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The Guardian
14-03-2025
- Politics
- The Guardian
High court native title ruling may affect compensation claims nationwide, experts say
A high court decision on native title has the potential to be as significant as the Mabo case and influence even the land beneath Parliament House, experts say. The court dismissed a commonwealth appeal on Wednesday over whether it may be liable for up to $700m in compensation for bauxite mining at Gove in north-east Arnhem Land. The late Gumatj leader Dr Yunupingu, a renowned land rights activist, originally brought the case in 2019 alongside an application for native title on behalf of his people. In May 2023, the federal court found native title rights and interests are property rights, and their extinguishment is an acquisition and therefore must be made under 'just terms'. This applied to land in the Northern Territory, but there were similarities with land in the ACT. The federal court found Gumatj land was not acquired 'on just terms' before being leased to the Swiss-Australian mining consortium Nabalco in 1968. In its decision on Wednesday, the high court upheld the federal court's decision. 'Native title recognises that, according to their laws and customs, Indigenous Australians have a connection with country,' the judgment read. 'It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond federation. 'It is older and deeper than the constitution.' Dr Ed Wensing, an honorary research fellow at the Australian National University's Centre for Aboriginal Economic Policy Research, said 'this decision is like Mabo 2 in many respects'. The 1992 high court decision established the principle of native title in common law. Sign up for Guardian Australia's breaking news email 'This will have long-term ramifications,' Wensing said. 'The effect of this decision, strictly speaking, is only to the NT and most likely the ACT, but will this case also affect other compensation cases in other places all over the country? Most probably.' However, Wensing said the exact ramifications could take years to emerge. Even the claim in the Yunupingu matter may take a decade to resolve, he said. Greg McIntyre SC, who was the lead solicitor in the Mabo case and is a former president of the Law Council of Australia, told Guardian Australia that the decision strengthened native title and put to rest fears that land rights principles underpinning the legislation could be unpicked or dismantled. 'There have been statements in the high court and, to a lesser extent, taken on by federal courts, saying that native title was fragile and capable of being easily turned or extinguished,' he said. 'This now stops that discussion.' Native title can be granted on freehold land or land covered by a pastoral lease, but mining leases are taken to at least partially extinguish native title. Many mining leases predate the Native Title Act. Sign up to Breaking News Australia Get the most important news as it breaks after newsletter promotion McIntyre said the decision that lands must be acquired on 'just terms' has significant implications that could mean governments may be liable for higher compensation claims. In the Northern Territory, he said, that window for compensation could date back to 1903. 'So what we're looking at is that it's potentially going to result in larger quantities of compensation,' he said. McIntyre said Wednesday's decision was the result of a hard-fought battle waged over decades by the Gumatj people. 'They've had the longest fight in the sense that they went to the Northern Territory supreme court in the late 60s. They presented their bark petitions to the parliament,' he said. McIntyre said while the decision specifically concerned the NT, it could have implications for the ACT. 'Obviously, the ACT hasn't always been there,' he said. 'It only came into existence after federation. So it'll be from the time the ACT was established that this decision [will have effect] – that's when you start calculating your compensation.' The Northern Land Council has several current native title matters before the federal court, but declined to comment this week about the high court's finding. The attorney general, Mark Dreyfus, said in a statement on Wednesday that complex issues remained in the case. 'The commonwealth appealed to the high court to settle critical constitutional issues in this case,' he said. 'This decision clarifies the constitution's application to those issues for parties to this and future matters. 'While the high court has considered significant aspects of this matter, the case will now return to the federal court to resolve other remaining complex issues.'
The Guardian
25-02-2025
- Business
- The Guardian
Fortescue and WA government say traditional owners' $1.8bn compensation claim is worth $8m
Traditional owners in Western Australia are seeking more than $1bn in compensation for the Solomon Hub iron ore mine, but mining giant Fortescue Metals Group and the WA government say their claim is worth less than $10m. The federal court justice Stephen Burley is hearing final submissions this week in the long-running legal dispute between the Western Australian government, Fortescue (FMG) and the Yindjibarndi people over the multibillion-dollar iron ore mine in the Pilbara region. Yindjibarndi Ngurra Aboriginal Corporation is seeking a collective $1.8bn in compensation for economic, cultural, spiritual and social losses and harm since mining operations began almost a decade ago with state government approval, which it argues was given without its consent. In its most recent budget, the WA government estimates it will garner more than $9bn in royalties from mining with about a quarter of that coming from iron ore. It has been reported that the Solomon Hub iron ore mine has generated an estimated $80bn in revenue for Fortescue since 2013. Yindjibarndi Ngurra Aboriginal Corporation alleged that Fortescue began mining in 2013 without any permissions or discussions with native title holders but with state government approvals under the then Barnett government. Lawyers acting for the Yindjibarndi applicants told the court last week that complex relationships nurtured from birth until death, through marriages, funerals, lore and oral traditions, had been severely impacted through Fortescue's mining operations. Sign up for Guardian Australia's breaking news email 'This has made very strong emotions and created much, effectively, bereavement in the community, because it was so, so important,' Tina Jowett SC, said, referring to a detailed anthropological report conducted by Kingsley Palmer on behalf of the claimants. 'Relationships that should have been there very strong and enforced through birth, death, marriage, men making ceremonies have collapsed since 2007.' Fortescue argued in its submission filed last week that traditional owners are not entitled to compensation for any alleged discord, saying that disagreements and disputes arose from different views among Yindjibarndi and the mining company's activities on the land. 