Native Title Boss Didn't Reveal Ties with FMG

Date of publication: 
19 November 2012

THE National Native Title Tribunal has admitted a senior executive failed to declare her ownership of a consulting firm that facilitated access to Aboriginal land by mining companies.

Nor did the NNTT’s former West Australian state manager, Lillian Maher, declare her relationship with two employees of Fortescue Metals Group, which benefited from tribunal decisions.

It is alleged Ms Maher regularly briefed her partner, Michael Gallagher, about proceedings at the tribunal that affected FMG, according to a lawyer who worked with Mr Gallagher.

At about the same time, Ms Maher’s firm MGA Consulting produced a heritage report that dismissed concerns raised by other consultants about potential destruction of indigenous sites.

Ms Maher worked for the NNTT from 1994 until August this year, when she left as a result of a “restructure”. Mr Gallagher worked for Fortescue Metals for several years until late 2010, before being appointed as a consultant to native title group Wirlu-murra Yindjibarndi Aboriginal Corporation, heavily funded by FMG.

Ms Maher’s daughter Lisa also works for FMG.

The lawyer, Kerry Savas, who was seconded by the Perth law firm Corser & Corser to work for the WYAC throughout last year, told The Australian that Ms Maher and Mr Gallagher had discussed hearings at the NNTT concerning the WYAC on a “daily” basis. “I lived with Michael Gallagher when this was all happening,” Mr Savas said.

“He spent all day checking on the NNTT business. I know he was talking to her (Ms Maher). This was a daily occurrence.”

Mr Gallagher did not deny this and wrote in an email: “It would seem that Mr Savas has forgotten his ongoing professional obligations to his former clients.”

Mr Savas denied the charge, noting that his obligations were to the WYAC and the court.

Ms Maher did not respond to an email and phone call to her new employer, RCD Consulting.

Ms Maher and Mr Gallagher are the co-directors of MGA Consulting, which is wholly owned by Ms Maher’s company, Sillytown Pty Ltd. MGA produced a report in September last year for FMG and the WYAC that was used to obtain approval for iron ore mining within FMG’s Solomon Hub lease. Ms Maher’s name was not on the report.

A few months earlier, anthropologist Brad Goode had said that local Aboriginal people had wanted an area known as Kangeenarina Creek to “be protected with a buffer where no works would take place”.

Mr Goode resisted pressure from FMG to remove references to the importance of the creek.

The MGA report, however, implied that there was no need to protect the creek because it “does not constitute an ethnographic site in terms of Section 5 of the Aboriginal Heritage Act”.

A spokeswoman for the NNTT said Ms Maher did not declare her interest in MGA or her relationships. “The NNTT has no record of any declaration or other advice being received from Ms Maher in respect of her status as a director of MGA Consulting. The NNTT has no record of any declarations being made by Ms Maher in respect of her partner’s and daughter’s employment,” she said.

In April, The Australian asked Ms Maher if she had declared her relationship with Mr Gallagher. She said the NNTT president, Graeme Neate, knew about it.

The NNTT spokeswoman said Ms Maher’s work did not involve making decisions about land access. “As WA state manager, Ms Maher had no role in the NNTT’s approval of mineral licences, which is a function carried out by independent members of the NNTT,” the spokeswoman said.

The NNTT settles disputes between companies and native title groups and has approved a number of mining leases for FMG.

The Australian reported recently that FMG had discontinued the services of Mr Goode after he had refused requests from the company to delete key sections of a heritage report.

Mr Goode said it was the worst instance of conduct by a mining company regarding indigenous heritage that he had experienced.

FMG’s funding of the WYAC and Mr Gallagher’s role are aimed at replacing the Yindjibarndi Aboriginal Corporation – the original native title claim group for the area — with the WYAC.

The WYAC’s members are willing to accept FMG’s offer to mine Yindjibarndi land, which has been rejected by the YAC.

FMG has funded the WYAC to mount a Supreme Court action to have an administrator appointed to the YAC, while a Federal Court action is aimed at replacing the YAC’s four living claimants with those from the WYAC.


