24 May 2013

On Thursday 23 May, in reference to Fortescue’s infrastructure sale, The Australian Financial Review reported “one of the issues to emerge is whether final approvals have been met on its $5 billion debt deal”; and, “It is understood Fortescue had 270 days to get final approval from stakeholders, including traditional owners, in order to legally secure the loan […]“. (Fortescue bidders check dates as deadline nears)

The Yindjibarndi Aboriginal Corporation would like to make clear that Fortescue have not obtained the consent or approval of Yindjibarndi native title holders for their Firetail and Solomon Project operations.

FMG do not have an Indigenous Land Use Agreement (ILUA) with the Yindjibarndi People, and operate outside the security of such an agreement. Despite a Federal Court decision that decisively settled who legitimately represents Yindjibarndi native title at Fortescue’s Firetail/Solomon operations, Fortescue continues to trash Yindjibarndi native title rights. This disregard of Yindjibarndi native title leaves the company liable for compensation under the Mining Act once the Yindjibarndi #1 claim is determined.

FMG’s “milestone” is Yindjibarndi’s millstone

With the opening of its Firetail mine, FMG celebrated “one of the most significant milestones in its 10-year history”.

For the Yindjibarndi People however, the opening of the mine is a millstone around the neck of their ancient society; one that will extinguish religious ceremonies that have been carried out, for more than 46,000 years, in a part of the country the Yindjibarndi call “Ganyjingarringunha” (Kangeenarina).

Unlike Western religious traditions, Yindjibarndi religious ceremonies must be carried out at sacred sites in Yindjibarndi country. Michael Woodley, CEO of the Yindjibarndi Aboriginal Corporation (YAC), which is the only body authorised to make decisions affecting the rights of the Yindjibarndi People, explained:

“The sites in Ganyjingarringunha, which are being destroyed for Firetail, are the ‘churches’ of the Yindjibarndi People. We must fulfill our religious ceremonies and rituals at those sites because of the promise made by Minkgala (God) to our spiritual ancestors. 

“In our religion, Minkgala gave Yindjibarndi country to the Yindjibarndi People and promised that Yindjibarndi country would always provide for the needs of our people, but only if we look after our country and perform our ceremonies and rituals, following the laws Minkgala gave us. That is what we have always done. But our country is being changed, blow by blow, by the mining destruction of our religious sites. 

“Mining companies are supposed to rehabilitate the country after mining, but no rehabilitation can bring back our religious sites. How can FMG recreate sites put there for us by Minkgala, in the times we call “Ngurranyujunggamu”?  How can FMG recreate the burial chambers of our ancestors?  How can they rebuild the ochre quarries we need for our ceremonies?

“In the face of this disaster, YAC has been fighting for fair compensation from FMG so that at least we have a chance of creating a new and sustainable way to carry our religion and culture.

 “YAC and Juluwarlu Group are working hard to avoid the washing away of our people into assimilation, by building a cultural archive; creating books and media that will keep our language and culture alive; and creating jobs that deeply respect, and are connected with all the life and spirits in our land. We are creating an alternative way of knowing and practicing our culture, which we can pass on to our children.

“What FMG offers is just dumbed-down assimilation.”

In their latest Section 18 application to the Minister for Indigenous Affairs, on 14 March, which attaches the ‘consent’ of the bogus ‘rep’ group FMG helped establish and now finances (Wirlu-Murra/WMYAC), Fortescue ask for approval to “de-water”, mine and destroy entire stretches of Ganyjingarringunha Wundu (Kangeenarina Creek), which runs through the heart of the Yindjibarndi religious precinct in the Solomon project area.

It remains that the overwhelming majority of Yindjibarndi people oppose Fortescue’s Solomon Project; and that while FMG has some tenure for the Solomon Project, the vast majority of tenure sought by FMG for Solomon is pending.

YAC will move for determination of their native title claim in the Solomon Project area later this year, and a claim against FMG for compensation will follow.
Download Doc Version

 

4 March 2013

 

On 13 February 2013, in response to the Federal Court’s decision validating the appointment of a new and unified Applicant group for the Yindjibarndi #1 Claim, Fortescue Metals Group (FMG) CEO, Nev Power, issued a press statement saying: “the Federal Court of Australia decision […] does not impact Fortescue’s current or future operations in the Pilbara”; “Fortescue has acquired all of the necessary tenure for its Solomon operations”; and “Fortescue continues to comply with all legal requirements and to act in good faith”.

Mr Power has totally missed the point.

George Irving, veteran native title lawyer and In-House Legal Counsel for the Yindjibarndi Aboriginal Corporation (YAC), provided sober context to FMG’s statement:

“Although it’s true to say FMG has obtained some tenure for the ‘Solomon Project’, which will allow some of the proposed operations to proceed, the vast majority of the tenure applications sought by FMG for the Solomon Project are still pending.  Those applications affect both the Yindjibarndi Native Title Area and the Yindjibarndi #1 Claim Area. It follows that FMG must now come back to YAC to negotiate an agreement for the grant of that additional tenure.

“FMG do not have an Indigenous Land Use Agreement (ILUA) with the Yindjibarndi People, and they operate outside the security of such an agreement, leaving them with a substantial liability for compensation under the Mining Act once the Yindjibarndi #1 claim is determined.”

