Twiggy (24 page)

The courts may have found Fortescue
complied with the Native Title Act in its dealings with the Yindjibarndi, but the miner sailed much closer to the wind with the methods it used to win approvals for its Solomon hub under Western Australia’s Aboriginal Heritage Act, a critical piece of legislation that governs whether companies can disturb indigenous sacred sites.

As the chairman and majority shareholder, Forrest was still
firmly in control of the company and received regular briefings on Solomon. In 2012, it emerged that Fortescue had terminated the services of a highly experienced anthropologist, Brad Goode, after he refused the company’s demands to amend sections of a report on indigenous heritage. Goode claimed Fortescue’s heritage managers “tried to pressure me into altering the report” because his study backed
the concerns of the Yindjibarndi about the potential destruction of several sites, including burial chambers, along the Kangeenarina Creek in the Solomon mining area. Goode had recommended a fifty-metre exclusion zone around the creek – a move that would have involved further consultations and additional approvals under the Act. He was shocked when Fortescue asked him to amend his report: “It was
the worst, most reprehensible experience I’ve ever had as an anthropologist.” In response, Fortescue said it always scrutinised the reports of its consultants to ensure their work was relevant, complete and complied with the requirements of the government. “It is not uncommon for us to raise queries and work through those with the consultant,” a spokeswoman told the
Australian
.

After Fortescue
severed ties with Goode, it quickly engaged another “independent” anthropological firm, MGA Consulting, to survey the same area in the Solomon hub. One of the directors of MGA Consulting is Michael Gallagher, who had worked as an anthropologist in the land access team at Fortescue for several years, resigning in late 2010 to become a “consultant” to the breakaway WYAC, the group that is funded
by Fortescue. MGA’s other director, and its owner, is Lillian Maher, who is also Michael Gallagher’s partner. The couple share the same address in Fremantle, according to records held by the Australian Securities and Investments Commission.

Astonishingly, at the time of the survey, Maher was also serving as the state manager of the National Native Title Tribunal, which was tasked with issuing
rulings on Fortescue. Further clouding the independence of the report was the fact that Maher’s daughter, Lisa Maher, was employed in the senior role of heritage manager at Fortescue at the time. In her role at the National Native Title Tribunal, Lillian Maher did not declare her ownership of MGA Consulting, the work it had done for Fortescue or her family’s links to the mining company. She
resigned from the tribunal in August 2012.

It came as little surprise that MGA Consulting’s report in September 2011 dismissed all of the concerns that had been raised by Goode about the possible destruction of Yindjibarndi heritage sites. “It is recommended that the development of the proposed works on the land proceed,” said the report, which was authored by Gallagher, whose salary was
indirectly being paid by Fortescue. Fortescue, as legally required, submitted both the MGA and Goode reports to the state Department of Indigenous Affairs as part of its application for approval under the Aboriginal Heritage Act.

Two months later, the Aboriginal Cultural Material Committee’s specialist anthropologist, Michael Robinson, met the WYAC to discuss the glaring conflict between
the two consultants’ reports. The committee is housed within the Department of Indigenous Affairs and charged with advising the WA government on heritage sites. Soon after the meeting, a departmental briefing note to indigenous affairs minister Peter Collier (released under freedom of information laws) contradicted Gallagher’s report, explaining that the WYAC believed “Kangeenarina Creek has a
story associated and a song for it, which is part of traditions and customs central to the Yindjibarndi religious system”. The note to Collier went on to state that even the WYAC believed “the creek should be protected and understood FMG had agreed to a fifty-metre buffer zone around it”.

Around this time, the department was becoming increasingly frustrated in its dealings with Fortescue.
A memo from senior compliance officer James Cook to his boss, director general Cliff Weeks, estimated that Fortescue and one of its earlier consultants, Alpha Archaeology, had under-reported possible heritage sites in one part of the Solomon hub by about 30 per cent. Cook said Fortescue was unable to start work until the department had finished an investigation into its “section 18” application
to disturb an Aboriginal heritage site. “This is of concern to FMG as it will hamper their operations,” he wrote in an email.