Mining Deal Bombshell – Fortescue and the Yindjibarndi

By National Indigenous Times West Australian reporter Gerry Georgatos – -

31 October 2012

A lawyer who spent more than a year representing the interests of the Wirlu-murra Yindjibarndi Aboriginal Corporation has claimed the organisation was a “quickly formed front” to enable the Fortescue Metals Group to circumvent negotiations with the Yindjibarndi Aboriginal Corporation to secure mining rights on Yindjibarndi lands in the Pilbara worth hundreds of millions of dollars.

The allegations are serious and point to the multi-billion dollar mining conglomerate trying to use its almost limitless source of funds to create an alternate Aboriginal group that would comply with Fortescue’s wishes because it would give them access to rich mining resources for a fraction of the cost they would normally be required to pay to an Aboriginal organisation for permission to mine on its land.

The Yindjibarndi Aboriginal Corporation Chief Executive Officer, Michael Woodley said the revelations by solicitor Kerry Savas, who acted on behalf of the Wirlu-murra were further evidence what the Yindjibarndi Corporation had long suspected was behind the creation of the Wirlu-murra breakaway group.

Mr Woodley said the actions of Fortescue, if they could be proved to be true, were utterly reprehensible.

He has called for a Royal Commission into the actions of Fortescue in reference to their role in setting up the Wirlu-murra Yindjibarndi Aboriginal Corporation and to investigate what appear to be conflicts of interest “that make a mockery of Native Title and Federal Court determinations as to who should be the authorised representative.”

Mr Savas worked for the legal firm Corser and Corser which had been engaged from August 2010 to January 2012 to represent the breakaway Wirlu-murra Yindjibarndi Aboriginal Corporation.

He has claimed he was present when plans were discussed between the Wirlu-murra group and representatives of Fortescue including a former Fortescue employee Michael Gallagher who had recently resigned from Fortescue to take up a consultancy with Wirlu-murra on the formation of the breakaway group. The Wirlu-murra group soon after accepted a financial package from Fortescue to mine on Yindjibarndi lands even though the established Yindjibarndi Aboriginal Corporation had rejected the Fortescue offer because it was well below equivalent agreements it had entered into with another mining giant, Rio Tinto.

Fortescue is negotiating with the Wirlu-murra group as the representative of the Yindjibarndi people despite the Yindjibarndi Aboriginal Corporation securing a Federal Court determination in 2005 as the authorised representative of the Yindjibarndi peoples.

Following failed negotiations with the Yindjibarndi Corporation, Fortescue has declared it will only negotiate with the Wirlu-murra group on mining rights on Yindjibarndi land.

The Yindjibarndi Aboriginal Corporation has been forced to engage in an expensive and long running legal battle to try and force Fortescue to recognise the Yindjibarndi Aboriginal Corporation as the legal representative of the Yindjibarndi people.

The Wirlu-murra Yindjibarndi Aboriginal Corporation was formed in December 2010 as a breakaway group from the established and legally recognised Yindjibarndi Aboriginal Corporation, which was established in 2005 through the Federal Court determination.

Mr Savas said Fortescue negotiators had become frustrated by the negotiation process with the Yindjibarndi Corporation and had “encouraged” Yindjibarndi individuals to consider forming another Yindjibarndi entity so Fortescue could negotiate mining rights “on their terms”.

Fortescue has denied it had initiated the establishment of the Wirlu-murra breakaway group but rather that Yindjibarndi individuals had asked for their assistance to form and support establishing the Wirlu-murra Yindjibarndi Aboriginal Corporation.

“It is a fact that, following requests for assistance from senior Elders of the Yindjibarndi community, Fortescue assisted in the establishment of the Wirlu-murra Yindjibarndi Aboriginal Corporation,” a spokesperson for Fortescue said.

“Fortescue has since supported the Wirlu-murra in their goal of building a better future for all Yindjibarndi people and we will continue to do so.”

