Native Title Reform: The need for consultation with Traditional Owners

 

 

NATIVE TITLE AMENDMENT BILL 2017:

THE NEED FOR CONSULTATION WITH TRADITIONAL OWNERS

8 MAY 2017

We urge Senators not to pass the Native Title (Indigenous Land Use Agreements) Amendment Bill

Here are the reasons, we believe, that go to the heart of the concerns for Traditional Owners in Australia about this bill, and the process surrounding it. We concentrate on the importance of native title and the Act first created by the Keating Government honouring the Mabo decision, and forming a compact between Indigenous and non-Indigenous Australians.

The points raised also encompass our present position and we outline briefly here how the development of this bill works against Wangan and Jagalingou Traditional Owners (W&J), and is inconsistent with our rights.

We have previously detailed our concerns and issues, and included a statement of rights under International law, in our submission and presentation to the Senate Inquiry – and to the UN Rapporteur on Indigenous Peoples’ Rights.

To read the statement in full download this document

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We hope in this 25th anniversary year of the Mabo decision that Senators will give native title reform a more thorough, genuine and worthy hearing than this cursory and limited process currently being run by the Government to secure the interests of a handful of lobbyists clamouring for ‘certainty’.

As Traditional Owners, we are entitled to know that our rights and interests in land, and our laws and customs that underpin them, are respected and protected by Australian law. We need the certainty that we can determine our own future, make our own decisions, and will be asked for our free prior and informed consent before Governments and other interests can impact upon our rights. This is especially so with legislation which is national in scope and far reaching in its effects such as the Native Title Act.

We ask Senators that they do all within their power to ensure the bill is not passed this week and that proper consultations on proposed amendments begin immediately. We encourage them to further use that opportunity, and the 25th anniversary of the Mabo decision, to begin a national dialogue on substantial Native Title Act reform.

URGENT: Senate could back native title amendments – Indigenous rights under threat!

Friends,

Once again, the Government is coming after our lands. We don’t have much time.

Now that Parliament is back for the budget sitting, the Government will try again to curb our rights by fast-tracking amendments to native title laws through the Parliament.

The Government’s rushed changes to the Native Title Act arrive in front of the Senate this week. They are due to vote tomorrow.

Native title is about more than mining interests, and changes to the law must be about progress in rights and justice for our peoples. But instead we have seen Malcolm Turnbull, on his recent trip to India to visit Gautam Adani, making it about ‘fixing Native Title’ for the mining billionaire.

After successfully fending off George Brandis’ bill in the last sitting, with the enormous help of 6,500 of our supporters, we have worked to turn back these unacceptable changes.

Brandis has been holding closed-door meetings with some CEOs of native title services and representatives of the mining industry, to stitch together the appearance of consultation with ‘native title interests’.

A host of characters, from the Queensland government, unions, Newscorp, local government mayors, the National Party and the Deputy PM, have tried to strong-arm Opposition leader Bill Shorten into guaranteeing the bill’s passage.

The Government and Adani continue to propagate the lie that all that is needed for Adani to overcome its ‘final hurdle‘ – the rights of Wangan and Jagalingou traditional owners – is for the Native Title Act amendment bill to pass tomorrow.

The Labor Opposition is now under huge pressure to line up and pass the changes – and we can see that crass inducements of steel contracts for South Australia are being dangled in front of the Xenophon Team to get their votes as insurance.

This is about our Native Title rights and interests, it is not about Adani.

Labor have said they will make sure traditional owners across Australia have certainty about their native title rights and that they will be questioning every element of Brandis’ process.

This is a good start — but we have to make sure they stay strong for the vote tomorrow.

Can you email key decision makers in Labor and ask them to stay strong in defence of our Native Title rights and interests?

Can you email:

Mark Dreyfus QC – Shadow Attorney General – mark.dreyfus.mp@aph.gov.au

Tania Plibersek – Deputy Leader of the Opposition – Tanya.Plibersek.mp@aph.gov.au

Penny Wong – Opposition Leader in the Senate – senator.wong@aph.gov.au

Warren Snowden – Member for Lingiari – Warren.Snowdon.MP@aph.gov.au

And cc us on: un-sr-ip-via@wanganjagalingou.com.au

Ask them to ensure that Labor stands firm and does not pass this amendment bill. Remind them that Indigenous peoples’ rights and native title are the most important thing here – not the miners, or anyone else.

