25th March 2018
While we were in the courtroom on 12 – 14 March, fighting the State of Queensland, Adani Mining, and Qld South Native Title Services (QSNTS), the Queensland Premier authorised an email that was sent to many of our supporters.
The Queensland Premier’s response studiously avoided our key demands. That is:
Instead, the Premier proclaimed the Government is adopting a ‘neutral position’ and will submit to the decision of the Court on the contested Adani ILUA.
When we saw this, our lawyers drew it to the attention of the State’s Counsel. We made it clear that the State’s position in the current proceedings does not accord with the Premier’s statement. The State’s Counsel has actively cross-examined our witnesses and has filed submissions refuting our case. And unlike the National Native Title Tribunal, it has not filed a ‘submitting notice’.
So the truth is the Government is actively opposing us on all points, cross examining witnesses and making submissions – but only against us, not against Adani or QSNTS, who respectively organised and certified the ‘Adani ILUA’.
This is not a neutral position by the Government; and the State is not acting as the ‘model litigant’ they suggest.
There is an emptiness at the heart of this operation. The impersonal email from the ‘Office of the Premier’ masks a brutal and bureaucratic indifference.
In it, the Premier says the Government is committed to the Native Title Act process, as though this will automatically deliver us land justice. Instead it builds on the 20 year legacy of racial discrimination and pro-mining bias first instituted through the notorious “10 point plan” under the Howard Government.
This process allows for our decisions to be overridden (which the Queensland Government has already done). It subsumes primary Traditional Owners’ rights and interests in the land under ‘majority voting’, while throwing open the doors to anyone who, for the occasion, says they ‘may hold native title in the area’ – thereby exposing our meetings to stacking by wealthy proponents, who can bankroll people that are not part of our native title claim group, to attend. In our case it allows for conduct in decision making and contracts that would be totally unacceptable in non-Indigenous policy and governance.
The Premier makes out that W&J’s issue is a difference of opinion amongst ‘a majority’ and ‘a minority’ of W&J people; instead of a matter of misconduct, corruption and meeting stacking to obtain ‘a contract’ that signs away our native title to the land. This approach to property would be anathema to all fair minded people who believe in equitable rights, and it overrides our traditional laws and customs when ‘speaking for Country’.
The Government is not neutral and hands-off regarding W&J’s internal issues. They have knowingly involved themselves in them. They have favoured the so called majority even when alerted to misconduct and the fact that the requirement for the Registered Native Title Claimant (the “Applicant”) to act collectively was consistently breached by a breakaway group given money and support by Adani.
The Government’s acts of omission – by failing to investigate and make inquiries – and the Queensland Coordinator General’s active agency, opened the door to Adani getting its ILUA back on the table after our people had rejected it, at that time, twice before.
The State must wear the fact that the supposed decisions of the ‘Applicant’ it relied on were rorted, leading to a contested ‘authorisation’ of the ILUA. They ignore the fact that since the ILUA was signed, one of the members of the Applicant, in an affidavit to the Federal Court, withdrew his signature from the purported deal, effectively undercutting any notion of a ‘majority’. They ignore the claim that those individuals who engineered the deal with Adani say they were coerced by the Coordinator General by a threat of losing all native title rights.
The State furthermore backed the intervention of then Attorney General George Brandis against our strike-out motion in the Federal Court last May, when Adani’s ILUA was rendered invalid because the Court confirmed in the McGlade decision what was required under the Native Title Act. At that point the Adani ILUA was nearly dead, but the Queensland Premier actively encouraged the changing of the Native Title Act by the Federal Parliament and put the Adani ILUA back on life support.
The Premier makes it seem that the Government was a mere bystander in all this, forced to sign onto the ILUA because of the federal laws, instead of owning up to the fact that the Government and its agencies have directly involved themselves in our affairs, pushed Adani’s interests as their own, and entered into an agreement with them. The Government is trying to abdicate its responsibility.
The Premier offers as a mark of seriousness that the Government will enforce the ILUA. Is this a threat or a promise? We are saying there is no valid ILUA and it should be struck from the register.
Enforcing the ILUA is the problem and allows the Government to ‘legally’ extinguish our native title as though we had voluntarily surrendered it. The Government have been Adani enablers, and because our injunction application was dismissed they now have the power to extinguish our rights in land at any time.
