YINDJIBARNDI ABORIGINAL CORPORATION

FACT SHEET—Wednesday23January 2013

FACT SHEET

The Connection Of Lillian Maher, Michael Gallagher & Their Private Companies to FMG Land Access Operations

This Fact Sheet outlines matters concerning the involvement ofLillian Maher and Michael Gallagher in private companies that had dealings with Fortescue Metals Group (FMG) and Wirlu-Murra Aboriginal Corporation (WMYAC) while Ms Maher served simultaneously as State Native Title Manager and owner/director of MGA Consulting/RCD Consulting;and whileMs Maher’s spouse, Michael Gallagher, served as Native Title Manager for WMYAC and Director of MGA Consulting/RCD Consulting.

These matters have been raised previously in“Native title boss didn’t reveal ties with FMG”by Paul Cleary in The Australian, and in several articles by National Indigenous Times (NIT) investigative reporter, Gerry Georgatos.

The Yindjibarndi Aboriginal Corporation (YAC) welcomes the inquiries, as announced in today’s NIT article Native Title Tribunal inquiry, by both the Registrar of the High Court of Australia and the National Native Title Tribunal, and hopes that they illuminate issues regarding how MGA’s activities interacted with FMG’s land access and heritage operations. These matters remainof grave concern to the Yindjibarndi People, and YAC urges that these inquiries make full discovery of all communications surrounding the work of MGA Consulting and RCD Consulting.

