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While Resources Minister Matt Canavan insists Adani has the full support of the Wangan and Jagalingou people, the legitimacy of a land agreement with the mining giant is the subject of a Federal Court appeal. By Mike Seccombe.

Matt Canavan hijacks native title fight on Adani

Just before 1pm on Tuesday, most media attention in Parliament House was focused on the government’s historic embarrassment on medical evacuations of asylum seekers. So, relatively few were there to witness another embarrassment, in the senate courtyard.

Resources Minister Matt Canavan, chief government advocate for the coal industry in general and the Adani Carmichael mine in particular, had called a media conference with representatives of the Wangan and Jagalingou people, traditional custodians of the land Adani wants to mine.

Its purpose was to promulgate the line that the traditional custodians overwhelmingly support the giant coalmine. To that end, Canavan, along with his National Party colleagues Michelle Landry and George Christensen, had invited a member of the W&J people to spruik the benefits of the mine.

W&J spokesperson Patrick Malone began to speak of the employment benefits and alluded to a 294–one vote by traditional custodians in favour of the establishment of an Indigenous Land Use Agreement (ILUA) with Adani.

But Canavan’s plan quickly went off the rails as other members of the W&J people crashed the media conference. W&J representative Murrawah Johnson interjected that it was “not appropriate” for Malone to be speaking for them, given the agreement is still subject to legal action.

Things grew heated. Canavan exited the scene – although Christensen and Landry lingered – while the representatives of the competing W&J factions argued.

So much for Canavan’s attempt to create for the media an illusion of Indigenous consent.

The fact is the native title holders of the land, like the rest of the nation, are divided over the Adani project. Indeed, they are far more divided – families are riven, lawyers are engaged in multiple cases, all manner of claims of dirty tricks regarding financial matters and other impropriety are alleged, and individuals’ legitimacy as title holders are being questioned. Now even the United Nations is involved.

And who has fomented all this discord? According to Canavan, who penned an opinion piece for The Australian this week, it is the work of environmentalists. Except Canavan did not call them environmentalists. He did not even refer to the environment, or the reason that a huge number of Australians oppose the opening up of the Galilee Basin coal deposits of central Queensland – that it would result in the release of billions of tonnes of greenhouse gases into the atmosphere, and greatly exacerbate climate change.

Canavan compared the mine’s opponents to “19th-century British imperialists”, and said “a bunch of far-removed activists is trying to tell First Australians what they can and can’t do on their own land”.

“Whatever you think of coal,” he concluded, “we should resist such an attempt to entrench this modern form of colonialism.”

Canavan’s argument rested on the same statistic quoted in Monday’s messy media conference – a vote of 294 to one by the W&J people in favour of the land use agreement. The resources minister contextualised the vote emotively, referring back to a November 27, 1861 massacre of at least 60 Wangan and Jagalingou people – likely many more – by white settlers. Survivors, Canavan said, were “dispersed to missions, often hundreds of kilometres away”.

He continued: “Almost three years ago, their descendants convened in Maryborough to consider whether they would support the Adani Carmichael coal project on their traditional lands. They voted 294 to one in favour of the project.”

But the truth is not nearly so simple. In fact, there have been multiple votes, producing different outcomes. And despite what Canavan says, there is no doubt that many more than one of the traditional custodians of the land Adani wants to mine oppose giving it to the company.

Anthony Esposito, a verteran environmentalist who has worked for the Wilderness Society and is an adviser to the Wangan Jagalingou Family Council, which opposes the mine, complains the votes only seem to count when they favour development.

“In 2012 there was a decision by the claim groups to reject the ILUA. Similarly, they rejected it in 2014. After those two ‘no’s’ the Queensland government issued the mining leases, without consent,” he says.

In reality, he says, by April 16, 2016 – the time of the “yes” vote of which Canavan speaks – opponents of the mine had made their position plain on multiple occasions, and seen their decisions ignored. They also believed that people working for Adani had stacked the numbers. The claim, denied by the company, was that some W&J people were paid to recruit votes, including from other Indigenous groups. They say the reason the result of that vote was so apparently overwhelming is that genuine W&J opponents of the mine chose not to attend.

Some of those who did vote for the ILUA held the belief they had been backed into a legal corner, and that the only way to get any benefit for their people was to agree to the mine.

