Title Fight: How the Yindjibarndi Battled and Defeated a Mining Giant

By Paul Cleary

A David-and-Goliath story set in the ancient landscape of the Pilbara

In the space of just fifteen years, Andrew ‘Twiggy’ Forrest’s Fortescue Metals Group has become a global iron-ore giant worth $70 billion. But in its rush to develop, FMG has damaged and destroyed ancient Aboriginal heritage and brokered patently unfair agreements with the traditional owners of the land. When FMG has met resistance, it has used hard-nosed litigation in pursuit of favourable outcomes.

This strategy came unstuck when FMG encountered several hundred Yindjibarndi people and their leader, Michael Woodley, who left school in Grade Six and was from then on immersed in his traditional culture. Woodley has led his community in an epic, thirteen-year battle against FMG, all on a shoestring budget.

Clear-eyed and humane, Title Fight reveals the Wild West of iron-ore mining in the Pilbara. It tells the story of how a small group of Indigenous Australians fought tenaciously to defend their spiritual connection to Country. And, at a moment of national reckoning with our colonial and ancient past, with our relationship to the land, it asks some critical questions: Who does the land belong to? Who gets to choose what it’s used for? And whose side are we on?

Paul Cleary is a journalist and author of six influential books, including Trillion Dollar Baby, Mine-Field and Too Much Luck, which The New Yorker described as a ‘fierce, concise book’. His reporting has focused on resource conflicts and policy, and in recent years he has worked with and written about the First Peoples of Australia.

• Language: English
• Publisher: Black Inc. Books
• Release date: Aug 31, 2021
• ISBN: 9781743821961

Paul Cleary

Paul Cleary is a prominent Australian journalist who has documented the politics and economics of resource extraction for more than a decade. He served as an adviser to the government of East Timor on resource-sector governance and negotiations, and has a doctorate from the Australian National University. He is the author of Too Much Luck, Mine-Field and Trillion Dollar Baby.

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Paul Cleary began his career with Fairfax, leading to a decade of economic policy reporting in the Canberra press gallery. After studying in the United Kingdom as a Chevening Scholar, he became an adviser to Timor-Leste on resource negotiations. His work has focused on resource conflicts and policy, and his books include Trillion Dollar Baby, Mine-Field, Shakedown and Too Much Luck, which The New Yorker described as a ‘fierce, concise book’ that investigated how the resources boom was being ‘classically mismanaged’. In recent years, he has worked with and written about the First Peoples of Australia.

For my son, Patrick, whose teacher Ms L’Estrange wrote in his Grade 2 report: ‘In Geography, he demonstrated empathy towards Indigenous people’s connections to their traditional lands and associated sites of cultural significance.’

Aboriginal and Torres Strait Islander readers are advised that this publication contains names and images of people who have passed away.

Published by Black Inc., an imprint of Schwartz Books Pty Ltd

Level 1, 221 Drummond Street

Carlton VIC 3053, Australia

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www.blackincbooks.com

Copyright © Paul Cleary 2021

Paul Cleary asserts his right to be known as the author of this work.

ALL RIGHTS RESERVED.

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means electronic, mechanical, photocopying, recording or otherwise without the prior consent of the publishers.

9781760642846 (paperback)

9781743821961 (ebook)

Cover design by Tristan Main

Text design and typesetting by Tristan Main

Maps by Alan Laver

Front cover photograph of Andrew Forrest: Daniel Carson/Getty; front cover photograph of Michael Woodley: source unknown – every effort has been made to trace the copyright holders and obtain permission to reproduce this image; back cover photograph of Ned Cheedy with his great-grandson: Lee Griffith, The West Australian; photograph of Woodley King and his grandson: Robert Duncan, The West Australian; photographs of the Burndud ring, Jiirda and the Ganalili Centre are courtesy of Juluwarlu Aboriginal Corporation.

