11 November 2015
www.yindjibarndi.com
a toxic convergence
of interests
OVERLAPPING CLAIM TIMED TO SABOTAGE YINDJIBARNDI NATIVE TITLE
If you want to get to the bottom of any situation that on the surface seems inexplicable, just ask
yourself the simple question: Who Profits?
Our last bulletin reported how Fortescue Metals employs native title and WA State heritage laws to give free rein to its economic
rights at the expense of Yindjibarndi rights ✦ how FMG escapes its obligation to compensate the Yindjibarndi People for the massive damage
caused by its mining operations ✦ how a native title decision granting exclusive possession could turn the tables on FMG and make
history ✦how FMG snubs global principles of justice and practices “the racism of low expectations” its chairman rails against elsewhere; and ✦
how FMG persecutes and seeks to eliminate the Yindjibarndi Aboriginal Corporation for opposing its discriminatory ideology. This post
describes an escalation—a convergence of toxic interests including FMG and two of its ‘client’ Aboriginal groups ...
The latest attack on the Yindjibarndi Aboriginal Corporation (YAC) comes from the
Wintawari Guruma Aboriginal Corporation (WGAC)—a ‘neighbour’.
On 25 September the Federal Court unreservedly dismissed an application by WGAC to make a native title claim over 722
square kilometres of Yindjibarndi Traditional Lands. WGAC were ordered to pay full costs. On Friday 23 October,
WGAC’s CEO, Mr Glen Camille, called a meeting of Eastern Guruma to authorise a new claim over the same area, and
according to Mr Camille the meeting authorised that new claim.
pdf: Wintawari Federal Court Judgement
pdf: notice to eastern guruma people
This proposed Eastern Guruma claim overlaps a quarter of the Yindjibarndi #1 claim, lodged 12 years ago—cutting it in
two—and neatly excises the greatest part of FMG’s Solomon mining operations from Yindjibarndi country.
pdf: map showing proposed wintawari excision
UNHOLY TRINITY—These actions by WGAC, timed as they are to derail the Yindjibarndi #1 Native Title Claim,
line up with attempts by both Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC) and Fortescue Metals Group
(FMG), to sabotage the Yindjibarndi #1 Claim.
link: Federal Court ruling exposing FMG “orchestration”
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who profits?
WINTAWARI (WGAC)—In a telephone discussion with Michael Woodley on Friday 16 October, about whether
Eastern Guruma would or would not proceed with their authorisation meeting as advertised, Mr Camille said,
“We have to think about our agreement with FMG.”
This begs the question: How can the lodging of a new Eastern Guruma Native Title claim over the existing Yindjibarndi
Claim Area possibly be associated with any “agreement with FMG"? Mr Camille needs to explain this.
What we do know is that WGAC has an Indigenous Land Use Agreement (ILUA) with FMG for mining leases that relate to
the Solomon Hub within the existing Eastern Guruma determination adjoining the southern boundary of the Yindjibarndi #1
Claim; is a joint venture partner in contract mining services for FMG at its Solomon mine✮; and is a joint venture partner
with the breakaway Wirlu-Murra Yindjibarndi Aboriginal Corporation in other contract work for FMG.
We also know that FMG executives Lisa Maher (Heritage Manager), Heath Nelson (Manager Aboriginal
Business Development) and Tim Langmead (Director External Relations) attended WGAC board meetings in the months
immediately prior to its August 2015 manoeuvre to excise lands in the Yindjibarndi #1 Claim where FMG mines; and
that WGAC and other FMG executives liaised about this action. On 11 August Mr Tony Bevan (WGAC) emailed Nerolie
Nikolic (FMG Senior Government and CSR Specialist), Tom Weaver (FMG Native Title Manager) and Mr Camille saying:
“Hi Nerolie, There will be one matter of significance that WGAC wishes to raise in the Working Group General Business - this relates to an
interlocutory joinder Application to join the Yindjibarndi #1 Native Title Application […] Tom - I imagine you may want to call me to
discuss this."
While the new claim has no merit, its authorisation by Eastern Guruma people will start another round of hearings in the
Federal Court and will once again, as Federal Court Justice Rares noted about the previous attempt, “cause significant
disruption and expenditure of significant costs by the Yindjibarndi”.
