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.



No surprise a Court that doesn’t recognise a women’s jurisdiction would uphold a claim by men against women Native Title claimants. Same old paternalism, same old subjugation of women, same old sucked into the misogyny introduced two centuries ago, another day of shame for tradition.

Phillip, for the record the new applicant group is six women and six men.

Yes Gerry, from the YAC web site, front page: “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.” Status quo, male privilege prevails ... for now. They didn’t give you a byline but you sure deserved one.


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 country—you are true believers and you inspire us.”

The firepower will come out if they dare to take on Gerry


"The Pilbara might be raking in the cash for Australia, but many see it as ruined"