CONTENTS

List of key people, entities and laws

Chronology

Maps

Prologue

1NGAARDANGARLI

2NEW AND OLD LAW

3THE FORTESCUE WAY

4ANYTHING, ANYTIME, ANYWHERE

5THE WAR WITHIN

6A LAST REFUGE

7RULE OF LAW

8THE SECOND FRONT

9DARK ART

10INTOLERABLE IRONY

11LEGACY

Epilogue

Acknowledgements

Appendix A

Appendix B

Endnotes

Index

LIST OF KEY PEOPLE, ENTITIES AND LAWS

Yindjibarndi Aboriginal Corporation (YAC)

Ned Cheedy (Manyarnbangu): Born at Cheedy Well (Jirdi Yindi) on Hooley Station in about 1905, passed away in Roebourne in 2012. Stockman, windmill man, lay preacher in the Pilbara Aboriginal Church who sought to address alcoholism across Western Australia. Gave extensive evidence in the first Yindjibarndi native title case and passed all of his cultural knowledge to Michael Woodley.

Woodley King: Born in an out-camp of Yalleen Station in about 1918, passed away in Roebourne in August 2002. Stockman, prominent rights activist. Established a community at Ngurrawaana to treat people afflicted by alcoholism and to raise Yindjibarndi youth in their traditional culture. Gave extensive evidence in the first Yindjibarndi native title case. Transferred custodianship to his grandson Michael during the on-country hearings for this case.

Michael Woodley: Born in Roebourne in 1973. Left school at Grade 6 and lived a semi-traditional lifestyle with his grandfather from age 10 until age 20. Worked with Rio Tinto for four years. Chief executive of YAC from 2007 until present day. Acknowledged by Cheedy and King as a ‘tharnga’ (spokesperson for country), including for the region where the Fortescue Metals Group Solomon mine is located.

Mavis Pat: Born at Mt Florence Station in 1948. Mother of John Peter Pat, who died aged 16 after being bashed by WA police in 1983. One of the original 12 members of the applicant for the Yindjibarndi #1 native title claim. Cousin of Aileen and Allery Sandy, niece of Ned Cheedy.

Lorraine Coppin: Born in Wickham in 1972. Co-founded Juluwarlu Aboriginal Corporation (JAC) in 1999 to record, preserve and promote Yindjibarndi culture. Wife of Michael Woodley and mother of their six children.

Stanley Warrie: Born in Roebourne in 1963. Long-serving chairman of YAC. Son of senior lawman Yilbie Warrie, who was a contemporary of Ned Cheedy and Woodley King. Spent extensive time on country with these Elders and has authority to speak for large tracts of country.

Boonjah (Middleton) Cheedy: One of Ned’s nine children, born in 1952 at Coolawanyah Station. Worked as a stockman from the age of 17. Gave compelling evidence to the Federal Court about extensive visits and connection to Yindjibarndi country throughout his life.

Angus Mack: Born in Roebourne in 1972, the son of the rainmaker Long Mack. Like Michael Woodley, educated to Grade 6. Gave powerful evidence to the Federal Court about the ongoing Yindjibarndi occupation and control over their lands.

Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC)

Sylvia Allen: Born in 1942 at Mujira-nha on Hooley Station, passed away in 2018. One of the 12 original applicants in the Yindjibarndi #1 claim, broke away from the group in 2010. Cousin of Aileen and Allery Sandy.

Aileen Sandy: Born on Hooley Station in the 1940s. Mother of 10 children, all but two of whom have passed away. Her late husband, Brian Munda, worked at the Wittenoom asbestos mine. One of the 12 original applicants in the Yindjibarndi #1 claim, broke away from the group in 2010. Older sister of Allery and cousin of Mavis Pat.

Allery Sandy: Born in Roebourne in 1955. Established artist, childcare worker and language teacher. A founding member of WMYAC and key spokesperson for the group.

John Sandy: Younger brother of Aileen and Allery. Acted as a plaintiff in the Supreme Court action against Yindjibarndi Aboriginal Corporation (YAC), which included seeking to have it put into administration.

Ken Sandy: Younger brother of Aileen, John and Allery. Also a plaintiff in the Supreme Court action against YAC.

Bruce Woodley: Son of Woodley King, born in Roebourne in 1954, passed away in 2018. Served as a chairman of WMYAC for a period. Also related to Sylvia Allen.

Other key people

The Hon. Michael Barker QC: Acted for the Ngarluma-Yindjibarndi people in their first native title case until he was appointed as a judge of the Supreme Court of Western Australia in 2002.

