A Can Of Worms, Reopened: Mining, Native Title, and a Cheap Default

Blak and Black  ·  originally published 2011, updated September 2026

Fifteen years ago I wrote about a can of worms: Tony Abbott and Bob Brown, of all people, discovering on behalf of white farmers in the Hunter and the Liverpool Plains a principle neither had ever troubled to extend to the Yindjibarndi of the Pilbara – that a person ought to have some say over who digs up the ground beneath them. It was a hearing, not a right to refuse, and it should be said plainly this early: nobody in this argument, then or now, actually holds a veto over resource extraction. The double standard was crude enough, at the time, to embarrass even the Coalition. Fifteen years on, the embarrassment has gone. The double standard has not. It has simply been formalised, litigated, quantified in dollars, and reduced, in both of the cases below, to the same question: who has to sit down at the table, and who gets to walk away from it for less than a deal would have cost.

It is worth returning to both fights – the Pilliga and the Pilbara – to see exactly how.

The Pilliga, Cleared to Proceed

Santos’s Narrabri Gas Project, the very coal seam gas push the Lock the Gate campaign was mobilising against in 2011, took another decade to resolve. The NSW Independent Planning Commission approved 850 wells across 95,000 hectares of the Pilliga in 2020, subject to more than 130 conditions; federal environmental approval followed the same year. NSW Farmers fought it to the end, warning of aquifer drawdown and uninsurable liability. So did the Gomeroi people, whose native title claim overlaps the project area and who told the Commission in terms I used in 2011 almost verbatim: the Pilliga is Gomeroi land.

The farmers’ objection and the Gomeroi objection were, by 2025, running on entirely different legal tracks – and that is the point. Where the project required agreement from a Gomeroi native title party under the Native Title Act’s “right to negotiate” regime, and no agreement was reached, the matter went to arbitration before the National Native Title Tribunal. In May 2025 the Tribunal ruled the petroleum leases could be granted over Gomeroi objection: acknowledging the project’s emissions were a “serious detriment” to the climate, it nonetheless found the case for domestic gas-supply reliability, backed by a condition confining the gas to the domestic market, delivered a net public benefit that outweighed the objection. Santos still needed a pipeline approval and a final investment decision before the project could actually proceed – this was a native title clearance, not a finished mine. But the right-to-negotiate fight itself was over, decided by a stacked weighing of public-interest factors the Gomeroi had no vote in.

And Narrabri is not an outlier. In more than three decades of the right-to-negotiate regime, the National Native Title Tribunal has determined that a proposed mining or petroleum act must not proceed only a handful of times, against many hundreds of applications. Almost every future act it has ever been asked to arbitrate, it has allowed – sometimes with conditions attached, occasionally after further delay, but allowed. Narrabri is not the system failing the Gomeroi. It is the system doing exactly what it was designed to do.

The Pilbara, Quantified

The Yindjibarndi story I mentioned only in passing in 2011 has since run almost its full course, and it is the more instructive of the two – not because native title failed in the abstract, but because of what happened when one company chose not to deal with it the way its neighbours do. Fortescue Metals Group began mining its Solomon Hub in the Pilbara in 2012 without an agreement with the Yindjibarndi Ngurra Aboriginal Corporation, dealing instead with a rival, company-aligned corporate structure. In 2017 the Federal Court settled the underlying question: the Yindjibarndi hold exclusive native title over the area, meaning – in Justice Rares’s phrasing – that even a stranger needs a Yindjibarndi elder’s permission to be there at all. Fortescue kept mining regardless, saying the finding had no bearing on its tenure.

What followed was the compensation case. On 13 May 2026, Justice Stephen Burley handed down judgment: $150 million for cultural loss – the largest native title compensation sum in Australian history – plus $136,757 for economic loss and a further $217,152 in compound interest on that amount, calculated under the formula the High Court had set down in the Timber Creek case. Call it about $354,000 in total for the economic component. What Fortescue has taken from the site since mining began is harder to pin to one number than the cultural-loss figure is; reported estimates of cumulative revenue from Solomon Hub range from roughly $50 billion to $80 billion depending on what is counted and when. On any of those figures, the economic award is a rounding error against it. The Yindjibarndi received no ongoing royalties from the mine’s production, and in late August 2026 both the Yindjibarndi and the West Australian government lodged appeals – YNAC’s grounds including the Court’s rejection of a royalty-based measure of economic loss, and its calculation of freehold value by reference to the land’s pastoral rather than mining use, seeking a figure closer to $1.8 billion in total.

Fortescue’s own account complicates the no-agreement story in one respect worth stating plainly. It did, eventually, put a substantial commercial package to the Yindjibarndi: an earlier 2012 offer capped at roughly $4 million a year had already been rejected, and late in 2023, immediately before the compensation trial opened, the company returned with a package reported at around $376 million over the life of the mine, including an immediate $90 million cash payment. YNAC declined that offer too, choosing to press on to judgment and argue instead for a royalty-based measure tied to production value. What the statute delivered – $150 million for culture, roughly $354,000 for economics – fell well short of the package that had been on the table. That comparison does not rescue the fallback rule; if anything it sharpens this essay’s point from the other direction. Declining to negotiate cost the resourced party less than a deal would have. Relying on the statutory measure instead of a real commercial one cost the title holder more than accepting would have. The default is cheap for whichever side ends up stuck with it.

