Divide And Conquer In The Pilbara


The ongoing dispute between the Yindjibarndi Aboriginal Corporation (YAC) and Fortescue Metals Group (FMG) has garnered plenty of media attention, as have internal claim group conflicts.

Dark tales of mining companies who seek to "divide and conquer" abound in the Pilbara, and in a recent National Native Title Tribunal determination, it was alleged that FMG had deployed such a strategy, one amounting to a failure to negotiate in good faith. Setting out details of meetings and discussions between FMG personnel and Yindjibarndi members, YAC CEO Michael Woodley stated: "Because we refused to sign up to what FMG wants, FMG adopted a strategy to create dissent in our community".

The Tribunal did not accept this argument. Member O’Dea stated:

"In circumstances where a native title party has broken into factions the grantee party is entitled to enter into discussions with both groups with the view to reaching agreement with them jointly … so long as it does not, in that process, engage in sharp practice or unconscionable conduct. If there had been evidence that the grantee party had actively incited dissention within the native title party, I might well have taken the view that such behaviour amounted to a lack of good faith. In this matter there is no such evidence."

However, the divisions within Yindjibarndi remain in the spotlight; as Kerry O’Brien noted when Four Corners covered the topic on Monday, "negotiation under the native title framework … can fracture families and communities".

The native title system is often criticised for stimulating conflict within Aboriginal and Torres Strait Islander communities, and disunity attracts both curiosity and condemnation, apparently based on the thinking that all Indigenous people should be of one mind on any given issue. As Sarah Maddison observed in 2009, the "intense media interest in any sign of trouble in Indigenous communities" is such that "there is pressure placed on communities to appear trouble-free". Further, "disagreements between Aboriginal leaders and activists have often been used to embarrass them or to undermine their credibility".

Without minimising the very real grief, trauma and stress that such conflicts cause, it is unfortunately entirely unsurprising that native title claim groups have internal disagreements.

Property law is inherently conflict-ridden — as any lawyer representing a client aggrieved at a neighbour’s trespassing fence may attest — and family and testamentary law also demonstrate that bitter legal disputes within families occur outside of native title claims. In other words, the expectation that Aboriginal people will, or ought to, simply be nice to each other in difficult situations — that they should behave better than their non-Indigenous counterparts — is both unrealistic and unfair.

Nevertheless, supporters of native title lament the spectacle of internal conflict, worrying that it will discredit a system which has never enjoyed popular support. Indeed, benevolent-sounding denunciations of the system’s divisiveness have often come from those who oppose meaningful recognition of Indigenous property rights. In his book Contesting Native Title, David Ritter recalled that during the late 1990s, even as they were "lobbying for statutory protection of native title to be substantially weakened", mining industry representatives were apt to "express generous concern about whether native title was benefiting Indigenous people themselves".

Disputes between overlapping claims have also been invoked to justify compulsory acquisition and the consequent extinguishment of native title rights; WA Premier Colin Barnett justified his decision to commence compulsory acquisition proceedings at James Price Point thusly: "when you just have Aboriginal groups within the [Kimberley Land Council] taking legal action against each other, suing each other … I can’t deal with it any more".

As I’ve previously written in New Matilda, commentators also tend to view Aboriginal people’s interactions with industry through their own ideological lenses. Thus where there are internal group disputes about agreements under the Native Title Act, observers may pick sides — depending on one’s own view of industrial development, one or other faction is cast as the more "authentic" voice and a simple story with easily identifiable heroes and villains is projected. This approach is dangerous; the internal workings of native title claim groups are complex and glib conclusions are to be avoided.

There are, then, valid reasons why native title supporters may downplay intra-Indigenous disputes. However, the resulting tendency to avoid in-depth discussion of conflict has contributed to an overly simplistic perception of the system as well as unrealistic expectations of consensus. Against this backdrop of illusory unity, disagreements within claim groups appear aberrant and shocking, and are apt to be seized upon as evidence that the recognition of traditional property rights has done more harm than good.

Four Corners also looked at the flaws in the Native Title Act which stack the deck against native title claimants and holders.

In the program’s aftermath, YAC CEO Michael Woodley called for the State Government to mediate between the parties, arguing that "the government has been granting these exploration licences and they take no responsibility … for their actions and now this is what we have in our community as a result".

There is a certain irony in the concept of the state as neutral mediator in a native title context, as demonstrated in the Tribunal’s recent determination that a mining lease and two exploration licences could be granted to FMG with limited conditions attached.

Section 39 of the Native Title Act sets out the criteria that must be considered in determining whether a grant can be made, requiring the National Native Title Tribunal to consider among other things "the economic or other significance" of the grant to Australia and any public interest in the grant. In this recent decision, as is customary, the State and the company sang from the same songbook, both submitting that the mining lease — and the Solomon Project overall — was of great economic significance to both WA and the nation, and that its grant was likely to benefit the local Pilbara economy.

In the absence of arguments from the native title party on this issue, the Tribunal accepted these submissions, also concluding that "the mining industry is of considerable economic significance to Western Australia and Australia … the public interest is served by the grant of the proposed lease".

The Tribunal’s task was complicated by the fact that members of YAC and the Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC) tendered statements directly contradicting each other. In particular, WMYAC members argued that Woodley was not authorised to make sworn statements on behalf of the claim group.

This was not the only bad news for YAC on the legal front. Last month, New Matilda reported on the friendship between then-FMG CEO Andrew Forrest and WA Indigenous Affairs Minister Peter Collier in light of Collier’s role in determining FMG’s applications to destroy or damage sites within the Yindjibarndi claim area. The applications have since been granted. A letter from the Minister, available on the YAC website, notifies FMG of the conditions attached to the grant, which include a requirement to consult both representatives of both YAC and WMYAC to "identify all heritage values" within the relevant area.

In the coming months, there will likely be further calls for amendments to the Native Title Act to address the power disparity between claimants and developers — an imbalance which itself provides fertile ground for internal disputes. Any opportunistic arguments for the repeal or watering down of hard won property rights must however be met head on.


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