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

 

15 March 2013

 

Yesterday the National Indigenous Times (NIT) reported that Bruce Woodley, chairman of the Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC), was “bullied and intimidated” into standing down because he told ABC’s 7.30 and the NIT that FMG and its “snake in the grass” agent, Michael Gallagher, controlled WMYAC; and because he sent letters complaining of malfeasance at WMYAC to ORIC and ASIC.

DOWNLOAD 20130313 Bruce Woodley walks out

WMYAC Business Manger, Bruce Thomas, has also been sacked following on the assistance he provided to Chairman Woodley in releasing damning WMYAC minutes, invoices and emails corroborating conflicts of interest by Mr Gallagher.

FMG has on three other occasions tried to silence whistleblowers, namely: Lawyer Kerry Savas of Corser & Corser; Anthropologist Sue Singleton of Eureka Heritage; and Anthropologist Brad Goode.

DOWNLOAD Whistleblower news reports

Moreover, the legal firm Corser & Corser was sacked as the Legal representative of WMYAC following attempts by Mr Savas to initiate mediation between WMYAC and Yindjibarndi Aboriginal Corporation (YAC).

FMG’s routine method has been to ensure that any personnel who reveal evidence contrary to the spin Fortescue deploy to gain government approvals for mining, are removed and silenced by intimidation and threats of legal action. This intimidation has extended to media such as The Australian, Mornings with Geoff Hutchison (720 ABC Perth), The National Indigenous Times, and ABC’s 7.30 program.

According to the NIT, lawyers representing WMYAC—(the public record shows that Integra Legal represent WMYAC)—responded to revelations by Bruce Woodley and Bruce Thomas by writing Statutory Declarations in which Thomas and Woodley recant their previous statements and actions, and then bullied them into signing these Declarations.

The NIT cites a statement released by Bruce Woodley last week which names “Mr Gallagher and a lawyer acting on behalf of WMYAC in having ‘pressured and coerced’ him into signing two Statutory Declarations ‘that I had no part in drafting’.” The report states that Bruce Woodley and his wife Wendy Hubert have “described the Statutory Declaration as fraud”; and said “Mr Woodley did not know what he was signing and he had been bullied and intimidated into signing them”.

DOWNLOAD 20130305 Bruce Woodley statement following Resignation

Bruce Woodley also reconfirms that WMYAC is “nepotistic, a front for the mining company [Fortescue Metals Group] which exclusively funds it and that its personnel had degenerated into bullying, intimidation, coercion and fraud”.

In regard to Mr Thomas, the NIT reports:

“WMYAC Business Manager, Bruce Thomas approached the National Indigenous Times and not only corroborated everything Mr Savas and Mr Woodley had reported […] but added a litany of staggering allegations of gross misconduct, nepotism and in fact what amounted to allegations of corruption within WMYAC.”

[Mr Thomas] has since claimed he signed the Statutory Declaration because he believed he had no choice at the time. He said he signed it to protect his job so he could continue on with the organisation and right wrongs from the ‘inside’” […] He is now ‘broken’ and ‘messed up’ by what has eventuated and regrets being ‘intimidated’ into having signed a Statutory Declaration he knew to be false. He did not see the termination of employment with the WMYAC coming.”

Indeed, just one week earlier, in FMG’s Perth offices, Mr Thomas took his place in a publicity shot for the announcement of the FMG/WMYAC Joint Venture.

This “circus”, as the NIT describes it, has gone on for two years now, with consequences so destructive for the cultural heritage of Yindjibarndi country, that they constitute cultural genocide—a ‘cleansing’ of heritage sites and the ancestral connection, and the religious observance they verify.

FMG’s Solomon project will entirely destroy stretches of Ganyjingarringunha Yaayu Wundu (Kangeenarina Creek East) where Gandi [sacred stones] are ‘summoned up’ and collected for use in ceremonies; and along with it, hundreds of Yindjibarndi sites dating back forty thousand years, including caves and walled niches holding ancestral remains, rock art, ochre quarries and other sacred resources employed in contemporary Yindjibarndi religious practice.

Despairing at the cultural annihilation she saw coming, one of the professionals sacked and silenced by FMG appealed to the Department of Indigenous Affairs (DIA): “It is quite ironic that a project that has facilitated the discovery of such an amazing resource into knowledge and discovery of the traditional life and practices of the Yindjibarndi will now also facilitate its destruction. In this light, I respectfully urge the DIA to inquire further into the levels of ethnographic enquiry carried out by FMGL and ensure that an appropriate and acceptable level of cultural heritage management is carried out before the opportunity is forever lost due to the total destruction of the resource.”