Mr Savas said he first met the Yindjibarndi individuals who would later form the breakaway Wirlu-murra group at a beach at Dampier on August 28, 2010.

“There were about 30 Yindjibarndi persons in attendance,” Mr Savas said.

Mr Savas claimed one of the Wirlu-murra group told that meeting Fortescue had agreed to pay a fee to those Yindjibarndi who attended the first meeting.

He said he was surprised by a lavish barbecue Fortescue hosted on the beach for the Yindjibarndi individuals who chose to attend.

“I must say I very much enjoyed it, the barbecue and the catering was the likes of nothing I have ever seen before. It was a grand event beyond the imagination,” Mr Savas said.

Mr Savas said his travel costs to and from Roebourne for legal work representing the Wirlu-murra through Corser and Corser Lawyers was paid by Fortescue.

“Fortescue paid for my air travel and accommodation at the Karratha International Hotel,” Mr Savas said.

“On May 2, 2011, I moved into a house at Point Samson (near Roebourne) with Michael Gallagher who was formerly with Fortescue and who had terminated his contract with Fortescue to work as a consultant for the Wirlu-murra.”

Mr Gallagher worked with Fortescue as an anthropologist and heritage consultant. In 1989 Mr Gallagher, alongside Steven Hawke, son of former Prime Minister Bob Hawke, wrote a book about the Amax Exploration and Court Government interference with Aboriginal land rights at Nookanbah. He has an extensive background in the field of anthropological heritage and in recent years worked with the Fortescue.

“He would ultimately become the guide and will of the Wirlu-murra, create their agendas, propose items and deliver outcomes to suit Fortescue’s objectives,” Mr Savas said.

“The rent for the house we lived for the next three months was paid by Fortescue.”

Mr Savas claimed Mr Gallagher told him: “Fortescue always gets its Land Access Agreements signed one way or another”.

“He told me the Fortescue tactic was to have one of their own people get established within Wirlu-murra group to win their hearts and minds.

“In June 2011 Michael told me he had resigned from Fortescue around Christmas 2010 and just after the formation of Wirlu-murra group and from that time he called himself a consultant for appearances so he could deny being a Fortescue employee and avoid Fortescue and himself being criticised for interfering and influencing Aboriginal groups.

“I asked him what possible benefit Fortescue could gain from having him covertly working for them in Roebourne with Wirlu-murra.

“He replied: ‘Plenty. Just look at how Fortescue successfully obtained land access agreements from the Nyiyaparli and Palyku peoples of the northern Pilbara’.”

Mr Savas has claimed he witnessed further examples of how Mr Gallagher maintained a close relationship with the people at Fortescue.

“I saw him communicate by telephone and email several times a day taking instructions from senior Fortescue personnel.

“After he had taken instructions from the Fortescue personnel, he would attempt to instruct me on what Fortescue wanted me to be doing regarding the Wirlu-murra who were my clients.

Mr Savas said senior Fortescue personnel targeted him from August, 2011 because “they claimed I was embarrassing Fortescue in front of the Wirlu-murra”.

“This happened because I had asked for clarity on certain issues from Fortescue which I believe were in my client’s interests as is my duty and instead I was castigated in private by Fortescue.

“I told the Fortescue official my

obligations were to my client and not to Fortescue and the official responded by saying: ‘do you really think you can stand in our way or that we would allow that?’

“That same afternoon I was told I would not be working in Roebourne with the Wirlu-murra again.”

Mr Savas continued to have various contacts with Wirlu-murra individuals who had told him they did not want to continue to be in dispute with the established Yindjibarndi Aboriginal Corporation.

“In January this year some of the directors of Wirlu-murra asked me to approach the Chief Executive of the Yindjibarndi Aboriginal Corporation, Michael Woodley to see if they could settle their personal differences,” Mr Savas said.

“I visited Michael Woodley at his home in Roebourne on February 8 and it was agreed a meeting would take place at the Woodbrook Law Ground on February 13 between Senior Men from Wirlu-murra and the Yindjibarndi Aboriginal Corporation and that I would attend also.