Let them know you support proper consultations and involvement from Traditional Owners around the country in any native title reform. And tell them that you haven’t fallen for Brandis’ scam emergency. Remind them that the timing of this bill should have nothing to do with Adani.

We will keep you updated over the next 48 hours, as the fate of the native title rights of W&J people, and Traditional Owners all around the country hang in the balance.

Adrian Burragubba & Murrawah Johnson
for the Wangan & Jagalingou Traditional Owners Council

P.S. As always, our need for funds to sustain our effort is ongoing. Please donate when you can to assist with our long struggle. And share our web site, our Facebook page and our petition page so others can learn about and support our campaign too.

Adani’s ‘final hurdle’ is W&J’s rights

The Deputy Prime Minister, Barnaby Joyce, on behalf of the Government and a host of pro-Adani interests, continues to propagate the lie that all that is needed for Adani to overcome its ‘final hurdle’ – the rights of Wangan and Jagalingou people – is for the Native Title Act amendment bill to be passed in the Federal Parliament next week. After all, Malcolm Turnbull told Gautam Adani that it’s taken care of.

Joyce, in inimitable National Party style, is preempting the Parliament on the passage of proposed amendments to the Native Title Act, and preempting Court decisions on the consequences for Adani. But then, the Nationals never were very good on the separation of powers, due process and the rule of law. Maybe that’s why Adani Mining looks so good to them.

Even if the bill does eventually go through, there’s the matter of our legal action in the Federal Court against Adani’s sham agreement. The passing of the Bill won’t fix that. And that’s the con.

We know the Government has been working furiously behind the scenes, and we know they are exploiting the doubt and uncertainty they themselves created after the Federal Court reverted to the law and overturned business as usual for miners.

We know that all sorts of pressure is on Labor to line up and pass the changes – and can see that crass inducements of steel contracts for South Australia are being dangled in front of the Xenophon Team to get their votes as insurance.

None-the-less, we will continue to state our case to the Parliament to the end. There are many grounds on which this bill should not be passed next week and a proper process of law reform adhered to instead.

We will maintain our litigation against any registration of Adani’s purported ‘Indigenous Land Use Agreement’, which lacks the consent of the Traditional Owners. And we are still litigating the Queensland Government’s issuing of mining leases over our lands in the face of our clear NO vote against the deal.

Adani Australia chief executive Jeyakumar Janakaraj said it is only native title holding back the Carmichael project; that “the next three weeks will be game changers for the Galilee Basin”.

Indeed they will. We intend to prosecute our case against Adani in the Courts come what may in Parliament next week.

Faking momentum for public relations purposes and conning investors does not win court cases or add up to good law making. We will expose Adani’s sham land use agreement and force the State Government to take responsibility for this shonky deal.

The only starting post in sight is the commencement of legal proceedings against Adani’s fake ILUA.

See: Adani starting post in site

Federal Resources Minister, Senator Matt Canavan, is misrepresenting Wangan and Jagalingou people again

 

Federal Resources Minister, Senator Matt Canavan, is misrepresenting Wangan and Jagalingou people again, as he and his National Party leader and Deputy Prime Minister, Barnaby Joyce, come down hard on Westpac. The big four bank announced a new policy which cuts Adani out of any future lending.

It would be laughable if it wasn’t so serious, the National Party talking climate action and Aboriginal rights, and giving economic advice to a commercial bank. Here is the great ‘pork barreling’, coal burning and anti-land rights party of Australian history arguing for Aboriginal advancement, and lecturing banks on climate policy and how to do business.

All part of doing Adani’s bidding of course… Chairman Gautam Adani, made an unannounced visit to Queensland this weekend to reassure politicians “the decision would have no impact on plans for the multibillion-dollar mine.“ He met with Canavan.

Quid pro quo, no doubt, for the Federal Government bending over backwards to change the Native Title Act to suit Adani’s interests.

