Within a week of each other, a landmark compensation ruling in the Northern Territory and a class action launched in Western Australia have placed the consequences of mining on Aboriginal Country firmly back in the national legal spotlight, writes Gwynette Govardhan.
McArthur River mine compensation award for Gudanji, Yanyuwa and Yanyuwa-Marra traditional owners
Fifty-four million dollars in compensation has been awarded to Gudanji, Yanyuwa and Yanyuwa-Marra traditional owners of Borroloola, a remote town in Northern Territory’s Gulf of Carpenteria and a hub for tourism, mining and cattle, after a court ruling found significant cultural, spiritual, economic and environmental damage to Country caused by the McArthur River mine.
The McArthur River project was established following an agreement made between the Northern Territory Government and Mount Isa Mines in 1992, which enabled the established of mine and export infrastructure. The Northern Territory Government later passed legislation to validate expanding the mine from underground operations to open-cut mining, with traditional owners contending this expansion was particularly damaging to cultural heritage.
The recent state compensation case was first brought in 2020 when Gudanji, Yanyuwa and Yanyuwa-Marra traditional owners first took the Northern Territory government to court in respect to the establishment and expansion of Glencore’s McArthur River Mine and marks only the second ever successful court case in Australia for compensation for native title losses after the Timber Creek case in 2019.
Justice Katrina Banks Smith in her judgment noted the impact of the mine and port went beyond the physical footprint of the project, finding the development of the McArthur River open-cut mine had caused ‘irreversible disturbance of dreaming sites and routes’.
Banjima native title holders launch asbestos compensation claim
Within the same week that Gudanji, Yanyuwa and Yanyuwa-Marra traditional owners were awarded compensation for the impact caused by the McArthur River mine, Banjima Native Title Aboriginal Corporation (BNTAC) launched proceedings in the Federal Court in Melbourne against the West Australian government in respect to asbestos mining at Wittenoom.
Led by lawyer Peter Gordon, the class action case is said to be over 30 years in the making following a state commission report inquiring into asbestos issues at Wittenoom was published in 1994, which concluded residents and visitors to Wittenoom are at risk of cancer and that children were at particular risk.
State had knowledge of risks of asbestos to health
According to BNTAC’s legal team, the State granted the first licences for mining of blue asbestos in Wittenoom in the 1940s and purportedly State Mines Inspectors who visited the mines and mills noted the dusty conditions and health risks. However, no licence conditions were in place on how the mining companies must treat and store asbestos tailings.
Media attention after mine closure and current proceedings
After thousands of immigrant and local workers were sent to Wittenoom to mine asbestos, the mine site was closed and abandoned in 1966.
Whilst early estimates suggested over 1,200 to 2,000 miners and community member deaths were linked to asbestos-related diseases and sickness caused by toxic dust at Wittenoom, BNTAC’s court filings now estimate up to 4,000 related deaths.
In 1990, Midnight Oil released their song Blue Sky Mine about the blue asbestos in reference to Wittenoom legal cases. In 2022, the remaining residents of the Wittenoom townsite were evicted, with much of the town buried by the Western Australian Government. In 2025, Yurlu | Country debuted at Sydney Film Festival, documenting Banjima elder Maitland Parker’s struggle to clean up Wittenoom during his last year of life after being diagnosed with mesothelioma.
The current proceedings against the State of Western Australia address asbestos issues in Wittenoom by firstly seeking court orders to clean up contaminated parts of Banjima Country, including the mines, tailings dumps, Wittenoom floodplain, creeks, and rivers. Secondly, they include a damages component for both the asbestos contamination and what is alleged to be the government’s knowing participation in the dispossession and disadvantage of the Banjima people. The claim refers to research by then-WA Senior Scientific Officer Peter Franklin, whose 2016 report found Banjima people had the highest per capita rate of mesothelioma in the world.
In September 2023, the UN Special Rapporteur on toxic and human rights had also visited Australia to meet with the late Mr Parker to discuss asbestos issues at Wittenoom, which is blanketed in the deadliest type of asbestos, crocidolite. Whilst Australia enacted a total ban on asbestos in December 2003, the legacy of asbestos and loss of life persists, particularly in Wittenoom, which BNTAC’s lawyers contend is the largest contaminated site in the Southern Hemisphere.
Australian Law Reform Commission Future Acts regime inquiry
Both the class action claim in respect to blue asbestos mining at Wittenoom and McArthur River Mine compensation award immediately precede the due date for the Australia Law Reform Commission (ALRC) Inquiry report to the Attorney General examining the future acts regime, which sets out the processes applying to native title rights and interests when affected by third-party actions, such as the grant of a mining lease or building of public infrastructure.
Led by Wirdi man and accomplished barrister and native title expert Commissioner Tony McAvoy SC, alongside ALRC President the Hon Justice Mordy Bromberg, the ALRC has attended events all around the country to discuss concerns about how the Future Acts regime works.
Over 100 submissions were received from law firms, native title representative bodies, regional councils, state departments, mining industry representatives and individuals commenting on the operation of the current legal framework.
The Kimberley Land Council in its submission described the current Future Acts regime as discriminatory, unfair, retraumatising, and not fit for purpose.
The Mabo Centre and National Native Title Council in its submission pointed to inadequacies of procedural rights for Traditional Owner groups and raised concerns about ministerial override powers in respect to mining related activities.
Broadly, legal representatives of various Traditional Owner communities submitted funding and resources was a major issue, with many Traditional Owner groups not having enough staff to respond to the activity notices about proposed activity on their land.
Since the enactment of the Native Title Act 1993, recognising the deep connections of First Nations Australians to Country, there have been over 500 determinations of native title rights and interests over a substantial proportion of Australia.
Notwithstanding the considerable processes First Nations Australians have already undergone to achieve legal recognition, this pivotal moment in time offers an opportunity for the native title system to be reformed to enhance social, cultural, environmental and economic outcomes for Indigenous communities, organisations, businesses and individuals.
For this reason, it is essential the Future Acts regime, as the legal framework and precursor to economic and other activities on native title land, is appropriately designed for Australia’s development – not only economically, but socially – and reflects the current views of Australian society in a way that respects the rights and interests of First Nations people.
