Native title disputes are not uncommon — but the difference with the FMG v Yindjibarndi battle is that this bitter brawl has played out online.

Last week in response to a Yindjibarndi Aboriginal Corporation video which revealed concerns over a native title meeting in Roeburne, Fortescue released their own video which they say tells the “real story”. Yindjibarndi members featured in the FMG video accused YAC CEO Michael Woodley of being greedy for his groups’ refusal  to sign on the dotted line. But is it a fair deal from FMG?

Yindjibarndi members in favour of the current deal say it offers them security and the chance to make their own future better. Woodley says the agreement is inadequate and will be doled out to a select group of people willing to sign the contract. Who’s right?

Professor Jon Altman, from the Centre for Aboriginal Economic Policy Research at Australian National University, says it is often unclear exactly how these agreements are reached or what is given up to reach them.

“In some situations you get a good mix of payments, jobs, contracts and government support,” he told Crikey. “Companies like local labour. There is no need for ‘fly in fly out’ workers and it’s good for corporate image.”

But Altman says there are weaknesses to the Native Title Act, which has led to the manipulation of negotiations between big mining companies and inappropriately represented native title holders. He says the government should resource Native Title Representative Bodies and Prescribed Body Corporates like YAC properly so they can get the best assistance to take on the lawyers at mining giants like FMG.

In the case of FMG and YAC, Altman says that it would be sensible for the two groups to seek mediation or independent arbitration and possibly seek  input from the National Native Title Tribunal.

FMG recently booked a net profit after tax for the six months to December 31 of $US314.1 million (up 628% from the corresponding period), while revenue more than doubled to $US2.53 billion. The mining giant already has leases to mine the $5 billion Solomon Hub project, which is scheduled to produce 60 million tonnes of iron ore a year in its initial phase — a haul worth worth nearly $10 billion annually — before ramping up to 100 million tonnes annually.

Fortescue is offering Yindjibarndi members a total annual package of $10.5 million for the land use agreement with YAC.

As part of the agreement, YAC will receive $4 million in financial compensation (with $1 million going to the Yindjibarndi Solomon elders foundation) and $6.5 million annually in training, employment and business development. FMG say this commitment will equal a total of $315 million in benefits over the life of the agreement.

Michael Woodley told Crikey recently that his group don’t believe the deal fairly reflects the value FMG will get out of the deal.

YAC are pushing for 0.5% per tonne in royalties (nearly ten times the current compensation offer), a deal which they say sits in line with what other companies are offering to Pilbara indigenous groups. That cut would see the Yindjibarndi compensated almost $50 million a year.

Woodley says Rio have offered groups the 0.5% figure in the past. Last month, Rio signed an agreement to pay the Ngarluma Aboriginal Corporation a package of benefits worth up to $300 million to develop its Pilabara iron ore operations.

Despite being worth millions, that figure still falls well short of the 2.5% per tonne figure Lang Hancock negotiated with Rio back in the 1960s for his Pilbara iron ore claim. Hancock’s daughter Gina Rinehart still collects almost $100 million in royalties per year from that deal.

Jon Altman says the 0.5% figure has been reported for BHP and Rio projects, while some negotiated payments in the NT have been in the region of 1.25 to 2%.

FMG say they believe in “opportunity and responsibility”, in avoiding “mining welfare” that they say creates dependency. They say Roebourne is one of the “most disadvantaged indigenous communities in Australia.”

In keeping with Forrest’s “teach a man to fish” mantra, FMG say further investments will also be made in the employment of aboriginal people to work on its mining projects. Central to this is Forrest’s GenerationOne and Australian Employment Covenant projects, which aims to secure 50,000 jobs for indigenous workers.

Under WA law, native title holders cannot stop mining companies developing projects on their land. However they can negotiate compensation in exchange for land use agreements.

The National Native Title Tribunal granted three mining leases to Fortescue for Solomon Hub — a decision which was challenged unsuccessfully by YAC in the Federal Court. An appeal is now before the Full Federal Court, with a decision expected soon. Until then FMG is permitted to commence full implementation of its Solomon Hub project.

Questions have been raised about Fortescue has dealt with native title agreements in the past. In 2005, a deal FMG signed with the Nyiyaparli people to develop a $2.3 billion project was the subject of a two-month legal dispute after the group said they did not understand the agreement and signed it under duress. On that occasion a lawyer representing the Pilbara Native Title Service said that FMG had engaged in “unconscionable conduct” in securing the agreement. FMG settled for an undisclosed sum.

Three years ago negotiations with the Puutu Kunti Kurrama and Pinikura group led to a finding by the National Native Title Tribunal that Fortescue had failed to negotiate in good faith. While that decision was overturned in the Federal Court and a deal was eventually struck, representatives of the group said it was a “long and sometimes difficult process” and that the group were “unable to protect their country the way they wanted”.

In 2006, Forrest’s previous venture Anaconda (now Minara) was the subject of legal action after native title group claimed a breach of an agreement’s financial provisions.

Peter Fray

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