Canavan of course, like Mundine the week before, trotted out the convenient fiction as cover for trashing Aboriginal rights. Canavan claims Westpac “have also turned their back on the indigenous peoples of Queensland by this decision, because this mine in the Galilee Basin is supported by the Wangan and Jagalingou peoples. They met last year and voted on the mine, they voted on the mine 294 to one in support of it, yet that’s not good enough for Westpac”, he claimed in The Australian.

Westpac didn’t make a decision based on Aboriginal rights one way or the other. W&J was the last thing on its business mind, sadly.

But one more time for the record…

Adani didn’t ‘negotiate’ and achieve the free prior informed consent of the W&J people. The meeting, that all these barrackers for Adani’s mine cite, that seemingly voting 294 to 1, is only ‘a vote for the mine’ if it’s a true expression of the W&J traditional owners. But it’s not.

Over 220 of that meeting’s attendees are people who have never been involved in the W&J claim or decision making, and who are identified with other nations and claims, or didn’t identify an apical decent line.

They were bussed in and paid for at Adani’s considerable expense. The ‘natural majority’ of the claim group, who have three times rejected an ILUA with Adani, refused to participate in this stitch up of a meeting. They stayed away.

This is part of evidence presented in the objection to Adani’s attempt to register a land use deal for the Carmichael mine, and is included in our current case before the Federal Court to invalidate the application for registration of this sham deal as an ILUA.

The W&J Traditional Owner Council, including representatives of 9 of the 12 apical families, has upheld the original decisions of the W&J claim group to reject an ILUA with Adani, and has followed through on the mandate given it to object to Adani’s deal.

As usual, the only one blowing hot air here is Minister Canavan.

See: Megamine Critic is blowing hot air

 

Mundine reduces Aboriginal land rights and First Nations treaties to ‘a fantasy business transaction’

 

 

In his opinion piece, “Activists undermine principles of self-determination” [1], 20 April 2017, Warren Mundine makes exaggerated, false and misleading comments. As his views still gain considerable national attention as the former head of the Prime Minister’s Indigenous Advisory Council [2], it is necessary for us to respond.

While we agree that “making your own decisions and controlling your own destiny… is something for which Indigenous people long campaigned” – Mundine does much to undermine this premise in his article. His uninformed characterisations of the Wangan and Jagalingou situation regarding the proposed Adani Carmichael mine do us and our campaign for self-determination a great disservice.

Our forebears, like many others, pursued “sources of self-determination, like land rights”. We too celebrate Koiki Eddie Mabo’s achievement to gain “recognition of his people’s fundamental and original right to the land and seas on which they’d lived and subsisted since time immemorial”.

But to then build an argument on Mabo’s legacy, as Mundine does, and say that the Native Title Act in its present form is fostering “Indigenous economic participation by allowing traditional owners to use land as an economic asset”, is ludicrous. He fails to position the importance of traditional lands in the full spectrum of Indigenous values and uses (not just economic and extractive relations to resources), alongside the manifest failures of the Native Title Act to deliver anything remotely like land rights for most Aboriginal people.

His elevation of the role of businesses in empowering Traditional Owners through Indigenous Land Use Agreements (ILUAs) compounds the folly. And to go further and state that there’s “little difference in substance between a treaty and an ILUA entered into with a government” reaches the height of absurdity.

Is he kidding? Whatever treaty framework he’s using, it is not one that accords with the political views of many Aboriginal people, nor one that accords with the legal foundations of treaties in other jurisdictions; and it most certainly is not one that would stack up under international law and the declaration on the rights of Indigenous peoples today.

This ‘gammon treaty’ approach is a cop out. Not long ago Mundine argued [3] that native title claims involved a costly and protracted legal process, and that “the current process is not good for ­indigenous Australians”.

He said treaties need to be entered that would sit above, and resolve, native title claims. And he advocated that the federal government should formally recognise each Indigenous nation and enter into an agreement recognising each one as the traditional owners of a defined area of land. “In doing so, that nation’s ­native title claim should be recognised and concluded”, he reckoned.

Now he just wants the Government to change the law to suit his views and his mates in the business sector, who want the certainty that Aboriginal rights can be bought off so long as a majority vote of a claim group can be secured in a process driven by proponents – and that’s irrespective of the group’s laws and customs for decision making, and before their rights in land have even been determined, much less before a treaty has been agreed.