Ms Singleton’s appeal met deaf ears, blind eyes and dumb mouths.

With their cynical manipulation of a few Yindjibarndi people at WMYAC, FMG have driven trucks through provisions of the Native Title Act (NTA) and State Aboriginal Heritage Act (AHA), which claim to, but fail to right the wrongs of the past or protect Aboriginal culture—all so that Fortescue can get dirt cheap access to Yindjibarndi lands for its Solomon mining project.

FMG have shown not just the lie of the native title promise and State heritage provisions, but the moral vacuum at the heart of the Barnett Government, which has not lifted a finger to bring this grim circus to an end.

ALSO SEE 20130313 Yindjibarndi say it’s time for Fortescue to pay up

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.

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.

 

Both FMG and their client splinter group, the Wirlu-murra, have issued statements to the National Indigenous Times (NIT) dodging evidence of grave misconduct and skulduggery.

In this week’s NIT , the Yindjibarndi Aboriginal Corporation (YAC) sets the record straight in a close examination of FMG’s multiple evasions, and rebuttal of Wirlu-murra’s mudslinging.

Read the full Yindjibarndi reply as published in NIT Here
(plus full page photo collage Yindjibarndi culture)

A Summary YAC’s response to FMG’s Statement:

Jobs and training are the right of every Australian; however, under the cover of “welfare-to-work training & jobs”, Twiggy Forrest and FMG are trying to prevent Yindjibarndi from ever obtaining fair and equitable compensation for obliterating irreplaceable aspects of our cultural inheritance, while highly profitable, unrenewable mineral resources are ripped from our lands. What FMG are really saying is, “be a good blackfella; forget your Ngurra, the foundation of your Law, your language, your songs and spiritual belonging; forget your culture; and, in return, FMG will give you a job in one of our mines and you’ll finally get to be like every other Australian”.

The cost of FMG’s bankrolling of legal teams to act against YAC and the Yindjibarndi People, and deployment of multiple heritage consultants to re-survey areas of our precious country, until they get the ‘clearance’ they want, far exceeds the cost of their trumpeted community benefits.

While FMG “rejects” the testimony of solicitor, Kerry Savas, about the construction and control of its Wirlu-murra splinter faction by former FMG Aboriginal Affairs Manager, Mr Michael Gallagher, it fails to explain the undisputed, week-in-week-out ‘management’ of Wirlu-murra business by Mr Gallagher and other FMG-paid operatives.

A Summary of YAC’s response to the Wirlu-Murra Statement:

The Wirlu-murra statement serves up a cold dish of weasel words—partnerships, opportunities, families, kids, vision, better futures—whose insincerity is evident in the lifeless shell of the Wirlu-murra office in Roebourne. While Wirlu-murra falsely carp on about being denied a voice, the ‘voice’ in their statement remains anonymous; unattributed to any Yindjibarndi men or women; while ‘comments’ come from a non-Aboriginal spokesman.

The same anonymous spin-doctors sling mud about “serious corporate governance issues” at YAC—already dismissed by regulator ORIC—while dodging evidence of the horrendous consequences of the Wirlu-Murra pact with FMG, which has riven and disenfranchised the wider Yindjibarndi community, and cleared the way for the destruction of Yindjibarndi heritage—for personal gain, and the profit of their benefactor, FMG.

The Yindjibarndi Aboriginal Corporation has no concerns about the WA Supreme Court action, because it will give YAC an opportunity to cross examine false witnesses and expose the misuse of the Court’s process for the benefit of the corporate interest financing the actions—FMG.

Recent reports that, Fortescue Metals Group (FMG) is pushing ahead with the “low-cost Firetail deposit” at its Solomon Project, while scaling back other operations, have raised fears of a ‘heritage holocaust’ as FMG scrambles for cash flow to weather the freefall in iron ore price.

These fears follow confirmation in documents released by the Department of Indigenous Affairs (DIA), under the Freedom of Information Act, that FMG has destroyed two Yindjibarndi sites and damaged a third at Solomon with impunity, and has “under-reported” sites in the project area by about 30%.

111223 Briefing Director General to Minister Indigenous Affairs

120201 Memorandum Compliance Officer James Cook to Director General Cliff Weeks

When the Yindjibarndi Aboriginal Corporation (YAC), in November last year, accused FMG of damaging Yindjibarndi sites, FMG responded with a Press Release that said: “Michael Woodley’s allegations that Fortescue has damaged sacred sites are untrue”. The press release of 7 November 2011 stated, FMG “categorically rejects offensive claims that it is operating unlawfully regarding Aboriginal heritage sites at its Solomon Hub project.”