Bernadine Daly and Bernadette Kennedy: Catholic Sisters of Mercy who lived and worked with the Yindjibarndi people in Roebourne 1978–81. Helped to rehabilitate Yindjibarndi people from alcoholism, including Woodley King, and supported King to establish a dry community on Yindjibarndi country at Ngurrawaana.

The Hon. Peter Dowding: Former premier of Western Australia. Facilitated the first meeting of Elders in 1994 to formulate and lodge the Ngarluma-Yindjibarndi native title claim.

Andrew Forrest: Born in 1961, raised on Minderoo Station in the Pilbara. Transformed Fortestcue Metals Group (FMG) from a small miner with some tenements into the world’s fourth biggest iron ore exporter. CEO of FMG 2005–11; remains chairman. Estimated wealth of $25.5 billion from his 36 per cent share of FMG and other investments.

Brad Goode: Anthropologist sacked by FMG for identifying significant heritage on Yindjibarndi country, including possible burial grounds within the Firetail mine. Issued an extensive public statement about the circumstances of his sacking.

Vance Hughston SC: Silk who took briefs from opponents of native title for many years, but has more recently acted exclusively for native title parties. Acted for YAC 2015–20.

George Irving: Former legal adviser to the Kimberley Land Council. Has worked with native title groups since 1993. YAC’s principal legal counsel since 2008.

The Hon. Justice Robert Nicholson AO: Heard the case for the first Yindjibarndi native title claim and delivered a judgement affirming non-exclusive possession in some areas. Key parts of the judgement relating to pastoral leases were successfully appealed.

Greg McIntyre SC: Engaged by the Ngarluma-Yindjibarndi towards the end of the native title case. Funded indirectly by FMG to act for WMYAC from 2012 onwards.

Kathryn Przywolnik: Registrar of Aboriginal Sites, senior official in WA government who identified deficiencies in FMG’s heritage surveys, triggering an investigation.

The Hon. Justice Steven Rares: Federal Court judge since 2006. Appointed senior counsel in 1993. Presided over the hearings for the Yindjibarndi #1 claim from 2015. Handed down judgements in 2017 and 2020 confirming the Yindjibarndi have exclusive native title possession.

Sue Singleton: Archaeologist sacked by FMG for identifying significance of Yindjibarndi heritage. Personally raised concerns about FMG’s conduct with WA government.

Aboriginal corporations

Yindjibarndi Aboriginal Corporation (YAC): The legal custodian of native title rights and interests, which it holds in trust for the Yindjibarndi people as a result of the 2005 native title determination. Incorporated under federal law in 1994, it is also known as a registered native title body corporate (RNTBC) or a prescribed body corporate (PBC).

Yindjibarndi Ngurra Aboriginal Corporation (YNAC): Incorporated under federal law in October 2017 to act as the legal owner of exclusive native title rights secured by the Yindjibarndi #1 determination in the same year. Also registered as a charity in 2018 to receive and administer the mining income received from corporations for the right to use the native title land of Yindjibarndi people. Established to subsume the role of YAC.

Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC): Formed in December 2010 by breakaway members of YAC who were frustrated by the stalled negotiations. Received initial funding from FMG to undermine YAC, followed by substantial business contracts.

Yindjibarndi Native Title Aboriginal Corporation (YNTAC): Incorporated in May 2015 by key members of WMYAC to stage meetings to weaken the #1 native title claim and replace YAC. Deregistered in 2019.

Yamatji Marlpa Aboriginal Corporation (YMAC): A representative native title body that, while based outside the Pilbara, acted for Pilbara native title groups through its subsidiary Pilbara Native Title Service (PNTS). Contract terminated by Michael Woodley when he became chief executive of YAC in 2007.

Laws

The Native Title Act 1993 (Commonwealth)

The NTA creates exclusive and non-exclusive native title possession rights. Exclusive possession rights give native title holders the right to control access to land and what people can do on their land, and the right to sue for economic loss up to the full value of the land. Non-exclusive possession allows for customary activities to be carried out on the land, such as hunting, gathering and ceremonies.

Section 31 establishes a right to negotiate (RTN) in good faith. If agreement cannot be reached after six months, the proponent may seek arbitration.

Section 66B allows members of a claim group to apply to the Federal Court to replace the applicant to a native title claim (the applicant is composed of individuals who represent the claim group). This section was designed for the benefit of claim groups but companies have been able to exploit it.