“All the men at that meeting decided they wanted to stop the arguing with each other and to work together to reunite the Yindjibarndi community.”

Mr Woodley has confirmed the meeting took place and that a second meeting was held on February 17.

“Once again everyone agreed at that second meeting they wanted to stop arguing and to end the Court actions,” Mr Savas said.

“Later that day however I heard Mr Gallagher tell a meeting of the Wirlu-murra there was no need to reconcile with the Yindjibarndi. He said to them that the Wirlu-murra would ‘thump’ the Yindjibarndi in the courts.

“I lived with Michael Gallagher for three months at Port Samson and he told me the court actions would financially drain and buckle the Yindjibarndi. He had portrayed Michael Woodley and the Yindjibarndi to me as the devil incarnate however I have found Michael Woodley a good person and the Yindjibarndi people as salt of the earth.”

“There are those in the Wirlu-murra who want Mr Gallagher to go away because they believe he has fractured their community. The problem is they don’t know how to go about it.

“I have no problem with another Aboriginal corporation forming itself like the Wirlu-murra. What I have a problem with is they are not being allowed to create themselves as a legitimate organisation and instead I believe they are being manipulated by Mr Gallagher who is a confessed agent of Fortescue who is trying to direct the mind and will of the Wirlu-murra,” Mr Savas said.

A non-Aboriginal spokesperson for the Wirlu-murra Yindjibarndi Aboriginal Corporation, Mr Bruce Thomas said the Wirlu-murra Board believed Mr Savas may have breached his obligations by “making public” matters he gained knowledge of while he was representing the organisation.

“It would appear Kerry Savas is making allegations based on information he claims he obtained while engaged as a lawyer for Wirlu-murra. If this is the case then he is likely in breach of his professional obligations,” Mr Thomas said on behalf of the Wirlu-murra Board.

“Given this apparent disregard by Mr Savas, Wirlu-murra will not dignify the allegations with a specific response.

“We formed Wirlu-murra because we believed our voices were not being heard and it was being left to one or two people within the Yindjibarndi Aboriginal Corporation when important decisions were being made.

“As parents and grandparents in Roebourne we want our children and their children to have jobs, to feel good about themselves and we think that can happen through partnerships with Fortescue and other mining companies.

“We are not a rubber stamp for one company or any other. We negotiate with a range of companies and organisations because we think working with them will provide the best outcomes for all Yindjibarndi people,” the Wirlu-murra statement said.

The full statement released by the Wirlu-murra Aboriginal Corporation is published on Page XX.

Yindjibarndi Aboriginal Corporation Chief Executive Officer, Michael Woodley said the entire dispute which had created the division was centred on Fortescue “not wanting to fairly negotiate”.

“Rio Tinto for instance has been negotiating outcomes with us that provide many times over what Fortescue is offering. The Fortescue offer was disgraceful,” Mr Woodley said.

“The Yindjibarndi Aboriginal Corporation will not settle for anything less that is below industry standards for our Native Title consent.”

The battle between the Yindjibarndi Aboriginal Corporation and Fortescue has been seen by many as a “David versus Goliath struggle” and a test of the integrity of Native Title.

Fortescue has been challenged by one controversy after another over its involvement in the formation of the Wirlu-murra and its failed negotiations with the Yindjibarndi Aboriginal Corporation.

This includes allegations by an anthropologist, Brad Goode who was engaged by Fortescue to provide reports relating to heritage sites on Yindjibarndi land and where Fortescue is mining.

Mr Goode said his services were discontinued by Fortescue after he refused a demand from Fortescue officials to amend sections of his report in reference to assessments on sites where Fortescue wanted to mine.

Mr Goode’s tenure ended after he insisted on including references to the cultural significance of Kangeenarina Creek which would require Fortescue accommodating the wishes of the Yindjibarndi peoples to have a 50 metre exclusion zone on either side of the creek.

Mr Goode said a Fortescue heritage manager tried to pressure him into altering the report.

“It was the worst, the most reprehensible act I have experienced as an anthropologist,” Mr Goode was quoted as saying in The Australian newspaper by journalist, Paul Cleary.

