MAC: Mines and Communities

Australian Aboriginal group wins court battle against Fortescue

Published by MAC on 2013-02-19
Source: Indymedia, Mining Australia, statements (2013-02-15)

Federal Court win by Yindjibarndi means Fortescue must negotiate with them

By Gerry Georgatos

Indymedia

13 February 2013

On Tuesday February 12, the  (YAC) won a huge outcome in the Federal Court with Justice Neil Kerracher stating that only the YAC are authorised to negotiate with mining companies over certain Yindjibarndi Country. The claim area includes the vacant Crown land where Fortescue Metals Group is developing the Firetail mine site.

This is a massive blow to Fortescue who have been securing access to the site through the controversial Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC) which is not a federally prescribed negotiating body and which was allegedly contrived into existence by Fortescue and who are funded by Fortescue, which Fortescue admits.

Members of Yindjibarndi Aboriginal Corporation celebrate court victory
Members of Yindjibarndi Aboriginal Corp.
celebrate court victory: Photo: Indymedia

Justice Kerracher's decision has changed the Native Title landscape in the Pilbara and put into question existing land access agreements to the Firetails mine site, the hub of much of Fortescue's financial dreams as Fortescue has invested heavily in this mine site and its rich high grade iron ore. Fortescue is heavily in debt with covenants with international banks. Iron ore prices and Fortescue shares have been rallying for quite some time however Justice Kerracher's decision will impact them in the event that Fortescue fail to secure a land access agreement with YAC and more than likely leading to further legal stoushes.

YAC CEO Michael Woodley told the National Indigenous Times that the judicial decision in favour of the newly appointed thirteen applicants will now permit justice for the Yindjibarndi people. "The twelve applicants who will now represent the Yindjibarndi people on the Yindjibarndi Claim One area signifies freedom in face of the truth." There are 13 applicants but one of the applicants, their senior most Elder, Ned Cheedy passed away last aged 106. The remaining 12 applicants are six men and six women.

"The Yindjibarndi people through the YAC have done nothing wrong by standing up for the truth and our rights to protect and be respected as Native Title holders and Traditional Owners of our Country," said Mr Woodley. "In prevailing, the Court provides the people of the Yindjibarndi with the safety net that is afforded to each and every Yindjibarndi so that personal agendas and self promotional labelling will never enter the realm of the Yindjibarndi's democratic structure and to deny any Yindjibarndi to freely exercise ones rights as Yindjibarndi to Yindjibarndi, nothing more nothing less, equals," said Mr Woodley.

"Yindjibarndi deserve to be respected no matter what happens in regards to FMG and WMYMAC's dishonest schemes, and we will not be denied our place within this nation's legislative laws because a mining company thinks it knows best," he said.

Mr Woodley said that the celebrations in Roebourne were heartfelt as the favourable decision was a relief after years of "fighting the good fight." He said there was no animosity to the Wirlu-murra Yindjibarndi and they "welcomed to come home".

"We have never had issue with them, they are friends and family and community and we know it was others who contrived the divide."

YAC's barrister, George Irving said the Federal Court removed the previous Native Title applicants and replaced them with a new and extended list - and only they are authorised to negotiate.

"The persons who previously were jointly authorised by the Yindjibarndi people and the Federal Court to speak for and make decisions - binding on the Yindjibarndi people - about Native Title in the area of land covered by the Yindjibarndi One Claim, which includes the area where FMG is developing the Firetail mine site are not long authorised to make any such decisions," said Mr Irving.

"Instead, the persons who are now jointly authorised by the Yindjibarndi people and the Federal Court to make such decisions are the 12 Yindjibarndi people named in the decision, one of them of whom is Michael Woodley."

"However, a condition of that authorisation is that any decision concerning Native Title rights in the Yindjibarndi One Claim are must first be approved in writing by YAC."

The WMYAC's Aileen Sandy and Sylvia Allan and WMYAC, by order of the Federal Court, no longer have any right to speak or negotiate on behalf the Firetail area. Fortescue had sought access to Firetail through Mrs Sandy and Mrs Allan. Without Mrs Sandy and Mrs Allan able to speak for Country the WMYAC, in terms of its value to land access agreements, is now a lame duck - defunct.

"(Mrs Sandy and Mrs Allan) no longer have any rights at all to say anything concerning Yindjibarndi One Claim area and therefore if FMG wants a land access agreement over any part of that area, it must deal with YAC, and there is no way around that."