Part 6 of the Act established the National Native Title Tribunal (NNTT), which administers applications and disputes between parties under the right-to-negotiate provisions. The NNTT has rarely found that proponents have negotiated in bad faith and as such has approved development proposals.

Aboriginal Heritage Act 1972 (Western Australia)

The AHA was intended to provide a means to protect and preserve Aboriginal sites. The Act created the Registrar of Aboriginal Sites and the Aboriginal Cultural Materials Committee (ACMC). Section 18 allows developers to apply to impact on or destroy Aboriginal sacred sites and other heritage. It defines ‘owners of land’ as a lessee from the crown, and the holder of any mining tenement or mining privilege, but not Aboriginal communities. The ACMC reviews applications and makes recommendations to the minister, who has the final say. The Act does not stipulate that Aboriginal people should be consulted or that the ACMC include Aboriginal people. The owners of the land may appeal decisions, but such rights are not given to Aboriginal interests.

The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

Also known as the CATSI Act. Establishes federal corporate regulation for Aboriginal corporations, overseen by the Office of the Registrar of Indigenous Corporations (ORIC).

CHRONOLOGY

ABOUT 50,000 YEARS AGO

Aboriginal people settle the Pilbara region. They divide into numerous groups with distinct languages and culture, establish law grounds, stories and songs about their lands and create extensive rock art.

1829The Swan River Colony is established by the British government on Whadjuk country (Perth) on 2 May. The Western Australia Act (UK) receives royal assent in the same month.

1861UK and WA governments fund an expedition to the Pilbara to establish a new cotton-growing region. Expedition leader Francis Gregory casually observes presence of iron ore.

1862The colonial government promulgates land regulations to encourage pastoral development in the state.

1868Massacre of a large numbers of Yaburara people at Flying Foam Cove, near Dampier, by two officially sanctioned parties following the murder of two Europeans and one Aboriginal person.

1870s Resource rush underpinned by discovery of copper and pearl sparks drive to round up Aboriginal people for labour. The state government introduces laws to protect them, with little effect.

1890Western Australia attains self-government. John Forrest becomes premier and treasurer.

1901Western Australia becomes the last colony to become a state and it votes to join the Federation on 1 January.

1905The Roth Royal Commission leads to the Aborigines Act 1905, which creates a permit system for Aboriginal employment by stations. The chief protector is made the legal guardian of all Aboriginal children and able to enforce their removal.

1910Ration camps are established on Yindjibarndi and Ngarluma country for older and dependent Aboriginal people, supervised by the local police.

1946About 800 Aboriginal station workers in the Pilbara walk off the job, demanding better wages and conditions. The strike lasts for more than two years.

1948The Bateman Royal Commission recommends fixing a minimum wage for Aboriginal people working in the pastoral industry.

1962Hamersley joint venture between CRA (precursor to Rio Tinto) and Kaiser Steel is formed and begins construction of export infrastructure and rail lines.

1967The Federal Pastoral Industry Award grants equal wages to Aboriginal pastoral workers. Equal wages are phased in from December 1968 in Western Australia. Large numbers of Aboriginal people are forced off stations, many moving into a reserve outside Roebourne.

1971Robe River development brings thousands of men into the Pilbara, many of them living in caravans on the edge of Roebourne.

1973Michael Woodley is born in January.

1975State government builds ‘the Village’ in Roebourne to house Aboriginal people from the reserve, located near the town cemetery.

1983John Peter Pat dies in September in a Roebourne prison cell after being severely bashed by police. No conviction follows, but his death leads to the Royal Commission into Aboriginal Deaths in Custody.

1984Yindjibarndi people unsuccessfully protest against the building of the Harding River Dam after the state government refuses to disclose its impact on heritage sites.

1994The Ngarluma-Yindjibarndi native title application is registered. Yindjibarndi Aboriginal Corporation (YAC) incorporates with the Office of the Registrar of Indigenous Corporations (ORIC).

2003Andrew Forrest begins acquiring a stake in a small iron ore miner, Allied Mining and Processing, for 8 cents a share.

The Federal Court’s Justice Nicholson affirms that the Ngarluma and Yindjibarndi peoples have the right to native title.

