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Reinforcing False Narratives in the Galilee Basin Coal Complex: A Double Book Review

July 30, 2018

By Michael Swifte, WKOG Collective

 

 

On the 5th of November 2012 I emailed Ben Pennings for the first time. I felt I had received an education in thinking on environmental issues through his Facebook page Generation Alpha which was light-years ahead in quality of content compared to that put out by the environmental NGOs that were prominent at the time. A month later we organised a Zombie attack on my former employer, the Gallery of Modern Art in Brisbane. A year later we were shareholder activists at the AGM of the Galilee Basin rail frontrunner Aurizon. We pitched legally vetted questions about activists blocking trains on the vast Aurizon networks. Months later Ben and I were both part of the founding Galilee Blockade group. My focus was capacity building for long term blockading while broadcasting the capacity we were building. I brought in a former military capability specialist turned anti-fracking and holistic agriculture campaigner. Some of our members joined in on a tour of the Galilee Basin with the recently arrived 350 dot org. Our members pitched our plans by a camp fire in the bush, and if my memory of the events conveyed to me by Galilee Blockade members serves me correctly, our plans were roundly dismissed. There were other plans afoot.

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‘The Coal Truth: The fight to stop Adani, defeat the big polluters and reclaim our democracy’ by David Ritter, with chapters by Adrian Burragubba, John Quiggin, Geoff Cousins and others. UWA Publishing

The first thing you should know about Greenpeace Australia Pacific CEO David Ritter is that he’s a highly regarded and widely cited native title lawyer. Having acted for Traditional Owners in the Pilbara region, and authored articles and books on the subject, he ought to be very familiar with the Native Title Representative Bodies (NTRBs) who become prominent players when it comes to the pointy end of negotiations over Indigenous land use agreements (ILUAs). He ought to be able to comprehend the likely state of play for all the Traditional Owners affected by the development of the Galilee Basin coal complex better than most people. And yet, on the subject of native title rights, Ritter effectively hands the mic to one representative of a faction of only one of the Traditional Owner communities who’ve negotiated with Adani.

When you shine a spotlight on one individual, group, or faction you cast all others into darkness. Spotlighting is my name for what the StopAdani coalition do to Traditional Owners. Invisiblisation of certain inconvenient Traditional Owners is the net effect of spotlighting.  I am left with questions about those Traditional Owner groups who are left in the shadows. It seems to me, for the sake of justice and proper investigation of the political economy of a coal complex, that the diversity of Traditional Owners should be considered. I’ve been left with these questions:

How can one representative’s position represent all Traditional Owners?

Are not the peoples worth mentioning?

Were they not also threatened with compulsory acquisition?

I believe that the testimony of Juru elder Carol Prior is entirely worthy of inclusion in any history of this ‘war over coal’.

In his introductory chapter Ritter recalls an email conversation with Robert Manne in which he highlights the importance of “truth-telling” in social movements. Reading this made me think of the suggestion embedded in the book’s title and prompted me to ask myself “Does this book contain the ‘whole truth’?”. My answer to that question is a resounding “No!”.

If Ritter was telling the whole truth he would have been very clear about the name of the rail project that was in line for Northern Australia Infrastructure Facility (NAIF) funding and likely the subject of Export Finance and Insurance Corporation (EFIC) considerations. Greenpeace AP cleverly avoided naming the rail project in their ‘OffTrack’ report from December 2016 in which they substituted the actual project name, the ‘North Galilee Basin Rail Project’ which appears on 3 crucial ILUAs, for the fictional project name listed on the Adani Australia website, the ‘Carmichael Rail Project’.

If Ritter was telling the whole truth he would have stated that the Rockefeller Family Fund, Graeme Wood Foundation, and Bob Burton (with his extensive networks) helped John Hepburn get the ‘Stopping the Australian Coal Export Boom’ plan and funding together. It’s not surprising that Ritter does not mention Hepburn’s Sunrise Project and it’s relationship with John Podesta, the Climateworks Foundation and the Sandler Foundation as revealed by Wikileaks in the Podesta emails. I encourage you to have a look at the phalanx of impact philanthropists who were also recipients of Hepburns update emails. They come across as very much like venture capitalists, but instead of their objective being profits, they seem to be more concerned with shaping the discourse and the institutional underpinnings of resistance.

If Ritter et al were telling the whole truth (half the book is filled with essays by ‘leaders’ like John Quiggin, Will Steffen, and Geoff Cousins) they would have lamented that the majority of the Stop Adani coalition/alliance members ignored content and reportage of direct actions on their social media accounts. Direct actions by Frontline Action on Coal occurred in the Galilee and Bowen basins, and on Juru lands near Abbot Point starting in September 2017. Each of these actions materially slowed work being done by Adani and it’s contractors. In October 2017 I had an email conversation with 350 dot org dot au CEO Blair Palese about the sorry situation of direct actions involving arrests that were receiving little to no amplification from the institutions that existed to further the aims of those protesters. Palese explained to me that the Australian Charities and Not-for-profits Commission had been investigating 350 AU and other organisations, and it was identified that sharing certain content could compromise campaign efforts. The saddest example of this is rather feeble explanation was when, 6 hours into the first ever direct action against Adani in the Galilee Basin, Missy Higgins announced her new role as ‘StopAdani ambassador’. I urged her through Twitter to make her first act as an ambassador to celebrate the efforts of activists in physically stopping machinery. Sadly there was no sharing of direct action content or coverage from the new ambassador. I’ve come to believe that the StopAdani coalition/alliance members value the brands and institutions they maintain so much that they are not prepared to compromise them in order to share the whole truth of direct actions.

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‘Adani and the War Over Coal’ by Quentin Beresford. NewSouth Publishing

Quentin Beresford is in the unique position of being the supervisor for the only published academic investigation that covers ILUA negotiations with Adani relating to the Galilee Basin coal complex. An honours thesis by Kate Arnautovic was drafted in early 2017 shortly before Justice Reeves determined that the March 2016 “self-determined” meeting facilitated by the Wangan and Jagalingou Family Council (W&J FC) was not properly constituted as a legitimate authorisation meeting under the Native Title Act 1993 (NTA). Arnautovic’s thesis focussed on the history of negotiations between Adani and the Wangan and Jagalingou People of which the W&J FC are a faction. I can only guess at why the Arnautovic thesis focusses on only one Traditional Owner group in the development of a coal complex.

Beresford ought to be familiar with Principle 1 of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) –  Guidelines for Ethical Research in Australian Indigenous Studies (GERAIS) which is about “recognition of diversity and uniqueness of peoples”. Beresford was co-supervisor on a 2015 doctoral thesis on ‘ethical research in Indigenous contexts’ which covered the various sets of ethical guidelines available including those developed by AIATSIS. But no guidelines provide detail about the ethics of ignoring Indigenous communities in selecting research subjects and framing research questions. The question that Beresford must ask himself is:

“Would the Juru, Birri, Jannga, and Wangan and Jagalingou peoples benefit from academic research into native title negotiations with Adani across the entire coal complex area?”

The collected works of John Quiggin, Kristen Lyons and Morgan Brigg were written in partnership with the Wangan and Jagalingou Family Council in a project hosted by the Global Change Institute at the University of Queensland called ‘We Are The People From That Land: Centring Indigenous Peoples’ Rights in the Transition to a Sustainable, Low-Carbon Future’. These collected works were written by academics and published on progressive online platforms, but they contain no references or citations. Instead they rely on published and unpublished testimony from members of the W&J FC . The scope and framing of these works did not include all Traditional Owner groups who negotiated with Adani. Here too the mine and the Traditional Owners of the proposed mine location were the focus. The fact that Adani have all of the necessary rail corridor ILUAs in place was somehow contextually insignificant.