Cook went on to discuss Fortescue’s record in complying with the law, giving weight to the theory that the miner was more concerned about getting things done fast than following the normal processes. “FMG’s compliance with the AHA has been variable,” he said. “As
FMG often work to tight timeframes, they often submit information related to applications under section 18 at very late notice, resulting in insufficient time being given to the department to assess that information. FMG appear to submit minimal information in relation to annual compliance reports and impacts to sites.”

Despite these bureaucratic concerns about Fortescue’s modus operandi,
the company was ultimately able to get its way. The committee recommended that Peter Collier, as the minister, impose a condition on Fortescue’s application that would prohibit any ground-disturbing activities along the Kangeenarina Creek. Fortescue appealed that recommendation to the State Administrative Tribunal
,
and Collier, after a private mediation, agreed to delete the condition.

Collier, a Liberal Party powerbroker in Western Australia, also happens to be a valued mate of Andrew Forrest. In 2011, the minister told a Perth radio station of his close friendship with Forrest and how he “took guidance and great advice from his wisdom”. He believed Forrest had a deep compassion and interest in improving the welfare of Aboriginal people. But Collier denied that his duty to protect
indigenous heritage sites would be compromised by his friendship with Forrest, who is the major shareholder of the company with the most mining tenements in the state.

When Collier deleted the condition that would have forced Fortescue to avoid burial sites and other heritage areas at Solomon, Michael Woodley was outraged. He wrote to Collier, asking whether he was “unduly influenced by
your friendship and the advice you have publicly admitted taking from Andrew Forrest”. Woodley said later that his people stood to lose heritage sites that were up to 35,000 years old as a result of Collier’s decision. “It is a weak and morally wrong decision from Mr Collier,” he said.

Anthropologist Brad Goode wasn’t the only Fortescue consultant to feel as if he was under pressure to conform
to the company line. Earlier, an archaeologist from New South Wales, Sue Singleton, told the Department of Indigenous Affairs that she deleted key sections of a 2010 survey of Aboriginal heritage sites in the Solomon hub because she feared Fortescue would not otherwise pay her for the work. In a letter to the department in November 2011, Singleton said she believed her firm, Eureka Heritage
History Archaeology, would miss out on $70,000 that was owed unless she agreed to delete sections that referred to the Yindjibarndi’s ethnographic connection to the Solomon lease.

Singleton also claimed in the letter that Fortescue had terminated her services “as they considered a ‘local’ archaeological firm could better provide the services (outcomes) required by them”. Another former consultant
to Fortescue confirms the company is known for its tendency to shop around until it finds someone who will report what it wants. “The heritage department is very focused on looking for consultants until they get one that fits with their views,” the consultant says.

Fortescue has consistently denied claims that it has forced any of its independent consultants to change their reports. Development
director Peter Meurs said in 2011 that Fortescue had simply requested the correction of “unqualified commentary” in the Singleton report. “We have spent many millions of dollars to protect and avoid significant Aboriginal heritage sites at the Solomon Hub and will continue to do so,” he said. “From the time we begin exploration in any area, many years prior to a project commencing, we work
closely with Aboriginal land owners to identify and protect Aboriginal heritage sites.”

Forrest’s aggressive approach to winning land deals was honed several years before he encountered the Yindjibarndi or Michael Woodley. In 1997, while chief executive of Anaconda, Forrest struck a major agreement with native title claimants in the north-eastern Goldfields as he raced against the clock to
build his Murrin Murrin nickel laterite plant near Leonora. The negotiations were arduous because the region was home to scores of overlapping native title claims and the indigenous groups were divided. Forrest worked assiduously to win over local Aboriginal leaders, even building a chapel for some of them and granting one prominent elder, Sadie Canning, the franchise to run the general store
at Murrin Murrin.

