Adani court decision: Traditional Owners say fight to stop QLD’s Carmichael mine continues

MEDIA RELEASE  19 August 2016  |  

Court decision: Traditional Owners say govt acted shamefully, fight to stop Adani’s Carmichael mine continues
Defence of rights and country still has a long way to run

Senior Traditional Owner and spokesperson for the Wangan and Jagalingou (W&J) traditional owners family council, Mr Adrian Burragubba, says he is not surprised  by the decision handed down in the Federal Court in Brisbane today, while reiterating that they stand strong together and will continue to defend their human rights, and protect their traditional lands from Adani’s destructive Carmichael mine. (Further background to the case below).

“The issuing by the Palaszczuk government of the mining leases, in support of Adani running roughshod over our right to say ‘no’ to this mine, was a shameful episode. We will continue to pursue all legal avenues, Australian and international, to defend our rights and stop this massive coal mine going ahead,” Mr Burragubba said.

Wangan and Jagalingou council representatives, including Mr Burragubba, are currently challenging the leases that have been issued by the Palaszczuk government for the Adani Carmichael coal mine in a Judicial Review in the Queensland Supreme Court. The matter will be heard in November; and further legal actions are underway.

“Acting in complete bad faith, the Queensland Minister for Mining Mr Lynham pre-empted the decision of the Federal Court in today’s judgement and issued the mine leases to Adani in April this year, in the complete absence of the consent of the Traditional Owners. We had made it clear that we oppose this mine at a self-determined meeting of the W&J claim group in March, and at two prior meetings of the W&J people in 2012 and 2014,” Mr Burragubba said.

“The decision of the Native Title Tribunal in April 2015 to allow the issuing of the mining leases, on the application of Adani Mining, effectively allowed the State government to override the decision of the W&J traditional owners to reject the mine made in October 2014, greenlighting the complete destruction of our country and cultural heritage.

“Adani sought to have our decisions overridden and, with the help of the State, to bring pressure to bear on the Wangan and Jagalingou people. At that point they effectively took away our right to free, prior, informed consent”, said Mr Burragubba.

This Federal Court challenge was brought by Mr. Burragubba who filed his statement of claim with the Tribunal in his own right as a senior W&J Traditional Owner, and on behalf of the W&J traditional owners family council he represents.

Mr Burragubba’s application sought to demonstrate that the administration of the native title system is unfairly restrictive on the rights of Traditional Owners, effectively ignoring their decisions. He also argued that Adani had acted in a way ‘analogous to fraud’ before the Tribunal because of its misrepresentation of the supposed economic benefits of the mine, as demonstrated in the QLD Land and Environment Court earlier this year.

“While I respect the judgement of Justice Reeves, we will seek advice from our legal team on an appeal,” said Mr Burragubba.

“It is clear however that my submissions to the court and our concern to protect our “life, culture and traditions” and “the social, cultural and economic structures” of our group were dismissed and overridden. We continue to be restricted in the full expression of our laws and customs, in service to the machinery of mining development and the destruction of our country and culture.

“The discriminatory system underlying the Native Title Act, and the compulsory extinguishment powers of the State government, sanctions this kind of coercive force by the Palaszczuk Government and a mining corporation in their bid to rip open our country for the benefit of a foreign coal billionaire. Recognition of the rights of Indigenous people in legislation in Australia today falls well short of the rights afforded to us as first nations people under International law.

“We have said we will continue to pursue all legal avenues, Australian and international, and test the limitations on our rights by the Governments of this country, and we will. Further legal action is underway or in planning”, said Mr Burragubba.

“These actions show we are standing strong. We simply will not stand by while the QLD government licences the destruction of our homelands. The future of our people and culture, of our lands and waters and plants and animals, and our sacred sites and stories that connect our homelands together into our spiritual home, will not be based on coal mining.

“A pittance from compensation agreements signed under duress, and a few minimum-wage jobs in a dying industry, are not what our people, especially our young people, deserve. The crumbs thrown by Adani are not worth sacrificing our dignity, our freedom and our ancient legacy for. Nothing Adani offers up will ever be worth the damage this mine will inflict on laws and customs, and on our fellow Australians and the world community in an era of dangerous climate change.