Each of the seven pieces of writing that make the collected works of Quiggin et al were published after Justice Reeves’ April 2017 judgement regarding the March 2016 “self-determined” meeting. But the existence of Justice Reeves determination was never acknowledged, and hence evidence of the factional split was masked off from view. Quiggin et al were in the partnership to give a voice and legitimacy to a narrative position supported by Graeme Wood and the networks built and maintained by John Hepburn and the Sunrise Project. In their first piece ‘Unfinished Business’ they paraphrased their W&J FC partners, but by the end of their New Matilda series called ‘Killing Country’ the authors had fashioned a talking point that the poorly constituted “self determined” meeting was “bona fide”. The Federal Court, and more specifically, Justice Reeves is the final arbiter of what, under the NTA, can be deemed to be “bona fide”. Any claim about the legitimacy of a native title authorisation meeting, no matter how righteous, must satisfy the requirements of the NTA. The false claims made about the March 2016 meeting after April 2017 only serve to misinform the public and can only exist because Quiggin et al, the W&J FC, David Ritter, Anthony Esposito, Tony McCoy and Quentin Beresford remain silent when they ought to provide a position.

Marcia Langton has provided the most important criticism of the W&J FC alliances and messaging. In a piece titled ‘Adani, native title and risky strategies’ published in The Saturday Paper in July 2017 Langton lays her arguments at the feet of Tony McAvoy and to a lesser extent Adrian Burragubba. McAvoy is the nephew of Burragubba; a W&J man; Australia’s first and most highly established Indigenous silk; and a native title lawyer of high regard. McAvoy didn’t author a reply to Langton preferring to let journalist Joshua Robertson share his very general dismissals of her arguments, namely: that there were indeed other Traditional Owners who have negotiated with Adani; that the McGlade amendments weren’t about the W&J Adani ILUA; and that Graeme Wood and the Sunrise Project had provided substantial financial support to establish the W&J FC. Beresford does not mention Marcia Langton or Warren Mundine. Langton’s name does not appear in the index, nor does her The Saturday Paper piece appear in the bibliography. Beresford dedicates 5 words to Langton and Mundine, “criticism from some Aboriginal spokespeople” without ever mentioning their names”.

Beresford attends to accusations that the Sunrise Project provided funding to the Wangan and Jagalingou Family Council in 2014, but only in the context of so called ‘conservative” media. While Hepburn has admitted that some “logistical support” was provided to the W&J FC, the true nature of that support has never been forthcoming. Beresford paraphrases Hepburn’s argument that it ought not be shocking or surprising that a Clinton senior advisor was being briefed on developments in the campaign. This argument ignores the significance of the collected impact philanthropies represented in the list of email recipients and the crucial role played by John Podesta and the Clinton Foundation in the politics and business of climate change. Beresford argues that Hillary Clinton has a commitment to “implementing the Paris agreement”, but if you look at Podesta’s efforts with the Climateworks Foundation, The Clinton Foundation, the Center for Strategic and International Studies, Obama’s ‘Clean Power Plan’, and the Democrat’s support for the suite of new carbon capture utilization and storage (CCUS) bills, you will see a pattern of support for continued fossil fuel use. Hepburn’s emails to Podesta and others are a lot more significant than Beresford suggests. Hepburn indicated that he was prepared to go to extreme lengths to hide knowledge of the funding of his organisation and the relationship it had with the spotlighted Traditional Owner faction for the StopAdani coalition/alliance.

The most important piece of infrastructure in the Galilee Basin coal complex is the rail line, the means of export for up to a dozen mines. The rail project in question is mentioned only twice in Beresford’s book and does not appear in the index. The North Galilee Basin Rail Project (NGBR) is listed with the Queensland Department of State Development (DSD). No link appears in the bibliography which contains no more than a handful of references that name or make reference to primary source documents that confirm that the NGBR is Adani’s preferred rail project.

The NGBR was named in 2016 when the Queensland Minister for State Development Anthony Lynham announced that the ‘combined project’ was now a “critical infrastructure” project and it was named when the Queensland premier issued her veto letter to Adani stopping the controversial Northern Australia Infrastructure Facility (NAIF) concessional loan. As Lissa Schindler of Brisbane based figurehead group the Australian Marine Conservation Society (AMCS) said recently regarding the NGBR link “It’s their Achilles heel – if we stop the railway we stop the mines.”. While people like Michael West and Adrian Burragubba might argue that Adani can’t build their rail line without the Carmichael mine, I would contend that the opposite is true. No mines can be built in the Galilee Basin without a standard gauge rail line. Understanding the negotiations and relationships that make the NGBR possible are imperative if any efforts to stop colonised neo-liberal forces from opening up the Galilee Basin for decades of mining are to be successful.

In November 2013 Adani reported that Cultural Heritage Management Plans (CHMPs) had been made with Traditional Owners along the NGBR corridor. The status of negotiations with the Juru, Birri, and Jannga peoples was discussed in the report. At this stage John Hepburn et al had worked with US based global foundations and local impact philanthropists to develop broad plans which had been shared across networks like the Climate Action Network Australia (CANA). Beresford asserts that these efforts were “at the grass roots”. I was here in Brisbane and watched as the networks were developed, and philanthropically incubated players like 350 dot org and Avaaz were introduced. There was no grass roots campaign, just the capture of the efforts of good but misguided people. Anti tar sands campaigners Macdonald Stainsby and Dru Oja Jay coined a term for this back in 2009, they called it “offsetting resistance”. In a fashion that would be familiar to the early climate justice campaigners against the Athabasca tar sands Wood, Burton and Hepburn cooked up a plan that laid a path for 350 dot org to set up in Australia. Networks were effectively exploited across environmental NGOs, the Greens party and the media to advance particular talking points and ignore primary sources that threatened to compromise an oversimplified narrative.

When former Melbourne based renewable energy and climate campaigner Ellen Roberts is introduced by Beresford she is presented as part of a small local team at the Mackay Conservation Group. Roberts was active with the MCG when they were working with the Environmental Defenders Office – New South Wales on a court case against Adani. EDO NSW like EDO Qld had been allocated funding under the Hepburn/Burton/Wood plan. Roberts now works for Get Up as the lead Queensland organiser and is an ordinary member on the Queensland Conservation Council executive. Both of these organisations help fund the MCG legal challenge. In 2013 the Sunrise Project partnered with The Change Agency and the Nature Conservation Council of NSW to create the Community Organising Fellowship. In 2014 Roberts, while at MCG, graduated from the fellowship.

In my March 2017 phone conversation with MCG coordinator Peter McCallum I was told that they had a tiny team that shared a limited number of full time roles. In 2013 and 2014 the MCG were staffed by imported personnel like Roberts and similarly the North Queensland Land Council employed former Greenpeace political lobbyists Jeremy Tager. It seems that the networks were always able to furnish ‘grassroots’ groups with new staff. Indeed the 8 months I spent in 2012 managing the Facebook page for the Friends of the Earth (FoE)- 6 Degrees team in Brisbane introduced me to a team, all of whom moved on to positions with Greenpeace, the Greens, Coast and Country, Market Forces and others I’m sure. In the years since that time I have realised the role FoE plays as an incubator. It gave the modern climate justice movement Ellen Roberts.

Impact philanthropists excel at marketing particular narratives and creating the impression among the public that well funded campaigns spring from the grass roots. They do this through partnerships, grants and most crucially the exploitation of networks. The best metaphor I can find for the way highly networked philanthropy works is the American football concept to ‘run inference’. At the heart of offensive strategy is the use of offensive team members to create opportunities for the ball carrier to score touch downs by interfering with defending players to create an unimpeded path to the end zone. In the same way the EDOs, Environmental Justice Australia, The Australia Institute, Australian Lawyers for Human Rights and the Institute for Energy Economics and Financial Analysis run interference for the StopAdani team.