Minerals Were Never on the Title

It is worth being precise about what exclusive native title actually is, because it is not ownership of what is under the ground. In Australia, minerals and petroleum are – with rare historical exceptions – reserved to the Crown regardless of who holds the surface, a rule that predates native title by the best part of a century and applies to freeholders just as much as to the Yindjibarndi. That is exactly why the Yindjibarndi could not simply point to their exclusive title and claim a share of the iron ore: no such share exists on the statute book. They had to argue for a royalty-style measure, pitched at around one per cent of production value, because that figure describes what comparable Pilbara agreements pay, not what native title entitles anyone to as of right. What native title can do is set a price for access, through negotiation – which is exactly the mechanism the Solomon Hub story shows a resourced proponent is free to decline.

What Private Ordering Actually Produces

That royalty-style figure is not a fantasy – it describes something real that happens elsewhere in the same industry. Fortescue itself says, in its own words, that it “has agreed to and pays financial compensation under” seven other native title agreements across the Pilbara. Take the company at its word and native title, on its own ledger, is a workable bargaining chip seven times over. The Solomon Hub story is not a story about that chip being worth little. It is a story about what happens when a company simply declines to play it: the statute’s fallback position turns out to reward the refusal.

The Default is the Discount

That fallback is the argument of this piece. None of what follows requires native title to be an inherently lesser form of title – Fortescue’s own seven other Pilbara agreements are proof enough that it isn’t, once someone actually sits down to bargain over it. What the Native Title Act hands a resourced proponent instead is a walk-away price, and that price is cheap. Decline to negotiate, absorb however many years of litigation it takes, and the fallback delivers a fraction of freehold land value plus a discretionary sum for cultural harm – not a share of anything extracted – through a tribunal that, as Narrabri confirms, will almost certainly say yes regardless of the objection put to it. The problem Solomon Hub exposes is not the estate. It is a default cheap enough to make refusing to bargain the rational move.

A Right to be Outvoted

The mechanism is straightforward. The Native Title Act’s future-act regime gives registered native title parties a right to negotiate in good faith over mining and petroleum leases, and, if that fails, a right to have the National Native Title Tribunal decide instead. It is the second right that matters here, because the Tribunal so rarely says no. Once a proponent can be reasonably confident that a failed negotiation still ends in approval, good-faith bargaining stops being the only route to the same outcome. It becomes the more expensive one – optional, and easily declined by anyone willing to wait the process out.

The Ceiling Underneath

The High Court’s 2019 ruling in Northern Territory v Griffiths – the Timber Creek case – set the formula behind the fallback, and it is more generous to exclusive native title than it might first appear: non-exclusive rights are valued at 50 per cent of the freehold value of the land, the figure the High Court settled on after a trial judge’s 80 per cent and a Full Federal Court’s 65 per cent both failed to survive appeal, while exclusive native title – the kind the Yindjibarndi hold – is treated as tracking freehold value in full. That looks like parity, until the question becomes freehold value of what. Part of YNAC’s own appeal turns on exactly this: that the freehold figure applied at Solomon Hub was calculated on the land’s pastoral use, not its standing as one of the richest iron ore deposits in the Pilbara. A formula that pays one hundred per cent of a pastoral valuation is not a discount on paper. It produces a discounted result all the same, because the thing being valued was never the ore, and the industry’s defence of the formula – that the Act was drafted in 1993 to balance an unmapped, historically contested title against real sovereign risk for developers – does not change what it pays out when, as at Solomon Hub, it becomes the only thing on offer because one side chose not to negotiate anything better.

A Second, Cheaper Permission

The default rule is not the only mechanism capable of undercutting a fair outcome, and it is worth a brief aside. Rio Tinto’s 2020 destruction of the 46,000-year-old Juukan Gorge rock shelters proceeded lawfully under a Western Australian heritage consent obtained years earlier, one that operated independently of the Puutu Kunti Kurrama and Pinikura people’s live native title relationship with the company. An existing agreement did not stop a separate, older, cheaper legal permission from running underneath it. Reform followed the outcry; a substantially watered-down replacement Act followed the industry pressure within three years.

Underfunded on the Only Side that Bargains

None of this explains why Solomon Hub happened, but it explains why walking away from the table was a viable strategy in the first place. Native title, held communally through a prescribed body corporate, generally cannot be sold, leased at full commercial value, or mortgaged to fund a fight the way freehold can. The party across from Fortescue was typically a volunteer board without in-house legal, financial or technical capacity to match a company prepared to fund a decade of litigation while continuing to mine throughout it. A negotiating partner that cannot easily outlast you is one it will always be cheaper to out-wait.

A Delay Long Enough to Matter

The proof burden compounds the same problem rather than causing it. Reaching a determination at all requires proving continuous connection under traditional law and custom back to before sovereignty – at Solomon Hub, a process that ran from the early 2000s to the 2017 determination, by which point Fortescue had already been mining for four years. Facts on the ground do not wait for a court to catch up with them, and once ore is gone, no later determination, however strong, can do anything but price the taking after it happened. The delay does not make native title lesser. It hands an early mover a long head start on the cheaper option.

The Same Ledger

Fifteen years ago the gap was that one side of this argument got a hearing the other had been denied for generations. That gap has closed: the Yindjibarndi have the determination, the judgment, the largest native title compensation sum in the country’s history. What has taken its place is not equality but a cheaper way to lose. Fortescue’s own seven other Pilbara agreements, and the $376 million it eventually put in front of the Yindjibarndi, both show what the negotiated alternative looks like. Solomon Hub shows what a resourced proponent gets instead when it declines that alternative and a title holder is left to rely on the statute: a tribunal that almost never says no, a formula that pays out on a pastoral valuation and nothing for the ore, and a head start measured in years before any of it can be enforced. Fix the default – make refusing to negotiate cost more than negotiating would have – and native title does the rest of the work itself. Leave it as it is, and the ledger this piece opened with in 2011 will keep balancing exactly the way it always has.

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Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010