The Yindjibarndi Aboriginal Corporation wants to make clear:

1. The Yindjibarndi Aboriginal Corporation is the elected representative institution of the Yindjibarndi People; the Native Title Prescribed Body Corporate (PBC) appointed by Federal Court to hold in trust the native title rights of the Yindjibarndi People in the Yindjibarndi Native Title Area; and, the duly appointed agent for the Applicant in the Yindjibarndi #1 Claim Area (where FMG is mining).
2. The powerful democratic action of the Yindjibarndi People in electing a new Applicant group for the Yindjibarndi #1 Claim, in order to be rid of FMG’s influence in the former Applicant group, clearly demonstrates that FMG does not have the consent of the Yindjibarndi People for the Solomon Project;
3. The tenure obtained to date by FMG through the Native Title Tribunal, and the approvals granted under State heritage processes, were procured, upon the payment of fees, solely through the agency of the Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC)—a breakaway group established by FMG and former FMG employee Michael Gallagher—against the vigorous opposition of the Yindjibarndi People;
4. WMYAC and the private companies associated with it, which FMG continues to deal with, have no authority regarding Yindjibarndi native title; and are not accountable to the Yindjibarndi native title party or future generations of the Yindjibarndi People;
5. Pursuant to a determination of native title in the Yindjibarndi #1 Claim, and while operating outside the terms of an ILUA, FMG remains exposed to liability for payment of compensation to the Yindjibarndi People for any impairment of their native title rights, and for any social disruption or physical damage caused by its operations;
6. Private business agreements struck between WMYAC and FMG have no relationship to native title or the broader Yindjibarndi native title party, and do not mitigate FMG’s liability, which was spelled out in the Federal Court decision of  20 July 2012.

Wirlu-murra Unauthorized & Unaccountable

Instead of heeding the Federal Court decision and dealing with YAC, on 21 February FMG announced that a $200 million mining services joint venture at its Solomon Project would be awarded to the benefit the Wirlu-murra breakaways.

It is disturbing to the Yindjibarndi people that the financial dealings of WMYAC, Wirlu-Murra Tablelands Heritage Pty Ltd (WMTH) and a third private company, Wirlu-Murra Yindjibarndi Services Pty Ltd (WMYS), all of which opportunistically exploit the native title rights of the broader Yindjibarndi group, and all of which are controlled by a largely common set of a dozen directors, remain hidden. The two private companies do not have to answer to ORIC rules.

The millions of dollars FMG pay to the Wirlu-murra (whose 2012 General Report to ORIC showed income of $5.6 million), and to the private companies established by some of its directors purely for the purpose of contracting with FMG, serve the interests of a small group of directors and their families. Moreover, these Wirlu-murra entities have no fiduciary responsibility to properly distribute profits gained from FMG for the benefit of all Yindjibarndi people—they operate outside any mechanisms of consent, accountability, or responsibility to current and future generations of the Yindjibarndi People.

FMG Claims Of Good Faith Disingenuous

While FMG continues to bypass the elected and authorised institutions of the Yindjibarndi People on native title and heritage matters, and continues to operate without the support of either the Applicant for the Yindjibarndi #1 Claim or YAC, its claims that it will continue to “act in good faith”, and “focus on reaching an agreement with Yindjibarndi people” are disingenuous.

Mr Irving stressed, “FMG has no right to negotiate any native title agreements with individuals. What the Court’s decision makes absolutely clear is that FMG is now obliged to negotiate in good faith with YAC, the duly appointed Yindjibarndi PBC, and the authorised Agent of the Applicant, to make an agreement beneficial for all Yindjibarndi People.”

FMG’s statement that it “will continue to support and engage the Wirlu-murra Yindjibarndi Aboriginal Corporation”, is not only disrespectful of the Federal Court decision of 13 February, but signals its intention to continue to pay WMYAC members and directors to say that they and all other Yindjibarndi people have no knowledge of any heritage values in any parts of Yindjibarndi country required for FMG’s Solomon operations, thereby expediting State approvals for the destruction of hundreds of sacred sites known to YAC and its members, including rock shelters and rock art that demonstrate occupation by the Yindjibarndi People for in excess of 40,000 years.

Serious questions arise regarding the reasons for FMG’s financial support of the Wirlu-murra companies. Michael Woodley, CEO of the Yindjibarndi Aboriginal Corporation, observed:

“The tragedy is that the WMYAC directors have been told by three independent native title experts, Greg McIntyre SC, Professor Marcia Langton and Peter Seidel (a senior partner at Arnold Bloch Leibler who heads the firm’s native title practice) that YAC’s original assessment of FMG’s land access agreement was correct; namely, it is “crap” and should be renegotiated. However, instead of renegotiating, WMYAC’s lawyers, who are funded by FMG, continue to fight YAC in the courts for the sole reason that we will not sign their inequitable agreement.”

FMG Remains Liable

In the Federal Court decision handed down on 20 July 2012, which allowed FMG to be joined as a respondent to the native title determination application made on behalf of the Yindjibarndi People for the Yindjibarndi #1 Claim Area, Justice McKerracher said:

“A determination of native title in favour of (the Native Title Applicant) may entitle the (Yindjibarndi People) to compensation payable by FMG pursuant to s 123 of the Mining Act or s 24MD(3) NTA and s 125A of the Mining Act. The fact that a determination in the proceeding may give rise to a liability on the part of FMG to pay compensation clearly shows that FMG may be affected by the determination.”

