Clouds gather again over the blue sky mine and Banjima Yurlu

John Gordon, Barrister, Owen Dixon Chambers

Deep in the gorges near the Wittenoom blue asbestos mines, down a rock slope, on a sheltered wall, are yellow ochre figures painted long before any white person walked on this Banjima land. This glimpse from a forthcoming documentary Yurlu Country¹ is a startling reminder of how long the Banjima have lived in this beautiful and rugged region. The Elder pointing out the rock drawings by his ancestors is Maitland Parker. Maitland is suffering from a disease which was unknown to the Banjima 50 years ago, but which has now claimed a growing number – malignant mesothelioma.

Mesothelioma in Australia is caused by one thing – inhalation of asbestos fibre – and these days, around these gorges, there is still plenty of that. More than 3 million tonnes in fact,² in the form of asbestos tailings, in dumps and cascading down the walls of the gorges where the asbestos mines operated from the 1930s to 1966. And not just in the tailings dumps, but now washed and blown down the gorges out onto the flood plains and surrounding land, constituting an area quaintly called by the state government of Western Australia the ‘Wittenoom Asbestos Management Area,’ occupying an area over 46,800 hectares. It is the largest contaminated site in the southern hemisphere. It is a designated Contaminated Site under the Contaminated Sites Act 2003 (WA). Such a declaration under that Act means that the site represents a risk of harm to human health and that the party responsible for the contamination must remediate the site.

Before he recently passed away from his mesothelioma, that was what Maitland Parker was asking for. Someone to clean up the tailings so he and his mob could go back on their land. And it is their land. Because in Banjima People v State of Western Australia (No 3)³ it was held that the Banjima people have certain exclusive and non-exclusive native title rights to the lands in the area including in the Wittenoom Asbestos Management Area. This is the land where they have for thousands of years carried out hunting, fishing, foraging and sacred ceremonies. It is where their ancestors lived and died and are buried.

Many members of the ALA will remember the long fight in the courts against CSR for justice and compensation for those who worked in the Wittenoom asbestos mines and who had contracted fatal asbestos diseases like mesothelioma, lung cancer and asbestosis.

That fight began in earnest in 1977 when a former worker from the Wittenoom mine, Cornelius Maas, aged 42, and suffering from asbestosis and mesothelioma, issued proceedings against Midalco (formerly Australian Blue Asbestos (ABA), the subsidiary created and owned by CSR to operate the mines, with CSR self-appointed as its ‘Managing Agent’). Maas had worked at Wittenoom from October 1957 until November 1959. He died before his case was heard, leaving his family devastated and destitute and, to CSR’s considerable relief, his widow did not continue with the claim. We know⁴ that in June 1977 Robert Darge of the mine’s insurer, the WA SGIO, had urged CSR not to offer to settle the claim – ‘the precedent is too dangerous and too expensive to be generous’. NE Irving from CSR personnel, who had been to Wittenoom in the early 1960s, agreed. He thought the company should rely on ABA’s limited liability and the corporate veil between it and CSR; ‘Even if the workers die like flies they will never be able to pin anything on CSR’ wrote Irving in 1977.

Joan Joosten who worked at the mill office was next. Her claim did not succeed.⁵ The morning of her appeal in 1979 she passed away from her mesothelioma and the appeal was discontinued.

A claim by former Wittenoom worker Wally Simpson who had asbestosis and asbestos-related pleural effusion was dismissed by a judge in the Supreme Court of WA, before the Full Court unanimously overturned the judgment.⁶

A claim for damages for mesothelioma by Klaus Rabenalt, who had worked at the Colonial Mine and Mill in 1960 and 1961, in the Victorian Supreme Court against Midalco, was successful and the jury awarded – for the first time ever in a claim in negligence – exemplary and punitive damages of $250,000. An appeal was brought by CSR.