The Yindjibarndi #1 claim for an adjacent area is accepted by the registrar of the National Native Title Tribunal (NNTT).

2005Forrest’s controlling stake in renamed Fortescue Metals Group Ltd (FMG) is now worth $400 million. FMG seeks to secure an agreement from a breakaway Nyiyaparli group for land access in the Chichester Range after offering compensation of just 2.5 cents per tonne.

Justice Nicholson issues final orders for the Ngarluma-Yindjibarndi determination in the form of non-exclusive possession. This includes making YAC the prescribed body corporate for the Yindjibarndi native title rights and interests.

2006In a presentation to shareholders, FMG boasts that it has access to 1.1 billion tonnes of proven iron ore reserves, plus a resource that could be as great as 2.4 billion tonnes, exceeding the known reserves of BHP and Rio. FMG begins construction of its first mine at Cloudbreak while awaiting federal environmental approval.

2007An appeal by the Ngarluma-Yindjibarndi peoples results in some gains, including rights over five pastoral leases. FMG commences exploration drilling on a tenement in Yindjibarndi country that it names Solomon. It bulldozes a spring known as Ganyjingarringunha Jinbi. Chairman Andrew Forrest apologises.

2008FMG commences negotiations with YAC for the access agreement that will grant it ‘any and all tenure desired by FMG’ for an unspecified project. In return for the consent of the Yindjibarndi people, YAC asks for an ‘uncapped’ 5 per cent royalty.

FMG declares Solomon resources to be an inferred 1.7 billion tonnes of iron ore.

2009FMG takes YAC to the NNTT to obtain its first mining production licence for the Solomon Hub after six months of failed negotiations. The NNTT grants a further two mining leases in the Solomon Hub area after the state government agrees to nine conditions.

2010FMG executives hold meetings in Roebourne where they speak of dim prospects for YAC in seeking a better deal from FMG.

A barbecue meeting on the beach at Dampier obtains names of members and directors of a breakaway group.

Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC) is incorporated. FMG transfers funds into a trust account of the law firm Corser & Corser to finance WMYAC’s bid to undermine YAC.

2011WMYAC holds a meeting in Roebourne, bussing in Yindjibarndi people from Carnarvon and paying each attendee $500. The meeting approves motions to expedite Solomon development.

WMYAC, with financial backing from FMG, begins action in the Supreme Court of Western Australia with the aim of putting YAC into administration.

YAC signs an agreement with Rio Tinto for a rail spur through Yindjibarndi country, providing a financial lifeline to sustain its fight against FMG.

2012WA’s Department of Aboriginal Affairs begins an investigation into FMG’s practices after it under-reports heritage sites by 30 per cent.

FMG applies to the Federal Court to be joined as a respondent party to the Yindjibarndi #1 claim on the grounds that it could face a compensation liability if the claim succeeds.

The Federal Court’s Justice Neil McKerracher rejects WMYAC’s bid to replace YAC’s native title applicants with their people.

2013FMG opens the Firetail mine on Yindjibarndi country, which is part of the Solomon complex – without the approval of YAC.

2015FMG stages another sham meeting, creating a new corporation to end YAC’s bid for exclusive possession and compensation. Discovery documents reveal FMG’s high level of orchestration.

2016WMYAC’s Supreme Court action succeeds in having a receiver appointed to YAC because it was unable to achieve the 75 per cent vote to appoint directors. An AGM in September lowers the threshold to 50 per cent and YAC appoints its directors.

2017The Federal Court’s Justice Steven Rares finds that the Yindjibarndi have exclusive possession over the #1 claim area, including where the Solomon mine is located. FMG appeals the decision.

2019Five judges of the full Federal Court reject the FMG appeal. FMG appeals to the High Court.

2020The High Court dismisses the appeal, affirming the Yindjibarndi right to exclusive possession. FMG says it only accepts that the Yindjibarndi have non-exclusive possession. The Yindjibarndi begin preparing a compensation claim.

2021FMG and Yindjibarndi Ngurra Aboriginal Corporation (YNAC) meet to discuss a possible settlement. Both factions of Yindjibarndi begin to reconcile differences. YNAC continues work on a claim against FMG.