A year before that vote, the National Native Title Tribunal had authorised Adani’s mining leases on the basis the mine would have a positive economic impact and was in the public interest. Less than two weeks before the vote, as Esposito says, the Queensland minister for national resources and mines, Dr Anthony Lynham, approved three mining leases.

As Tony McAvoy, SC, Australia’s first Indigenous silk, a specialist in land rights law and a W&J traditional custodian, told a conference in Brisbane last July, the system is stacked against Indigenous peoples when it comes to negotiating land use agreements. It was very rare for the Native Title Tribunal to reject a mining proposal.

“The system, the native title system,” he said, “coerces Aboriginal people into an agreement. It’s going to happen anyway. If we don’t agree, the native title tribunal will let it go through, and we will lose our land and won’t be compensated either. That’s the position we’re in.”

Speaking to The Saturday Paper this week, McAvoy said his criticism was not of the Native Title Tribunal per se, but of the legislation under which it works, the Native Title Act.

“There is a provision in the act that requires proponents in mining developments to consider compensation by reference to production volumes – that is, royalties,” he said.

“But there’s another provision that says that if the parties can’t agree, it goes to an arbitral body to determine it – the Native Title Tribunal – and the tribunal cannot make orders for those payments.

“The lawyers on both sides know those limitations, and so do the miners. The general understanding is that if you disagree, you aren’t going to get those payments.”

Put bluntly, those provisions present Indigenous people – not only the W&J people but all native title holders dealing with mining companies – with Hobson’s choice. They can either agree to an ILUA, in which case the mine goes ahead and they get something out of it, or they can refuse, in which case the mine almost certainly goes ahead anyway, and they get nothing.

No doubt that consideration played on the minds of those who voted in favour of the ILUA in 2016. Even Patrick Malone, whom Canavan brought to parliament this week, has complained repeatedly that the system was stacked in favour of miners, and that he and others were coerced into their decision.

In 2015, before the vote, he told Fairfax Media he was resigned to the mine going ahead and was trying to get the best result for his people.

“We’re looking at an end game here and the end game is to make sure that we get our native title determination,” Malone told the Brisbane Times.

“If we’d have gone into this thing where we’re going to lose, they would have used that against us having our native title rights recognised.”

In 2017, just after the land use agreement was registered, Malone again spoke of the duress under which he and his fellow native title claimants had been placed – this time by the Queensland government, on behalf of Adani.

“Each of us applicants got a letter from the co-ordinator-general saying because we weren’t willing to engage with certain people, they were preparing to start proceedings to extinguish native title against all Wangan Jagalingou country,” he said.

“The seven [out of 12 representatives of the W&J native title claimants] of us decided it’s all about having our native title recognised, so we went back to Adani and said we’re willing to negotiate ILUA with you.”

Of the original 12, one claimant, Craig Dallen, has since withdrawn his support, leaving the group evenly split.

But Professor Sarah Maddison of Melbourne University – whose forthcoming book, The Colonial Fantasy, analyses the shortcomings of the native title system – says the decision taken at that April 2016 meeting did not amount to a free, democratic and overwhelming expression of the will of the Indigenous custodians, as Canavan portrays it. Rather, it was the result of “a divide and conquer strategy”.

The mining company and its political backers engaged in a process of “manufacturing consent by exploiting dissent”.

Had the ILUA not been agreed, Maddison says, the Queensland government could have compulsorily acquired the land for the Adani project.

Of course, as Esposito says, the state would prefer not to have to do that, “because then the cost of compensation and moral opprobrium of extinguishing Aboriginal people’s rights would fall on the state”.

So far, the government has not done that, for a few reasons. Doubts remain about the financing of the project, and W&J opponents of the mine are still pursuing legal action.

A full accounting of the court actions resulting from the divisions among traditional custodians would take books to tell. Suffice to say the opponents of the Adani project have fought every step of the way. And lost.

When once it seemed a win was possible, the federal government snatched it from them. The prospect of stopping the Adani mine arose as the result of a challenge in the Federal Court to an ILUA in Western Australia in which the court determined – in what is known as the McGlade decision – that to have standing the agreement required the signature of all native title claimants, rather than just some of them.