In Ritter’s book former advertising mogul, environmental crusader and conservationist Geoff Cousins got given a whole chapter to talk about his scrambling visit to India. In Beresford’s book the business man and CEO of the Australian Conservation Foundation (ACF) also gets plenty of opportunity to speak, mostly about himself. The ACF effectively replaced the World Wildlife Fund (WWF) as the formal directorate for reef based campaigning in the lead up to the creation of the Stop Adani coalition. Over the 2016/17 summer break the Fight for the Reef campaign became the Fight for Our Reef campaign. In May 2017, the same month that the ACF published Michael West’s ‘Dirty Deeds’ report on the NAIF and Adani which contained no mentions of the NGBR, ACMS published their poorly referenced ‘fact sheet’ on the “Carmichael Coal Mine and Rail Project”. This document did mention the NGBR, but unlike the report commissioned for ACF by ACIL Allen for the senate NAIF inquiry, it quoted the rail corridor length for Adani’s fictional ‘Carmichael Rail Project’. This is a common mistake that has been made by amateurs and professionals. The NGBR length is listed as 310km while the combined length of NGBR and the rail component of Carmichael Coal Mine and Rail Project (CCMR) is 388km. My phone calls to ACMS staff did not reveal with any certainty who authored the fact sheet or if there was any willingness to improve the referencing. It was suggested to me at one stage that the fact sheet may have been prepared by StopAdani dot com.

Beresford’s book was drafted before the May 24 proceedings brought by Juru Enterprises Limited (JEL) against Adani and the Juru Aboriginal corporation Kyburra Munda Yalga Aboriginal Corporation (KMYAC). The concerns highlighted in the court proceedings which I attended have been articulated by Juru common law holders from since at least the middle of 2015. The confused reporting of Advisian who consulted to the Queensland Department of State Development on the Abbot Point Growth Gateway Project provides evidence that the neither the DSD nor Advisian knew where they stood in terms of Cultural Heritage Management Plans (CHMPs) and which Juru body should deliver them. Justice Rares determined that KMYAC who were placed under examination by the regulator of Aboriginal corporations the Office of the Registrar of Indigenous Corporations (ORIC) in October 2016 and placed into special administration in October 2017 made invalid ancillary agreements with Adani which diverted funds to the struggling KMYAC. Justice Rares determined that JEL were the “Juru nominated body” for the purposes of the 2013 ILUA and ancillary agreements with Adani. JEL have complained recently that Adani have been unresponsive since Justice Rares judgement came down and are currently seeking a stop order so that proper CHMP assessments can made with the appropriate bodies.

Ben Smee from The Guardian Australia has the honour of being the first journalist outside the NewsCorp silo to report on the travails of KMYAC. He is more concerned with his informants in JEL and the Juru people opposed to ILUAs with Adani than he is about the parlous state of KMYACs finances. I have suggested to him through social media that he ought to look at the role played by the former KMYAC chair and her current employer, the North Queensland Land Council (NQLC). The NQLC are the NTRB for the Juru People. As such they have facilitated authorisation meetings with Adani for both JEL and KMYAC. They also provide anthropological services and legal support as well as having the responsibility to support good governance in Indigenous organisations for the benefit of  Traditional Owner communities. The former chair of KMYAC is the director for the Townsville/Ayr Ward and the treasurer of the NQLC. If there is substance to Carol Prior’s concerns in 2014 that Traditional Owners on Palm Island had not been adequately notified of authorisation meetings for the Adani-NGBR ILUA, then the former KMYAC director is in the frame along with the NQLC.

Last week Ben Smee joined Bec Horridge on 3CR Earth Matters community radio show to talk about the concerns of his Juru informants. He didn’t mention the NQLC or how long Carol Prior has been loudly calling for transparency from KMYAC inside the Townsville Bulletin/NewsCorp silo.  Bec Horridge followed on from her discussion with Smee to share her 2017 interview with Carol Prior along with a recording of a recent speech. Horridge has been sharing Carol Prior’s testimony wherever she can. I convinced a friend at 4ZZZ ECORADio to broadcast Carol Prior’s testimony, but other than the few opportunities Horridge has hustled, Carol Prior’s testimony has been ignored. The StopAdani coalition are happy to have ‘Aunty’ Carol’s face on film and share general statements about her fight, they like to call her ‘aunty’, but they don’t share her testimony like Bec Horridge does. The Stop Adani coalition/alliance, Ritter and Beresford completely ignore the struggles of the Juru people while telling heavily filtered story of the Galilee Basin coal complex.

The crucial role played by Native Title Representative Bodies (NTRBs) is completely ignored by Beresford. Indeed it wasn’t until early in 2018 that either the W&J FC through their website or Quiggin et al in the Morgan Brigg instalment of Killing Country went into any detail about the what functions the Queensland South Native Title Service (QSNTS) actually serve in the delivery of an authorisation meeting. The very serious allegations made against Adani by Adrian Burragubba and Murrawah Johnson on behalf of the W&J FC necessarily implicate QSNTS. Indeed QSNTS staff would have to have allowed the alleged non-W&J people to attend and vote at the contested meeting. The contested registration of the April 2016 ILUA between the Wangan and Jagalingou People and Adani is the subject of a judgement held over from court proceedings in March 2018. If the judgement invalidates the ILUA then the Stop Adani coalition/alliance will claim a victory, but it will be the actions of QSNTS that will be in the frame exposing key failings of the native title system.

Tony McAvoy SC should be very familiar with the functioning of QSNTS having written in detail about the implementation of the 2007 reforms to the NTA and their implementation within the QSNTS. McAvoy sits on the Aboriginal Advisory Committee of the NSW EDO and in November 2017 he was a special guest along with Pat Anderson AO at the Australian Lawyers for Human Rights (ALHR) – Annual Dinner. ALHR are a partner in the Global Change Institute project for which Quiggin et al provided a voice. Did McAvoy advise that blame for manipulation of claim group member identification at the April 2016 authorisation meeting be squarely aimed at Adani rather than pointing the spotlight at the functions of the W&J People’s NTRB?

The native title system’s most crucial functions for delivering ownership-extinguishing contracts to miners are the simple majority votes at authorisation meetings by claim group members on ILUAs, and certifying the simple majority vote of the applicant group representing family and clan groups. Both of these functions are performed by NTRBs like QSNTS and the NQLC. If Adani has manipulated the native title system to secure ILUAs it has done it with the help of these 2 organisations and the ever present threat of compulsory acquisition by the state government. Only the interrogation of processes and accountabilities within bodies like the NNTT and ORIC can highlight the ways that the ILUA negotiation process, facilitation of claim group meetings, the execution and certification of ILUAs, and the limited non-commercially sensitive information provided to the NNTT for the purposes of accountability and arbitrating conflicts can mask manipulation of process by NTRBs.

Sometime after February 20, 2018 the Queensland Department of Natural Resources and Mines (DNRM) published RTI 15-315 which contained Adani’s map of the Galilee Basin coal complex area featuring the North Galilee Basin Rail Project and the boundaries of the four Traditional Owner groups along the NGBR corridor. This map had been provided to DNRM in early 2016. It would have been incredibly enlightening to the public if it had been made available back in 2016. I shared this map with StopAdani coalition/alliance members who took no interest.

Beresford follows the pattern set by StopAdani, the Qld state government, Adani, coalition member organisations, the ABC, The Guardian Australia, Fairfax, NewsCorp, and progressive and leftists media organisations in not telling the whole story and masking off the public’s access to primary sources and relevant discourses. The spotlighting of one Traditional Owner faction while largely ignoring all other groups, the silences around the North Galilee Basin Rail Project and the signed ILUAs along it’s corridor, the silences about the struggles of the Juru People, and the tendency to ignore direct actions by Frontline Action on Coal and Galilee Blockade are the behaviours that characterise the StopAdani coalition/alliance in their messaging, networking, and the content of their communications. The well briefed journalists, authors like Beresford, and the revolving doors that shuffle activists back and forth from .orgs to the Greens party serve to reinforce the talking points of the StopAdani coalition/alliance.