‘[H]aving regard to the weight of uncontradicted evidence of information concerning the risks to which its employees were exposed in the mill and mine, and the continued poor conditions prevailing in the mill and mine, I consider that a strong case supporting a finding of recklessness – indeed of continuing, conscious and contumelious disregard by the defendant for the plaintiff’s right to be free from risking of injury or disease – was made out. A finding to the contrary might have been arguably against the evidence and the weight of evidence.’⁷

Meanwhile, in WA, a claim against CSR and Midalco continued in the Supreme Court. Peter Heys and Tim Barrow had been exposed before 1959. Tim had worked in and around the mill between 1948 and 1951, and Peter Heys had spent three months as a bagger in late 1955. Tim developed mesothelioma in January 1986 and also had pleural plaques and asbestosis. Peter Heys contracted mesothelioma in 1987. Their trial before Rowland J in the Supreme Court of WA commenced in November 2007, the day before judgment in Wally Simpson’s trial was handed down.

The trial occupied 131 sitting days. There were 69 witnesses, 730 exhibits and 11,000 pages of transcript. Judgment was given on 4 August 1988⁸ in favour of Tim Barrow in the sum of $216,000 and for the estate and dependants of Peter Heys (he had died on Good Friday, 1988, during the trial) in the sum of $155,000.

Rowland J had found that CSR owed a duty of care directly to the workers at Wittenoom: ‘It would be completely unrealistic to suggest that ABA controlled its destiny in any real sense. CSR exercised hands-on management.’⁹

In 1989 CSR finally paid $18,266,000 (with damages ranging from $30,000 to $600,000) to 200 Wittenoom claimants (including widow Reike Maas and widower Bert Joosten) in a group settlement.

Colin Watson claimed damages against the State of WA for his asbestosis and pleural disease which arose as a result of his exposure to Wittenoom-mined asbestos while working in 1958–59 as a tally clerk and wharf lumper for the State Harbour and Lights Department at Point Samson in northern WA. This was the port where the Wittenoom asbestos was shipped to Fremantle. As a tally clerk, Colin counted the bags coming off the trucks from Wittenoom into the sheds and then from the sheds onto the boats. Bags of blue asbestos thrown off trucks burst open filling the shed with dust and fibre. Then he worked loading the bags into the airless holds of ships. Again he would be covered with asbestos. All matters in issue were fiercely contested by the State, including the diagnosis of asbestosis and knowledge of foreseeable risk by the State.

The Supreme Court of WA ruled in favour of Mr Watson and awarded him over $400,000 in damages. The State of WA appealed but the Appeal Court dismissed the appeal and awarded Mr Watson further damages up to $600,000.¹⁰

Former Wittenoom child resident Ross Munroe became the first non-mine worker to receive compensation from CSR in January 1989. He died shortly after, aged 38.

Brent Taylor had spent the first five years of his life in Wittenoom in the early 1960s. Aged 32 with a wife and two small children he contracted mesothelioma in 1992 and issued proceedings against CSR and Midalco alleging a breach of duty of care to the children of employees who lived in the Wittenoom township where tailings had been spread over public areas, government buildings, the airfield, the race track, used as aggregate for road and building construction, and had been sold and supplied to employees to spread on their gardens and lawns. On the morning of his trial in the Supreme Court of WA in December 1992, CSR settled the claim for $450,000.¹¹

That did not resolve the issue, however, and another child of Wittenoom, Vivien Olson,¹² had to run her claim against CSR in the NSW Dust Diseases Tribunal. She was successful in claiming that the risk of mesothelioma was foreseeable and the tailings exposure had caused her mesothelioma. CSR appealed but the estate and dependants of Mrs Olson were again successful.

This long fight for justice was maintained in popular consciousness through an award-winning Four Corners documentary by Paul Barry ‘Blue Death’; a best-selling account by investigative journalist Ben Hills Blue Murder;¹³ and by Midnight Oil’s best-selling record Blue Sky Mine. More recently, a play dramatising the events – Wittenoom – has been written by Mary Anne Butler, which, after sell-out performances, was placed on the Victorian Certificate of Education English curriculum.