The decision by the Federal Court in favour of the YAC cannot be appealed.

The new suite of applicants to represent the Yindjibarndi peoples are Thomas Jacob, Stanley Warrie, Allum Cheedy, Kevin Guiness, Angus Mack, Michael Woodley, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin and Maise Ingie.

Justice Kerracher instructed that the applicants shall appoint YAC as their agent and legal advice and representation to any applicant on Native Title matters shall the principal legal officer for YAC, who shall be their solicitor on the records.

"The members of the applicant authorised shall not either separately or jointly make any decision about any decision about any area of land or waters to do, or agree to do, any act that will affect any area of land or waters without first obtaining informed written consent from the YAC," said Mr Irving.

In his concluding remarks Justice Kerracher said, "I am satisfied that the replacement applicant should succeed in its applications."

"As a final matter, I expressly reiterate that this conclusion is in no way influenced by a variety of remarks made on both sides but perhaps more strenuously by the replacement applicant and, in particular, Mr Woodley in the 2012 meeting as to the circumstances and content of negotiations between third parties - particularly FMG - and the current applicant. There is no independent admissible evidence on that topic at all."

"This judgment is purely directed to the question of whether the replacement applicant has discharged its onus of proving authorisation at the 2012 meeting. For the reasons expressed above, the replacement applicant has done so."

The Yindjibarndi peoples vote had been 108 to 30 to in confirming the replacement applicants.

Fortescue's CEO Nev Power said to The Australian that Fortescue has always wanted the best for the Yindjibarndi peoples. He said that Fortescue is committed to reaching an agreement with the divided community. "It has always been and remains our intention to come to an agreement with all Yindjibarndi people and for the whole community to benefit from the business development and training opportunities that are available to so many other Traditional Owners in the Pilbara," said Mr Power.

He said Fortescue's tenure applications had been supported by the National Native Title Tribunal and the Federal Court. However the National Native Title Tribunal has launched an external inquiry into alleged undeclared conflicts of interests involving one of its former senior executives whose partner works for the WMYAC, Michael Gallagher. Her daughter works for Fortescue as their Heritage manager. Last week the WMYAC Board Chairman, their senior most Elder and a whistleblower, Bruce Woodley was removed as Chairman.

Late January Mr Power had told The National Indigenous Times that he was confident all licence and tenure applications to the NNTT are secure. "Fortescue has had no involvement in the NNTT inquiry. We are unaware of its terms of referenced... Fortescue is confident that all of our tenure was granted through proper legal process, and we do not accept that there is any basis on which the process can be impugned."


Win for Yindjibarndi in FMG battle

Andrew Duffy

Mining Australia

15 February 2013

The Yindjibarndi Aboriginal Corporation has won the right to be the sole representative of traditional owners in a legal dispute with Fortescue Metals Group.

In handing down the decision the court overruled the powers of a breakaway group, which sought to seal a $4 million benefits package with FMG, which the YAC opposed.

The ruling is a win for the YAC in a long running dispute with FMG over the multi-billion Solomon Hub iron ore project in the Pilbara.

According to ABC News Yindjibarndi CEO Michael Woodley said the ruling brought "tears of joy" for some traditional owners, and paved the way to open further negotiation with FMG.

"What is also open as well is for the Yindjibarndi people who moved away from the YAC and formed the breakaway group, are also willing to come back into the fold and start moving towards a positive part that gives Yindjibarndi people best outcomes that we all deserve," he said.

In a statement FMG CEO Nev Power said he was confident the court decision would not impact the company's operations, and FMG would continue to work towards an agreement with the Yindjibarndi people.

The relationship between the YAC and FMG is a strained one, with the Aboriginal group last year accusing the miner of blocking Aboriginal elders from inspecting sacred sites at Solomon.

FMG founder and chairman Andrew Forrest previously said he had received death threats over the controversial debate, and archaeologists have alleged FMG forced them make changes to a study of the Solomon region.


Yindjibarndi 1 - Fortescue Metals Group 0 - court ruling favours the mob !

15 February 2013

Traditional land owners in Western Australia's Pilbara region have won a a major battle against mining giant FMG with the Federal court ruling the Yindjibarndi Aboriginal Corporation is now the only group legally permitted to represent local stakeholders.

A breakaway Yindjibarndi group has moved to accept Fortescue Metals Group;s $4 million benefits package... which would allow the mining giant to develop the multi-billion dollar iron ore mine in but the court has overruled the powers of this group.