111107 Fortescue rejects claims of unlawful heritage dealing

However documents released by DIA reveal that the Aboriginal Cultural Materials Committee (ACMC) requested DIA officers to undertake an on-ground inspection at Solomon to resolve “issues regarding the veracity comprehensiveness of the heritage information provided by FMG”; and that this inspection confirmed:

—two Yindjibarndi sites were completely destroyed, leaving DIA with “no possibility of further assessment”, and another was partially destroyed between September and November last year;

—at least 17 sites had been “declassified”  by FMG’s heritage consultants; and,

—FMG had “under reported possible heritage sites on the Solomon Firetail Project Area by about 30%.”

111100 DIA On-Ground Sites Investigation Report Solomon

This evidence contradicts FMG’s denials and demonstrates the truth of both Michael Woodley’s allegations and repeated objections by YAC to DIA, over the past 18 months, that FMG was under-reporting and de-classifying sites in the Solomon Project area.

A crucial factor in the exposure of FMG’s breach was the revelation by archaeologist Sue Singleton (of Eureka Heritage, NSW), that FMG had coerced her into removing expert ethnographic information from a report that FMG “considered prejudicial” to its business; and the release of Ms Singleton’s database of Yindjibarndi sites, which enabled DIA to detect omissions in FMG’s reports.

Michael Woodley, CEO of YAC, said, “What is so troubling about these revelations is that they were accidental. If not for the courageous actions of a whistleblower and the media attention this generated last November, DIA officers would not have made their on-ground inspection, and this would have never come to light. We have no doubt that many other sites have been destroyed or damaged, because the heritage protection system in WA is wide open to abuse.”

111105 Sue Singleton to Registrar

111107 Unlawful FMG heritage dealing & massive sites damage at Solomon Project

The FOI documents also reveal that FMG avoided prosecution for destroying the sites by shifting the blame and responsibility on to a senior archaeologist, Rebecca Yit of Alpha Archaeology: “Fortescue does not deny that the impacting works were undertaken pursuant to, and in accordance with, Permits issued by Fortescue. Those Permits were issued on the basis of (incorrect) information provided by Rebecca Yit of Alpha Archaeology Pty Ltd (‘Alpha’).“

120202 Lisa Maher FMG Manager Heritage to Registrar

A Memorandum to DIA Director General, Cliff Weeks, from DIA Compliance Officer James Cook describes FMG’s strategy in subverting WA heritage protection measures: “FMG’s compliance with the AHA has been variable. As FMG often work to tight timeframes, they often submit information relating to applications under section 18 at very late notice, resulting in insufficient time being given to the department to assess that information.”

Despite clear evidence of the under-reporting, declassification, and destruction of sites, the Director General of DIA, Cliff Weeks, and the Minister of Indigenous Affairs, Peter Collier, acted against the advice of the ACMC and adopted a proposal put by FMG for addressing the problem of “declassified” sites. The documents reveal that they also ignored the ACMC’s recommendation that the Minister refuse to give his consent for FMG to continue with its development in the Solomon area until all sites had been properly identified and assessed for significance.  Instead the Minister approved FMG’s application to destroy the sites it had reported, on condition that FMG undertake “a more detailed recording, excavation and analysis of the sites”.

YAC’s In-House Legal Counsel, George Irving, said:

“The Aboriginal Heritage Act protects all sites of significance to the Indigenous peoples of this State, unless and until the Minister gives his consent for their destruction. Under the Act, an assessment of the significance of any indigenous site, by the ACMC, is a pre-condition to the exercise of the Minister’s power to give such consent. 

It is apparent from the FOI documents that the ACMC has not been given reliable and relevant information by FMG about sites in the areas it wishes to develop; and, that a large number of sites have either not been reported to the ACMC or have been ‘declassified’ as sites.

Although the decision made by the Minister requires additional ‘recording’ and ‘analysis’ of the sites that were reported by FMG before their destruction, the decision obviously precludes any possibility of the ACMC carrying out its statutory responsibility to assess the significance of those sites, and all other sites in FMG’s development area, because the Minister has already given his consent for the development to proceed. It seems clear that the interest of FMG, in extracting the mineral wealth from Yindjibarndi country, is more important to the Minister for Indigenous Affairs than Indigenous sites of significance in that country, which date back more than forty thousand years—that’s 35,000 years before Stonehenge.”