A Fortescue spokesperson said Fortescue ultimately submitted Mr Goode’s report to the State Government.

“We have a large number of consultants and we always scrutinise their work closely to ensure it is relevant, complete and complies with the requirements of the relevant Government agency from whom we are seeking approval, in this case the Department of Indigenous Affairs,” the Fortescue spokesperson said.

“It is not uncommon for us to raise queries and work through those with the consultant.”

Mr Woodley said the Aboriginal Heritage protections in Western Australia at this time are “a sham.”

“Fortescue pays out huge sums of money to consultants who will say what Fortescue wants them to say, so that Yindjibarndi sacred sites do not impede Fortescue mining projects and their money making,” Mr Woodley said.

Mr Goode’s allegations follow a separate incident last year involving another anthropologist Sue Singleton, who complained to the West Australian Registrar of Aboriginal Sites about an alleged threat by Fortescue to withhold her payments until she deleted sections of an assessment by her on a Fortescue mine site project on Yindjibarndi Country.


Native Title Threatened by Miner’s “War of Attrition”

By National Indigenous Times West Australian reporter Gerry Georgatos –

7 November 2012

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 Wirlu-murra 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 Wirlu-murra group. The statement said the Wirlu-murra group is an “independent 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 Wirlu-murra,” 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.”


Minder Tried to Fudge Study: Anthropologist

By Paul Clearly – The Australian –

17 October 2012

AN anthropologist engaged by Fortescue Metals Group says his services were discontinued after he refused a demand to amend sections of his report discussing indigenous heritage where the company wanted to mine.

In a statement made to a lawyer, Brad Goode says his “tenure with FMG was not continued” after he insisted on including references to the cultural significance of Kangeenarina Creek in the Pilbara. This included accommodating the wishes of the local Yindjibarndi people to have a 50m exclusion zone either side of the creek.

Mr Goode says FMG’s heritage managers “tried to pressure me into altering the report” because it strongly amplified the wishes of the Yindjibarndi people to protect the creek, an area within FMG’s Firetail deposit. “It was the worst, the most reprehensible act I have ever experienced as an anthropologist,” he said.

FMG engaged Mr Goode last year to conduct indigenous heritage surveys within the Firetail deposit of its Solomon hub lease. He worked with local Yindjibarndi people who joined him on heritage surveys within the mine site.

Under pressure from FMG’s managers, Mr Goode said he would not amend statements made by local informants about the significance of the creek.

The changes would allow FMG to mine the area without having to formally apply for permission under the Aboriginal Heritage Act.

An FMG spokeswoman said last night that the company ultimately submitted Mr Goode’s report to the government.

“We have a large number of consultants and we always scrutinise their work closely to ensure that it is relevant, complete and complies with the requirements of the relevant government agency from whom we are seeking approval, in this case the Department of Indigenous Affairs,” the spokeswoman said.

“It is not uncommon for us to raise queries and work through those with the consultant.

“As your question shows, the report contained all the information that the consultant believed should be included. We submitted the report in support of our application for approval which we obtained and with which we are complying.”

Michael Woodley, chief executive of the Yindjibarndi Aboriginal Corporation, said Mr Goode’s revelations showed that the native title system had become “tainted” by FMG’s excessive influence.

“It has become clear to YAC that the WA system of Aboriginal heritage protection is a sham. FMG pays out big money to individuals and consultants who will say what FMG wants them to, so that sacred sites of the Yindjibarndi people do not get in the way of FMG’s project and profits,” Mr Woodley said.

Mr Goode’s account marks the second time in which consultants have complained publicly about pressure by FMG to modify their indigenous heritage reports.

In August last year, anthropologist Sue Singleton wrote to the WA Registrar of Aboriginal Sites about FMG’s threat to withhold payment unless she deleted key sections of a report about the Firetail area.

The WA Department of Indigenous Affairs has confirmed that two heritage sites within the FMG lease were destroyed and a third was significantly damaged.