Whatever advances that may flow to some Aboriginal people around the country from the advent of the native title regime and ILUAs, it is disingenuous to paint the native title system and the Act in glowing terms, and pretend that ILUAs are anything like a treaty between the government and a traditional nation.

Mundine reduces native title to a fantasy business transaction in which injustice, economic inequity, power inequality and the prior stacking of the deck by Governments and political interests don’t exist. He assumes a benevolence on the part of the resources industry and others; and sees nothing but sinister manipulation from those sections of the wider Australian community who oppose some of the more extreme, destructive and unwarranted projects they propose – such as the Adani mine.

He sees a native title claim as no more than a vehicle for business deals and, within this, claimants as a quasi-Board who can simply ‘transact’ the claim as though it was just another trade in real estate and resources. And all justified by that staple of every pro-development, anti-conservation proponent carpet-bagging their wares – ‘giving Aboriginal people jobs’.

This is not surprising coming from the self-styled head of a so-called ‘Indigenous chamber of commerce’.

But in any such business deal, when refusal to enter a contract is given then the deal is off. Over.

Of course, such terms don’t really apply for Aboriginal people under the native title regime. Otherwise, when our claim group said ‘No’ to Adani and an ILUA the first of three times, it would have ended there. But self-determination without the right to say no and have that enforced is rendered meaningless.

Native Title law provides none of the rights of negotiation and refusal that contract law provides. And Aboriginal property rights are treated as second class, which would trigger provisions of the Racial Discrimination Act if those protections hadn’t already been suspended in relation to the Native Title Act, by the Howard Government’s 10 Point Plan amendments.

Despite the entirely valid rejection of an ILUA by the W&J claim group in October 2014, Adani persisted. First by seeking a statutory override of our decision; then by actively working to split the group and registered claimant; and finally, by bankrolling a meeting that purports to authorise an ILUA.

And when the McGlade decision came along and knocked their supposed ILUA clean out of the water because it lacked the signatures of those who refused to sign under duress, their backers pressed the Federal Government and the Opposition to change the Native Title Act.

To top it off, PM Turnbull went to India to personally assure Gautum Adani that the ‘native title problem’ would be fixed.

Mundine’s simplistic view of how ‘a deal’ should be done, and how presumed dissenters should be rolled, is a betrayal of the real laws and customs, rights and interests, that operate within a traditional nation.

His first problem is that he buys the lines run by anonymous Adani spokespeople, Government insiders and media outlets, like his favoured Australian newspaper, about the W&J people.

Mundine is wrong. Adani didn’t ‘negotiate’ and achieve the free prior informed consent of the W&J people. The meeting he cites that seemingly voting 294 to 1 is only ‘resounding’ if it’s a true expression of the W&J traditional owners. But it’s not.

Over 220 of that meeting’s attendees are people who have never been involved in the W&J claim or decision making, and who are identified with other nations and claims, or didn’t identify an apical decent line. They were bussed in and paid for at Adani’s considerable expense. The ‘natural majority’ of the claim group, who have three times rejected an ILUA with Adani, refused to participate in this stitch up of a meeting. They stayed away.

This is part of evidence presented in the objection to Adani’s attempt to register a land use deal for the Carmichael mine, and is included in the current application before the Federal Court to invalidate the application for registration of this sham deal as an ILUA.

And be clear, it does not rely on McGlade, and the litigation will not simply go away if the Parliament loses its senses and passes Brandis’ flawed response to the Federal Court’s decision.

The W&J Traditional Owner Council, including representatives of 9 of the 12 apical families, has upheld the original decisions of the W&J claim group to reject an ILUA with Adani, and has followed through on the mandate given it to object to Adani’s deal.

The “one individual, holding himself out as representing the group” that Mundine disparages is assumed to be the one person who voted ‘no’ at the Adani meeting. We know that’s a reference to the Councils’ leader, Adrian Burragubba. But he wasn’t even at that meeting; and Mr Burragubba is backed by the family representatives and the W&J claim group who rejected Adani three times before. He is joined in litigation against the mining leases and the dodgy ILUA by other members of the registered claimant. He is also a member of the W&J Applicant and has uncontested rights as a primary Traditional Owner for the land on which Adani wants to build its mine.

For Mundine to then suggest this supposed lone voice is merely a dupe for a bunch of “anti-coal activists who are running roughshod over Indigenous self-determination” is his final overreach.

