Federal Court win by Yindjibarndi means Fortescue must negotiate with them

Gerry Georgatos - On Tuesday February 12, the Yindjibarndi Aboriginal Corporation (YAC) won a huge outcome in the Federal Court with Justice Neil Kerracher stating that only the YAC are authorised to negotiate with mining companies over certain Yindjibarndi Country. The claim area includes the vacant Crown land where Fortescue Metals Group is developing the Firetail mine site. This is a massive blow to Fortescue who have been securing access to the site through the controversial Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC) which is not a federally prescribed negotiating body and which was allegedly contrived into existence by Fortescue and who are funded by Fortescue, which Fortescue admits.

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

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

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

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

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

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

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

“The persons who previously were jointly authorised by the Yindjibarndi people and the Federal Court to speak for and make decisions – binding on the Yindjibarndi people – about Native Title in the area of land covered by the Yindjibarndi One Claim, which includes the area where FMG is developing the Firetail mine site are no longer authorised to make any such decisions,” said Mr Irving.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Native Title is a difficult customer to understand because the legislation is not tight and obliges the resources companies to negotiate "in good faith" with the Native Title claimants and compensation is an ideal to be pursued without it being properly prescribed and defined.