If there are any people whose work I would recommend in relation to the ‘war over coal’, or more correctly, the development of the Galilee Basin coal complex, it would be the following three women. The first is activist, inventor, and world class train stopper Annette Schneider who saved me from permanent exclusion from the Lock the Gate Group Page on Facebook in spite of our very different takes on Galilee Basin development. The second is Bec Horridge whose commitment to capturing the testimony of people on the frontlines is unmatched. The third is Dr Lily O’Neill, a person who understands the tension created when the values of Aboriginal autonomy are weighed up against the imperative to protect the environment.

 

References you wont find in either book

Academic writing

‘A tale of two agreements: negotiating aboriginal land access agreements in Australia’s natural gas industry’. PHD Thesis by Dr Lily O’Neill

https://minerva-access.unimelb.edu.au/handle/11343/111978

News and feature articles

‘Adani, native title and risky strategies’ by Marcia Langton

https://www.thesaturdaypaper.com.au/opinion/topic/2017/07/01/adani-native-title-and-risky-strategies/14988312004864

‘Leading Indigenous lawyer hits back at Marcia Langton over Adani’ by Joshua Robertson

https://www.theguardian.com/environment/2017/jun/09/leading-indigenous-lawyer-hits-back-at-marcia-langton-over-adani

‘Adani’s Australian project to generate $22 billion in taxes and royalty’ by Debjoy Sungupta (while Geoff Cousins was in India – not reported in Australia)

https://economictimes.indiatimes.com/industry/indl-goods/svs/metals-mining/adanis-australian-project-to-generate-22-billion-in-taxes-and-royalty/articleshow/57692866.cms

Institutional reports and government sources

‘North Galilee Basin Rail Project: Project overview’. Queensland Government – Department of Sate Development, manufacturing, Infrastructure, and Planning https://www.statedevelopment.qld.gov.au/assessments-and-approvals/north-galilee-basin-rail-project.html

‘North Galilee Basin Rail Project – Environmental Impact Statement: Chapter 15, Cultural Heritage’. Adani Mining Pty Ltd

http://s3-ap-southeast-2.amazonaws.com/adani/pdf/volume-1-chapter-15-cultural-heritage.pdf

‘Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373’. Justice Reeves, Federal Court of Australia

https://jade.io/article/526911

‘Australian Conservation Foundation – Carmichael – Abbot Point Rail: Financing Issues for Northern Australia Infrastructure Facility’ (Prepared by ACIL Allen for submission to the NAIF senate inquiry). The report can be found on this page listed as Attachment 1 in the ACF submission.

https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/NAIF/Submissions

‘Question on Notice (Hansard, 20 October 2016, page 125 -126): SI-36’. Department of Industry, Innovation, and Science

http://www.aph.gov.au/~/media/Committees/economics_ctte/estimates/sup_1617/Industry/answers/SI-36_Waters.pdf

‘Answers to questions on notice received from the Australia Institute on 5 September 2017, following a public hearing in Canberra on 11 August 2017’. The Australia Institute

https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/NAIF/Additional_Documents

‘QI2011/011 – Hancock Alpha Coal Project ILUA (Wangan and Jagalingou Area)’. The National Native Title Tribunal

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=QI2011/011

‘Guidelines for Ethical Research in Australian Indigenous Studies: 2012’. Australian Institute of Aboriginal and Torres Strait Islander Studies

https://aiatsis.gov.au/sites/default/files/docs/research-and-guides/ethics/gerais.pdf

‘Queensland Department of Natural Resources and Mines: RTI 15-315’.

https://www.dews.qld.gov.au/rti-tool/dnrm/15-315

‘Abbot Point Growth Gateway Project Environmental Impact Statement Volume 4 – Supplement Report’ (Prepared by Advisian for the Queensland Department of State Development)

https://www.statedevelopment.qld.gov.au/resources/project/abbot-point-apx/supplement-report-part1.pdf

Websites

‘Native title holders lodge objection to proposed North Galilee Basin rail project’ by Isobel Roe

http://www.abc.net.au/news/2014-10-20/native-title-holders-lodge-objection-to-proposed/5826168

‘Premier Palaszczuk whitewashes our rights for Adani’. Wangan and Jagalingou Family Council

http://wanganjagalingou.com.au/palaszczuk-whitewashes-our-rights-for-adani/

‘North Galilee Basin Rail approvals and NAIF’. Environmental Defender’s Office Queensland

https://www.edoqld.org.au/galilee_basin_rail_approvals_naif

‘LIVE BLOG: Week of frontline action to #StopAdani’. Green Left Weekly

https://www.greenleft.org.au/content/live-blog-week-frontline-action-stopadani

‘Juru traditional owners call for Adani to stop work’. Bec Horridge with Ben Smee featuring interviews with ‘Aunty’ Carol Prior

http://www.3cr.org.au/earthmatters/episode-201807151100/juru-traditional-owners-call-adani-stop-work

 

 

 

Aboriginal Autonomy and the Galilee Basin Coal Complex

We Suspect Silence

March 10, 2018

By Michael Swifte

 

First published by the Native Title Unit of the Australian Attorney-General’s Department

Submission to Reforms to the Native Title Act 1993: Transparent agreement-making

Submission by:

Michael Swifte

February 2018

Email: mgswifte@yahoo.com.au

Blog: We Suspect Silence

Twitter: http://twitter.com/empathiser

Member: Wrong Kind of Green critical thinking collective

Sections

1. Motivated by understanding Green-Black relations.

2. Auto-didactics and an unstructured methodology.

3. My key themes and areas where I shine a spotlight.

(a) Theme one: Indigenous Land Use Agreements relating to the crucial Adani rail link to the Galilee Basin.

(b) Theme two: Information giving and oversight of negotiation processes.

(c) Theme three: Non PBCs/RNTBCs making ILUAs

List of acronyms

NNTT – National Native Title Tribunal

NTA – Native Title Act

PBC – Prescribed Bodies Corporate

RNTBC – Registered Native Title Bodies Corporate

ORIC – Office of the Registrar of Indigenous Corporations

ILUA – Indigenous Land Use Agreement

NAIF – Northern Australia Infrastructure Facility

KMYAC – Kyburra Munda Yalga Aboriginal Corporation

JEL – Juru Enterprises Limited

NGBR – North Galilee Basin Rail Project

NPIC – Non-Profit Industrial Complex

WKOG – Wrong Kind of Green

CSG – Coal Seam Gas

RTI – Right to Information

1. Motivated by understanding Green-Black relations.

I started out as an anti-CSG (coal seam gas) activist in 2011 working with Generation Alpha and Zombie-A-Frack. I then moved on to be a founding member of the Galilee Blockade group. Around that time I was a shareholder activist against Aurizon as part of the Over Our Dead Bodies campaign. These were the earlier stages of the Queensland based environmental resistance against the development of the Galilee Basin coal complex.

As a member of Galilee Blockade I was focussed on strategy and capacity building for future blockades and direct actions in the Galilee Basin. I fell out with the Galilee Blockade group but maintained an interest in good strategy to inform direct action in the Galilee Basin.

My research into native title issues in the context of large scale coal mining development in the Galilee Basin – which I began tentatively in mid 2015 – was focussed on analysis of the ‘means of export’ and the economic position/agency of Traditional Owners in relation to the development of the Galilee Basin coal complex. At this time I was not conscious of the concept of ‘Aboriginal autonomy’ as articulated by Professor Ciaran O’Faircheallaigh from the School of Government and International Relations, Griffith University. (1)

I have moved from a position of support for stopping the development of the Galilee Basin coal complex ‘at all costs’ to a more nuanced position that takes account of the experience of Traditional Owners and their communities in dealing with the apparatus of the native title system. There is an inherent tension in valuing both Aboriginal autonomy and the prevention of destructive mining developments. It is my belief that in this tension lies the great challenge of decolonisation as it relates to all Indigenous and non-indigenous people. There is no value – in terms of decolonisation – in ignoring particular issues and groups of people when attempting to engage Indigenous and non-indigenous people in support of a particular agenda. Indeed, only thorough and honest assessments of the economic reality of all Traditional Owners as they engage or are excluded from engaging in the negotiation processes afforded to them by the native title system can we properly inform and underpin our fiduciary responsibility to Aboriginal people with regard to the institutions and corporations they are compelled to form and maintain.