As Deakin University’s Emeritus Professor Dr Jon Altman states [4], “Warren Mundine is poorly informed about the workings of the Native Title Act. His views run contrary to three Federal Court Judges. He confuses correlation with causation. In other words, just because key Traditional Owners and some ‘greenies’ agree, doesn’t mean one caused the other. It just means they share a similar view on Adani’s Carmichael mine proposal.”

Mundine’s lines are convenient to the industry-driven agenda of those who support the ‘Adani amendments’ to the Native Title Act proposed by Brandis, but they are quite simply wrong.

If Mundine was so concerned “about traditional owners making decisions about their own country without meddling by special interests” he’d have a closer look at the conduct of the Adani company operatives, their lawyers, the Queensland and Federal Governments, the resources lobby and others. All involving and heavily dominated by “white people”, despite his phony concoction of some Indian-Indigenous accord that manages to bypass the entire apparatus and personnel of the system in Australia.

That’s right, the “white people” in Mundine’s scenario are not only the environmental activists he insults with his tired refrain that they are the “real colonial oppressors”.

We’re not sure who Mundine is working for, and what funders are kicking cash into his ‘disruptive institute’; or who his Indigenous Chamber’s corporate partners and supporters are. It’s not obvious from his web site.

But to be sure, they are not working for Traditional Owners who seek to protect their lands and waters, build an economic future without mining dependency and the destruction of their homelands, and have the full complement of their human rights recognised under law in Australia.

He is entitled to his opinion of course. And that’s all his article is.

Like the McGlade appellants who won a court victory under the very Native Title Act that Mundine presently puts so much store in – only to watch Governments, industry lobbies and native title bureaucrats seek to overturn it – we will continue to prosecute our matters through the courts.

We will argue our case to the Australian public. These are the people who support us, morally and financially. We welcome the many thousands of contributions that assist with our legal and other actions.

We make no apologies for taking a stand, like so many Aboriginal rights campaigners, against a dubious company intent on overriding our decisions, destroying our heritage, dividing our people and offering an insulting pittance in return.

Mundine can characterise it however he likes, but we have no doubt that our stand is exactly an assertion of Indigenous self-determination. We don’t need his approval, or care about his disapproval.

Though we’re sure his mates in the mining sector [5] and the halls of Government will welcome his opinions.

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[1] Activists are the new colonial oppressors. 20 April 2017. Published in the Australian, The National Indigenous Times, and on The Indigenous Chamber of Commerce site: http://www.indigenouschamber.org.au/activists-are-the-new-colonial-oppressors/

[2] Indigenous Advisory Council ‘refreshed’ with new membership. 8 February 2017. http://www.abc.net.au/news/2017-02-08/indigenous-advisory-council-refreshed-with-new-membership/8252736

[3] Warren Mundine: treaty needed with each first nation. December 11, 2014. http://www.theaustralian.com.au/national-affairs/indigenous/warren-mundine-treaty-needed-with-each-first-nation/news-story/4ae32087476d1b259f3d415d70a71564

[4] Mabo lawyer: Changes to Native Title Act could enable projects like the Adani mine. 18 April 2017. http://www.sbs.com.au/nitv/the-point-with-stan-grant/article/2017/04/18/mabo-lawyer-changes-native-title-act-could-enable-projects-adani-mine

[5] Nyunggai Warren Mundine AO. Speech to the Minerals Council of Australia ‘Workforce of the Future’ Forum on 12 October 2016. http://www.indigenouschamber.org.au/indigenous-people-and-the-future-minerals-industry-workforce/. See also ‘Indigenous Australians and the mining industry need each other’ published in the Australian Financial Review, 11 January 2017.  http://www.indigenouschamber.org.au/indigenous-australians-and-the-mining-industry-need-each-other/

 

Letter to Vicky Tauli-Corpuz, UN Special Rapporteur on the rights of Indigenous Peoples

 

8 March 2017

Update on the situation of the Wangan and Jagalingou People’s opposition to the proposed Carmichael Coal Mine and comments on Australia’s response to the Special Rapporteur’s letter dated 1 April 2016

In this letter, we update the UN Special Rapporteur on the Rights of Indigenous Peoples on our efforts to say no to this destructive mine which would violate our rights to culture and to free, prior and informed consent. We also respond to Australia’s 16 April 2016 response to your letter of 29 February 2016, because much of Australia’s response mischaracterises facts and misstates international law.