“If the State and Adani want their leases to take effect, they will have to forcefully take our rights away in the full view of the world. Our family council stands strong together. We will not be deterred.

“The Queensland government and Adani still do not have everything they need to go ahead with this destructive coalmine, least of all investment capital. We will stand in their way for as long as it takes, until they understand that when those Traditional Owners who speak for country say no, it means no,” concluded Mr Burragubba.

Lawyer for Mr Burragubba, Mr Benedict Coyne said: “My client will take some time to review the reasons for judgment, and consider his appeal options in the context of numerous other legal avenues he is pursuing for justice for his people, both domestically and internationally.”

For information, and to arrange interviews with Murrawah Johnson, spokesperson for Adrian Burragubba:  Anthony Esposito, W&J council advisor, 0418 152 743

W&J website.    “No means no” video.

Media briefing / Background to case, August 2016

W&J Traditional Owner’s Federal Court Judicial Review:  Burragubba -v- The State of Queensland, Adani Mining and the National Native Title Tribunal

Background

The National Native Title Tribunal determined in April 2015 that mining leases could be issued by the Queensland government for Adani’s Carmichael coal mine, on the traditional lands of the Wangan and Jagalingou (W&J) people in the Galilee Basin, without further regard to the rights and interests of the Traditional Owners. It came after Adani had sought and gained the approval of the National Native Title Tribunal for the Qld Government to override the decision of the traditional owners made in October 2014 to reject the mine.

The W&J had rejected a Land Use Agreement with Adani in October 2014. Six days later, Adani took legal action against the decision of the W&J in the Native Title Tribunal. The Queensland Government supported that action and the submission made by Adani.

The Wangan and Jagalingou Traditional Owners’ Council opposed Adani’s application and the subsequent decision of Member McNamara, and moved to file for a judicial review in the Federal Court. The Council authorised senior Traditional Owner, Adrian Burragubba, in his own right, and on their behalf, to file the applications and represent the group.

The Judicial Review was heard by the Federal Court in November 2015 and further in February 2016. The respondents were the Queensland Government, Adani Mining and the National Native Title Tribunal.

Amended application

Queensland Mines Minister, Anthony Lynham had said in a letter to Mr Burragubba’s legal counsel in October 2015, and again this year, that he intended to await the outcome of the Federal Court Judicial Review before issuing any leases.

Lawyers for Wangan and Jagalingou (W&J) council spokesperson and traditional owner Adrian Burragubba filed an interlocutory application in the Federal Court on 15 April 2016 seeking to reopen the Judicial Review after the mining leases were granted by the State on 3 April 2016. Federal Court Justice John Reeves granted leave to reopen and to amend the original application of a judicial review to to seek declaratory relief from the Court against the issuing of the mining leases.

Basis of appeal – originating application

  1. The Decision was induced or affected by fraud – Adani engaged in dishonestly misleading conduct which is conduct analogous to fraud within s.5(1)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
  2. The Tribunal failed to observe the rules of natural justice, or constructively failed to exercise its jurisdiction.
  3. The Tribunal’s decision was an improper exercise of power reposed in it, in that when making the Decision it failed to take into account a relevant consideration being material related to the matters.
  4. The Tribunal’s decision involved an error of law, being that it erroneously concluded that the reference to ‘native title party’ was a reference to the persons comprising the applicant when the Tribunal should have concluded that the term was a reference to the members of the native title claim group.

Interlocutory application

  1. Mining leases ML 70505 and ML 70506, granted on 3 April 2016, are not acts that satisfy the requirements of any of the subparagraphs of s.28(1) of the Native Title Act 1993 (Cth)

Remedies

Remedies sought were –

  • Orders setting aside the Tribunal’s decision, and remitting the matter to the Tribunal for decision according to law.
  • A declaration that mining leases ML 70505 and ML 70506, granted on 3 April 2016, are not acts that satisfy the requirements of any of the subparagraphs of s.28(1) of the Native Title Act 1993 (Cth).

Outcome

The Application has been dismissed. Mr Burragubba’s legal counsel will review the reasons for judgment, and consider his appeal options in the context of numerous other legal avenues he is pursuing.

ENDS

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