Corruption and corporate failure occur in all modern cultural contexts, and as such the expression of these phenomena are a legacy of the post-colonial/colonised era in which our native system operates. Transparent agreement making must be supported by processes and information-giving that allow the general public and more specifically Traditional Owners who have been marginalised from their representative bodies to make assessments about the integrity and effectiveness of the native title system. In the following passages I will make the case that rather than being accountable, accessible and fair, the key institutions that make up the native title system fail to deliver justice through ineffective and poorly defined information-giving, lack of oversight and disclosure regarding negotiation processes, and significant bureaucratic/administrative/institutional failures in attempting to make the native title system navigable.

My involvement with the critical thinking collective Wrong Kind of Green (WKOG) began in 2014 after my first blog post on my blog called We Suspect Silence under my Twitter handle @empathiser. (2) The relationship has deepened since. The non-profit industrial complex (NPIC) critique is at the centre of WKOG’s entirely self funded work. Broadly, the non-profit industrial complex critique contends that through funding relationships with philanthropy, and through networked relationships with a broad range of government, corporate, and non-government institutions, the not-for profit sector effectively captures the efforts of Indigenous and non-indigenous activists for the benefit neo-liberal forces.

2. Auto-didactics and an unstructured methodology.

I subscribe to the understanding of intelligence articulated by anti-war activist Stan Goff in his 2007 essay ‘On Strategy, Tactics & Intelligence’.

Intelligence is information analyzed for its value to develop plans for action. Most of it, even in the world of government intelligence, doesn’t come from breaking codes or running agents — contrary to the media myths — but from information that is readily available to everyone. Basically, that means if we do intelligence gathering and analysis right, then ours is going to be as good as theirs… maybe better, since we don’t have bureaucratic ambitions and political agendas distorting ours as much.” (3)

My journey has been a learning one. I entered into this area only seeking to get to the truth and as such did not have a predetermined or structured plan. I have had to become an investigative journalist and a pundit to compliment my environmental activism, but it has been my determination to never forget or ignore the economic impacts on all Traditional Owners and their communities that has kept my eyes open. The depth and breadth of economic impacts on Traditional Owner communities and the nature of the negotiating processes that lead to key decision making events have only been revealed to me because I make a special effort of digging around to extract information that Traditional Owners are entitled to know but would otherwise be buried. The decision making events I have investigated – voting meetings, ILUA authorisation meetings, execution meetings – fall under the focus of the ‘Transparent Agreements’ proposals contained in the Reforms to the Native Title Act 1993 Options Paper. I will include information not published by the National Native Title Tribunal (NNTT) but derived from my investigative efforts in the section titled ‘My key themes and areas I spotlight’.

My phone calls to NNTT case workers and other staff helped me get clarification of basic elements of it’s information-giving and information architecture. I was always mindful of the experience of and challenges put before a claim group member who was marginalised from the negotiation process. I routinely asked myself “How much useful information could a blackfella get from calling the NNTT?”.

The process of finding the relevant ILUA documents was haphazard and involved many phone calls to NNTT staff. I encountered issues with information architecture, broken links, and a general lack of guidance for researchers in the online environment. As I outlined in my blog post titled ‘The National Native Title Tribunal: Arbiter or “record keeper”?’ some staff who deal with the public need to seek guidance about which non-privileged information in their possession can be provided to a member of the public. As a record keeper the NNTT is inconsistent.(4) Non-privileged information relating to ILUAs that I was told by one staff member would need to be provided in response to an email request, was freely provided over the phone by other staff members.

3. My key themes and areas where I shine a spotlight.

Rather than attend to the elements of the Native Title Act (NTA) and regulations, I will be presenting particular sets of information gathered since mid 2015, much of which is rarely, if ever, discussed in public forums.

(a) Theme one: Indigenous Land Use Agreements relating to the crucial Adani rail link to the Galilee Basin.

The North Galilee Basin Rail Project (NGBR) is the standard gauge rail project which was the subject of the Northern Australia Infrastructure Facility (NAIF) loan application. This was revealed to me during the inquiry conducted by the Senate Economics References Committee titled ‘Governance and operation of the Northern Australia Infrastructure Facility (NAIF)’. I analysed the revelations presented in this inquiry at length in my blog post titled ‘Confirmation that the North Galilee Basin Rail Project is the Adani rail project being considered by the Northern Australia Infrastructure Facility’.(5)

The NGBR is currently under development by Adani and is the crucial piece of export infrastructure without which the Galilee Basin coal complex could not be developed. As I highlight in my blog post titled ‘Unpacking the Galilee Basin shell game’ the project has been erroneously named the ‘Carmichael Rail Project’ by Adani Australia in the ‘Projects’ section of their website. (6) This is a contradiction of the actual name of the project which appears in the relevant Indigenous Land Use Agreement (ILUA) documents and in the Queensland Department of State Development project listings. One notable environmental organisation echoed this nomenclature in relation to the NAIF in December 2016. Greenpeace Australia Pacific published a document titled “OffTrack: Why NAIF can’t approve the Carmichael Rail Project’. (7)

By capitalising the words “rail” and “project”, both Adani and Greenpeace suggest a formal title for a project which in all official documents has a different name. The actual project name, the ‘North Galilee Basin Rail Project’, can be used as a targeted search term to direct researchers and the general public to documents that would show that negotiations, including voting meetings leading to signed ILUAs, took place between Adani and Traditional Owners in the second half on 2014. The absence of this name from popular discourse could be interpreted as a deliberate tactic to confound and mislead. Questions ought to be asked of Adani Australia and Greenpeace AP about their purpose in using a misleading title in this context.

Three key ILUAs relating to the NGBR have been signed without objection by the Juru, Birriah, and Jannga People’s representative bodies. These ILUAs were never discussed in any form, nor were the Traditional Owner representative groups mentioned by name in the New Matilda five part series titled ‘Killing Country’, which ostensibly focussed on native title issues in the Galilee Basin coal complex (though the Wangan and Jagalingou Traditional Owners Council was placed at the forefront of the story). These unreferenced pieces make no mention of the North Galilee Basin Rail Project. The authors, Kristen Lyons, John Quiggin, and Morgan Brigg were supported by the Global Change Institute at the University of Queensland to write the June 2017 report from which the New Matilda five part series follows on. The report is titled ‘UNFINISHED BUSINESS: ADANI, THE STATE, AND THE INDIGENOUS RIGHTS STRUGGLE OF THE WANGAN AND JAGALINGOU TRADITIONAL OWNERS COUNCIL’. (8)

(b) Theme two: Information giving and oversight of negotiation processes.

All the negotiation meetings in preparation for the registration of an ILUA come down to one or two voting meeting(s). After ascertaining that Adani had two rail projects, one of which was rarely ever named in the media or in government business, I was able to track down and identify – with the help of NNTT staff – the registered ILUAs that made the rarely-named (and sometimes mis-titled) rail project possible.

