FMG 'like kicking a dog when it's down', court hears

A psychologist has rejected claims he acted as an advocate for a Yindjibarndi organisation in their long-running legal battle against mining company Fortescue Metals Group.

Expert witnesses are giving evidence in a Federal Court case between the Yindjibarndi Ngurra Aboriginal Corporation and the State of Western Australia, with FMG as the second respondent.

The case will determine whether FMG will pay compensation to Yindjibarndi people for mining on their land without agreement at the Solomon Hub, a massive iron ore operation in the Pilbara region. 

The Yindjibarndi Ngurra Aboriginal Corporation is seeking compensation for two types of destruction: of country, including sacred sites, and of community.

When Fortescue began planning the Solomon hub, it started negotiating with the Yindjibarndi Aboriginal Corporation but the relationship began to sour in 2007 when Yindjibarndi people realised FMG could legally destroy their sacred sites and was doing so in construction of the mine.

When YAC refused to accept FMG's royalty offer, the miner gave financial backing to a breakaway group, Wirlu-Murra Yindjibarndi Aboriginal Corporation, which paid people $500 each to attend a meeting that voted in favour of the deal in 2010.

Excerpts were played in court on Thursday from a recording of a conversation between psychologist Jeff Nelson and Michael Woodley, chief executive of the Yindjibarndi Ngurra Aboriginal Corporation.

In the recorded conversation, Dr Nelson can be heard asking Mr Woodley for clarification on conflict between cultural obligations and benefits to people who work in mining.

He also asked about problems caused by alcohol before the mine, and whether FMG founder and billionaire Andrew 'Twiggy' Forrest believed he could do whatever he wanted because the provision of alcohol had weakened Yindjibarndi people.

"It's aggravating that they'll come in to people who are struggling and then even cause more harm by splitting the community and maintaining the split ... ," Dr Nelson says in the recording.

" ... That's not acceptable, it's like kicking a dog when it's down, you just don't do that s*** eh?"

In the recording Mr Woodley is heard to agree, saying: "They knew exactly what they were doing and how they could manipulate."

Griff Ranson, a barrister acting for the State of Western Australia, accused the psychologist of being biased.

"A fair-minded listener could reasonably conclude from listening to this audio recording that your evidence is not impartial, but that you've become an advocate for the cause of the party that's retained you," he said.

Dr Nelson disagreed.

Later in the hearing under re-examination from YNAC lawyer Tina Jowett, Dr Nelson explained that he frequently used a range of psychological techniques to build empathy and confidence.

"I am not an advocate for YNAC," he said.

"I went to great lengths to get information from both sides of this opposing divide, I was less successful on the Wirlu-Murra side."

Dr Nelson explained to the court that he had numerous conversations with Mr Woodley and used a range of psychological techniques to gather information.

"Sometimes I'll challenge and say things that go completely against the grain, which gives Michael a chance to not only tell me that I'm wrong, which I enjoy, but also to go on a different level," he said.

"Other times I will be his best ally."

Dr Nelson has proposed a long-term project working with trauma-informed experts and led by the community to help Yindjibarndi people reunite at an estimated cost of more than $4 million.

Hydro-geologists are giving evidence later on Thursday.

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