LINK Native title boss didn’t reveal ties with FMG

LINK Native Title Tribunal inquiry

CHRONOLOGY OF FACTS

  1. Documents obtained from the Australian Securities & Investments Commission (ASIC) show that, in September 2011, a private company, MGA Consulting Pty Ltd (MGA), owned by the National Native Title Tribunal’s then WA State Manager, Lillian Maher, was contracted by Fortescue Metals Group (FMG) to conduct heritage surveys in the Yindjibarndi #1 Native Title Claim area. This contract was operative after FMG had applied to the Tribunal for arbitration to allow the grant of mining tenements in the claim area.
  2. Registered with ASIC on 1 February 2011, MGA is wholly owned by Sillytown Pty Ltd, which in turn is wholly owned by Lillian Maher.[1]
  3. The ASIC documents reveal a residential address in Fremantle WA as the mutual address for both Sillytown and MGA, and the same address for MGA’s two Directors, Lillian Maher and her spouse, Michael Gallagher.
  4. Lillian Maher was the WA State Manager of the Tribunal from 1994 until her departure on 17 August 2012. She is now with RCDConsulting[2]—a partnership of five consultants, four of whom were also previously employed at the NNTT, andwhich also employs Davina Boyd—the daughter of a close family friend of Michael Gallagher.
  5. RCD Consulting is a business name owned by MGA Consulting, which in turn is wholly owned by Lillian Maher through Silly Town.[3]
  6. In March 2012 RCD was engaged by Michael Gallagher to undertake a consultancy for WMYAC regarding governance and strategic planning.
  7. In 2012 RCD issued invoices to WMYAC totaling nearly $80,000 for services including professional film services by Michael Gallagher’s son, Daniel Gallagher; and communications, website updates and governance & strategic planning by Davina Boyd.
  8. Michael Gallagher was previously employed by FMG from 2005 until December 2010 and held various positions including Anthropologist, Manager Aboriginal Affairs, and Aboriginal Access and Opportunity Manager in FMG’s ‘Land Access Division’, where he was responsible for ensuring grants of mining tenements for FMG’s Pilbara project were “not delayed on account of approvals under the Native Title Act”.[4]
  9. Mr Gallagher occupied the latter position throughout 2010, and from April 2010, was deployed by FMG in Roebourne on a four-day a week basis, where he actively worked to establish the Wirlu-Murra Yindjibarndi Aboriginal Corporation (Wirlu-Murra); and arranged for FMG and Wirlu-Murra to meet in secret to negotiate a Land Access Agreement, which affects the rights of the Yindjibarndi Aboriginal Corporation (YAC).
  10. In December 2010, Mr Gallagher left FMG to work as a consultant with Wirlu-Murra, a position he has occupied ever since.[5]
  11. In September 2011 MGA was engaged to undertake a heritage survey with Wirlu-Murra in the Yindjibarndi Claim area by FMG’s ‘Heritage Manager’, Lisa Maher, who is Lillian Maher’s daughter and Michael Gallagher’s step-daughter.[6]
  12. This survey was in fact a re-survey of a portion of FMG's ‘Firetail’ leases where a heritage consultant previously engaged by Lisa Maher, anthropologist Brad Goode, had recorded a number of ethnographically significant sites.[7]
  13. These included Rock-Shelters with walled niches, which Wirlu-Murra men said were used as burial chambers and storerooms for sacred artefacts and “should not be disturbed”; and another site called Ganyjingarringunha Yaayu Wundu (the eastern branch of Kangeenarina Creek).
  14. The Wirlu-Murra men correctly informed Brad Goode that the knowledge for the Kangeenarina Creek site was held by other Yindjibarndi people and they agreed that a 50 metre exclusion zone should be imposed along the creek bed to protect it.
  15. The information given by the Wirlu-Murra men to Mr Goode, which he included in his report, caused the WA Registrar of Aboriginal Sites to query a Section 18 application made by FMG under the Aboriginal Heritage Act (AHA) for ministerial consent to destroy sites in the area, and to enquire whether FMG was willing to conduct further heritage surveys with members of the Yindjibarndi Aboriginal Corporation (who held cultural knowledge for the area).
  16. Lisa Maher’s response to the Registrar was short: “FMG is not willing to work with YAC to conduct additional heritage surveys over the land”.[8]
  17. Instead of undertaking additional surveys with Yindjibarndi custodians who knew the area, FMG attempted to get Mr Goode to alter his report; and, when he refused, his services were terminated.[9]
  18. Mr Goode later told The Australian,“It was the worst, the most reprehensible act I have ever experienced as an anthropologist”.[10]
  19. Lisa Maher then commissioned her mother’s company, MGA Consulting, to re-survey the area; and her step-father, Michael Gallagher, conducted the survey with Wirlu-Murra men.
  20. The September 2011 report subsequently produced by Lillian Maher’s private company, MGA, now stated that the Wirlu-Murra men had: “agreed thereare no ethnographic issues associated with any of the sites”. [11]
  21. Two months later, contradicting the MGA report, Wirlu-Murra men told the WA Aboriginal Cultural Material Committee’s Specialist Anthropologist, Michael Robinson: “Kangeenarina Creek has a story associated and a song for it, which is part of traditions and customs central to the Yindjibarndi religious system; theyconsider the creek should be protected and understood FMG had agreed to a 50m buffer zone around it”.[12]
  22. On the strength of Mr Robinson’s advice the ACMC recommended, and the Minister attached, a condition to his consent made under Section 18 of the AHA, which prohibited any ground-disturbing activities along the flood plain of Kangeenarina Creek.
  23. FMG then immediately appealed to the State Administrative Tribunal to have that condition deleted; and, in mediation, the Minister agreed to the deletion.
  24. The MGA report produced by Mr Gallagher goes beyond the purpose of the report to include statements dismissing the merits of the Yindjibarndi native title claim over Vacant Crown land (VCL) where FMG is developing its Solomon project.
  25. An exclusive possession native title determination over the VCL would entitle YAC to claim just and proper compensation from FMG, under section 123 of the WA Mining Act, on behalf of the Yindjibarndi People, for being deprived of their possession and use of the land by FMG; for any damage caused to the natural surface of the land by FMG; and for any social disruption caused by FMG.
  26. FMG’s potential liability for such compensation was left in no doubt when, on 20 July 2012, the Federal Court made a determination allowing FMG to be joined as a Respondent Party to the Yindjibarndi #1 Native Title Claim. One of the main reasons given by the Court was:

“A determination of native title in favour of [the Yindjibarndi] may entitle the [Yindjibarndi] to compensation payable by FMG pursuant to s 123 of the Mining Act or s 24MD(3) NTA and s 125A of the Mining Act. The fact that a determination in the proceeding may give rise to a liability on the part of FMG to pay compensation clearly shows that FMG may be affected by the determination.” [13]