According to Legal Counsel George Irving, the Yindjibarndi native title claim over the Vacant Crown land (VCL) in the Yindjibarndi #1 Claim area, is one of the strongest he has encountered: “The evidence I have seen and heard over the past four years about the connection between Yindjibarndi people and the Vacant Crown Land area in the Yindjibarndi native title claim is the best and most detailed evidence of connection I’ve encountered in nearly 20 years of native title practice. In my opinion, the Yindjibarndi People are lawfully entitled to have their traditional right to exclusively possess, occupy, use and enjoy the VCL (including FMG’s proposed mining areas) legally recognised through a determination of native title.”

The statement issued by Michael Woodley  a year ago, on 16 February 2012, continues to hold true: “I want to make clear to all of FMG’s investors, lenders and joint venture partners that FMG has never obtained the consent of the Yindjibarndi People for its Solomon Project. FMG does not possess the social license or operational security that a legitimate Indigenous Land Use Agreement would give, over any of its interests in our country.”

Mr Woodley said, “YAC is willing to work with Fortescue to reach a fair and workable Indigenous Land Use Agreement, however, if FMG chooses to continue operating outside an Agreement and respectful heritage protocols, YAC is totally committed to seeking justice for our people today and all future generations; and upon a successful determination of native title in the Yindjibarndi #1 Claim, we will sue Fortescue for full compensation for damages.”

13 February 2012

Yindjibarndi Federal Court win

On 12 February, Federal Court Justice, Neil McKerracher, handed down a decision that validated the vote of the Yindjibarndi people to authorise a new and unified Applicant group of twelve Yindjibarndi men and women to run the Yindjibarndi #1 Claim—this includes the Area of vacant crown land where Fortescue Metals Group (FMG) is developing the Solomon Hub and ‘Firetail’ mine.

The conditions that were attached to the authorization means that these Applicants must also act in concert with the Yindjibarndi Aboriginal Corporation (YAC), and get YAC’s written consent for any agreement that affects the Claim Area.

In essence Justice McKerracher said that the Yindjibarndi Aboriginal Corporation conducted an orderly authorisation meeting, which was supported by thorough genealogies, an independent chair, fair opportunity for the participation of all members and their legal representatives, and a video recording of the entire meeting that demonstrated such.

Justice McKerracher said he was most mindful to ensure the Yindjibarndi #1 Claim can now be progressed in a well-ordered and efficient manner, and concluded that the appointment of the new twelve-member Applicant, elected by the majority of Yindjibarndi people on 24 March 2012, would achieve this end.

The new Applicant group of six men and six women unequivocally supports the Yindjibarndi Aboriginal Corporation as the chosen representative institution and Prescribed Body Corporate for the Yindjibarndi People; they applaud YAC for not caving in to the ‘divide and conquer’ campaign of FMG; and for rejecting the land access agreement proposed by FMG, whose terms are ten-fold poorer than industry standards established by FMG’s resource sector peers—and which have been roundly condemned, not least by lawyers and consultants paid by FMG.

The effect of this decision is that the division sponsored by FMG in the original Applicant group, for the purpose of tying up all Yindjibarndi native title in a land access agreement, is finished—because that Applicant group is dissolved by order of the Court.

The two lady applicants on the FMG side of the division, who challenged the majority vote of the 24 March meeting, and sought to remove the other five members of the original Applicant group (including centenarian Ned Cheedy), can no longer be used by FMG to obstruct the Yindjibarndi Aboriginal Corporation in making decisions for the Yindjibarndi #1 Claim.

If FMG wants a land access agreement over any part of that area, it must now deal with YAC.

Yindjibarndi Aboriginal Corporation CEO, Michael Woodley, said, “We have said many times over, YAC is willing to come back to the negotiating table as long as Fortescue acts with respect for our people and our country; and offers compensation for the disruption and damage their project is bringing on our country, that does not insult us.”

Mr Woodley, said he spoke for a very happy community, “Today we all breath a little easier, a big burden has been lifted from our shoulders. This is cause for those members who followed FMG, to come home. That is the first thought of the YAC leadership and why we celebrate today—we have a chance to re-unify our families.

“We believe that some of our elders were misled by FMG, but we still respect them, and our greatest wish is that they and their families join us in the important work ahead.

“The best outcome is that we can now turn our energies and resources to the development and support of our people. It’s a new chapter in our history and YAC is honoured by the opportunity to govern the vision laid down by our people, old people especially.”

Yindjibarndi Aboriginal Corporation’s In-House Legal Counsel, George Irving, said that Justice McKerracher’s decision “describes the careful measures taken by YAC to ensure fair and democratic procedures were used to authorise the new Applicant”; and, that those procedures stand in stark contrast to the ones used the previous year by FMG and the Wirlu-Murra Group.

He said he was “confident that, notwithstanding the Court victory against the Wirlu-Murra, YAC will continue to invite the Wirlu-Murra members and all Yindjibarndi people to participate in negotiations about anything that affects their spiritual home”.

Mr Woodley stressed that members of YAC and WMYAC alike, “are common custodians of spiritually powerful and beautiful country that is alive with Law. We should never forget the words of Sylvie Allan’s deceased husband, Allan Jacob, because his words matter more now than when he spoke them in 1987:

‘We got Law in our hand, we didn’t lost it, we still got it, the Yindjibarndi people still got it, like that, we grip that thing. A lot of lands been broken for Aboriginal people but we Yindjibarndi people standing for one, we are all one, we are helping one another, doesn’t matter where we come from, we are all one. We want our Law to stand, we want to teach our kids and that’s all’.