Map 1: The area claimed by the Ngarluma-Yindjibarndi in 1994, resulting in the 2005 determination, and adjoining Yindjibarndi 2017 determination area, resulting from the 2003 claim.

Map 2: Fortescue Metals Group’s Pilbara operations and infrastructure.

Map 3: 2017 Yindjibarndi determination area showing areas of exclusive and non-exclusive possession, and Fortescue Metals Group’s Solomon Hub mine.

PROLOGUE

Roebourne, Western Australia, 11 March 2012

The old man’s life spans more than a century, but it could be said that this extraordinary human being is the custodian of knowledge that goes back into deep time, tens of thousands of years perhaps. His name is Ned Cheedy in English, and Manyarnbangu in Yindjibarndi, and he is 106 years old – sadly, more than double the life expectancy of many Aboriginal men in Australia today.¹ Cheedy is the Yindjibarndi’s oldest and most respected lawman, who has worked as a stockman, a windmill man and a lay preacher, as well as being a parent and foster parent to many children. He was born and raised on Hooley Station in the heart of the Yindjibarndi nation, where he lived with grandparents who presided over their vast expanse of country before white colonisation. Cheedy remembers Gurgagawarn and Yikarrbangu on his mother’s side, and Jinaguduthu and Wiralbangu on his father’s side.

He lies in a single bed wearing a pair of cream pyjamas in the neat and tidy home of his daughter Rose.² Cheedy’s breathing is laboured, but when we get talking he is lucid, articulate and forthright. He expresses great sadness about the impact of iron ore mining on the traditional lands of the Pilbara, and finds it hard to comprehend how large tracts of Aboriginal land are being dug up and shipped to the other side of the world. He shakes his head, says this is wrong. He speaks of how Aboriginal communities should carefully manage the money they receive from mining.

The question I want to ask most of all is about the role of Michael Woodley, then a 39-year-old chief executive of the Yindjibarndi Aboriginal Corporation (YAC), in the bitter dispute with Fortescue Metals Group (FMG) and a breakaway group in the community. Cheedy has signed affidavits attesting to Woodley’s incredible knowledge of Yindjibarndi culture, law and religion, declaring that ‘he is the man with all the knowledge’.³ I want to know if he stands by these affidavits and if Woodley really is the man he says he is. The simple question of ‘What do you think of Michael Woodley’s leadership in the dispute with FMG?’ produces an electrifying response. Cheedy lifts his torso off the bed and leans on one elbow, gesticulating as he answers. ‘He’s going the right way,’ he says emphatically. ‘He’s doing the right thing. Michael Woodley, he’s been with the old people, making sure our culture does not die. Maybe he’s the right person to talk about what is important.’⁴

I didn’t know it at the time. Cheedy was just three weeks away from drawing his final breath, and these were his last words to an outsider about the actions of a mining company that had torn apart his community.

*

Ned Cheedy’s sadness about the impact of mining on the Pilbara would have been magnified many times over had he been alive one year later. In May 2013, FMG did something so brazen that few businesses in this country would ever consider it, let alone a major corporation listed on the ASX. FMG officially began mining Ned Cheedy’s country, even though it had no agreement in place with the Yindjibarndi people to do so. Cheedy was a member of YAC, which had been appointed by the Federal Court to represent the Yindjibarndi’s native title interests, and YAC had refused to accept FMG’s settlement offer because it was far inferior to the industry standard. FMG decided that, after obtaining state and federal government approvals, it would go ahead and mine Yindjibarndi country despite YAC’s opposition. On 6 May 2013, FMG opened a mine it called Firetail to produce high-grade, low-cost iron ore. Firetail is wholly within YAC’s native title claim but it is part of a much bigger network of mines called the Solomon Hub, which has produced around 70 million tonnes of iron ore a year since 2013, and averaged around US$5 billion in revenue (about $7.5 billion in 2020/21). About half of the entire Solomon complex is within Yindjibarndi country. Solomon produces around 40 per cent of FMG’s total production, which means one-fifth of the value of FMG, and the wealth of Andrew Forrest, has been generated by mining Yindjibarndi land without proper Aboriginal consent.

FMG’s headlong rush to develop was aimed at meeting the demand that has been soaring ever since it first began shipping iron ore from its Pilbara mines in May