'Part of that dispute was about whether (and on what terms) the YP should agree with FMG to land access. Because different YP [Yindjibarndi people] members within the YP had different views about whether an agreement should be made, it cannot be said that FMG caused the alleged disharmony.' Fortescue claimed any acrimony within community was not within the purview of current legislation, with the mining company writing in court documents published last week: 'Such 'social division' or 'disharmony' is not compensable under the [Native Title Act]. 'A sum of no more than $8 million for the YP's non-economic loss would reflect Australian standards that are appropriate, fair and just. Such a sum involves a very generous assessment.' On Tuesday, Brahma Dharmananda SC, acting for Fortescue, argued that cultural and spiritual loss must be considered appropriately and in line with public sentiment in society. 'Value judgment, in our submission, should not be coloured by false questions about the preparedness of mining companies in other cases, to share a royalty percentage of their gains from minerals. Sign up to Breaking News Australia Get the most important news as it breaks after newsletter promotion 'Our submission, properly focused on the impact of the attachment to the land and or connection to Country, cultural loss cannot include a claimed loss if it does not show an impact on the Native Title holders spiritual connection to the land.' In its final submission to the federal court earlier this month, the WA government argued compensation for cultural losses under current legislation was not a 'mathematic equation' but should be in line with community expectations with the compensation valued at between '$5-10 million'. Compensation for economic loss of the land loss 'amounts to $92,957.31,' it said. The WA government, in its statement also argued that the arguments for compensation were 'fundamentally flawed', with compensation being sought under grounds that were not covered by native title legislation. The Yindjibarndi Ngurra Aboriginal Corporation chair and lead applicant, Michael Woodley, told Guardian Australia that he believed the case was a landmark in that it had the power to reshape how mining's cultural, social and economic impacts on First Nations people are understood. Woodley said that mining companies could pay a far greater share of their profits to traditional owners if they were successful in their claim: 'If resource developments are coming on to our land, then they'll have to acknowledge that now the courts have established there is a certain percentage of royalties or resource benefit [to traditional owners].' But he said that as outlined in court, the impact on the once pristine lands, waters and hundreds of important cultural sites had taken a psychological toll on him and the Yindjibarndi people: 'The emotion of the land being picked up, blown up and exploited, impacted on … That's a heavy burden for us to carry, both in a physical and a spiritual sense.' The Yindjibarndi people were awarded exclusive native title rights to their land, including where Solomon Hub sits, in 2017. The final submissions were continuing this week with a judgment expected later this year.
The Guardian
15-02-2025
- General
- The Guardian
‘I knew those things couldn't sit in a box': Lowitja O'Donoghue's niece sheds new light on her extraordinary life
Sorting through a deceased loved one's belongings is rarely easy, but for the family of the trailblazing Lowitja O'Donoghue, who died last year aged 91, the task has been almost insurmountable. The late matriarch's Adelaide home – which she described as a 'gallery' – was a testament to her life's work as one of the country's most prominent Aboriginal leaders. Its contents will soon feature at an exhibition at the Bob Hawke prime ministerial centre in Adelaide, retracing the Yankunytjatjara woman's journey from stolen child to pioneering nurse to formidable Aboriginal rights campaigner. O'Donoghue's niece, Deb Edwards, says the idea for the exhibition came after she and her daughter spent 12 months sorting through her beloved Aunty's possessions. 'She was quite a collector,' says Edwards. 'I just knew those things couldn't sit in a box.' O'Donoghue was taken from her home in South Australia's APY lands as a toddler and raised by missionaries at the Colebrook children's home, where the matron told her she would 'never amount to anything'. It only spurred her on. O'Donoghue was the first Aboriginal nurse to study at the Royal Adelaide hospital – enlisting the help of the then SA premier to overturn the hospital's initial rejection of her application because of her Aboriginal heritage. After a decade nursing, she became more actively involved in Aboriginal rights organisations and began working her way up the ranks of the public service. O'Donoghue would go on to play a critical role in some of the most historic moments in Indigenous affairs, including the 1967 referendum, the passing of the Native Title Act in 1993 and the 2008 national apology to the stolen generations. She found her birth mother after a chance encounter with relatives in Coober Pedy in 1967, but after more than 30 years apart it was an uneasy reunion. The documentary evidence of her extraordinary life has, until recently, been bundled in boxes at the National Library of Australia – and in Edwards's lounge room. When Edwards and her daughter pried them open, they found copies of every nursing exam O'Donoghue had taken; a framed copy of Paul Keating's Redfern speech signed by the then prime minister; and a report she'd written, outlining a model for the first national elected representative body for Indigenous people, which she would later chair. There were personal mementoes too: black and white photos of O'Donoghue, young and in love, with her husband-to-be in the Flinders Ranges; a letter from her sister as she approached retirement, which read: 'We loaned you to the commonwealth … it's time to come home now.' Edwards says they speak to her aunt's ability to have 'a foot in each world'. She recalls when her own daughter, Ruby, was born. 'It meant the world to her, and she totally immersed herself in me being a new young mother … yet the next day she could go, 'Well, I'm jumping on a plane because I'm going to meet Nelson Mandela',' she says. The mammoth task of curating the exhibition is ongoing, but Edwards – also the head of the Lowitja O'Donoghue Foundation – hopes it will show a softer side of the woman famed for her staunch advocacy. Earlier this month, on the first anniversary of her aunt's death, Edwards and her daughter went to the site of the old Colebrook home in the Adelaide foothills. There is a sculpture of an Aboriginal woman, eyes downcast and empty arms outstretched, called The Grieving Mother. They laid flowers in her arms. When O'Donoghue's biographer asked what motivated her life's work, she replied: 'Because I loved my people.' For Edwards, the answer is just as simple. 'It's what she'd want me to do.' Lowitja – A Life of Leadership and Legacy will be held at the Kerry Packer civic gallery, managed by the Bob Hawke prime ministerial centre, University of South Australia in Adelaide from 4 June to 25 July 2025.