 “Finally, when the people voted last March, they voted for thirteen men and women. In April last year we lost our shining light, Mr Ned Cheedy. On this day I pay tribute to the old fella, Mayaringbungu, for guiding us on this long hard journey to secure the right to protect Yindjibarndi country and culture, our communities, our people and future generations—our birth-right.

“And I want to thank our strong Yindjibarndi elders and leadership, our passionate staff and professional legal team, and all our supporters at home and across the nation — you are true believers and inspire us.”

The judgment in its entirety can be read on the Federal Court of Australia web site.

Yindjibarndi Federal Court win

Bid to shut down voice of the National Indigenous Times

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.

DOWNLOAD THE ARTICLE Mr GALLAGHER WANTS TO SUPPRESS: Fortescue’s man linked to Native Title dispute

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.

Media Statement Tuesday 12 February 2013

WMYAC documents confirm Michael Gallagher is FMG’s “inside-man”

Internal documents, including minutes, invoices and correspondence from Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC)_[1], covering a period from 14 June to 12 November 2012, which were provided to the Yindjibarndi Aboriginal Corporation (YAC) _[2] by WMYAC Chairman Bruce Woodley, confirm Michael Gallagher’s effective role as FMG’s paid agent and “puppet-master” inside the Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC).

The documents show that:

• FMG continues to allocate funding specifically for Mr Gallagher’s position within WMYAC, and pays him directly.
• Mr Gallagher’s role primarily concerns “taking on the fight with YAC,” in order to secure the execution of the Yindjibarndi Land Access Agreement FMG negotiated with the breakaway Wirl-Murra group in late 2010.
• Mr Gallagher left FMG to act “as defacto CEO” for WMYAC, and take responsibility for legal strategies, payments for “sitting fees”, and heritage and native title matters concerning FMG.
• WMYAC Business Manager, Bruce Thomas was advised by FMG that “Michael’s [Gallagher] position has not been replicated within any other TO groups in terms of a mining company paying for an external consultant to work with a board”.
• Mr Thomas, repeatedly raised the issue of Mr Gallagher’s conflicts of interest—perceived and real—with the WMYAC board.
• Mr Gallagher recruited a business (RCD Consulting) controlled by himself and his wife, Lillian Maher, (through MGA Consulting ) to undertake a strategic planning, governance and communications consultancy for WMYAC valued at $78,902 without securing competitive quotes.
• Mr Gallagher did not declare his interest in RCD and misled the WMYAC Board by stating that “neither he nor his wife were associated with RCD“, and “that his wife has no involvement in RCD consulting“.
• Mr Gallagher “Requested that the information relating to his wife be removed from the minute’s record and undertook to have a letter drawn up confirming that Lillian had no involvement in RCD consulting.”
• The engagement of external consultants by Michael Gallagher has caused Wirlu-murra to overspend budgets.
• Mr Thomas censured Mr Gallagher for “deliberately going behind the boards back” in procuring the signature of WMYAC Chairman, Bruce Woodley, for a tenancy agreement over Mr Gallagher’s private residence, “without the authority or resolution of the board”.

DOWNLOAD Digest of what the WMYAC documents show
DOWNLOAD WMYAC Documents (unedited) in date-order

Bruce Woodley’s reason for releasing these records are explained in a letter to Stanley Warrie, chairman of the Yindjibarndi Aboriginal Corporation (YAC):

“I am writing to you because I am very worried that the Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC) board, of which I am chairman, is being mislead and obstructed in properly carrying out our responsibilities and obligations regarding the native title and heritage interests of the Yindjibarndi People.

“I have evidence that suggests that Michael Gallagher, who has been our heritage and native title manager, has mislead me and the WMYAC board, and has not only put me and the WMYAC directors at risk, but jeopardised Yindjibarndi native title and heritage interests.”

DOWNLOAD Letter WMYAC Chairman to YAC

Bruce Woodley’s letter and attachments corroborate information put to air by ABC’s 7.30 last November 20 & November 28.

In his letter of 31 January 2013, Chairman Woodley makes it clear that Mr Gallagher keeps important information concerning heritage and native title matters from him and other WMYAC directors: “The problem is that Michael Gallagher does not tell us everything we need to know.”

Using the company controlled by himself and his wife Lillian Maher, MGA Consulting, Mr Gallagher produced a heritage report that misrepresents and depreciates Yindjibarndi connection to Ganyjingarringunha (the site of the Firetail mining area within FMG’s Solomon Hub), and then provided FMG with a copy of his report, without the knowledge and informed consent of the WMYAC Board.

The WMYAC chairman accuses Mr Gallagher of acting contrary to the interests of the WMYAC members by failing:

• to provide the WMYAC board with copies of heritage reports produced for FMG;
• to keep minutes of the meetings of the WMYAC heritage sub-committee Mr Gallagher governs, despite requests to do so;
• to obtain the informed consent of the WMYAC board before providing FMG with heritage reports that are detrimental to the interests of the WMYAC members and the interests of all Yindjibarndi people;
• to explain the adverse implications of his actions on Yindjibarndi native title rights and heritageóin particular, that the Heritage Report produced by MGA is likely to be relied on by FMG to attempt to defeat the Yindjibarndi #1 native title claim (which precedes and underlies FMG’s mining project), following FMG’s joinder as a respondent to the Yindjibarndi claim;
• to instruct Integra Legal and other lawyers acting for WMYAC (in accordance with his responsibility for legal strategy) to attempt to renegotiate FMG’s Land Access Agreement, despite receiving independent expert advice on three separate occasions (from Greg McIntyre SC, Professor Marcia Langton and Peter Seidal of Arnold, Bloch Leibler) that the agreement is deficient and needs to be renegotiated;
• to declare his and his wife’s interest in RCD Consulting while procuring contracts in favour of this company, to formulate organisational strategic plans for WMYAC that propose to regulate his role and that of other key WMYAC staff, without informing WMYAC directors of his and his wife’s interest in RCD.