In our 2 October 2015 submission to UN Special Rapporteur on the rights of Indigenous Peoples, we explained that our traditional country in central‐western Queensland, Australia, is threatened with devastation by the proposed Carmichael Mine which, if developed as proposed, would be among the largest coal mines in the world. The Carmichael Mine would tear the heart out of our country and devastate the places, animals, plants, and water‐bodies that are so essential to us and our culture. Our earlier submission explained that our culture is inseparable from the condition of our lands.

Our lands hold sacred places which are the source of our dreaming, our culture, and ourselves.

To read the update in full download this document

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AN UPDATE ON OUR STRUGGLE

There have been many troubling developments concerning the approval of the Carmichael Mine since we last wrote to you. These include that:

1. The Australian government reapproved the mine despite acknowledging evidence that the mine would harm or possibly destroy the Doongmabulla Springs, our most sacred site;

2. The Queensland government passed legislation specifically aimed at preventing public participation in the decision whether to grant the groundwater licence that would allow Adani Mining to draw down the water upon which Doongmabulla Springs depends;

3. In April 2016, the Queensland government granted the remaining mining leases for the Carmichael Mine;

4. In August 2016, we lost our legal challenge to the April 2015 decision of the National Native Title Tribunal (NNTT) that the mining leases for the Carmichael Mine could be granted under Australia’s native title legislation, without regard to our decision not to consent to the project. We have appealed this decision;

5. Through a procedurally flawed process building on years of coercive and bad‐faith tactics, Adani Mining manufactured approval of a purported indigenous land use agreement (ILUA). If this purported ILUA is upheld against legal challenges we have initiated, it would violate our right to culture; and

6. The Australian government, Adani Mining, and the energy and mineral industry, continue to publicly denounce our leaders who are opposing the mine

For more click here:

Update on the situation of the Wangan and Jagalingou People’s opposition to the proposed Carmichael Coal Mine and comments on Australia’s response to the Special Rapporteur’s letter dated 1 April 2016

W&J Traditional Owners Council submission on the Native Title amendment bill

 

7 March 2017

Submission to the Senate Constitutional and Legal Affairs Committee re the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017

“The integrity of our decision making, especially regarding our laws and customs, and our rights to self-determination and to  withhold our consent to the destruction of our country and heritage, are central to our issues with the bill.

The bill would alter the fundamentals of our traditional decision processes. The integrity of Traditional Owner decision making and rights to speak for country must be protected.

Checks and balances are required, as is respect for property rights associated with customary tenure and the right to speak for country. The inalienability of our rights in land must be respected. It is the ground on which we seek to protect our country and heritage from the mass destruction that would ensue from the Carmichael mine.”

To read the submission in full download this document

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The W&J council is profoundly concerned about the rushed introduction of the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (“the bill”) and –

  • the sense of crisis that has been politically generated as a justification for the urgent introduction and passage of the Bill
  • the extremely limited time in which we and other Traditional Owners are given to consider and respond to its proposed measures
  • how the measures contained in the bill would impact our rights directly as Traditional Owners of our lands and waters, and our cultural rights and heritage
  • the consequential uncertainties and injustices for Aboriginal people in similar circumstances across the country, that could flow from this bill being adopted into law

We are deeply concerned about the speed with which these amendments have been pushed forward and passed by the Government through the House of Representatives, with only very limited opportunity to assess them before they are submitted to the Senate for a vote.