This vexatious litigation coincides with FMG’s avowed method of subjecting native title representative bodies and Prescribed
Bodies Corporate (PBCs) that do not yield to its sub-standard land access terms with a “multi-faceted aggressive strategy” and
hitting their legal representatives with a “barrage of litigation” prosecuted at “a gruelling pace” in order to “place them under
immense pressure and impact their ability to organise themselves”.
pdf: FMG emails discussing their strategy
It might be added, that while WGAC may be motivated by issues attending its agreement with FMG, it
should also be mindful of concerns other parties to its existing ‘consented’ agreement may have about its
maverick actions.
✮Wintawaru Guruma Enterprises P/L (WGEPL) have formed a joint venture company with Indigenous
Construction Resource Group (ICRG) called Muntulgura Guruma JV P/L (MGJV), which undertakes work in the
Firetail and Kings sectors of FMG's Solomon Hub. Marcia Langton and Clinton Wolf are board directors of ICRG.
MGJV’s first contract with FMG, commencing in 2014, was valued at $8 Million per year, and the Muntulgura JV
P/L Company Extract shows that MGJV Directors include WGAC Directors Mr Tony Bevan and Mr Camille, and
Mr Wolf (ICRG). What payment Messrs Bevan and Camille receive as MGJV Directors on top of payments they
receive as Officer and CEO, respectively, of WGAC, is a question that might be asked.
WIRLU-MURRA— FMG also plays a critical role in vexatious litigation prosecuted by the Yindjibarndi splinter group,
WMYAC, against YAC.
The fact that FMG finances and “orchestrates” Wirlu-Murra maneuvers against YAC is already on the public record, and was
most recently demonstrated in the attempt by WMYAC members to sabotage the Yindjibarndi #1 native title claim for
exclusive possession over country where FMG mines—the same country that WMYAC’s partner, WGAC, now claims
belongs to Eastern Guruma.
FMG also funds and encourages the long-running Supreme Court action brought against YAC by two of the WMYAC
leaders. This action still continues despite the fact that YAC’s finances and governance have been forensically examined on
two separate occasions since the Supreme Court action started; firstly by ORIC (Office of the Registrar of Indigenous
Corporations) and then by an independent firm of forensic auditors commissioned and paid for by the WMYAC leadership.
Both these investigations came to the similar conclusions: their respective reports found 'no evidence to suggest that YAC or
any of YAC's officers were guilty of fraudulent transactions', as was falsely alleged.
FORTESCUE METALS—As has been reported in bulletins over the last five years, FMG mines in Yindjibarndi
country without an Indigenous Land Use Agreement, refuses to pay fair compensation, and is asking the Federal Court to not
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recognise the Yindjibarndi People’s right of ‘exclusive possession’ over the Unallocated Crown Land (UCL) where it
operates its Solomon Mine.
At the bottom of FMG’s assault on YAC and the Yindjibarndi People is a paternalistic and discriminatory ideology, which
holds that white property rights are ‘more equal’ than Indigenous property rights. FMG’s dismissal of its human rights
obligations across the Pilbara serves its own financial interests, and its self-promotion as a corporate do-gooder deflects
attention from actions that devalue legitimate Aboriginal interests and long-term economic rights.
link: Overview of FMG assault on Yindjibarndi
fortescue metals profits
What these actions—by FMG, Wirlu-Murra and
WGAC— all have in common, besides their enormous
waste of the Yindjibarndi People’s resources, is that if any
one of them succeeds, the Yindjibarndi application for
‘exclusive possession’ native title, over the UCL where
FMG mines, will fail—and this in turn will ensure that
Yindjibarndi are prevented from claiming legitimate
compensation from FMG for the damage it has caused to
Yindjibarndi country and the Yindjibarndi People through
its Solomon mining project.
FMG Chairman & 33% shareholder, Andrew Forrest, native title
manager Blair McGlew, and incoming CEO Nev Power, at the
Yindjibarndi native title meeting, which FMG orchestrated in
Roebourne in March 2011
If, in a perverse twist of the native title system, the
WGAC/Eastern Guruma were successful, FMG’s existing
ILUA with WGAC would no doubt be amended to cover
the greatest part of the Solomon mine in Yindjibarndi
country, which currently operates without traditional owner
consent or agreement.