The below list is taken from my February 2017 blog post titled ‘Why is there so much silence around the North Galilee Basin Rail Project and related Indigenous Land Use Agreements?’. (9)

Indigenous Land Use Agreements applying to the North Galilee Basin Rail Project

QI2014/072 – Kyburra Munda Yalga Aboriginal Corporation RNTBC and Adani Mining North Galilee Basin Rail Project ILUA (10)

QI2014/080 – Birriah People and Adani Mining North Galilee Basin Rail Project ILUA(11)

QI2014/065 – Bulganunna Aboriginal Corporation and Adani Mining Carmichael North Galilee Basin Rail Project ILUA (12)

When I established through a 2014 Right to Information (RTI) disclosure that these ILUAs were significant to the development of the standard gauge rail project that is central to the Galilee Basin coal complex I began to develop a time line and identified key non-commercial-in-confidence data points that would help me ascertain if every effort was made to ensure that each claim group member was able to attend voting meetings on crucial ILUAs. (13) (14) My concern about voting meetings was driven by a single ABC regional article about Juru elder Carol Prior who stated that claim group members who were on Palm Island didn’t know about a crucial voting meeting. (15) She stated that she intended to object to the ILUA. No objection is recorded by the NNTT for any of the three ILUAs that I investigated. (16)

I determined that the dates when voting meetings occurred, the dates when voting meetings were advertised, and the dates when claim group members were notified of their right to object to an ILUA ought to published by the NNTT and be available to any member of the public. With these particular data points I would be able to ascertain if news paper ads had been placed and every effort had been made to notify claim group members.

After my initial requests for various advertising and voting dates was rejected by an NNTT case worker who suggested I write an email request, I decided to try other NNTT staff who were happy to provide me with what dates they were able to find. None were able to find any dates for advertising of authorisation/voting meetings. (17) I later returned to the first case worker with the data I had gathered and was told again that I should send through an email. I created a set of fields which included the data I had gathered and mistakenly did not specify that I was also requesting dates for the advertising of voting meetings. I received a reply to the email which included the dates of the authorisation meetings for each ILUA and an explanation that body corporate agreements – two of the three – did not require a public notification of intention to register an ILUA. (18) Having confirmed the voting meeting dates I was able to discern that for each of the three ILUAs the commencement date was also the date of the second of two voting meetings. My searches based on the execution dates provided by the NNTT case worker provided incomplete and interesting results.

Below are the data fields for voting meetings and advertising of notification periods. All of the information other than the tribunal numbers and registration dates was acquired or clarified through phone conversations and emails with NNTT staff in late 2016 and in 2017. (19) The execution dates for the Birriah and Jannga ILUAs (blue text) was provided via email with the NNTT case worker. (20)

Given the effort it took to gather unpublished dates for voting/authorisation/execution meetings I cannot see how the NNTT can effectively arbitrate a conflict over the delivery of a voting meeting if it does not acquire and retain information regarding the efforts made to ensure all claim group members have an opportunity to attend voting meetings and lodge objections. The lack of published information about meeting advertising dates, notification advertising dates, authorisation meeting dates signifies that the NNTT is neither actively providing oversight in regards to crucial authorisation meetings nor actively capturing and publishing non-commercially sensitive data that is relevant to marginalised Traditional Owners and other researchers.

Juru QI2014/072

Registered: 24/11/14

Votes: 05/08/14 and 16/09/14

Notification: 21/10/14 to 21/11/14

Advertised: Body Corporate Agreement. Not advertised in newspapers. No grounds for objections by claim group members.

Birriah QI2014/080

Registered: 24/04/2015

Votes: Agreement was executed by the parties between 27/09/2014 and 4/11/2014

Notification: 21/01/2015 to 21/04/2015

Advertised (notice of application to register an ILUA): 14/01/15

Jannga/Bulganunna QI2014/065

Registered: 05/01/15

Votes: Agreement was executed by parties on 4/07/2014 and 6/08/2014

Notification: 28/11/14 to 29/12/14

Advertised: Body Corporate Agreement. Not advertised in newspapers. No grounds for objections by claim group members.

Armed with the 6 execution dates for the three NGBR ILUAs I was able to find notices published in the Koori Mail on two dates in 2014. These notices relate to the Juru and Birriah people information sessions and/or authorisation meetings. I was not able to find public notices for the Jannga/Bulganunna authorisation meetings.

Juru

The July 30, 2014 public notice of information sessions in the Koori Mail for the Juru ILUA with Adani relating to the North Galilee Basin Rail Project lists August 5, 2014 as an information session date but not an authorisation meeting. No authorisation meeting dates are specified. No mention is made of any dates scheduled for the September 16 execution meeting.

Here’s is a statement from the July 30, 2014 public notice that clearly reinforces that the dates indicated are specifically for “information sessions”.

Under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) Kyburra cannot make a decision to enter into the ILUA unless it has consulted with and obtained the consent of the Juru People to enter into the ILUA. Kyburra must also consult with and consider the views of the native title representative body for the ILUA Project. Kyburra and Adani have organised a number of consultation and consent information sessions (Information Sessions) for the Juru People to attend for this purpose.” (21)

Birriah

There were three public notices of information sessions and authorisation meetings for the Birriah People placed in the Koori Mail on September 10, 2014.

The three public notices relating to Birriah information sessions, a reformulation meeting, and authorisation meetings carried similar headlines texts.

Public notice 1.

PUBLIC NOTICE OF AUTHORISATION MEETING TO CONSIDER PROPOSED INDIGENOUS LAND USE AGREEMENT (AREA AGREEMENT) UNDER THE NATIVE TITLE ACT 1993 (CTH)

Public notice 2

BIRRIAH NATIVE TITLE CLAIM GROUP NATIVE TITLE AUTHORISATION MEETINGS

Public notice 3

BIRRIAH PEOPLE NATIVE TITLE MEETING TO AUTHORISE INDIGENOUS LAND USE AGREEMENTS

Public notice 1 lists the authorisation meeting as September 27, 2014 while public notice 2 and 3 list the authorisation meeting as September 28, 2014.

Public notice 2 lists two meetings, the first of which is a reformulation meeting to change the apical ancestor list. The current and proposed apical ancestor lists are provided in all three notices.

Public notice 3 lists the start time of the authorisation meeting as 8.30am which is the same time listed in public notice 2 as the starting time for the reformulation meeting.

Public notice 2 outlines the order of proceedings as the reformulation meeting followed by the authorisation meeting for those still deemed to have an apical ancestor.

Meeting 2 – Meeting of the reformulated Birriah Native Title Claim Group If a decision is made to change the description of the Birriah Native Title Claim Group a further meeting of the re-formulated claim group will be held immediately following Meeting 1 for the purpose of authorising an Applicant to deal with all matters arising in relation to the Native Title Claim. Note: If the proposed amendments to the description of the native title claim group are authorised at Meeting 1, then only persons who fall within the re-formulated claim group description may participate in Meeting 2.” (22)

No mention is made in the Birriah public notices of any authorisation meetings scheduled for November 4, 2014.

A public notice announcing that an application to register an area agreement on the Register of Indigenous Land Use Agreements was issued in the Koori Mail on January 14, 2015. Here’s a quote from that notice indicating the a Birriah Traditional Owner could not make an objection to the registration of an ILUA in this particular circumstance unless they made a registered native title determination application during the notification period.

Responses to an application to register an ILUA—where the application has not been certified: Because this application for registration of the agreement has not been certified by the Representative Aboriginal/Torres Strait Islander Body/ies for the area, there is no opportunity to make a formal objection to its registration. However, if you claim to hold native title in relation to any of the land or waters covered by this agreement, you may wish, within the notice period, to make a native title determination application or equivalent application under a law of a state or territory in respect of any part of the area. The application must be made by 21 April 2015. If that application is registered on the Register of Native Title Claims, the registered native title claimants must be a party to this agreement before it can be registered.” (23)

(c) Theme three: Non PBCs/RNTBCs making ILUAs.

I’ve identified two occasions in the negotiation of ILUAs relating to the development of the Galilee Basin coal complex when Traditional Owners have been represented in ILUA negotiations by groups that are not the claim group, Prescribed Body Corporate (PBC) or the Registered Native Title Body Corporate (RNTBC).

This raises some serious questions about the oversight of the NNTT. While I’m no expert on native title, it seems to me that the claim group ought to be represented by bodies that are subject to regulation by the Office of the Registrar of Indigenous Corporations (ORIC) and were incorporated for the specific purpose of making native title claims and negotiating with parties on behalf of the claim group defined under the native title system.