Other disturbing aspects of this debacle of distress to the Yindjibarndi People, are:

—YAC, the native Title Representative Body (NTRB) of the Yindjibarndi people, was at no point informed by DIA or FMG about the sites that were destroyed;

—Although YAC has sought access to lands within FMG’s Solomon Project area in order to identify and precisely record Yindjibarndi cultural sites on several occasions, entry has repeatedly been barred, by physical barricades and legal threats, while DIA has sat on its hands; and

—While the DIA Compliance Unit launched an investigation into possible breaches of the Aboriginal Heritage Act by FMG, and also investigated allegations by Ms Singleton, the outcomes of these investigations have been suppressed, and DIA has backed down from moves to prosecute FMG.

Finally, YAC would like to correct the record with regard to FMG’s denigration, in press releases, of Michael Woodley’s cultural standing, and claims that he did not have the support of his community. These claims have also been shown to be malicious and misleading by the overwhelming support shown to YAC and Mr Woodley in recent plebiscites, and by an affidavit of evidence sworn by centenarian and Yindjibarndi Lawman of high degree, Mr Ned Cheedy, before his passing earlier this year, which unequivocally affirms the cultural authority of Mr Woodley.

120829 Yindjibarndi Plebiscite Rejects FMG Meddling

110408 Affidavit of Ned Cheedy Affirming Mr Woodley

Mr Woodley said that he hoped the broader community would be less credulous of FMG in the future, and demand instead that the Government give real protection to Indigenous heritage:

“I am glad that FMG’s attack on me and the credibility of Yindjibarndi Aboriginal Corporation has been shown up for what it is, a smear campaign based on misinformation, however I am bitterly disappointed in the performance of the Minister, Peter Collier, a self-professed ‘close personal friend’ of Andrew Forrest, and the Director General, Cliff Weeks.

“While it is not surprising that a ‘maverick’ company like Fortescue is so contemptuous of the Aboriginal Heritage Act, and in so much rush to push through its developments, it is a disgrace that a Minister of the Crown and a departmental head have abandoned our heritage to corporate greed. They have betrayed the confidence of the people of this State and shown themselves to be unfit for office.

“The Aboriginal people of Western Australia should be horrified that Mr Collier is now in charge of reviewing the Aboriginal Heritage Act. On his performance to date we can expect the gutting of an already weak Act. It spells more heartbreak for our people.”

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Since inception of the dispute between Fortescue Metals Group (FMG) and the Yindjibarndi People, two years ago, FMG has misleadingly claimed, on repeated occasions, that the ‘majority’ of the Yindjibarndi People support their Solomon Project and their Indigenous Land Use Agreement (ILUA).

FMG has said that a meeting of Yindjibarndi people on 16 March 2011, which was sponsored by FMG, supports their claim of ‘majority support’. This meeting was in fact flawed and unrepresentative—as documented in the video of the meeting released at the time—“FMG’s Great Native Title Swindle”.

Fresh evidence of just how strong Yindjibarndi opposition to FMG and its Solomon Project is, came from two vital meetings held in Roebourne in March of this year. First was the Yindjibarndi Aboriginal Corporation (YAC) AGM on 21 March 2012. Second was the Section 66b authorisation meeting on 24 March 2012.

The latter was held to authorise a new ‘Applicant’ group for the Yindjibarndi #1 Native Title Claim, which underlays FMG’s Solomon Project. Most momentous was the Yindjibarndi People’s decision to dismiss the incumbent group of Applicants, and elect a new group of thirteen to represent the Yindjibarndi #1 Claim. This new and enlarged group unanimously supports the Yindjibarndi Aboriginal Corporation, and will reinstate the majority of incumbents who oppose FMG.

Decisions made at both these meetings conclusively re-confirm the clear support of the Yindjibarndi People for YAC’s management of native title matters, and especially, its rejection of FMG’s high-handed and inequitable approach to negotiations and agreement-making over its Solomon Project.

Application has now been made to the Federal Court asking that the Court make an order to replace the Applicants in accordance with the Yindjibarndi Peoples’ wishes (the hearing is scheduled for 30 & 31 August). On the basis of the Yindjibarndi People’s proper and orderly authorisation of a new Applicant, YAC is confident that the Court will make such an order, thus effectively removing the two Applicants who—with the support and financial backing of FMG— have been pressing vexatious litigation against YAC.