  1. However, the MGA report wrongfully asserts that Yindjibarndi people have “not used the Firetail Area for generations - before grandfather’s father’s generation”; that the “area no longer has cultural significance for any Yindjibarndi People with respect to contemporary ceremonial and ritual observance” and that “there is no knowledge amongst living Yindjibarndi people of mythological stories being associated with the Firetail area”
  2. Evidence demonstrating such connection is critical to a successful claim for exclusive possession native title over the VCL; which in turn would lawfully entitle Yindjibarndi native title holders to proper and just compensation from FMG under the Mining Act. The MGA report, then, has the effect of undermining this critical foundation of the Yindjibarndi Native Title Claim; and thus of precluding FMG’s liability to pay proper compensation.[14]
  3. The article published by the Australian on 19 November, records that:

A spokeswoman for the NNTT said Ms Maher did not declare her interest in MGA or her relationships. “The NNTT has no record of any declaration or other advice being received from Ms Maher in respect of her status as a director of MGA Consulting. The NNTT has no record of any declarations being made by Ms Maher in respect of her partner's and daughter's employment,” she said. In April, The Australian asked Ms Maher if she had declared her relationship with Mr Gallagher. She said the NNTT president, Graeme Neate, knew about it.

  1. The fact that the MGA report for FMG is the product of a company wholly owned by the then State Manager of the Native Title Tribunal, and that this interest was not formally declared and recorded by the NNTT, raises serious issues under the Public Service Act 1999, and APS Values And Code Of Conduct In Practice.
  2. Considering that Lillian Maher possessed private interests that might reasonably be thought to have conflicted with her office, the official investigations now under way should seek answers to the following questions:
  3. Did Lillian Maher formally declare her interest in MGA Consulting to the Tribunal? If so when was the declaration made, and what was the form of the declaration?
  4. Did Ms Maher formally declare to the Tribunal that she had several family and personal relationships with people engaged in activities that could have an interest in issues Ms Maher had privileged knowledge about? If so when was the declaration made, and what was the form of the declaration?
  5. If such declarations were made, why were they not formally noted or recorded by the NNTT?
  6. If such declarations were made, what checks and balances were in place to ensure that Ms Maher did not use privileged or ‘inside information’ obtained in the course of her duties to financially or professionally benefit herself or members of her family and others?
  7. Did at any time Ms Maher abuse her position or use any privileged information to the advantage of her private company?
  8. Did at any time Ms Maher abuse her position or use any privileged information to the advantage of her spouse, Michael Gallagher, while he worked for FMG to expediteapprovals under the Native Title Act.
  9. Did at any time Ms Maher abuse her position, or use any privileged information to the advantage of her spouse, Michael Gallagher, while he worked for MGA Consulting and Wirlu-Murra Aboriginal Corporation in providing heritage reports to FMG?
  10. Did at any time Ms Maher abuse her position, or use any privileged information to the advantage of her daughter, FMG Heritage Manager, Lisa Maher; or her former associate and friend, FMG Native Title Manager Tom Weaver, before, during or after the engagement of MGA by FMG?
  11. A broader inquiry should inquire into the activities of Michael Gallagher, which may have breached regulations under the Australian Securities & Investments Commission Act concerning conflict of interest and misleading the Chairman and directors of the WMYAC.
  12. Further, a broader inquiry should inquire into FMG’s track record of unprincipled land access negotiations with native title holders, and abuse of native title and State heritage processes. Such inquiry should encompass Fortescue’s:
  13. “maverick” behaviour in supporting unauthorised native title party meetings;[15]
  14. cultivation of divisions within a native title party, and the manufacture and financial/legal support of splinter groups to oppose non-compliant Traditional Owner representative bodies, in order to obtain land use agreements;[16]
  15. under-reporting of heritage sites;[17]
  16. destruction of heritage sites;[18]
  17. dissemination of misleading information;[19]
  18. coercion of consultants to change heritage reports;[20]
  19. reassessment of heritage sites using alternative consultants and sub-sets of informants to obtain results not ‘prejudicial’ to FMG’s mining plans (e.g. declassification of sites);[21]
  20. abuse of the native title process by employment of a “barrage” of “expedited” litigation, prosecuted at a “gruelling pace”, to placethe legal representation of non-compliant groups “underimmense pressure […] andimpact their ability to organise themselves”;[22]
  21. abuse of the native title process through “aggressive strategies” to get the legal representation of native title claim groups “out of the heritage picture”, and install new legal representation funded by FMG;[23]
  22. following on arguments of maintenance and champerty—the abuse of the courts by FMG by its sponsorship of several actions being prosecutedin the names of two female native title Applicants of the Yindjibarndi #1 Claim, against the YAC;
  23. variable compliance with the Aboriginal Heritage Act (AHA);[24]
  24. very late submission of information relating to section 18 applications, resulting in insufficient time for Department of Indigenous Affairs (DIA) to assess that information, and;[25]
  25. submission of minimal information regarding annual compliance reports and impacts to sites.[26]