Juru Enterprises Limited

Juru Enterprises Limited made an ILUA with Adani in January of 2014. The Juru RNTBC, KMYAC were not a party to this ILUA.

The title of the ILUA is ‘Juru People and Adani Abbot Point Terminal ILUA’. NNTT number: QI2013/036 (24)

Juru Enterprises Limited and Kyburra Munda Yalga Aboriginal Corporation are currently in pre-hearing case management in the Federal Circuit Court of Australia.

Case management hearings are being presided over by Justice Steven Rares. (25)

From my research only Geoff Egan, a reporter from Central Queensland is the only person to write about these proceedings in a piece titled ‘Juru missed out on $1m from Adani: court’. (26)

The Queensland Department of State Development Annual Report 2016/17 mentions Juru Enterprises Limited.

Work is also continuing with the local native title group, through Juru Enterprises Limited, to provide further skills and capacity building while undertaking land management activities within the Abbot Point SDA.” (27)

WJ Corporation

Kate Arnautovic’s honours these provides are very useful background on negotiations between the Wangan and Jagalingou People and Adani. The quote below should interest anyone who is concerned with transparent agreement making during the pre-determination phase.

In December 2012, Adani attempted to sideline the authority of the applicants and seek authorisation from the Wangan and Jagalingou Traditional Owners Aboriginal Corporation (WJ Corporation). The WJ Corporation is a representative body with a board of Wangan and Jagalingou family representatives (Adani Mining v. Jessie Diver & Others, 2013). While its membership is comprised of many Wangan and Jagalingou claimants, it also represents people who are not claimants. Patrick Malone told the NNTT that the membership of the WJ Corporation included ‘large numbers’ of people who were not descendants of the 12 families that constitute the claim group (Adani Mining v. Jessie Diver & Others, 2013).” (28)

References

(1) O’Faircheallaigh, Ciaran. ‘Mining royalties and Aboriginal autonomy’. Distinguished Lecture presented by the School of Government and International Relations, Griffith University. 9 August 2017 (Broadcast ABC Radio National: September 13, 2017).

http://www.abc.net.au/radionational/programs/bigideas/mining-royalties-and-aboriginal-autonomy/8808038

(2) Swifte, Michael. ‘Australia’s climate movement has been bought for a pittance.’ Blog: We Suspect Silence, May 13, 2014.

https://wesuspectsilence.wordpress.com/2014/05/13/australias-climate-movement-has-been-bought-for-a-pittance/

(3) Goff, Stan. ‘On Strategy, Tactics & Intelligence’. Huffington Post: The Blog.

Originally published February 1, 2007. Updated May 25, 2011.https://www.huffingtonpost.com/stan-goff/on-strategy-tactics-intel_b_40222.html

(4) Swifte, Michael. ‘The National Native Title Tribunal: Arbiter or “record keeper”?’ Blog: We Suspect Silence, May 10, 2017.

https://wesuspectsilence.wordpress.com/2017/05/10/the-national-native-title-tribunal-arbiter-or-record-keeper/

(5) Swifte, Michael. ‘Confirmation that the North Galilee Basin Rail Project is the Adani rail project being considered by the Northern Australia Infrastructure Facility’. Blog: We Suspect Silence, September 8, 2017.

https://wesuspectsilence.wordpress.com/2017/09/08/confirmation-that-the-north-galilee-basin-rail-project-is-the-adani-rail-project-being-considered-by-the-north-australia-infrastructure-facility/

(6) Swifte, Michael. ‘Unpacking the Galilee Basin shell game’. Blog: We Suspect Silence, December 24, 2017.

https://wesuspectsilence.wordpress.com/2017/12/24/unpacking-the-galilee-basin-shell-game/

(7) Greenpeace Australia Pacific. ‘Off Track: Why NAIF can’t approve the Carmichael Rail Project’. December 2016.

https://d68ej2dhhub09.cloudfront.net/2021-Off_Track_-_Why_NAIF_can%E2%80%99t_approve_the_Carmichael_Rail_Project_(web_version).pdf

(8) Lyons, Kristen, Brigg, Morgan, and Quiggin, John. ‘UNFINISHED BUSINESS: ADANI, THE STATE, AND THE INDIGENOUS RIGHTS STRUGGLE OF THE WANGAN AND JAGALINGOU TRADITIONAL OWNERS COUNCIL’. 2017.

http://earthjustice.org/sites/default/files/files/Unfinished-Business.pdf

(9) Swifte, Michael. ‘Why is there so much silence around the North Galilee Basin Rail Project and related Indigenous Land Use Agreements?’. Blog: We Suspect Silence, February 17, 2017. https://wesuspectsilence.wordpress.com/2017/02/17/why-is-there-so-much-silence-around-the-north-galilee-basin-rail-project-and-related-indigenous-land-use-agreements/

(10) National Native Title Tribunal: Register of Indigenous Land Use Agreement Details. ‘QI2014/072 – Kyburra Munda Yalga Aboriginal Corporation RNTBC and Adani Mining North Galilee Basin Rail Project ILUA’. November 24, 2014.

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=QI2014/072

(11) National Native Title Tribunal: Register of Indigenous Land Use Agreement Details.

‘QI2014/080 – Birriah People and Adani Mining North Galilee Basin Rail Project ILUA’. April 24, 2015.

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=QI2014/080

(12) National Native Title Tribunal: Register of Indigenous Land Use Agreement Details.

‘QI2014/065 – Bulganunna Aboriginal Corporation and Adani Mining Carmichael North Galilee Basin Rail Project ILUA’. January 5, 2015.

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=QI2014/065

(13) Queensland Treasury: RTI disclosure log – 2016 and earlier. RTI 493. Disclosure made to Jeremy Tager at the North Queensland Conservation Council. Released December 17, 2014.

https://www.treasury.qld.gov.au/about-treasury/right-to-information/previous-disclosure-log-php/

(14) Swifte, Michael. ‘Only a “standard gauge” rail line will deliver the economies of scale to open up the Galilee Basin’. Blog: We Suspect Silence. April 14, 2017.

https://wesuspectsilence.wordpress.com/2017/04/14/only-a-standard-gauge-rail-line-will-deliver-the-economies-of-scale-to-open-up-the-galilee-basin/

(15) Roe, Isobel. ‘Native title holders lodge objection to proposed North Galilee Basin rail project’. ABC News. October 20, 2014.

http://www.abc.net.au/news/2014-10-20/native-title-holders-lodge-objection-to-proposed/5826168

(16) Pers, Comm,. NNTT. May 10, 2017.

(17) Pers, Comm,. NNTT. May 10, 2017 and May 23, 2017.

(18) Pers, Comm,. NNTT. October 18, 2017.

(19) Pers, Comm,. NNTT. (multiple occasions in late 2016 and 2017).

(20) Pers, Comm,. NNTT. October 18, 2017.

(21) Koori Mail. Ed 581. July 30, 2014.

https://aiatsis.gov.au/sites/default/files/docs/digitised_collections/the_koori_mail/581.pdf?width=900&height=800&iframe=true

(22) Koori Mail. Ed 584. September 10, 2014.https://aiatsis.gov.au/sites/default/files/docs/digitised_collections/the_koori_mail/584.pdf?width=900&height=800&iframe=true

(23) Koori Mail. Ed 592. January 14, 2015.https://aiatsis.gov.au/sites/default/files/docs/digitised_collections/the_koori_mail/592.pdf?width=900&height=800&iframe=true

(24) National Native Title Tribunal. Extract from Register of Indigenous Land Use Agreements. ‘Juru People and Adani Abbot Point Terminal ILUA’. January 20, 2014.http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/ILUA%20Register/2013/QI2013.036/ILUARegisterExport.pdf

(25) Federal Court of Australia, Queensland Registry. File number: QUD244/2017. JURU ENTERPRISE LIMITED v ADANI AUSTRALIA COMPANY PTY LTD ABN 87 163 221 609 AS TRUSTEE OF ADANI AUSTRALIA HOLDING TRUST& ANOR. Updated February 8, 2018.https://www.comcourts.gov.au/file/Federal/P/QUD244/2017/actions

(26) Egan, Geoff. The Morning Bulletin. ‘Juru missed out on $1m from Adani: court’.June 1, 2017. https://www.themorningbulletin.com.au/news/juru-missed-out-on-1m-from-adani-court/3184689/

(27) Queensland Government. Department of State Development. Annual Report 2016-2017.http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2017/5517T1706.pdf

(28) Arnautovic, K. (2017). Resources, race and rights: A case study of Native Title and the Adani Carmichael coal mine. Retrieved fromhttp://ro.ecu.edu.au/theses_hons/1503

The Invisiblised Struggle of an Ally: Who Will Take Notice of ORIC’s ‘Show Cause’ Letter to *KMYAC?