Under the deal with Anaconda, the traditional owners would receive a royalty on production – reportedly only 1.6 per cent – and the company would pay an additional $1 million a year into a charitable trust. “It shows we can share and peacefully coexist on the land,” Forrest said. “This gets rid of the handout mentality. It will take people off the streets and out of the
hotels.” Forrest bristled at inquiries by journalists over the apparently large gap between his project’s forecast earnings and the promised payments to indigenous people, telling reporters it was “not a line of questioning I appreciate”.

The claimants later alleged that Anaconda had not paid the $1 million into the trust as promised. Two years after Forrest was forced out of Anaconda, another
Goldfields elder, Ivan Forrest, said his community felt let down and wanted to sue Anaconda. “They have promised the world and they have given us nothing,” he said. One of the plaintiffs, Maria Meredith, claimed Forrest “has a lot to answer for. Our community became completely divided. We could have used native title to our advantage had we all stuck together.” Anaconda’s new chief executive,
Peter Johnston, was left to clean up the mess.

At Fortescue, Forrest’s first big native title agreement involved gaining access to 40,000 square kilometres of land in the Chichester Range to enable work to start at Cloudbreak and Christmas Creek. But he would again become mired in controversy over what some observers saw as his divide-and-conquer tactics. In August 2005, Fortescue secured
the signatures of six Nyiyaparli elders who had suddenly broken away from the broader claimant group for the area. The deal would pay them a royalty rate of just 2.5 cents for every tonne of iron ore produced, as well as sign-on fees of $400,000 each. The cash amount under the deal worked out at a tiny fraction of what other miners were paying in comparable native title deals, although Fortescue
promised additional benefits, including employment on its mine projects.

But the deal signed with the six Nyiyaparli elders bore no relation to an agreement that had already been negotiated by the Pilbara Native Title Service (PNTS) on behalf of the wider claim group. A former native title lawyer, Marcus Priest, reported in the
Australian Financial Review
that the new deal removed significant
heritage, cultural awareness and environmental provisions contained in the PNTS agreement. It was also signed without the elders having any legal representation and without any consultation with the broader group.

Fortescue trumpeted the newer native title deal and posted photographs on its website of a beaming Forrest with the Nyiyaparli elders. It told the stock exchange that the agreement
removed constraints which might have impeded access to land that was host to 80 per cent of Fortescue’s iron ore resources.

One of the Nyiyaparli elders, 74-year-old David Stock, had worked at Minderoo when Forrest was growing up and had taught the boy how to ride a horse. He was still close to Forrest’s father, Don. But the day after being flown to Perth to sign the deal in Fortescue’s
head office, Stock and the other elders pulled out of it, claiming they had not understood the details and had agreed under duress. Stock was quoted in the
Australian
as saying he felt obligated to sign the agreement because of his personal connection to the Forrest family. “I didn’t know what was going on. I feel like they made me sign – they kept calling me uncle,” he said. “I’ve done a silly
thing.” Another signatory, Raymond Drage, claimed that when the elders said they wanted legal advice, Fortescue chief negotiator Harry Adams had complained about delays and said Fortescue could take the matter to the National Native Title Tribunal for arbitration. “They had us in a tight corner,” he said.

Forrest rejected any suggestion of misconduct and said he felt insulted by the “extraordinary”
accusations against his company given his family’s close relations with the Nyiyaparli people. He claimed the six elders had “pushed their way into our offices to sign the deal because of their absolute frustration of dealing with the PNTS”. Eventually, the deal with the Nyiyaparli was renegotiated on better terms and the original protections were reinstated.

More recently, Fortescue ran
into another conflict with indigenous groups as part of its efforts to secure mining tenements covering 4300 hectares of land near Tom Price, in the central Pilbara. Members of the Puutu Kunti Kurrama and the Pinikura (PKKP) native title group took Fortescue to the National Native Title Tribunal in 2008, successfully proving that the company had failed to negotiate in good faith as part of its obligations
under the Native Title Act. (Under the Act, a miner must negotiate for six months, but at the end of that period – regardless of the outcome – it can simply go to the tribunal to get its mining lease.) The PKKP traditional owners argued that they had only reached a broad protocol during six months of talks but there had been no discussion of any substantive issues.