The Government makes it seem like this ‘ILUA’ is an ‘agreement’ between us and Adani to allow the company to build a bit of mine infrastructure in exchange for some money and benefits – and not what it is… a license to extinguish our rights in land and to commit wholesale destruction of our Country and sacred places, for one of the worst Native Title compensation deals in the country.
Nowhere does the Premier rule out extinguishing our native title before our case and any appeals are exhausted. Instead, she goes on spending public money in the Court opposing us while pretending that the State’s ‘signature’ on the the ILUA doesn’t confer a vested interest in the Adani mine, and leads them to try justify the circumstances in which the sham ILUA was obtained.
And it is a sham. Here’s what we have established and have brought forward to the court…
Adani worked with a breakaway group who rorted decisions to overturn the resolutions of the W&J people and our Family Representative Council to reject an ILUA. The breakaway group say they were pressured by the Government to do a deal for fear of losing our native title.
Adani paid those individuals to meet, and they sacked our Future Acts lawyer and engaged another one paid for by Adani.
They moved to a meeting in April 2016 to ‘authorise’ the prearranged deal. Our people met in March 2016 and instructed them not to proceed. They went ahead anyway.
In attendance at Adani’s ‘authorisation meeting’ was a sudden and dramatic influx of hundreds of people who had never been involved in our claim before – while large numbers of our own people, who refused to participate, weren’t there. The combined numbers would swell our group by hundreds of people; to numbers never before seen in the 14 years our native title claim has been running. We have analyzed the records and from our own knowledge maintain that more than 60% of people there were not W&J identified.
The numbers are a gross distortion of the will of the W&J people. “294 to 1” is manifestly unbelievable. We have affidavit evidence that even at that meeting, stacked as it was, there were people who voted no but weren’t counted. The outcome is contrived.
In court, an Adani witness admitted the company paid the breakaway members of the Applicant to recruit people to attend. ‘Pre-registration’ of attendance was outsourced to a service provider who put together a list of names. The service provider had no authority to determine if people were or weren’t primary Traditional Owners. This pre-registration list was given to the very same people who supported the ILUA, and had been paid by Adani to recruit attendees, so they could ‘verify’ participants.
QSNTS was engaged and paid by Adani to attend to the registration on the day and the certification of the agreement afterwards. An assumed fait accompli.
A person’s ‘pre-registration’ automatically made them someone who ‘may’ hold native title as a member of the W&J claim group, but without further checking. There was no due diligence. No cross-referencing of QSNTS’s genealogical database or contact list. People were waved through.
No alternative information was allowed, no debate ensued in the meeting, and no analysis of the adequacy of the compensation deal was given. There was no confirmation that the people in the room were in fact Wangan and Jagalingou people.
And certification of the “ILUA’ by QSNTS after the event was a desktop exercise by its CEO who wasn’t in attendance. It is clear from cross examination that he did not conduct any detailed assessments.
The QSNTS CEO made no inquiries despite being advised numerous times by us that the W&J group was being undermined, and there were breaches of process. He expressed no concerns nor did any checking given the dramatic swelling of participant numbers, and in the knowledge that the largest part of the W&J people from all previous (and subsequent) decisions against the ILUA were not in attendance.
The circle was complete… no one checked. Attendance was assumed to be correct. Concerns were ignored. The deal was done and ‘certified’, and Adani took care of the rest. And the National Native Title Tribunal, ignoring our objections and pending court case, drew its jurisdiction from the certification provided by QSNTS, which applied no rigour at all in exercising its statutory functions.
We maintain that this is corruption of due process and exhibits a massive conflict of interest from all involved in producing the Adani ILUA. No-one who had a hand in running and approving this, or who now rely on it, such as the Queensland Government, can say they operated at any time with their interests declared. Nor with a view to ensuring the free, prior and informed consent of the primary W&J Traditional Owners of the land who have always ‘voted no’; or to protecting our native title.
Unless and until this is thoroughly investigated and cleared, there will be no legitimacy to any ILUA, no matter the legal arguments. And there should be no extinguishment of our native title that relies on it. Not now, not ever.
For more background read the ‘Killing Country’ series by Queensland University researchers:
On Native Title & QSNTS – Native Title Colonialism, Racism And Mining For Manufactured Consent