We Suspect Silence

September 3, 2017

by empathiser

 

*Kyburra Munda Yalga Aboriginal Corporation 

 

This is an article about two stories that tell a little of the struggles of a group of native title holders who’ve become marginalised from the corporation their people were compelled to form in order to make a claim on their traditional lands and negotiate for the protection of important places, access to country, and a stake in the economic development of the region. What makes these two stories important is that they are all that exists in the mainstream, alternative, and environmental media in Australia. This is in spite of the fact that this struggle revolves around a controversial mining company and a very controversial proposed rail line that will ensure that the largest coal complex in the world can be opened up. Negotiations over land use agreements for the proposed rail line were held under the threat of compulsory acquisition and subject to the usual unequal and opaque processes that native title holders are made subject to under the Native Title Act.

The bodies responsible for arbitrating and regulating Indigenous corporations play a part in my article. Much of the information I gathered from them was hard-won. I can’t say that either the arbitrator or the regulator prioritise information giving or have consistent practices/knowledge organisationally. They certainly are not geared up to support a blackfella marginalised from their Indigenous corporation. The ‘show clause’ letter mentioned in the title is the regulator’s third attempt at compelling the Indigenous corporation to cooperate and allow their dealings with the controversial mining company to be put under scrutiny.

Photo: Counteract

A largely ignored story

On October 20, 2014 the ABC published a story by Isobel Roe titled ‘Native title holders lodge objection to proposed North Galilee Basin rail project’. 

Here’s the opening line of the story:

The Juru people are the traditional owners of land that Adani Mining is using to build the North Galilee Basin rail project.

The second line explains how there exist allegations of poor information giving around negotiations over an Indigenous Land Use Agreement (ILUA) with Adani:

They said most of the traditional owners did not know what Adani’s plans were and were unable to attend information meetings, including a forum in Townsville.

The third line explains what action Carol Prior and her fellow native title holders were going to take:

Chairwoman Carol Prior said they were lodging an objection with the Native Title Tribunal because they had not been properly consulted.

In my conversation with an unnamed National Native Title Tribunal (NNTT) employee on May 23, 2017 I was able to gather information relating to Adani/NGBR ILUAs that for unknown reasons is not available on the NNTT website or anywhere else. I was told that following the second vote on the ILUA that is listed with the NNTT under tribunal number QI2014/072, a ‘notification’ period of one month starting Oct 21, 2014 was made available for to lodge objections to the ILUA. I was told by the NNTT employee that no objection was lodged. Not only was there no objection lodged by Carol Prior or her fellow native title holders, but no objections were lodged against any of the three ILUAs relating to the North Galilee Basin Rail Project (NGBR) that were voted on, lodged, and registered between August 2014 and April 2015.

For background on the NNTT see my blog post titled ‘The National Native Title Tribunal: Arbiter or “record keeper”?’.

Another largely ignored story

On Oct 21, 2016 the Townsville Bulletin published a story by Samantha Healy titled ‘Calls for Aboriginal corporation to hand over its books’.

The story outlines how Carol Prior and fellow KMYAC members have made a complaint to the regulator of Aboriginal corporations which involves allegations of mismanagement and “financial irregularities” relating to payments from Adani amounting to more than 2 million dollars.

The story quotes the complaint document:

“It is our submission that Kyburra has actually received monies from Adani Mining Pty Ltd during 2014-15 in the amount of $1.225 million.”

and

“In addition, a Cultural Heritage Management Plan is in place and Adani transferred $825,000 to Kyburra for cultural heritage survey activities.”

I first called ORIC on April 19, 2017 and was told that ORIC had received a report from the examiner and would publish something in “3 weeks”. I called ORIC again on May 1 and confirmed that “May 10ish” was the date when something would be published. On May 15 I called ORIC again and spoke to a case manager who read sections of what I’ve now come to discover was the draft report from the first examiner appointed in September 2016. A senior ORIC media officer would not confirm the voracity of any of the quotes I took from my conversation with the case manager. I cover this phone call in my blog post titled ‘ORIC to redo examination into Indigenous corporation involved in negotiations with Adani’.

Here’s a section from that blog post with quotes from the case manager reading from the draft examination:

The case manager explained to me that because the first examination “wasn’t completed properly” due in part to instances when the examiner was “unable to access the [Indigenous] corporation” and unable to access “other” parties. The case manager also revealed “we had issues obtaining information”. 

I put some questions to the senior ORIC media officer via email and was able to confirm that an incomplete draft examination report was submitted to ORIC on March 6, 2017.

Here’s a quote from the ORIC senior media officer on July 31, 2017:

On 6 March 2017 Mr James Barrett lodged with ORIC a draft examination report which was incomplete. A final examination report was never lodged with ORIC.

Between March 6 and May 10 ORIC decided that they would need to appoint a new examiner and when they posted the new Notice of Examination they removed the previous notice. The senior media officer would not explain why the the old notice was removed.

Corporate Failure

In June, 2017 I had an in depth conversation with Dr James Swansson, author of a research paper prepared for ORIC called ‘Analysing key characteristics in Indigenous corporate failure’. Dr Swansson indicated that the data he used was at least 10 years old and the research paper itself was published in 2010.

The research paper outlines the types of corporate failure and the role of ORIC in regulating and responding to various circumstances that Indigenous corporations may encounter. I explained the context of the examinations into KMYAC to Dr Swansson and was advised that KMYAC would likely fail to cooperate with the second examiner.  This is precisely what the release by ORIC on August 25, 2017 of a ‘show cause’ letter threatening “special administration” demonstrates has happened. ORIC are exercising their powers under the CATSI ACT in response to repeated refusal by KMYAC to cooperate with the appointed examiner.

Here’s a quote from the ‘show cause’ letter issued by Ruth Jones, Delegate of the Registrar of Indigenous Corporations:

I am writing to tell you that I am considering putting the Kyburra Munda Yalga Aboriginal Corporation RNTBC (ICN 7581) (the corporation) under special administration under Division 487 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).

An Aboriginal corporation charged with negotiating an ILUA with Adani over a rail corridor that is widely reported to be the rail corridor earmarked for a I billion loan from the Northern Australia Infrastructure Facility (NAIF) is alleged to have received upwards of 2 million dollars from Adani in 2014/15 without disclosing those funds in published financial statements. This Aboriginal corporation has failed to cooperate with two examiners, the first a solo operator, and the second a large firm with offices in Townsville.

Carol Prior has carried her message of voting irregularities and mismanagement of negotiating processes over a crucial ILUA from her Oct 2014 interview to her Oct 2016 ORIC complaint. In the intervening period she has been involved in media and events associated with various conservation organisations and environmental NGOs. They’ve mentioned her name and spoken of how they want to protect her country, they asked her to sign their open letters and attend their events, they call her “Aunty” but they’ve never share any of what you just read. No spokesperson, journalist, activist, or blogger has ever published anything outside of the two largely ignored stories I just shared with you.

 

 

 

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