We have obtained two pieces of legal advice which are contained herein and form the basis of our submission to the Senate Constitutional and Legal Affairs Committee regarding the bill. Further to these, we note the following …

W&J Council acts on Adani’s invalid Indigenous Land Use Agreement

Letter Sent by JustUs lawyers on behalf of the objecting Registered Native Title Claimants

for W&J to Adani’s lawyer in the matter of the Carmichael Mine ILUA

 

Dear Colleague

Re Adani Mining Pty Ltd- Application for registration of Wangan and Jagalingou ILUA-QI2016/15 (“the Adani ILUA”)

We refer to our clients’ Notice of objection to registration of the ILUA where it was submitted as follows:

“Five of the Twelve of the Registered Native Title Claimants (“RNTC”) for the Native Title Claim have refused to sign the ILUA. This cannot be portrayed as an action designed to hold out against the wishes of the claim group of the Native Title Claim. It has been sanctioned by a sizable section of the claim group at two authorisation meeting. While the decision of Reeves J in Bygrave No2 is authority for the proposition that the applicant has no role in the process of authorising an ILUA (except for lending its name), this decision is being challenged in a proceeding filed in the High Court. We are further advised that the matter was remitted to the Full Court of the Federal Court. A copy of the Application to show cause is included in Attachment 6. It is submitted that a decision should not be made to register the ILUA until all the persons who constitute the RNTC have signed the ILUA or the challenge to ratio decidendi of Bygrave No2 is dismissed.”

We now refer to the judgments of North, Barker and Mortimer JJ in McGlade v Native Title Registrar [2017] FCAFC 10 (“McGlade”) where it was decided that various ILUAs under consideration were not indigenous land use agreements within the meaning of s24CA of the Native Title Act 1993 (Cth) (“NTA”), and the Native Title Registrar had no jurisdiction under Div 3 of Pt 2 of the NTA to register them. The basis of the court’s decision was that not all of the RNTC’s had signed the ILUAs in question.

In the current application to register the Adani ILUA, five of the twelve Registered Native Title Claimants (“the objecting RNTC’s”) have refused to sign or agree to it (as noted in our clients’ objection). Detailed objections have been submitted in which our clients provide evidence that the meeting which purported to authorise the ILUA was a sham and, at the instigation of your client, was attended by persons who overwhelmingly were not members of and have never previously asserted to be Wangan and Jagalingou people or to have native title rights in the ILUA area. Further, that the proceedings at the meeting were one-sided and the value of the benefits being offered by your client were overstated and not subject to independent evaluation.

In addition, the five objecting RNTC’s do not accept that their native title should be extinguished by the ILUA and have serious concerns regarding the devastation that the Carmichael project will bring to their culture and the environment.

The objecting RNTCs do not believe that your client has openly disclosed the financial risks associated with Carmichael project. They are concerned that the employment opportunities for indigenous people are illusionary and the contracting proposals are not economically viable.

We are instructed that the objecting RNTC’s do not resile from their complete opposition to your client’s project and the registration of the Adani ILUA.

We note that your client lodged the application for registration of the Adani ILUA. Section 24CG of the NTA provides that an ILUA may be lodged by one party to it for registration if all of the other parties agree. The judgement of McGlade is now authority for the proposition that all persons who jointly comprise the Registered Native Title Claimant must be parties to the ILUA (see paragraphs [241] to [244] of the joint judgement of North and Barker JJ). The agreement of the objecting RNTC’s has not been obtained. We are therefore instructed to demand that your client withdraw the application for registration of the Adani ILUA by 4.00pm on Tuesday 14 February 2017.

We are further instructed that should your client fail to do so, we have instructions to make an application to the Federal Court seeking orders declaring that:

  1. The Adani ILUA is not an ILUA within the meaning of s24CA of the NTA, and accordingly the NNTT is not entitled to register the document on the Register of Indigenous Land Use Agreements; and
  2. Your client is not entitled to lodge the application to register the Adani ILUA;
  3. Your client pay our clients’ costs.

Should you have any questions in relation to this matter please do not hesitate to contact our office.

Yours faithfully,

Colin Hardie

JUST US LAWYERS

Urgent Letter to Gautam Adani

4th December 2016

Mr. Gautam Adani

Chairman, Adani Group

 

Dear Mr Adani,

Respecting our People, Country and Rights – a meeting request re Wangan & Jagalingou Traditional Owners Family Council regarding your proposed Carmichael Mine

As a matter of urgency, the Wangan and Jagalingou Traditional Owners Family Council request a meeting with you during your visit to Australia to express our grave concern about the push by your company, Adani Mining Pty Ltd (Adani), and the Queensland Government to open the Carmichael Mine on our traditional lands.

Our apologies for the short notice, however we have only recently learned through the media of your visit to meet with the Prime Minister and the Premier of Queensland.