“As of the moment of that judgement,” says Esposito, “the Adani ILUA was as good as dead.”

But the federal government revived it, with rare haste. As Maddison says in her book: “In an effort to protect the Adani deal, less than two weeks after the McGlade decision the federal government introduced the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017” to close that loophole in the law.

Still the W&J opponents of the ILUA persist.

In July 2018, Tony McAvoy said the current system, by providing for mining developments to proceed without consent from traditional custodians, was racially discriminatory, and inconsistent with the United Nations’ declaration on the rights of Indigenous peoples, which states land not be dispossessed without “free, prior and informed consent”.

The following month, the W&J Family Association put its case to the UN’s Committee on the Elimination of Racial Discrimination. In December, the committee contacted the Australian federal government, through our UN ambassador, expressing its concern that consultation on Adani’s ILUA “might not have been conducted in good faith”.

The committee echoed McAvoy’s criticism and referenced the government’s response to the McGlade decision. It questioned whether the proposed agreement, which would extinguish an agreement of native title rights over 27,750 hectares of land, reflected the “free, prior and informed consent of all [W&J] representatives”.

It urged Australia to “consider suspending” the Adani agreement until consent was given by “all Indigenous peoples, including the Wangan and Jagalingou Family Council”, and sought a formal response from the government by April.

Canavan responded informally, and intemperately, in his piece for The Australian.

The “gullible” committee had fallen for a line of “hogwash” peddled by the neo-imperialist activists, he wrote. He complained that the UN committee had failed to mention the 294-to-one outcome of the Maryborough meeting.

“The resulting Indigenous Land Use Agreement has already withstood a legal challenge in the Federal Court, a fact to which the UN seems blind,” he wrote.

Which is true. But the challenge he refers to, and the resulting decision by Justice John Reeves to back the ILUA, is also currently under appeal to the full bench of the Federal Court, much to the chagrin of Adani.

The multinational mining company is playing a very hard legal game. In December, it began proceedings to bankrupt Adrian Burragubba, a Wangan and Jagalingou opponent of the mine, claiming more than $600,000 in legal costs the company incurred in contesting various past unsuccessful legal actions to which he had been party.

Adani also sought to stymie the current appeal by asking the court to require W&J opponents come up with $161,000 security against its legal costs.

Says Esposito: “They tried to use the security of costs issue to knock us out, and it hasn’t worked. Justice Robertson allowed only $50,000 security against costs.”

The case may still have fallen over – $50,000 is a great deal of money for these “impecunious” claimants, as Adani describes them – save for the intervention of civil society group, the Grata Fund.

Grata is a charity and a funder of public interest litigation, focusing on issues of democracy, climate change and racial justice. It agreed to provide the security.

“So,” says Esposito, “we have succeeded in getting UN intervention, we secured an appeal in the full Federal Court, with the help of the Grata Institute. Plus we got the added benefit of Justice Robertson saying there was an arguable case of error [in the Reeves judgement]. These are significant things.”

But the appeal is yet to be heard. In essence, the claim being made is that the Maryborough meeting was a sham – stacked by Adani with people who were never entitled to vote.

The appeal contends that Reeves erred by rejecting the proposition that the Native Title Act required “reasonable efforts” to be made to identify which people actually held native title to the ILUA area.

Questions of Aboriginal identity are always tricky, and they are all the more so in this case, because – as Canavan himself noted in his opinion piece – the Wangan and Jagalingou people were removed from their country by white settlers generations ago, and widely dispersed.

Says Esposito: “Of the 294 votes in favour, by our analysis about 60 per cent aren’t W&J identified people. We think our prospects are pretty good.”

The appeal is expected to be heard in May. The docket should read “David v Goliath”, given the relative resources of the parties involved. On one side the multibillion-dollar mining conglomerate, backed by the federal government and aided by a legislative regime skewed in its favour, and on the other, a relative handful of impecunious Indigenous custodians.

It’s a big case, not only for the W&J people, but for an entire, overheating planet.

This piece was modified on February 22, 2019, to state Anthony Exposito's work for the Wilderness Society.

This article was first published in the print edition of The Saturday Paper on Feb 16, 2019 as "Canavan hijacks native title fight on Adani". Subscribe here.

Mike Seccombe
is The Saturday Paper’s national correspondent.