Fortescue using legal system to destroy Yindjibarndi, says Barrister

Source: National Indigenous Times

Native Title threatened by miner's "war of attrition"

Fortescue Metals Group has embarked upon a "war of attrition" using the legal system against the Yindjibarndi Aboriginal Corporation and initiating 25 separate actions through the courts and tribunals of Australia and engaging seven firms of solicitors and seven barristers in a strategy designed to destroy the Yindjibarndi's ability to continue resisting the mining giant's demands for an agreement to mine on their land, one of Western Australia's leading barristers has claimed.

Barrister George Irving, who has been acting for the Yindjibarndi Aboriginal Corporation since 2008, said Fortescue's wealth and power was being used in an obvious strategy to "financially stretch the Yindjibarndi Corporation". Mr Irving and Yindjibarndi Chief Executive Officer, Michael Woodley said this strategy would not work. Mr Woodley said it was disappointing funds spent "standing up to Fortescue" would have otherwise been spent on their people.

Mr Irving's comments support claims by the former solicitor, Kerry Savas that Fortescue had actively supported the establishment of the breakaway Yindjibarndi group, the Wirlu-murra Yindjibarndi Aboriginal Corporation which has agreed to accept the Fortescue offer to mine the Yindjibarndi land.

The two Yindjibarndi groups continue to argue in a series of court and tribunal actions which group has the right to act on behalf of the Yindjibarndi people. Fortescue has confirmed it has been funding the cost of the Wirlu-murra group's legal actions. Mr Irving said it appeared clear to him Fortescue was driving a campaign to financially fold the Yindjibarndi Aboriginal Corporation.

"Since mid 2009 until now Fortescue has lodged 25 court cases and tribunals against the Yindjibarndi Aboriginal Corporation and used seven firms of solicitors and seven barristers. It is a strategy," he said.

"I have stayed as the in-house legal representative to the Yindjibarndi Aboriginal Corporation because they need me. My own view is it would have been an injustice if I was not representing them, it would be unfair."

Chief Executive Officer of the Yindjibarndi Aboriginal Corporation, Michael Woodley said the series of legal actions by Fortescue and the claims the mining giant was actively funding the Wirlu-murra breakaway group raised serious questions about the whole process of Native Title.

"How is it fair or appropriate mining giants like Fortescue can be allowed to use their power and wealth to establish breakaway groups who will support their demands to mine our land," Mr Woodley said.

"Fortescue should have nothing to do with determining who should represent the Yindjibarndi people. That is for the Yindjibarndi to decide.

"What has happened here is Fortescue put forward an offer to mine our land which was significantly less than offers made by other mining companies to mine on our land.

"When the Yindjibarndi's true and legally recognised representative, the Yindjibarndi Aboriginal Corporation, refused to accept the Fortescue offer Fortescue has gone off and set up a rival group, funded them and now claims that group is the true representative of the Yindjibarndi people.

"The vast majority of Yindjibarndi do not recognise the Wirlu-murra group as their representative yet we are now forced to undertake a series of court and tribunal actions that have been initiated by the Fortescue-funded Wirlumurra group.

"If there was no Fortescue there would be no Wirlu-murra. That's the point and it is wrong a big mining company can just use its unlimited wealth to undermine and destroy the legally recognised representatives of the Yindjibarndi so it can get a cheap deal for mining rights on our land."

The litany of court and tribunal actions being undertaken by the Wirlu-murra group and Fortescue follow claims last week by the former legal representative of the Wirlu-murra, Kerry Savas the Wirlu-murra was "set up and funded" by Fortescue.

Mr Savas, who spent more than a year representing the Wirlu-murra, has claimed Michael Gallagher resigned as an employee of Fortescue and was then engaged as a consultant for the establishment of the Wirlu-murra group and Mr Gallagher has since been the "eyes and ears" of Fortescue within the Wirlu-murra.

Fortescue has released a statement rejecting the claims by Mr Savas it had set up the Wirlumurra group. The statement said the Wirlu-murra group is an "independent organisation" that was initiated by a "large number of Yindjibarndi people including respected Elders".

However, a well placed source within the Wirlu-murra group has claimed Fortescue did in fact assist in the establishment of the breakaway group. "This is true," the Wirlu-murra source said. "Fortescue made us happen and we accepted it because we saw no other choice for our people."

The Wirlu-murra source also confirmed Mr Savas' claim a meeting and barbecue was held at Dampier Beach to discuss the formation of the Wirlu-murra group. This event was sponsored and funded by Fortescue.

The National Indigenous Times has been provided with a copy of the Minutes of the Meeting confirming the meet at Dampier took place.

The source said only three parties have copies of the Minutes of the Dampier meeting - the law firm which was representing the Wirlu-murra, Corser and Corser, the Wirlu-murra and Fortescue Metals.

The Minutes said Elder Maudi Jerrold was established as the inaugural Chairperson of the Wirlu-murra group.

The source has also claimed tensions were now building within the Wirlu-murra group and many members including directors now wanted to reconcile with the Yindjibarndi Aboriginal Corporation and were now questioning the relationship with Fortescue.

"We want to be one and we do not like being run by white people at Wirlumurra," the source said. We care about all our people, we are all Yindjibarndi, we are on the same street, our offices are on the same street and we can see each other but Fortescue and their lawyers have used our poverty against us and broken our hearts, made one into two."

Mr Savas said Fortescue had "engineered a revolt among the Yindjibarndi" by becoming involved in establishing the Wirlu-murra group and the Dampier meeting was part of that process.

"It is fair to say Fortescue has failed to abide by the intentions of Native Title which is to act in good faith with Aboriginal groups. By negotiating with a splinter group it is fair to say this is not acting in good faith," Mr Savas said.

"It is not unusual for a mining company to pay legal bills in reference to negotiations and other legitimate expenses but it is unusual for a mining company to be footing the bills to secure a mining agreement and to remove the recognised Native Title applicants with another group."