The numbers of persons diagnosed with asbestos diseases from exposure to Wittenoom blue asbestos continued (and continues), fulfilling Dr Eric Saint’s grim prophesy from 1948 and producing ‘the richest and most lethal crop of cases of asbestosis in the world’s literature’.¹⁴

Some 20,000 people in total worked and lived at Wittenoom in the years the mines operated. Many more lived in the town after the mine closed, or visited the town as tourists or when working for mining companies which operated in the Pilbara region. It is estimated that more than 2000 people have died to date from exposure to asbestos at Wittenoom mines, mills, town and surrounding areas.

Among them were First Nations peoples who had been exposed when working loading (and then travelling on) the trucks carrying the asbestos from Wittenoom to Point Samson, working at Point Samson, and others who had been exposed at nearby Roebourne settlement where asbestos and broken bags had been dumped.

Later, others were diagnosed with mesothelioma from living and working in and around Wittenoom, including in the contaminated gorges and national parks. Maitland Parker was one of them.

The Parkers are well known in the Karijini/Wittenoom area. Their parents and other relatives lived and worked on Lang Hancock’s nearby Mulga Downs station, where current Hancock Prospecting (HPPL) owner Gina Rinehart grew up. Hancock was not at home a lot, spending much of his time searching for minerals. He discovered and began low level mining of asbestos in the gorges and sold some of his claims to CSR. In return he was given an interest in ABA and was appointed mine superintendent at Wittenoom for a few years after it commenced. He then became focused on iron ore and located and claimed many of the world’s biggest deposits in the Pilbara region, which underpin the wealth of HPPL and Ms Rinehart to this day. HPPL holds iron ore leases on Banjima land.

‘A.B.A. have sold their leases to Hancock and Wright, who have outlined a scheme to reopen the blue asbestos mines as part of a giant industrial complex involving, among other things, the construction of a railway to the coast.’

Despite running some loads of tailings through the crushers and mill to see if the tailings could produce sellable fibre, the fatal health risks of such an operation ensured that no further production ensued.

But the tailings continued to be trucked into the town for another 10 years or so, and were sold and supplied to residents, government instrumentalities and the race club.

Nothing was done by anyone to seal, cover or remove the vast dumps of blue asbestos tailings coating the gorge walls and floors, spreading with each wet season and on the prevailing winds, further and further across Banjima land. Some of the licences were transferred to Rio Tinto companies, presumably as iron ore prospects.

There was not even a concerted effort to keep tourists and visitors away from the tailings dumps despite the clear knowledge of the risks. A Perth school continued to hold an annual camp at Wittenoom. In 1974, The Bulletin reported a Perth souvenir shop selling lumps of blue asbestos.¹⁶

But concern was growing about the risks from all the blue tailings spread around the town, especially after cases of mesothelioma emerged where that could have been the only culpable exposure. The air was monitored and efforts were made to cover up some of the tailings more susceptible to being picked up and blown around by the frequent willy-willies and dust devils. Eventually, governments decided that it was too dangerous to keep the town open and, after several parliamentary inquiries, despite strident opposition from a few town dwellers, it was decided that the private land would be acquired, services would be progressively removed and the town would eventually be closed, demolished and gazetted out of existence.

Over the years from 1994 to 2024 this happened. The tailings in the town were buried and covered in concrete and soil. Today there are just square patches in the dirt where the town used to be.

In August 1992, a committee established by the WA Government and chaired by Mark Neville MLC recommended that: ‘The tailings at the mine site should be cleaned up over a five to ten-year period.’

In April 1994, a parliamentary committee chaired by Murray Nixon MLC recommended: ‘… that the government accept responsibility to remove and/or stabilise asbestos tailings in both the town and mine site.’¹⁷

Then a parliamentary committee convened by Premier Hendy Cowan and chaired by local member Larry Graham in 1994 issued a comprehensive review with 34 recommendations.

One was Recommendation 5: ‘The Government take instant and determined action to have CSR and the Hancock group of companies remediate the sites and renovate the damage they have caused in the Gorges.’

‘It was such an important recommendation that the day after it was tabled, then Deputy Premier Hendy Cowan announced: “The [LNP] State Government will move quickly to open discussions with companies involved in the mining of asbestos at Wittenoom on the issue of tailings dumps near the town.”

