Pansy Sambo always knew the land she was born on was special.
But she never expected the country she loved would make strangers rich while, at the same time, splintering her community.
Mineral-rich expanses of Western Australia’s Pilbara region have been home to her ancestors for centuries — the ridges and valleys all forming part of the Yindjibarndi dreaming stories.
“There are footprints of our family our ancestors have left on this place,” she said. “I was born out there in the bush.”
Pansy remembers a time before iron ore, before compensation deals, meetings with lawyers — a time when her homelands felt “free”.
The sacred red plains are now interrupted by long trains, ferrying valuable commodities for the likes of Rio Tinto, BHP and Fortescue Metals Group (FMG).
“Since mining has started they put gates, locks, on country,” she said. “You are restricted to pass on the knowledge to your children, to your grandchildren.”
The mines also brought bitter community divisions and court dates — lots of them.
The Yindjibarndi people have been fighting for ownership of their land since 2003, when they first lodged a formal native title claim while simultaneously fighting for a cut of mining royalties.
Pansy Sambo knows the legal battles are far from over, as the latest — this time launched by mining giant FMG — looms large over the community.
Her sister, Jane Cheedy, lives in hope that every new court date will herald the dawn of change.
“My people are not living a good life, but we do the best with what we have,” Ms Cheedy said.
They live in Roebourne, a town of about 1,000 mostly Indigenous residents that sits just outside of their traditional country but is now home for many Yindjibarndi people.
The town is in the Pilbara region, home to some of Australia’s billion-dollar mega-mines. Yet the median weekly personal income is a paltry $374, less than half the West Australian average.
On Friday, in a tiny Brisbane courtroom — 4,500km away from Yindjibarndi country — two High Court judges will decide what lies ahead for the community.
On one side is FMG, the $40 billion iron ore company majority-owned by mining billionaire and philanthropist Andrew Forrest.
FMG’s High Court challenge is led by Bret Walker SC, one of Australia’s most eminent silks and barrister for George Pell’s recent High Court acquittal.
On the other side, Yindjibarndi Aboriginal Corporation (YAC), the organisation that represents about 800 traditional owners.
The legal dispute began in 2017, after the traditional owners were awarded exclusive native title over a parcel of land that included Fortescue’s Solomon Mine Hub.
On today’s iron ore price, it’s a site which generates roughly $6 billion in revenue each year for the company.
Unlike non-exclusive native title, the ruling meant the Yindjibarndi had legal possession rights and could control who accessed and used their land.
It was expected that Fortescue would negotiate an expensive land use agreement with traditional owners. Instead, it appealed the decision in the Federal Court.
The appeal was rejected late last year, so FMG took it further — appealing to the High Court of Australia.
Tomorrow, the High Court will decide whether Fortescue’s appeal can be heard.
In documents lodged to the court and seen by the ABC, Fortescue outlines its argument to test the traditional owner’s cultural rights to occupy the land.
“We accept, and have always accepted, the Yindjibarndi people’s non-exclusive Native Title rights and interests over the relevant area,” Fortescue chief executive Elizabeth Gaines said in a statement to the ABC.
“Our application for special leave to appeal to the High Court turns on a point of law regarding the test of exclusive possession, with potential implications for a range of industries including future mining, agriculture and tourism development proposals,” she said.
Native title expert and former WA Law Society president Greg McIntyre described it as a “hard-nosed approach”.
Mr McIntyre, also a lawyer on the historic Mabo native title determination, said FMG’s claim was hard to prove.
“It really boils down to an argument that if the colonisers have come in and flexed their muscles and made it the case that Indigenous people are subservient to them, then that is a basis for taking away their rights.”
“It’s quite a difficult argument, I would have thought, to sustain. It probably doesn’t work in any legal system that I know.”
A murky history
The Solomon iron ore deposit was discovered by FMG geologists in 2005.
It was part of Mr Forrest’s bold plan in the mid-2000s to find 10 billion tonnes of iron ore in the Pilbara, in an area the titans BHP and Rio Tinto had discarded.
The Yindjibarndi Aboriginal Corporation (YAC) had made a claim for native title over the area just two years prior.
FMG was looking to expand quickly and began negotiating a land-use agreement with YAC in March 2008 to speed-up its development.
YAC demanded a 5 per cent cut of future royalties — equivalent to what the WA State Government receives — before it revised down to 0.5 per cent, which it claims is “industry standard.”
But FMG ultimately rejected the offer, offering a smaller payout and an education and employment package worth millions.
“We remain 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,” The FMG chief said.
“We currently have seven agreements in operation, delivering Native Title royalties as well as heritage management, training, employment and business opportunities.
“These agreements provide significant economic and social benefits to the relevant communities.”
The Federal Court later found FMG had controversially provided support and funding to a splinter group of the Yindjibarndi people, in an attempt to broker a royalties deal more favourable to the company.
Jane Cheedy said the division brought scandal and sadness to the Roebourne community.
“[Women had to] be the peacemakers [to] try and get people back together again, after mining came in and divided the people up,” she said.
But according to Yindjibarndi Aboriginal Corporation chief Michael Woodley, the fight will all be worth it one day.
“We’ve had to struggle for everything we have today,” he told the ABC. “And it’s just been a dreadful course of action.
“But I still have a generation of Yindjibarndi people coming up, hopefully for the next 70,000 years, and I need to look after them.
“I wouldn’t take back any of the decisions we’ve made.”
Legal wrangling to continue
The issue of any compensation is another complexity.
At a shareholders meeting in October last year, Mr Forrest said the Roebourne community was suffering from alcohol and drug abuse and “not a community I’m going to empower with tens of millions of your cash”.
The ABC understands if YAC wins tomorrow, it will take another two to three years of legal wrangling to settle on a compensation amount.
Mr Woodley would not be drawn on a final compensation figure YAC would pursue if FMG’s appeal was dismissed tomorrow.
However, the ABC understands the claim would consider the spiritual harm caused, similar to the 2019 Timber Creek determination, as well as the economic impacts.
Fortescue said tomorrow’s ruling would have no impact on its current or future operations and it did not anticipate any financial impact as a result.
As an observer, Mr McIntyre was not convinced the latest court case would lead to a meaningful resolution.
“The battle is between [the] Yindjibarndi group wanting to have a similar kind of agreement with FMG as the one they have with Rio Tinto, which is based on a percentage of the product which is mined,” he said.
“FMG have always said, no, they weren’t prepared to [have that agreement].
“It seems to me unlikely that the resolution of this matter in a different way in the High Court would change that debate.”
For Pansy Sambo and the women of Roebourne, the fight for what is “rightfully ours” keeps them going.
They were hopeful — but not convinced — this latest challenge would bring the change they need.
“I think we’ve been so used to going to courts, fights, [then the] dust settles,” she said.
“But underneath there is joy that we will finally win it.
“You do ask, will it be worth it? But I am hopeful to see young kids making up their minds and going on to become a doctor or pilot.”
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