Australia's Yindjibarndi People continue battling Fortescue's Pilbara expansion

Published by MAC on 2011-11-30
Source: The Australian, statement

Heritage dispute threatens Fortescue's Pilbara expansion

By Paul Cleary

The Australian

24 November 2011

FORTESCUE Metals Group's ambitious plans to expand its Pilbara mining operations face dual threats of state and federal intervention following claims that the company is riding roughshod over indigenous heritage protection.

The emerging miner's new Solomon Hub project was rebuffed by the West Australian government this month when Fortescue sought permission to disturb six Aboriginal heritage sites to facilitate the expansion.

Fortescue has now threatened the state Registrar of Aboriginal Sites with legal action, while new evidence has emerged that the company is seeking to bypass indigenous consultation and site assessment.

There also have been claims that Fortescue threatened to withhold payment of $70,000 unless an independent expert deleted parts of a heritage report that implied a minimal assessment of indigenous heritage had been carried out.

For the past four years, Fortescue has been wrangling with the Yindjibarndi Aboriginal Corporation, which has the support of most people named on its 2005 native title determination. YAC has turned down a compensation offer that is about one-tenth the amount paid by Fortescue's competitors and it has used every possible avenue to challenge the company's expansion on land subject to a new native title claim.

Yesterday, the dispute culminated in YAC securing a meeting with federal Environment Minister Tony Burke to present its case for emergency intervention to protect indigenous heritage at the Solomon Hub.

YAC chief executive Michael Woodley said he felt that Mr Burke was sympathetic to his case but wanted to speak to Fortescue as well. Mr Woodley explained how Fortescue had been conducting extensive blasting in a new area on YAC's claim known as Firetail and might have damaged heritage sites.

The Registrar of Aboriginal Sites, Kathryn Przywolnik, wrote in a November 7 letter to Fortescue that the company had not included known archeological sites in its application to disturb the sites, and had not conducted adequate consultation with the Yindjibarndi. She suggested Fortescue resubmit its application.

Fortescue has now threatened the state Registrar of Aboriginal Sites with legal action, while new evidence has emerged that the company is seeking to bypass indigenous consultation and site assessment.

There also have been claims that Fortescue threatened to withhold payment of $70,000 unless an independent expert deleted parts of a heritage report that implied a minimal assessment of indigenous heritage had been carried out.

For the past four years, Fortescue has been wrangling with the Yindjibarndi Aboriginal Corporation, which has the support of most people named on its 2005 native title determination. YAC has turned down a compensation offer that is about one-tenth the amount paid by Fortescue's competitors and it has used every possible avenue to challenge the company's expansion on land subject to a new native title claim.

________________________________________________________________________

WA Heritage Crisis Deepens - FMG Threat to Sue State

Yindjibarndi Aboriginal Corporation Media Statement

23 November 2011

The Yindjibarndi People have been battling for 4 years against an increasingly belligerent, litigious, and unscrupulous Fortescue Metals Group (FMG).

On 28 October, at FMG's Solomon Project in the Pilbara, the Yindjibarndi Aboriginal Corporation (YAC) discovered that FMG had desecrated an ochre quarry and destroyed part of a creek where sacred Gandi are found (stones used in initiation rituals). The WA Department of Indigenous Affairs (DIA) and the Aboriginal Cultural Materials Committee (ACMC) were informed of these sites, but no action to halt or mitigate this damage has been taken.

That such damage can occur when YAC has previously provided the DIA with information regarding these sites, is proof positive of the DIA's inability to effectively monitor or enforce the State's heritage protection regime, or stop FMG from desecrating and destroying highly significant heritage and religious sites.

The Yindjibarndi People have appealed to the Hon. Tony Burke (Minister for Sustainability, Environment, Water, Population and Communities) to use his power under the Aboriginal and Torres Strait Islander Heritage Protection Act to make an emergency declaration to stop FMG doing more irretrievable damage.

"The tragedy is that every moment spent waiting for Mr Burke to act, means more destruction, more knowledge lost," said Yindjibarndi Aboriginal Corporation CEO, Michael Woodley.

Fresh FMG legal threats against the WA Registrar of Aboriginal Sites, Kathryn Przywolnik, and a deepening crisis surrounding protection of Yindjibarndi heritage from FMG operations, makes Federal intervention more urgent than ever.