Bruce Woodley told Stanley Warrie, “I am determined to take proper action in regard to my legal responsibilities, as a chairman, corporation director and fellow Yindjibarndi native title holder“, and confirmed that he had written to both ORIC and ASIC with his concerns.

Bruce Woodley said that he has full confidence in WMYAC’s Business Manager, Bruce Thomas, and nominated Mr Thomas as primary contact to ORIC and ASIC.

Mr Thomas voiced his own concerns regarding the improper conduct of Mr Gallagher in two meetings between Mr Thomas and YAC representatives, which took place on 16 and 17 January 2013, both of which were closely minuted. In these meetings Mr Thomas corroborated and expanded on Bruce Woodley’s concerns regarding the conduct of Mr Gallagher and key FMG executives.

Mr Thomas demonstrated his commitment to exposing activities damaging to the broader Yindjibarndi People, by providing WMYAC Chairman, Bruce Woodley, with documents for release to ORIC, ASIC, the NNTT investigator Chris Doogan and YAC.

Chairman Bruce Woodley’s appeal for assistance to curtail Mr Gallagher’s role in engineering outcomes that sabotage Yindjibarndi heritage and native title rights, and undermine governance within WMYAC, must now motivate the intervention of regulators, ORIC and ASIC; and relevant government authorities, the federal Attorney General and state Minister for Indigenous Affairs.

Notes

[1] WMYAC is a splinter group of the Yindjibarndi People formed in 2010 with the secretariat and financial sponsorship of Fortescue Metals Group after the Prescribed Body Corporate and elected representative of the Yindjibarndi People, the Yindjibarndi Aboriginal Corporation (YAC) refused to sign FMG’s defective and inequitable land use agreement.

[2] YAC is the chosen representative institution of the estimated 1500 persons who currently comprise the Yindjibarndi People, who live principally in and around the township of Roebourne. In meeting its responsibilities to both the present and future generations of Yindjibarndi people, as both a Prescribed Body Corporate (PBC) and a Registered Native Title Body Corporate (RNTBC) under the NTA and the PBC Regulations, YAC holds on trust and is obliged to manage the native title rights and interests that were declared to exist by the Federal Court for the benefit of all Yindjibarndi People.

6 February 2013

Gerry Georgatos of the National Indigenous Times writes “abuse and trampling of inalienable rights” in FMG’s native title dealings with the Yindjibarndi People is racist, and calls for a Royal Commission. This week he reports new evidence of intermeddling involving former FMG staffer, Michael Gallagher.

DOWNLOAD FULL REPORT Native Title bombshell – racism at its worst

Last November, whistleblower, Chairman and most senior Elder of the Wirlu-Murra Yindjibarndi Aboriginal Corporation (WYMAC) Board, Mr Bruce Woodley, complained about FMG’s interference in the affairs of WMYAC on ABC’s 7.30, and said that he was frustrated by former FMG Land Access Division manager, Michael Gallagher, “because he manipulates our Board”, and that it was “time for him to move on – to hit the road Jack, FMG too.”

Yesterday, WMYAC office manager Michelle Adams, released to the media a statutory declaration signed by Bruce Woodley in which he states, “I was encouraged to make those statements by Kerry Savas [and] was also encouraged by a journalist from the National Indigenous Times, Gerry Georgatos, to make statements and appear on national television.”

In response, Mr Georgatos writes:

EXTRACTS: At 6pm on the Tuesday Wendy Hubert, Mr Woodley’s wife and Mr Woodley himself phoned me from Roebourne to tell me they did not understand what Mr Woodley “had been forced to sign”.

They swore to me they had not contributed to any of the statements within the Declaration and they had no knowledge of what 60 year old Mr Woodley was signing.

“We don’t have any idea about what was in the papers they had Bruce sign. They took him to Gary (the local Justice of the Peace) and he signed them,” Ms Hubert said.

“Because I am Chairman of the Board they tell me I have to sign this and that and they bring papers to me all the time,” Mr Woodley said.

Mr Bailey said Mr Woodley was accompanied by a young lady who appeared to be a lawyer. Mr Woodley said the contents of the Statutory Declaration are the work of the WYMAC manager, Michael Gallagher.

I emailed Mr Gallagher to explain his role in the manufacture of the Statutory Declaration. I have asked Mrs Adams, the WYMAC Office Manager, to identify who wrote its contents and who contributed to them. There have been no responses.

Mr Woodley and Ms Hubert restated to the National Indigenous Times they continue to stand by Mr Woodley’s original testimony to the National Indigenous Times which was audio-visually recorded.

“I said the truth and I just want the best for my people,” he said. “Little has been done for us. They need to let us speak for ourselves. For us to be the boss, not Michael (Gallahger) or anyone else who is not us.”