CONTACT

Michael Woodley YAC CEO—0419 097

George Irving YAC In-House Legal Counsel—0417 903

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(i) 121107 The truth about Wirlu-Murra and FMG

(ii) 121031 Whistleblower reveals FMG Mining deal bombshell

(iii)121107 Fortescue using legal system to destroy Yindjibarndi

FACT SHEET: The Connection Of Lillian Maher, Michael Gallagher & Their Private Companies to FMG Land Access Operations p1/5

[1]MGA Consulting & Sillytown Current & Historical Company Extracts

[2]

[3]RCD Consulting ASIC Extract

[4]FMG Newsletter, June 2007

[5]For news reports and YAC statementsregarding the controversial and conflicted role of Mr Gallagher as a servant of FMG’s interests,while ostensibly consulting for the Wirlu-murra—see DOWNLOADS (i), (ii) & (iii) at the end of this brief.

[6]110900 MGA Consulting Ethnographic Report for FMG

[7]110800 Front page Brad Goode Ethno Report

[8]21 September 2011, Letter from FMG’s Heritage Manager, Lisa Maher, to Registrar of Aboriginal Sites responding to the Registrar’s letter of 20 September 2011

[9]In a separate but analogous incident of March of 2011, and upon the threat of non-payment of invoices, FMG had also requested deletion of parts of an anthropological report by Eureka Heritage and Veritas Archaeology to remove commentary “considered prejudicial toFMGL”.

[10]121017 Miner tried to fudge study-anthropologist

[11]110900 MGA Consulting Ethnographic Report for FMG

[12]111223 Briefing Director General to Minister Indigenous Affairs

[13]120720 Federal Court Decision re FMG Joinder to Yindjibarndi 1 Claim

[14] Significantly, the prosecution of this agenda—preclusion of FMG’s future liability—follows a pattern set by several FMG representatives, including Chairman Andrew Forrest, Land Access Manager Blair McGlew, and Michael Gallagher (when still an FMG employee), whereby they repeatedly sought to mislead the Yindjibarndi people regarding their entitlement to compensation. In March 2008 Mr Forrest stated, “Native Title is not property rights […] the people who hold out for a bag full of money will get nothing”; in March 2010 Mr McGlew said, “Under the law, no financial compensation is payable to Yindjibarndi if the leases are granted in this way”; andin July of 2010, Mr Gallagher told the Yindjibarndi people“that if they don’t accept what FMG had already offered as compensation they will get nothing.” (Refs on request.)

[15]On 8 March 2010, Mr McGlew convened a meeting of members of the YAC PBC, without either properly informing or inviting the YAC Directors. Tribunal Member John Catlin described this event as a “Maverick meeting”.

[16]Fortescue accused of rigging land rights deal; Aboriginal group Chairman admits FMG ties and frustration; 110423 Red earth dreaming

[17]120201 Memorandum Compliance Officer James Cook to Director General Cliff Weeks

[18] ibid

[19]120816 Federal Court Highlights FMG Liability At Solomon FINAL

[20]111105 Sue Singleton to Registrar

[21]110610 Preliminary Advice of an Indigenous archaeological assessment Alpha; 110624 Preliminary Advice of an Indigenous archaeological assessment Alpha

[22] Email Chain FMG Lawyers & Executives These emails were found in a folder marked “Michael Gallagher”, in FMG’s Port Headland Vocational Training Education Centre (VTEC), in 2006. The folder was sent to YAC in late 2011 by an anonymous source.

[23] Email Chain FMG Lawyers & Executives

[24]120201 Memorandum Compliance Officer James Cook to Director General Cliff Weeks

[25]ibid

[26]ibid