Fairfax Media has obtained advice from a third in-house lawyer for the Western Desert Lands Aboriginal Corporation which cast doubt over the process that lead to a deal with Reward Minerals to mine a Martu sacred site in outback WA called Lake Disappointment.
At the weekend, Fairfax Media revealed how two other in-house lawyers for the Western Desert corporation wrote an explosive July, 2011 memo warning that a soon-to-be signed deal with Reward had “no validity”, in part because the corporation’s board and executives had, in their opinion, not acted in the best interests of the Martu people.
A 2009 email reveals that a separate in-house lawyer for the corporation also raised concerns about the Martu people not having given “proper informed consent” to an in-principle agreement signed with Reward to mine Lake Disappointment a year earlier.
In March, 2009, the Western Desert corporation’s then in-house lawyer, Christina Araujo, emailed acting chief executive Tony Wright to advise that she was not “prepared to state that I believe WDLAC has the informed consent of the common law holders” because it could put her practising certificate at risk.
“Tony, further to our conversation on the 6th of March, I am confirming in writing concerns I have in relation to the Reward negotiations,” Ms Araujo wrote. “Apart from my personal observations, I have also had discussions with a number of others who were also of the view that proper informed consent is or may be lacking.
“Going through the files, it appears Katherine Hill [another legal adviser], on numerous occasions provided advice on proper informed consent and it is noted in a file note dated 16/10/2007 that she spoke to Joe Procter and Clinton Wolf about her concern that people did not seem to understand there was a mining proposal over Lake Disappointment.
“It does not appear in the files that the matter was discussed in detail with the common law holders … it is an issue for WDLAC if we do not have informed consent for the Reward matter. Any agreement which may result may be invalid.”
Mr Procter was a consultant helping the Western Desert corporation negotiate the initial 2008 deal and Mr Wolf was then the corporation’s chief executive.
Ms Araujo’s March, 2009 email came at the same time the Native Title Tribunal heard Martu elders testify about the cultural significance of the Lake Disappointment site.
The tribunal was asked to rule on Reward’s proposal after relations between the mining company and the Western Desert corporation stalled in mid-2008 amid an argument over legal costs. In a historic ruling, the tribunal rejected Reward’s bid on the basis of Lake Disappointment’s cultural importance to the Martu people. It was the first time the tribunal had refused a mining company’s application.
But, as reported by Fairfax Media at the weekend, the Western Desert corporation altered it stance on the Reward proposal in 2011, despite strong doubts from another set of in-house lawyers about the negotiation process not being conducted in the best interests of the Martu people.
Ms Araujo’s successors as the Western Desert corporation’s in-house lawyers warned that the Reward negotiation process had in their opinion put the corporation in breach of most of its legal obligations as the trustee body for Martu people.
In a January, 2011 announcement to the Australian Stock Exchange, Reward revealed it had in late 2010 approached the Western Desert corporation to re-open talks over Lake Disappointment.
On April 1, 2011, Reward announced to the ASX: “Reward has appointed Azure Capital and its affiliate Indigenous Investment Management (IIM) as advisers to assist in discussions with the Martu traditional owners.”
Company documents show at the time of this announcement that IIM’s shareholders and directors included former Western Desert chief executive Mr Wolf, senior Azure Capital executives and Warren Mundine, who was last year appointed as the federal government’s top indigenous adviser.
Another shareholder at this time was the Western Desert corporation’s chief financial officer Mr Wright.
Mr Mundine has confirmed that he was not personally involved in the negotiations nor benefited from the deal.
Western Desert corporation chief executive Noel Whitehead and Mr Wolf said external legal advisers were engaged in 2011 to ensure the deal was done properly and fairly.
Reward this week rejected any inference its negotiations over Lake Disappointment were unfair. It said independent legal and financial advisers were involved and great care had been taken to treat the Martu people with respect.