COURT CONSIDERING DAMAGING REVELATIONS ABOUT FMG’S COMMUNITY DIVISION

BY PAUL CLEARY

The Federal Court of Australia is considering admitting into evidence a raft of potentially embarrassing information about FMG’s deliberate strategy to divide and conquer the Yindjibarndi community as part of the Solomon hub approval process.

At a hearing in Perth yesterday, counsel for Yindjibarndi Ngurra Aboriginal Corporation (YNAC), Mr Justin Edwards, sought to introduce 230 new documents “that go to the social disruption” caused by Fortescue Metals Group within the Yindjibarndi community since 2008.

Counsel for the respondents, the West Australian government and Fortescue, complained that they had only been made aware of the new material the day before the hearing commenced.

YNAC is suing Fortescue and the WA government for mining at the Solomon hub since 2013 which has proceeded without the consent of YNAC, the native title representative body. YNAC has exclusive native title possession over the area where the mine operates.

The case is being heard by Justice Stephen Burley, who indicated he was open to considering the new evidence.

Counsel for the WA government, Mr Griff Ranson SC, indicated that he may not oppose the new evidence. “We have the list. So we can reach a decision as to whether we stand in the way,’ he said.

Justice Burley gave the YNAC counsel until 4pm yesterday to file an application, and the respondents were granted until 4pm today to respond. Justice Burley would then make a decision at a hearing on Thursday.

It is significant that Justice Burley was open to looking at the new evidence, as the case has been running since August last year.

The evidence relates to Fortescue’s deliberate strategy of fomenting division with the Yindjibarndi community by creating and funding a breakaway group, the Wirlu-murra Yindjibarndi Aboriginal Corporation, to assist with heritage approvals for the Solomon project and give the company some appearance of legitimacy.

Fortescue’s actions have created a lasting split within Yindjibarndi which has affected the ability of people to practice their traditional culture and maintain harmonious relationships. It has even split families in two.

YNAC’s counsel are seeking compensation for the damage to Yindjibarndi society, heritage, and economic loss from a mine that has extracted more than $50 billion in iron ore since 2013. Under the state law, compensation can be payable for the “social disruption” caused by mining, and YNAC’s counsel are using this as part of its claim against the State.

Hundreds of heritage sites, some of similar value to Juukan Gorge, and some possible burial sites have been destroyed by the mine.

At the hearing yesterday, YNAC had planned to present two key witnesses to speak about this damage, Professor Peter Veth from the University of Western Australia, and Dr Caroline Bird.

But in exchanges prior to the hearing, the YNAC experts were able to reach broad agreement with FMG’s archeological expert and so they were not called to give evidence.

YNAC counsel, Mr Vance Hughston SC, told Justice Burley that “we would like experts to explain views…[it] helps to see a basis of reasoning”.

But counsel for Fortescue, Mr Brahma Dharmananda SC, said there was “a great deal of agreement…a few issues but not the main game”.

Justice Burley decided that as a result of this broad agreement, the experts were not required to give evidence.

YNAC’s counsel also flagged that they wanted to pursue what is known as compound interest—otherwise known as interest on interest—as part of the calculation for economic loss. This would lead to a greater amount of compensation than if simple interest were applied.

In the only comparable case, the High Court of Australia awarded the plaintiff in the Timber Creek case compensation based on simple interest.

Mr Hughston SC said he wanted the economic expert engaged by YNAC to “do some further calculations.

Justice Burley asked for this additional material to be included in the application filed yesterday.

The hearing resumes on Thursday.