FMG’s attack on the Yindjibarndi People follows a pattern established by Fortescue in its dealings with the Nyiyaparli People in 2005. As pointed out in emails during that dispute, by FMG’s native title lawyer Mr Ken Green, FMG is ready and willing to employ ‘aggressive strategies’, including a ‘barrage’ of litigation to secure the execution of land access agreements with recalcitrant traditional owners.

These same “aggressive strategies” are now being employed by FMG against the Yindjibarndi People and YAC—directly via the fomenting of dissent within the Yindjibarndi community through misinformation, and the 19 court and tribunal proceedings currently in train (several of which seek ministerial consent to destroy Yindjibarndi sites of significance); and indirectly via the funding and encouragement of proceedings in the Supreme and Federal Courts by the FMG-sponsored splinter group, Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC).

FMG’s “aggressive strategies” and litigious “barrage” have been extremely damaging to the wellbeing of the Yindjibarndi community. Resources better spent on community development have necessarily been diverted to legal defense; and FMG’s support of the split in the members of the Yindjibarndi #1 Claim Applicant, has crippled the community’s ability to conduct business concerning the Yindjibarndi #1 Claim, and to legally conclude agreements with other companies, such as Rio Tinto, with whom YAC and the majority of Applicants have happily negotiated.
A favourable decision by the Court will set the scene for a decisive change in Yindjibarndi fortunes, as they shrug off key pieces of FMG’s “aggressive strategy”—a strategy aimed at destroying YAC for the simple reason that the majority of the Yindjibarndi People refuse to support FMG’s exploitative and unjust land use agreement.

An unexpected endorsement of YAC’s rejection of FMG’s land use agreement has come from splinter group WMYAC’s Senior Counsel, veteran native title lawyer Mr Greg McIntyre, who openly stated on two occasions that there were anomalies in FMG’s Agreement, and that he would not recommend it be signed in its present form.

Mr Woodley, CEO of YAC, said, “After two years of meddling and attacks against us in the courts, the overwhelming support of our people in recent meetings is a win for Yindjibarndi people-power against the divisive and under-handed tactics of FMG. I hope the Yindjibarndi voice in both these meetings sends a message to Fortescue, and they come back to us with a fair agreement in line with standards already set by other more responsible companies we are working with.”

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The Federal Court has declared that a determination of native title in favour of the Yindjibarndi People over the land affected by Fortescue Metals Group’s (FMG) Solomon Project may expose FMG to a liability to pay compensation to the Yindjibarndi People for any impairment of their native title rights and for any social disruption caused by FMG’s project.

In a decision handed down on 20 July 2012, allowing FMG to be joined as a respondent to the 2003 native title determination application made by the Yindjibarndi, 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.

LINK to decision of Justice McKerracher

FMG argued that its very late application to be joined as a party to the native title claim should be allowed by the Court because FMG had been unable to reach an agreement with the Yindjibarndi People.

This lays bare the misleading nature of the statement made by FMG’s Chief Executive Officer, at the 2011 AGM, when he told shareholders “We have reached an agreement with the Yindjibarndi community who have supported the project”.

In response to news yesterday that FMG had invited banks to the Hyatt in Sydney to take part in a $US1.5 billion loan to help fund the completion of its Solomon mines, and an announcement that it is seeking to sell off exploration rights for all non-iron commodities in its tenement holdings, Mr Michael Woodley, CEO of the Yindjibarndi Aboriginal Corporation (YAC), said,

“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.”

Justice McKerracher’s decision also highlights the misleading and mischievous nature of the statement made by FMG’s Lead Negotiator, Blair McGlew, to members of the Yindjibarndi community, in 2010, after negotiations between Fortescue and YAC broke down. In the course of a meeting conducted without YAC’s knowledge or consent, Mr McGlew distributed a ‘Yindjibarndi – Fortescue Information Paper’ to Yindjibarndi members, which stated that the Native Title Tribunal had rejected Yindjibarndi objections to the grant of the Solomon mining leases, and advised, “Under the law no financial compensation is payable to Yindjibarndi if the leases are granted in this way.”

LINK to Yindjibarndi – Fortescue Information Paper

That statement was “deliberately misleading”, Mr Woodley said, “and clearly designed to undermine the confidence and trust of the Yindjibarndi People in their legally appointed representative body”.

Mr Woodley said, “What the market needs to understand is that YAC, which is both the Registered Native Title Body Corporate and the chosen representative body of the Yindjibarndi People, will continue to oppose FMG’s project, and when we win recognition of our native title in the Solomon Project area, we will pursue our legal rights for fair compensation under the law.”

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