While the question of whether FMG is “orchestrating” this new claim by Eastern Guruma—as it orchestrated the failed attempt
by the Wirlu-Murra leaders, in June this year, to take control of YAC and to subvert the Yindjibarndi claim for ‘exclusive
possession’—remains open, there is no doubt that FMG would be a beneficiary from a successful Eastern Guruma claim.
BACKGROUND...
the WGAC land grab
Just three months ago, in August 2015, Wintawari
Guruma Aboriginal Corporation (WGAC) made an
eleventh hour bid, ahead of the commencement of the
Yindjibarndi #1 Claim hearing in the Federal Court, to
have a large area of unallocated Crown land in the
Yindjibarndi #1 claim, which contains FMG’s Solomon
Project, merged into the 2007 Eastern Guruma Native
Title Determination made by the Federal Court.
Glen Camille, Susanne Boyd and Michael Hughes
submitted affidavits, in support of the WGAC
application, alleging “one of its members had discovered, in
late 2015 [sic] when watching a documentary on
television” that the previous determination “was incorrect”
because it should have included “the site known by the
Eastern Guruma people as ‘Satellite Springs’”.
Yindjibarndi Lawmen at Bangkangarranha Jinbi
In recent years a permanent pool and sacred site that the Yindjibarndi call Bangkangarranha Jinbi, which is sung in the
ancient Burndud song cycle that belongs to the Yindjibarndi ‘Birdarra’ Law, has mistakenly been referred to in some FMGcommissioned anthropological reports as ‘Satellite Springs’, and it was Bangkangarranha Jinbi that was depicted in two
commercial television current affairs pieces in 2014.
Bangkangarranha Jinbi has never been named “Satellite Springs” on maps other than those produced by FMG-commissioned
anthropologists. The site known to Eastern Guruma people as “Satellite Springs” is in fact clearly shown on Government
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maps as being south of the Yindjibarndi #1 claim area—within the existing Eastern Guruma Native Title Determination
Area.
pdf: map showing satellite springs and bankgangarranha
wayne stevens statement
In a letter sent to WGAC lawyers, Castledine Gregory, Wayne Stevens, former
WGAC deputy chairperson, made three important points about this Eastern Guruma
claim over Yindjibarndi country:
1— “This is very serious matter and has the potential to cause bad blood with our neighbours.”
2— “As a WGAC member and a person of great cultural knowledge for my country, as taught to
me by my late father and elder of the Eastern Guruma people [Peter Ngimaliny Stevens], I know
that Eastern Guruma people have no connection to the area inside the Yindjibarndi 1 claim, and
that there is also no cultural connection to a site of importance to the Eastern Guruma people
inside the Yindjibarndi claim area.”
3— “Please don’t waste any more time and WGAC resources pursuing this matter.”
pdf: wayne stevens letter (march 2015)
Wayne Stevens, Eastern Guruma
Lawman & custodian
WGAC case dismissed
In dismissing the WGAC claim Federal Court judge, Steven Rares, said this to WGAC’s lawyer:
“your clients are asserting a claim over a vast area of land where there’s not a jot of evidence in the material I saw that supported any of it,
apart from a small little area called Satellite Springs […] which your clients couldn’t even name in their own language with their own
name. They were using white man’s names. […] And they couldn’t assert the boundaries”.
The Court ruled the WGAC claim was:
— “fundamentally misconceived and an abuse of the process of the Court”;
— “baseless”; and
— “It was entirely unreasonable for WGAC to have commenced either application where WGAC had no status under the Act [and] had no
capacity to make such a claim at all”.
Justice Rares also noted that the WGAC “applications were made very late in the piece […] immediately before, as it knew, the Court
was to sit on country to determine the Yindjibarndi proceeding”, and that “such unreasonable behaviour was calculated to cause significant
disruption and expenditure of significant costs by the Yindjibarndi applicant, by reason of the interruption to its preparation of its case for
the imminent hearing.”
COSTS AGAINST WINTAWARI
Most seriously for the Eastern Guruma People who are members of WGAC, the Federal Court ruled that WGAC pay the full
costs of the Yindjibarndi Aboriginal Corporation on an indemnity basis—costs in excess of a hundred and thirty thousand
dollars.
If this new WGAC bid goes ahead, a great deal more promises to be revealed in legal proceedings.
Stay posted.
www.yindjibarndi.com
CONTACT: media@yindjibarndi.org.au
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