Mr Gallagher’s wife, Lillian Maher was a former senior executive with the NNTT and at one time a West Australian State Manager of the NNTT, however she is currently the subject of an NNTT external inquiry relating to claims of undeclared conflicts of interests with companies she and her husband own […]

I can let you know Professor Marcia Langton and former Eddie Mabo barrister, Greg McIntyre looked at the land use agreements offered to the Wirlu-murra by Fortescue. Mr McIntyre said to the Wirlu-murra, “You can do better.” Professor Langton said “It’s shit.”

[…] what we have before us in the Pilbara are evident sleazy practices which steamroll Native Title claimants and their communities and that indeed the mining companies have carte blanche to do what they want while all the major Native Title and Government agencies either sit idly by […] It’s not just immoral, I believe it is illegal. What cuts to the bone with me is the racism and how ugly it is.

Inter-generational poverty and lack of education among many of the claimants should not have any opportunity to be manipulated. This abuse and trampling of inalienable rights is racism.

In other developments during this last week, the only non-Aboriginal voice of reason within the Wirlu-murra, their former Business Manager, Bruce Thomas, who expended considerable energy in trying to right wrongs within the organisation and pointing out one impropriety after another […] has been effectively run out of town.

It is indeed time for the Federal Government to launch a Royal Commission into Native Title and one Aboriginal corporation CEO after another backs this call.

END OF EXTRACTS

LINK to on-line story at National Indigenous Times

I’m a singer/songwriter and photographer and was very inspired to let more people know about the struggle you guys are having after watching the 4 Corners feature on the situation up there with FMG. I ended up writing a song about it you might like to check out. Uncle Ned passed away on the same day as my grandfather Jimmy Little and this in combination with my feelings towards the situation up there I felt I wanted to say something about it all. I tried as much as I could though to use the words and feelings of the people up there.

http://soundcloud.com/jameshenrymusic/separate-paths-1

Here’s the lyrics and where the influence came from with my small amount of web research. I hope ya like.

Verse 1
(from this)
Coming in from the sea, was he, the great snake spirit that travels up the river
To make sure everyone was ok across country

Verse 2
But blind Billy could see, from the hills, the ceremony master
For the spirits would be singing to him, the upcoming sense of disharmony

Chorus 1
Should a forest grow from digging in the desert
Should his people have to work for wage for their own pay dirt

Verse 3
(From this)
Looking out on the rust coloured sand
In one hand he holds on to their future
And in the other holding on to his ancestry

Chorus 2
What do the people want for their next generation
Dreams and identity or cash compensation

Bridge
(From what uncle says at the end of this)
Divided now all of them
Only their country will bring them back together again
In his spirit he feels this pain
They are the country he feels that they’re loosing
Separate paths now his people are choosing

Solo

Verse 4
He can see through his tears, his fears, of his people left divided
By the lore of the land and the law of the man

Chorus 3
Is a billionaire a poorer person’s equal
Is progress to acceptance a necessary evil
If the story’s lost would there be a sequel

End

30 January 2013.

This week Gerry Georgatos of the National Indigenous Times writes:
DOWNLOAD Wirlu-murra considers ending the control of white managers

The National Indigenous Times reports that the National Native Title Tribunal (NNTT) has confirmed that it has engaged an external consultant “to review conflicts of interest affecting a former employee (Lillian Maher), and the NNTT’s procedures and processes for identifying, declaring and managing conflicts of interest.”

The National Indigenous Times has written that these alleged conflicts of interests by the former NNTT State Manager “might mean the granting of exploratory licences to mining companies on Yindjibarndi Country are tainted and may need to be reviewed.” Fortescue CEO, Mr Power said, “Fortescue has had no involvement in the NNTT inquiry. We are unaware of its terms of reference […] Fortescue is confident 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.”

Last year the NNTT told The Australian newspaper, “The NNTT has no record of any declaration or other advice being received from Ms Maher in respect of her status as a director of MGA Consulting. The NNTT has no record of any declarations being made by Ms Maher in respect of her partner’s and daughter’s employment.”

Conflict of interest issues regarding Ms Maher’s conduct arise from a complex of relationships including immediate family and FMG executives:

1. While she was State Manager at the NNTT, Ms Maher’s private company, MGA Consulting Pty Ltd, was contracted by Fortescue Metals Group to conduct heritage surveys in the Yindjibarndi #1 Native Title Claim area. This contract was operative after FMG had applied to the NNTT for arbitration to allow the grant of mining tenements in the claim area.
2. A co-director of MGA Consulting with Ms Maher, is her spouse, Michael Gallagher.
3. The heritage consultancy for FMG was undertaken by Michael Gallagher, who for five years previously was employed variously as Anthropologist, Manager Aboriginal Affairs, and Aboriginal Access and Opportunity Manager in FMG’s Land Access Division, where his job was to ensure “that [FMG’s] grant of project tenure is not delayed on account of approvals under the Native Title Act.”
4. MGA was engaged in this work by Ms Maher’s daughter, and Mr Gallagher’s step-daughter, Lisa Maher, who is FMG’s Heritage Manager.
5. The MGA report produced by Mr Gallagher for FMG, which effectively dismisses the merits of the Yindjibarndi native title claim over Vacant Crown land (VCL) where FMG is developing its Solomon project, was used to obtain approval for iron ore mining within FMG’s Solomon Hub.
6. Tom Weaver, who is the Native Title Manager for FMG, and was previously the NNTT’s Manager for the Geraldton, Kimberley and Pilbara region, and relieved Ms Maher as Acting State Manager for a period, is a close family friend of Ms Maher and Mr Gallagher.
7. In December 2010, Mr Gallagher left FMG to work as a consultant (Native Title Manager and de facto CEO) with Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC), which he helped to establish while with FMG. FMG financially sponsors WMYAC, which supports FMG projects against the objections of the properly appointed Yindjibarndi Prescribed Body Corporate and elected representative body, the Yindjibarndi Aboriginal Corporation (YAC).
8. At the same time as Mr Gallagher serves as co-director with Lillian Maher of their private company, FMG pays the fees of Mr Gallagher in his employment with WMYAC and his accommodation expenses in the Pilbara.
9. Since leaving the NNTT in August 2012, Lillian Maher has worked for RCD Consulting—a partnership of five consultants, four of whom were also previously employed at the NNTT.
10. RCD Consulting is a business name owned by MGA Consulting, which in turn is wholly owned by Lillian Maher (and co-directed by Mr Gallagher).
11. In March 2012 Michael Gallagher was instrumental in engaging RCD to undertake a consultancy for WMYAC regarding governance and strategic planning.
12. In 2012, before Lillian Maher left the NNTT, RCD issued invoices to WMYAC totaling nearly $80,000 for services including professional film services by Michael Gallagher’s son, Daniel Gallagher; and communications, website updates and governance & strategic planning by Davina Boyd—the daughter of a close family friend of Michael Gallagher.
13. Mr Gallagher denied to the WMYAC Board that he or his wife were associated with RCD.

EXTRACTS – NATIONAL INDIGENOUS TIMES:

• The National Indigenous Times sent questions to Mr Gallagher which included whether it was legally and morally appropriate for him to have his companies engaged for their services by the Wirlu-murra […] At the time of going to press there had been no response from Mr Gallagher.
• Bruce Woodley [Chairman of WMYAC] said he remained unrepentant about his allegations against Mr Gallagher and the Fortescue Metals Group.
• Bruce Woodley’s staggering suite of allegations against Mr Gallagher included describing him as a puppeteer who controlled decisions made by the organisation.
• “I just want to see my people control our affairs, our business, our Country. We must make the decisions and we represent our people. It should not be Michael Gallagher or anyone else, not Fortescue, not anyone who tells our people what to do […] I also want to see peace with all Yindjibarndi, all of us as one again, our hearts one. We can fix the problems if Yindjibarndi are left alone and then we can all do our business, work together and benefit. We can negotiate with one voice and with trust in our hearts”.
• A Board member who spoke in confidence to the National Indigenous Times said: “We want him [Michael Gallagher] to step back or to step down. We don’t want to be led around like children. We are strong people and we shouldn’t be treated like we don’t know anything.”

DOWNLOAD FACT SHEET … giving full context of, and describing the connection of Lillian Maher, Michael Gallagher & their private companies to FMG land access operations.

 

Native Title Tribunal inquiry

23 January 2013

By National Indigenous Times reporter Gerry Georgatos

The National Native Title Tribunal (NNTT) President, Graeme Neate and the Tribunal’s Registrar, Stephanie Fryer-Smith have launched an external inquiry into a former State Manager after reports published in the National Indigenous Times revealed allegations of various improprieties in reference to undeclared interests by its employee to the Tribunal. High Court of Australia officers have arrived in Western Australia as part of this inquiry and have been interviewing people – with only the notice of a few hours.

[…] A former State Manager of the NNTT is one of the owners of a consulting company which in turn owns another consulting company. It has been alleged both these companies undertook contract work within an Aboriginal organisation where one of the directors of the consulting company is the partner of that former NNTT State Manager. Furthermore it is understood the spouse of the State Manager works for the Aboriginal organisation as their Native Title Manager […] One of the companies which is owned by the former NNTT employee is a subsidiary company of the masthead company that both the former NNTT employee and spouse have an interest in. The subsidiary consulting company has allegedly five employees with four of them allegedly having previously been employed by the NNTT.

[…] The inquiry is long overdue, if for nothing else to clear the air, and to ensure self-evident conflicts of interest are adequately managed. The National Indigenous Times has spoken with a number of executives from Aboriginal Corporations and most of them enthused by this inquiry saying it may serve to ensure adequate changes to better protect against what they perceive as “pervasive” and “endemic” conflicts of interests […] one Aboriginal Corporation CEO said to the NIT “if we cannot trust adequately in the balances and checks (at the NNTT) of the systems that are in place then what can we trust in?”

DOWNLOAD Native Title Tribunal inquiry full story

MORE REVELATIONS NEXT WEEK

Last year the National Indigenous Times put two whistleblowers on the record regarding FMG’s Native Title meddling, Mr Kerry Savas and Mr Bruce Woodley. Next week the NIT will run with an exclusive report from another whistleblower “who will corroborate the claims by Mr Savas and Mr Woodley.” The NIT has flagged that its new source is high-level, and that their “allegations are even more serious than those raised by Mr Savas and Mr Woodley.”

Full chronology of Maher/Gallagers activities

DOWNLOAD FACT SHEET

… giving full context of, and describing the connection of Lillian Maher, Michael Gallagher & their private companies to FMG land access operations.

