Traditional Owners fight on: appeal Carmichael mine Federal Court decision

An appeal to the full bench of the Federal Court of Australia was filed today by senior Traditional Owner and spokesperson for the Wangan and Jagalingou (W&J) family council, Mr Adrian Burragubba, challenging a decision of Justice Reeves in relation to the Queensland government’s issuing of mining leases for Adani’s Carmichael coal mine, handed down on 19th August 2016.

Further background to the case can be found below.

Mr Burragubba said: “We said ‘no means no’ and so we will continue to resist this damaging coal mine that will tear the heart out of our Country. The stakes are huge. In the spirit of our ancestors, we will continue to fight for justice until the project falls over.

“The decision of the Native Title Tribunal in April 2015 to allow the issuing of the mining leases by the Queensland government took away our right to free, prior and informed consent. It effectively allowed the government to override the decision that we made nearly two years ago to reject Adani’s ‘deal’,” Mr Burragubba said.

The appeal, being run by Sydney Senior Counsel Craig James Leggatt SC and other barristers working pro bono, will make two arguments: that the matters Mr Burragubba put before the National Native Title Tribunal should have been taken into account by the Tribunal member when granting the Future Act mining rights to Adani and that Justice Reeves should have found that Adani was misleading before the Tribunal.

The appeal will proceed alongside a challenge brought by Mr Burragubba and other W&J Traditional Owners in the Qld Supreme Court against the mining leases that have been issued by Queensland Minister for Mines, the Hon Dr Andrew Lynham and the Queensland government for the Carmichael mine. That case will be heard by the Qld Supreme Court in November 2016.  Further legal actions are also underway in relation to Native Title matters.

Mr Burragubba said: “This is our fight as Traditional Owners and cultural custodians. We will not be talked down to by industry or government and their lackeys, and we will challenge any decision that threatens our life, culture and traditions and the social, cultural and economic structures of our group,” said Mr Burragubba.

“This is about our ancient connection to the place of our ancestors. It is a defense of our lands and waters, plants and animals against the destruction wrought by coal mining, and a demand to have our rights as the Traditional Owners respected and our voices heard.

“We are Traditional Owners who assert our right to self-determination and a future without dependency on mining. We have determined to oppose the Carmichael Mine, and to use all appropriate means to stop the destruction of our Country and culture,” Mr Burragubba said

Lawyer for Mr Burragubba, Mr Benedict Coyne, said: “My client has reviewed Justice Reeves’ reasons for the judgment, taken advice from his legal team and considered his options. Mr Burragubba brings this appeal on strong public interest grounds and in the context of other legal avenues he is pursuing for justice for his people, both domestically and internationally.

“The case raises very important issues for indigenous and non-indigenous Australians in the context of the native title system and Indigenous Peoples’ rights.  There are important legal principles and principles of human rights and justice at stake,” Mr Coyne said.

For more information, and to arrange an interview with Mr Burragubba and Mr Coyne:  
Anthony Esposito, W&J council advisor, 0418 152 743.
W&J website: http://wanganjagalingou.com.au/

Overview of case

W&J Traditional Owner’s Federal Court Judicial Review and Appeal
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.

Counsel for Mr Burragubba are: Mr C Leggat SC with Barristers Mr D Yarrow and Mr M Steele. The Instructing Solicitor for the Applicant is: Benedict Coyne: Anderson Fredericks Turner Lawyers & Advocates

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 Judicial Review – 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

On 19 August 2016 Mr Burragubba’s Application was dismissed by Justice Reeves. Arguments about costs are ensuing. Mr Burragubba’s legal counsel reviewed the reasons for the judgment and have provided Mr Burragubba with advice.

Appeal to the full bench of the Federal Court

The Appellant appeals from the whole of the judgment of the Federal Court given on 19 August 2016 at Brisbane.

ENDS

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