The Yindjibarndi Aboriginal Corporation Legal counsel George Irving says YAC now has the legal right to be the sole representative for the traditional owners...in a decision that cannot be overturned....leaving the breakaway group a lame duck in the negotiating process.

Michael Woodley CEO of the Yindiijbarndi Aborignal Corporation says while they are not against forming partnerships... they are against one which tells them how they are going to do things.


Truth is the Best Defense

Yindjibarndi Federal Court win

Bid to shut down voice of the National Indigenous Times

Yindjibarndi Aboriginal Corporation statement

13 February 2013

Yesterday justice was served in the Federal Court when the voice of the majority of the Yindjibarndi People was affirmed. The court authorised a Yindjibarndi plebiscite, of 24 March 2012, which elected 12 Applicants who unequivocally support the Yindjibarndi Aboriginal Corporation (YAC); and who oppose Fortescue Metals Group's (FMG) grossly inequitable land use agreement and aggressive intervention in the Yindjibarndi community. The decision means that YAC is now the only organisation entitled by law to speak for the Yindjibarndi country where FMG are mining. (More on this later today.)

In a bid to quash this plebiscite, FMG wholly financed legal opposition to this authorisation; just as it financed an illegitimate bid to roll the community in 2011. See FMGs Great Native Title Swindle.

The strategy of aggressive litigation aimed at draining the financial resources and extinguishing the opposition of the Yindjibarndi People to FMG's unscrupulous meddling, has in recent months been turned on a whistleblower and the media, including The Australian and ABC's 7.30.

Now this strategy is cocked to shut down the Voice of Australia's National Indigenous Newspaper.

Yesterday Bennett & Co Lawyers, acting on behalf of Michael Gallagher, threatened to sue journalist Gerry Georgatos and the National Indigenous Times (NIT) if key articles written by Mr Georgatos about Mr Gallagher's dealings were not removed from the NIT website, and if the NIT published Mr Georgatos' most recent article.

The NIT has not bowed to Mr Gallagher's threat, and has published, and will rely on the truth for its defense.

Other attempts have been made by Mr Gallagher, his wife Lillian Maher and FMG over the last three months to shut down news of conflicts of interest relating to Ms Maher's position as State Manager of the National Native Title Tribunal, Mr Gallagher's role as consultant with conflicting connections to FMG, and the dealings of their private companies in FMG and Wirlu-murra business.

Last November Mr Gallagher and Ms Maher instructed Bennett & Co to file and serve a writ for defamation against Paul Cleary and The Australian for publishing Native title boss didn't reveal ties with FMG. The Australian is defending the writ; and concerns within the NNTT prompted an inquiry into Ms Maher's conduct, which is on-going.

Last year Bennett & Co also filed a writ for defamation against whistleblower Kerry Savas, but have not served it.

And FMG lodged a complaint to ACMA against ABC's 7.30 for programs broadcast in on November 20 and November 28, but this came to nothing.

Threats to sue for defamation and the filing of writs are standard practice for silencing voices that may not have the resources to defend costly court actions. These threats are intended to hang like a sword over reporters and individuals, lest they speak out again.

Mr Georgatos has stated that he will stand by every word that he has published. He has informed Bennett & Co that he will not be intimidated or silenced, and will defend himself in any court proceedings. He will not engage a lawyer.

Yesterday Bennett & Co and the Wirlu-murra claimed that internal Wirlu-murra documents exposing Mr Gallagher and the activities of a consultancy company he controls with his wife Lillian Maher (RCD Consulting) - documents which were provided to ORIC and ASIC in January 2013 - are "fabricated" and "false"; and therefore that publication of "Fortescue's man linked to native title dispute" has no merit and is not in the public interest.

Despite statutory declarations issued by Wirlu-murra yesterday, signed by WMYAC Business Manager Bruce Thomas, and former WMYAC Chairman Bruce Woodley recanting their accusations against Mr Gallagher and RCD; and denying that they had released the documents - YAC has full verbatim transcripts of two meetings on the 16th and the 17th January, which indisputably verify that Mr Thomas and Mr Woodley approached YAC for assistance in a genuine attempt to get their house in order; offered extensive testimony regarding malfeasance by Mr Gallagher; and deliberately released the said documents for the explicit purpose of being attached to the ORIC and ASIC complaints.

This evidence will be made available for the defense of Mr Georgatos, The Australian and 7.30, and any other related actions designed to suppress reportage.

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