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

Stories / Tuesday, February 7th, 2017

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


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