will finally determine whether Yindjibarndi native title holders should be compensated for Fortescue mining on their land for years without agreement.

Lawyer for the Yindjibarndi Ngurra Aboriginal Corporation Tina Jowett told AAP that Yindjibarndi people are seeking compensation for two types of destruction: of country, including sacred sites, and of community.

The state of WA's lawyers argued in their opening submissions that the Yindjibarndi's claim for compensation under the Native Title Act is misguided and if there is any payment, it should be made by Fortescue.

FMG contends that while the Yindjibarndi are entitled to compensation, it should have been claimed before the warden's court under the Mining Act.

And if the Yindjibarndi should be compensated under the Native Title Act, the mining giant's lawyers argue in their submissions, it shouldn't be measured by reference to iron ore royalties but instead calculated using a hypothetical price for loss of native title interests.

Giving evidence on country, Yindjibarndi elder Charlie Cheedy explained to the court some of their principles and laws, including yingaardt, the respect you give someone.

"It does not owe you something, it's like a gift from me and I don't expect anything in return," he said.

"Galharra is the number one rule that everyone has to follow, when you have galharra, then you have respect.

"If you follow your galharra in the right way, that is you, yourself, showing your respect, it's the key of Yindjibarndi people in the law."

In 2003, the Yindjibarndi had their non-exclusive native title rights recognised by the Federal Court.

At the same time, they lodged another claim over adjacent land.

In 2017, the Federal Court recognised that the Yindjibarndi had exclusive possession over an additional area, including where most of the Solomon mine is located.

Fortescue appealed unsuccessfully and in 2020, the High Court refused the mining company special leave to appeal again.

FMG's Solomon hub, made up of the Firetail, Kings Valley and Queens Valley iron ore mines, together have a production range of 65 to 70 million tonnes each year.

When Fortescue began planning the Solomon hub it started negotiating with the Yindjibarndi Aboriginal Corporation (YAC).

The corporation wanted 0.5 per cent of all future royalties, the standard rate paid by major iron ore miners in the Pilbara.

Fortescue offered $4 million per year in royalties and $6 million in housing, training and employment programs.

When YAC refused Fortescue's offer, the mining company gave financial backing to a break-away group, Wirlu-Murra Yindjibarndi Aboriginal Corporation, which paid people $500 each to attend a meeting that voted in favour of a deal with FMG.

Fortescue began mining with no agreement with YAC, which had been named as the appropriate native title body by the Federal Court.

The split between the two groups caused massive rifts between Yindjibarndi people, including families, which Ms Jowett said are still present today.

She said the religious and cultural significance of the area was like if someone built a mine on top of St Mary's Cathedral in Sydney, another over the Sydney Museum then another over Hyde Park.

"A mine's been put on every different facet, culturally, spiritually and economically because they can't hunt, camp or gather there any more," Ms Jowett said.

"Every facet of their lives has been destroyed by this mine.

"I see the emotion that comes out in Yindjibarndi people when they are on country because it is that old adage that says they are the land and the land is them because of those spirits, you can't separate the two."

During the on-country hearings, Yindjibarndi people sang and conducted ceremony to show the court their connections to the Ngurra (land), to their songlines, neighbouring language groups and each other.

Michael Woodley, CEO of the Yindjibarndi Ngurra Aboriginal Corporation (formerly YAC), told Ngaarda Media you could bundle up the spiritual connections, culture and songlines and call it the Yindjibarndi religion.

"But it's more than that for Yindjibarndi - we live it every day, this is our ngurra," he said.

"It's not about the money. It's about respecting and recognising that Yindjibarndi law should be considered ... because we can't have this thing operating on our country making billions of dollars while our people live back home in Third World conditions."

In the 10 years since Fortescue began mining at Solomon, the company has shipped off iron ore reportedly valued at roughly $50 billion, legally destroying dozens of significant Yindjibarndi sites in the process.

FMG has not paid the Yindjibarndi people a single cent.

Neither Fortescue nor the WA solicitor-general's office accepted an invitation for an interview.

A Fortescue spokesperson said in a statement that the company has offered compensation to the Yindjibarndi people in the past.

"And we continue to be ready to settle this matter by paying compensation," they said.

The question for the court now is how much is that red dirt is worth ahead of closing submissions being heard in early 2024.

Australian Associated Press