'This Process Is A Joke'


Last week the Yindjibarndi Aboriginal Corporation (YAC) released footage of a meeting between YAC members, personnel from Fortescue Metals Group (FMG), and members of a "breakaway group", Wirlu Murra. The video, documenting what has been described as "an ugly spat", received considerable media attention. 

A number stories, such as this one in The Age, made errors of geography in referring to Yindjibarndi country. More seriously, some relevant facts have been overlooked.

Several media outlets referred to FMG’s "$10 million per year compensation offer", while simultaneously noting that the compensation payment itself was set at $4 million, with the remainder allocated to housing, training and employment. Although housing and training are somewhat different in character, this conceptual blurring of employment with compensation is peculiar — what a company pays in salaries, it reaps in labour. Given the mining industry’s well-publicised skills shortages, it is difficult to see how an offer to hire local Aboriginal people could be viewed as largesse.

Australian Mining noted that Aboriginal people in Roebourne "have a high dependence on social security and 20 people are often crammed into the tiny homes where alcohol and drugs are rife", and then concluded, with more than a hint of judgment, that "despite the offers of well-paying jobs in nearby mines, most Aboriginal people in the area are unwilling to make the change, and the imprisonment rates remain high".

Far from being a complex, deep-rooted problem, then, it seems that Aboriginal disadvantage is simple — not enough of "them" are willing to work in the mines. Australian Mining also asserted, without providing evidence, that "many of the sums given as compensation are shrouded in secrecy, but are usually multi-million dollar sums". This sort of dark rumour-mongering may have contributed to the current proposals for a measure of governmental involvement in agreement-making.

Forrest is often quoted explaining his philosophy of uplifting people by giving them a fishing rod, not a fish. There is nothing intrinsically wrong with this folksy homily, but native title claimants are not bound to agree with it. No matter how sensible offers of housing, training and employment might appear to outsiders, Aboriginal people are not obliged to adopt the priorities of industry, nor of the Australian polity more generally, in conducting negotiations about their traditional country. YAC chair Michael Woodley has been clear in setting out YAC’s priorities, stating: "We don’t want to be trained as labour for Fortescue’s mines. We want a fair share in the mineral wealth of our traditional country, to create our own businesses and jobs, to deliver better healthcare and educate our children".

A statement released by Forrest and reprinted in part in Saturday’s West Australian proudly references "the six land access deals that Fortescue has already successfully negotiated". Some of these deals have however been plagued with controversies — Forrest’s glowing reputation for his dedication (pdf) to Indigenous employment sits uneasily with his record on native title. As the Sydney Morning Herald noted last month, "the reconciliation skills of Fortescue Metals and the GenerationOne founder Andrew Forrest do not appear to be appreciated among everyone in the Aboriginal community".

FMG’s agreement with the Nyiyaparli people was the subject of particularly serious allegations — a detailed 2006 Financial Review article (pdf) noted that members of the group claimed that they had signed a 2005 agreement under duress. Nyiyaparli’s applicants had signed in the absence of their lawyers, and the deal — which provided a "comparatively small royalty rate" — bore "no relation" to the agreement which had been in the process of being negotiated: "significant heritage, cultural-awareness and environmental provisions were removed".

An agreement was eventually reached — though not before some legal wrangling.

More recently, negotiations between FMG and two other claim groups — the Puutu Kunti Kurrama and Pinikura (PKKP) group and the determined Eastern Guruma native title holders — led to a finding (pdf) by the National Native Title Tribunal that the company had failed to negotiate in good faith. The Full Federal Court overturned this finding in a 2009 decision which arguably reduced the value of the Native Title Act’s "good faith" requirement and led to calls for change; the federal government’s 2010 discussion paper (pdf) cited the case in explaining its decision to amend these provisions.

For their part, the PKKP ended up with a deal, but it was, as spokesperson Sandra Hayes noted, "a long and difficult process". PKKP’s representative stated that "the company’s approach to interpreting the Native Title Act meant that Traditional Owners were unable to protect their country the way they wanted".

Forrest has clear views on the appropriate uses of native title rights. In an interview in 2002, he stated approvingly of Aboriginal groups within the Goldfields region with whom his former company Anaconda Resources had negotiated an agreement that "the vast majority did not want to use the native title law as a get rich quick scheme". Claimants later took legal action against Anaconda’s successor, Minara Resources, for its alleged failure to implement the agreement’s financial provisions.

Getting rich quick is something of a raison d’être for the mining industry, but the rules are different for native title holders — Forrest characterises the "real story" behind YAC’s video as "an Aboriginal community that has lost faith in a local leader who is concerned only about gaining mountains of cash". In his statement, Forrest claims that "large cash handouts from companies to Aboriginal communities have created a welfare culture" and "achieved close to nothing to end the social, economic and health disadvantages which have plagued Aboriginal communities across Australia". The mining magnate also explains that FMG intends to "employ 100 people out of Roebourne over the next 12 months".

Forrest fails to explain why agreements made with native title holders, in respect of activity on their traditional country, should be vehicles to uplift Aboriginal communities more generally. Initiatives to improve conditions in Roebourne are worthy and necessary, but are surely a government responsibility rather than something which must be achieved via agreements under the Native Title Act. Why should claim groups accept deals they regard as inadequate — and which permit damage to their lands and waters — on the grounds of a "broader good" which is defined by their negotiating partner?

Forrest’s statement also implies that the dispute is solely about money, obscuring YAC’s stated concerns about damage to country. George Irving, a barrister advising YAC, states (pdf) that it is impossible to say what consequences might flow from the proposed agreement because it requires Yindjibarndi to consent to "the grant of any mining tenement or other interest in land — anywhere in their traditional country, at any time now or in the future". Woodley notes that the group has obligations to protect their ‘sacred land’ — such duties exist notwithstanding considerable pressure to acquiesce to mining as the solution to Indigenous disadvantage.

It is perhaps unfair to single out FMG for critique — the company’s approach is consistent with the current view, articulated by Federal Indigenous Affairs Minister Jenny Macklin among others, that seems to see native title as merely a means to ‘close the gap’ rather than a recognition of legal rights. John Howard is gone, but practical reconciliation is far from dead. As the current dispute demonstrates, however, ideological battles over the meaning of native title continue.

The author was previously employed at a Western Australian native title representative body. The views expressed here are her own.


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