Registrar Przywolnik recently informed FMG that its latest section 18 Notice seeking ministerial consent to impact on Yindjibarndi heritage sites is "inadequate", legally unsafe and should be withdrawn. The Registrar's decision expresses no confidence in the heritage reporting of FMG in the strongest of terms, and confirms the grave doubts and objections consistently expressed by the YAC.

In particular, Ms Przywolnik advised FMG that the ACMC would find it difficult to make recommendations or assess heritage values in the absence of cultural knowledge from relevant Traditional Owners, and that any ACMC recommendations made without inclusion of such knowledge risked the destruction of sites.

On 11 November, FMG Heritage Manager, Lisa Maher, responded: "It is highly inappropriate for a decisionmaking body to recommend that an applicant withdraw an initiating notice [...] In my view, the reasons referred to in your letter are insufficient to affect the validity of the Notice. However, if you retain your view after receiving this letter, please advise me immediately and I will take the appropriate action. I foreshadow such action may include prerogative relief."

There is no guarantee that any caution issued by the Registrar will stop FMG from doing more damage. The last time the Registrar criticised an FMG section 18 application, FMG simply edited out unfavourable parts and resubmitted, and was duly given conditional consent by the Minister. Neither the Minister's conditions or provisions of the WA Aboriginal Heritage Act (AHA) have stopped FMG from launching into a destructive blasting program and mine development program in Yindjibarndi country.

In their application to Minister Burke, YAC have drawn attention to the 5 November letter from Eureka Heritage to the Registrar informing that FMG demanded the removal of critical parts of a heritage report submitted to the DIA in support of an FMG section 18 application. LINK - Eureka Heritage letter to Registrar http://tiny.cc/43vxs

This report found that information provided by members of the ‘breakaway' Wirlu-murra group (WMYAC) - a faction compliant to FMG - was "sketchy, lacking in specificity and far from comprehensive"; that "members possessed limited skills in the identification of archaeological resources", and a "lack of cultural knowledge of traditional life in the Firetail area." (Firetail is an area within the Solomon Project.) Eureka Heritage said that FMG threatened to withhold payment of due invoices if the critical section was not
removed, and then falsely justified the removal of this section by reason that it was not written by a suitably qualified heritage professional.

YAC have asked the Hon. Tony Burke to stop FMG bulldozing and blasting so as to allow the safe execution of comprehensive and independent ethnographic and archaeological field surveys to record the precise locations of Yindjibarndi sites and objects in the disturbance area so they can be properly protected. These surveys are scheduled to commence in early December 2011.

"We have been flooded with offers from archaeologists and anthropologists around Australia volunteering their time to work with us on world's best practice heritage surveys." said Mr Woodley. "Many of these people are motivated by a wish to rescue the reputation of their professions, which has been damaged by the behaviour of FMG, and by evidence of mining company sabotage of consultants' independence."

YAC have also informed the Minister that, in its dealings over a land access agreement, which will affect the entire Yindjibarndi people and all their country for the unlimited life of the ‘agreement', FMG have deliberately sidelined YAC - the chosen representative, declared Prescribed Body Corporate and native title trustee of the Yindjibarndi People; and the officially appointed Agent for the Yindjibarndi #1 Claim, which underlays FMG's Solomon Project. Instead FMG has set out to divide and conquer the Yindjibarndi
community by disseminating false information and being duplicitous in their negotiations.

FMG has financed all the administrative and legal costs of the rogue WMYAC faction for the purpose of removing YAC and substituting the majority of Yindjibarndi #1 applicants, and has offered them inducements including a payment of $500,000 within 14 days of the execution of the Agreement, and a $3 million annual cash payment, despite the fact that this group has no statutory right or authority to negotiate such agreement.

Mr Woodley said that FMG's threat to sue the Registrar, and their backing of vexatious litigation against the Yindjibarndi Aboriginal Corporation would not stop the Yindjibarndi fight for justice. "If FMG think the law is just for the rich, and they can break us with lawyers and bullying, they should think again. The Yindjibarndi people may be one of the poorest groups in the Australia, but by staying strong we stand to gain everything that is most precious. Our country and culture is our life and our future. By lying down for FMG we have a whole world to lose."

CONTACT:
Michael Woodley 0419 097 130
Phil Davies - Anthropologist/Public Officer - 0429 110 451