Below we have outlined some of the concerns we wish to discuss with you, and provide options for a meeting.

Respecting our People

We are Traditional Owners of most of the area of the Galilee Basin, including the proposed Carmichael mine site. Our people, represented through our Council, formerly rejected an agreement with your company and the State in authorisation meetings on three occasions. We cannot in all conscience consent to the destruction of our ancestral lands, cultural heritage and the environment. Nor can we allow such a project to contribute to the unfolding and dire effects of climate change that pose such great risks to all peoples.

In response to our refusal, your company has engaged in divisive and dubious conduct to secure approval from our people – going so far as to purport to have gained our consent from a meeting you funded in April this year.

We will not be fooled by such claims or steamrolled by lawyers and operatives in your hire. You should know that we have filed objections to any attempt to register the purported agreement with the National Native Title Tribunal (NNTT). We have laid out the evidence to confirm that you have no proper consent from our people, and we are ready to take an injunction should any attempt be made by the NNTT to register this document.

That the Queensland Government backs you and has acted in concert is of no worth to us. You do not have our free, prior informed consent to surrender to you our ancestral lands and we will stand firm in the face of all attempts to engineer it.

Respecting our Country

If the Carmichael mine were to proceed it would tear the heart out of our country – destroying our ancestral homelands, the cultural landscape and our heritage; causing irreversible and major damage to the environment; and unleashing a mass of carbon into the atmosphere, propelling dangerous climate change. Nor would the impacts be limited to our lands – they would have cascading effects on the neighbouring lands and waters of other Traditional Owners and other landholders in the region.

One of the major reasons we would not authorise an Indigenous Land Use Agreement (ILUA) for the Carmichael mine was that there was insufficient honest explanation and acknowledgement of the adverse and irreversible impacts on the values of our country. It is not possible to give free, prior and informed consent to any developments without the major, cumulative and long-term effects of those projects on our natural and cultural values being properly identified.

We have no confidence that the Government’s environmental conditions placed on the mining leases will protect our lands, waters and heritage – and nor do these conditions adequately account for the value of our country as an interconnected and living whole; as a vital cultural landscape in which our ancestors reside. This is central to us as a People, and to the maintenance of our identity, laws and consequent rights. You cannot replace those rights or compensate for the loss of them. We remain implacable in our opposition to the destruction that would befall our country if your mine were to proceed.

Respecting our Rights

It is our recognised right under the United Nations Declaration on the Rights of Indigenous Peoples to give or withhold our consent to developments on our lands. At no time has the Queensland or Commonwealth Government, or Adani Mining, received our free, prior and informed consent for the issuing of mining leases and the development of the Carmichael mine.

Indeed, when we have said no, your company has sought to override our decision and pursue your outcomes through the statutory force of the National Native Title Tribunal – while at the same time the Queensland Government threatened compulsory acquisition of our land and rights.

This set a context for so-called negotiation which was neither free nor fair. You do not have our willing consent. As you should be informed, we are also challenging these matters through the Federal Court of Australia, and the Queensland Supreme Court, and do not intend to desist until our rights are recognised and respected.

We request that you acknowledge and fulfil your responsibilities to our rights to free, prior, informed consent under international law; to our own economic development; and to protection of our country and culture, and all the proprietary and usufructuary rights that reside in our long ancestral connection to those places, and in our religious beliefs.

We propose that you make a time and place to meet with a small delegation from our Council on Wednesday the 7th December 2016. We can meet you in Clermont, on our Country, or at your head office in Brisbane.

It is important to us to know that you will act responsibly to respect us, our Country and our rights; and give us a fair hearing and a substantial response to our concerns.

Of course, we are resolved to pursue our rights and interests in these matters. As First Peoples, we will defend our rights as traditional owners and custodians, protect our ancestral land inheritance, and maintain our rights and interests in and on our Country.

Yours truly,

Adrian Burragubba & Murrawah Johnson

For the Wangan and Jagalingou Traditional Owners Family Council

 

Cc:

Anastacia Palaszczuk MP

Premier and Minister for the Arts

thepremier@premiers.qld.gov.au

 

Jeyakumar Janakaraj

Chief Executive Officer

Adani Australia

Reception.Australia@adani.com