This Fact Sheet outlines matters concerning the involvement of Lillian Maher and Michael Gallagher in private companies that had dealings with Fortescue Metals Group (FMG) and Wirlu-Murra Aboriginal Corporation (WMYAC) while Ms Maher served simultaneously as State Native Title Manager and owner/director of MGA Consulting/RCD Consulting; and while Ms Maher’s spouse, Michael Gallagher, served as Native Title Manager for WMYAC and Director of MGA Consulting/RCD Consulting.

These matters have been raised previously in “Native title boss didn’t reveal ties with FMG” by Paul Cleary in The Australian, and in several articles by National Indigenous Times (NIT) investigative reporter, Gerry Georgatos.

The Yindjibarndi Aboriginal Corporation (YAC) welcomes the inquiries, as announced in today’s NIT article Native Title Tribunal inquiry, by both the Registrar of the High Court of Australia and the National Native Title Tribunal, and hopes that they illuminate issues regarding how MGA’s activities interacted with FMG’s land access and heritage operations. These matters remain of grave concern to the Yindjibarndi People, and YAC urges that these inquiries make full discovery of all communications surrounding the work of MGA Consulting and RCD Consulting.

DOWNLOAD full text of fact sheet

LINK to Native title boss didn’t reveal ties with FMG

A statement from Yindjibarndi Aboriginal Corporation (YAC) in response to revelations by another whistleblower, Yindjibarndi Elder Bruce Woodley, Chairman of the Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC), regarding FMG interference in, and manipulation of Yindjibarndi native title affairs.

DOWNLOAD YAC Statement: 121129 Yindjibarndi want solution to FMG Debacle

YINDJIBARNDI WANT SOLUTION TO FMG DEBACLE

Yindjibarndi Elder Bruce Woodley joins Sue Singleton, Brad Goode and Kerry Savas in telling the ‘inconvenient’ truth about Fortescue’s (FMG) behind-the-scenes tactics to divide Yindjibarndi society and destroy our culture. We thank him for his courage, as we do the others, and all those who might follow. We especially hope that Bruce’s peers at the Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC) take heart from his lead in trying to bring our people together to achieve an outcome that benefits us all.

What Bruce Woodley revealed yesterday about FMG’s manipulation and duping of the Wirlu-murra splinter group, which Fortescue helped set up and continues to fund, is not news to the Yindjibarndi Aboriginal Corporation (YAC). FMG has done everything it can to avoid dealing with the lawful representative institution that was appointed by the Federal Court, and is elected by the Yindjibarndi People, to take care of the native title rights and interests of the Yindjibarndi People.

What is shocking to YAC is that neither the Federal nor State Governments have seen fit to inquire into this disgraceful state of affairs.  If FMG attempted to side-step a lawfully elected representative institution of  the Australian people, because it believed it knew what was best, there would be hell to pay. The same standard should apply to the lawfully elected representative institution of Yindjibarndi society.

Instead, FMG is allowed to engage in an ongoing abuse of process, making a mockery of both the Native Title Act, and the Aboriginal Heritage Act; they drag us through litigation in the names of two Yindjibarndi ladies under FMG’s control; sap our meagre resources and divert our energies from urgent work in our impoverished community – and all the while steam ahead with the destruction of our sacred sites.

Bruce Woodley’s courage in standing up against FMG’s native title and heritage ‘managers’ and their paid WMYAC agents, Michael Gallagher and Bruce Thomas, is inspiring; and YAC sincerely hopes this will lead to a breakthrough that will bring some relief to our people.

We must now wait to see if anyone in either our State or Federal Government is courageous enough to do something about this.

The Native Title Act was intended to rectify past injustices and secure a respectful position in Australian society for the first nations of this country.  YAC’s experience with FMG shows how it has failed to deliver. What YAC asks for is simple. We want the governments, Commonwealth and State, to conduct an inquiry into the actions of FMG and its agents and deliver justice for the Yindjibarndi People.

In closing, YAC asks everyone witnessing these unfolding events, to remember a few basic points:

1. Unlike WMYAC, formed in December 2010, the Yindjibarndi Aboriginal Corporation came into existence in March 2004 as a direct result of the Federal Court’s recognition that the Yindjibarndi People are – and have remained, since before the assertion of British sovereignty in 1829 – a society of people living under a distinct system of law, which governs their rights and interests in Yindjibarndi country.
2. The Yindjibarndi Aboriginal Corporation is the lawful representative institution of the Yindjibarndi People, appointed by the Federal Court and elected by the Yindjibarndi People to hold and manage our native title rights and interests, which includes our right to protect heritage sites.
3. When FMG side-stepped the Yindjibarndi Aboriginal Corporation and negotiated an agreement with WMYAC – an agreement that severely affects the rights and interests of the Yindjibarndi People but provides no compensation for doing so – FMG knew full well that YAC was both the lawfully appointed agent for the Applicant in the Yindjibarndi #1 claim (which includes the ‘Firetail’ area of FMG’s Solomon Project); and, the lawfully elected representative institution of the Yindjibarndi People. In other words there was no lawful foundation for FMG’s actions.

YAC is well aware of the benefits that will flow to Australian society from the mining of Yindjibarndi country; and we have repeatedly stated that we do not wish to deprive our fellow Australians of those benefits. What we ask for in return is fair compensation to secure our survival as an indigenous people – a distinct society, with our own language, culture and religion; and, a fair opportunity to privately access our sacred sites in the Solomon project area, so that we can create a lasting record of their beauty and the religious ceremonies associated with them, before they are destroyed.