Yet the tailings remain to this day.’

‘It was left to the government to do the job,’ Graham said. ‘Had they done it in 1994 when they were told to, [the asbestos] wouldn’t be spreading around the Pilbara now.’

‘This assessment showed that the most significant source and migration pathway of asbestos is erosion by water, particularly from the Colonial Mine Site tailings dump …

The steepness of the Colonial tailings and the undercutting by stream action is serving to feed asbestos material into the Fortescue River catchment that will continue, if unchecked, for hundreds of years. Asbestos material was observed to be deposited by water in creek beds, pools and floodplains as far as the Fortescue River. These deposits are widespread due to the temporary shifting drainage channels and asbestos deposits may remain undisturbed for centuries as the stream alignments change with each flood event. In the future, the mass of asbestos in the Fortescue River system and the proportion of hazardous particles of respirable size is likely to increase if the erosion of the tailings dumps is unchecked.

Wind erosion and transport of asbestos is less significant than waterborne migration in terms of the mass of material that can migrate, although windborne asbestos can be more significant in terms of the health risk associated with respirable fibres in air ... Important sources of windborne asbestos are likely to be dry creek beds and other unvegetated areas on the floodplain, the Townsite (although this is becoming more protected by vegetation) and the Airstrip, where the tailings in the aggregate are becoming increasingly exposed.

Migration of asbestos can also occur through disturbance of tailings material by human activities such as disturbance by vehicles and cattle mustering, and activities that result in loss of vegetation and the potential for increased vulnerability to erosion by wind and water. These impacts will increase in the future if not addressed.

The assessment indicates that the priority should be to stabilise the Colonial mine site, and to reduce the risk to human health by isolation or remediation of areas with high concentrations of asbestos which is a form which can be subject to release to air.’¹⁹

A further GHD report set out the methods by which the tailings dumps could be stabilised and covered. A costing was provided to the state. At $150 million²⁰ the cost was a mere fraction of the royalties earned each year by the state from mining activities in the Pilbara.

The Banjima native title claim judgment was handed down in 2014 confirming native title rights for the Banjima. Immediately BNTAC, the native title corporation, sought undertakings from the government on implementation of the GHD recommended remediation. However, rather than proceeding with implementation, the government’s sole focus was closing the town and discouraging tourists from visiting the contaminated gorges. As for Graham Recommendation 5, nothing more was said.

In good faith, the Banjima eventually accepted places on the Wittenoom Steering Committee to await a process of determination and decision making with respect to the tailings, but to no avail.

Then Maitland Parker got sick and the dynamic changed for the Banjima. Maitland hadn’t worked at Wittenoom or lived in the town. His only exposure was on Country and that meant all of the Banjima – adults and kids – were at risk like him.

As far as Maitland was concerned, if his time was up, so was the government’s. A commitment was required to clean up Country and make it safe for the Banjima to exercise their native title rights to the land for the generations to come and, absent one, the next step was legal action. No commitment was given.

And so the Banjima are gearing up for a fight. Like the claims 40 years ago by the Wittenoom workers. In the courts. And the fight in prospect appears no less difficult.

Maitland’s fight caught the attention of ABC journalist Kirsti Melville who produced a couple of excellent programs for Radio National which stirred international interest, including from the New York Times. And his fight also caught the attention of journalist and film maker Yaara Bou Melhem who joined Maitland and his family as he fought his battle with mesothelioma, to understand his motivations and record insights on what Country meant to him and why the clean up of the tailings was non-negotiable. The result is Yurlu Country which in preview has already won international prizes and is slated for a full release later this year. It looks stunning.

BNTAC has also requested a determination from the statutory authority – the Contaminated Sites Committee – as to who is responsible for remediation of the contaminated site pursuant to legislated obligations imposed by the Contaminated Sites Act. Once that is delivered, compliance with the statutory ruling will be carefully watched and, if necessary, enforced.

Encouragingly the High Court in Commonwealth of Australia v Yunupingu²¹ recently recognised that native title rights were protected by s51 (xxxi) of the Constitution.

