Federal Court Highlights FMG Liability at Solomon
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.”
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.”