The recent history of Wittenoom seems long but only covers about 90 years. Lang Hancock mined asbestos and introduced CSR to the deposits. CSR mined the asbestos and left the gorges covered in asbestos tailings. Hancock and Wright bought the leases and the tailings but also moved on, leaving the tailings spreading by wind and water. The state acquired the leases and the massive problem. It buried the town but not the tailings. The Banjima want their land back. Having seemingly exhausted direct advocacy and diplomacy, the traditional owners of the contaminated land are now short on options.

Just outside the Asbestos Management Area sits Karijini National Park. It is Banjima Country (Banjima staff the excellent Karijini Visitor Centre and the Eco Retreat) and widely regarded as one of the jewels in the WA tourism industry. Thousands visit every year. The skies are cobalt blue and the sun is fierce. Deep down in the nearby gorges of the Park sit the little yellow ochre figures, waiting on the rock as they have for centuries. They are patient. But time is running out.

John Gordon is a barrister at Owen Dixon Chambers in Melbourne and a past National President of the Australian Lawyers Alliance (ALA). Prior to coming to the Bar, as a solicitor in Perth, John acted for the victims of the Wittenoom blue asbestos mines from 1985.

This article first appeared in Precedent 188: Toxic torts, May/June 2025.

1 Illuminate Films Pty Ltd (2025) (Source).
2 Report by GHD Engineers for Department of Industry and Resources and Department of Local Government and Regional Development, Management of Asbestos Contamination in Wittenoom (Non-Technical Summary, November 2006).
3 [2014] FCA 201.
4 In documents leaked by a whistle blower to Financial Review journalist Michael Gill and made public on the Business Sunday program on the Nine network; see R Vojakovic and J Gordon ‘The Victim's Perspective’ in GA Peters and BJ Peters Sourcebook on Asbestos Disease, Vol 13, Michie, 1996.
5 Joosten v Midalco Pty Ltd (unreported) (SCWA, Wallace J, 9 October 1979 AILR 499).
6 Simpson v Midalco Pty Ltd (unreported) (WASC, Brinsden J, 20 November 1987) (on appeal) (WASC Full Court, Wallace, Franklyn, Walsh JJ, 7 December 1988).
7 Midalco Pty Ltd v Rabenalt [1989] VicRp 45, [473].
8 Barrow and Heys v CSR Ltd and Midalco Pty Ltd (unreported) (SCWA, Rowland J, 4 August 1988) (BC 8801016).
9 See J Gordon, ‘The History of Asbestos Litigation’ in L Layman and G Phillips (eds) Asbestos in Australia: From Boom to Dust, Monash University Publishing, 2019. Parts of this article are drawn from that chapter.
10 Watson v State of Western Australia (unreported) (SCWA, 27 May 1988); (on appeal) Western Australia v Watson (1990) WAR 248.
11 Taylor v CSR & Midalco (SCWA, December 1992).
12 Olsen (Young) v CSR Ltd (unreported) (DDT NSW judgment, 24 December 1994); (on appeal) CSR Ltd v Young (1998) Aust Torts Rep, 81–468.
13 Sun Books, 1989.
14 Asbestos Diseases Society of Australia Inc, Professor Saint Memorial Award (2024) (Source).
15 AF Trendall and JG Blockley, Geological Survey of Western Australia, Bulletin 119: The Iron Formations of the Precambrian Hamersley Group Western Australia, 1970, 248.
16 T Hall, ‘Is there a killer in your house?’ The Bulletin, 6 July 1974.
17 L Graham, ‘A desire for meaningful action: Wittenoom’s missing ingredient’ in The Blue Ghosts of Wittenoom, pt 2, Fairfax Media (2015) (Source)
18 C Bennett, The Blue Ghosts of Wittenoom, ibid.
19 GHD, above note 2, 6.
20 GHD Phase 2 Report, Advice on Strategies and Costs for Remediation of Certain Asbestos Contaminated Sites in the Wittenoom Area, 2015, 27.
21 [2025] HCA 6 (12 March 2025).