Adani, native title and risky strategies
Adrian Burragubba is the key litigant against the Carmichael mine in Central Queensland right now. He has a right to be a litigant, but during the past decade he has in my opinion put at risk the native title rights of the majority of the traditional owners of the area more than once, and the native title rights of Aboriginal people across the country.
Few people understand that the Native Title Act provides important Indigenous rights – the right to negotiate and statutory agreement-making processes. These rights would be meaningless without the McGlade amendments passed by the senate on June 13 this year.
These rights are the closest thing we have to the Canadian constitutional indigenous right, the right of First Nations to be consulted, and their modern treaty or comprehensive agreement rights. These are powerful rights, but outcomes from negotiations, if they are to be meaningful, must be secured in binding agreements, such as the Indigenous Land Use Agreements that Burragubba’s litigation and strategies have put at risk. Three hundred Wangan and Jagalingou people who voted for an Indigenous Land Use Agreement in relation to the Carmichael mine owned by Adani, and their voices which have not been heard in the media, will now, like hundreds of other native title groups, be able to register their agreements.
Burragubba’s strategy was to organise his minority faction of Wangan and Jagalingou people, conservationist activists and the Greens party to oppose the McGlade amendments to the Native Title Act. Some politicians from both the Coalition and Labor misleadingly dubbed them the “Adani” amendments. I was relieved when it was announced that the senate had passed them. The McGlade amendments were drafted in response to the decision handed down by the full bench of the Federal Court in February this year. It invalidated between 120 and 150 registered Indigenous Land Use Agreements (ILUAs) that were not signed by all members of the Registered Native Title Corporation, including members who were deceased. As barrister Angus Frith says in his case note, other agreements were also affected.
The government initially acted quickly. Two weeks after the Federal Court decision, legislation designed with the intention of overturning these impacts of the McGlade decision – the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 – was passed by the house of representatives. On February 16, the senate referred an inquiry into the bill to the senate legal and constitutional affairs legislation committee. Aboriginal groups, particularly from Cape York, stated that they were not satisfied with the bill, and wanted further changes.
Without these or very similar amendments, every mining company and native title group that is party to an ILUA would have been caught in limbo with an invalid agreement or facing enormous costs. The decision, unless overturned by legislation, required them to engage in costly procedures to ensure that all named applicants are parties to, and execute, the agreement. In circumstances where named applicants have passed away or refuse to sign, the claim group would need to replace the applicant. In relation to applicants who were not willing to execute the agreement, even in the face of a direction to do so by the claim group at their authorisation meeting, special procedures would have been needed.
I have been reported in the media as supporting the Carmichael mine proposed by Adani in central Queensland. This is not correct. What I objected to is what I see as the challenge our native title rights posed by opponents of the McGlade amendments. Put simply, they were demanding that thousands of Aboriginal traditional owners who had successfully negotiated and registered ILUAs in the past 20 years sacrifice their native title rights and their agreements so that Burragubba and his small group could continue to litigate against their own native title group and the three others who had settled terms with Adani.
The traditional owner or native title groups are the Juru, Jaeggi, Berrimah, and the group that Burragubba and his adviser, Tony McAvoy QC, are members of, the Wangan and Jagalingou people. All of these groups have traditional lands in central Queensland. The group to which Burragubba claims allegiance negotiated an ILUA, and at the critical meeting, as confirmed by a court of law, the members voted 294-1 in favour of approving it.
The Wangan and Jagalingou group are the original claimants. This first group lodged a native title claim in the Federal Court on May 27, 2004, and it was duly registered as a native title claim in July that year. The claim area lies “on the western edge of central Queensland and includes the townships of Clermont, Alpha, Rubyvale and Capella”. It is located at least 400 kilometres inland from the coast and, as Justice Reeves noted, it includes the area where Adani proposes to develop the Carmichael coalmine. An “authorisation” meeting of those claimants of the group was held on June 21, 2015, and the following were authorised as claimants to act on behalf of the group: Adrian Burragubba, Patrick Malone, Irene Simpson, Lyndell Turbane, Craig Dallen, Linda Bobongie, Delia Kemppi and Lester Barnard.
Then on May 4, 2016, Adrian Burragubba applied to the court to have four of these people dismissed and replaced with another four people. Justice Reeves dismissed his application on April 11, 2017. His reasons were clear: the notice issued by Burragubba and his minority faction was designed to ensure that only those Wangan and Jagalingou claimants who agreed with him received the notice and the majority of the Wangan and Jagalingou claimants were excluded.
So far, I have come across perhaps three or four Wangan and Jagalingou representative groups. In addition to the applicant group registered with the Native Title Registrar and confirmed in the Federal Court case decided by Justice Reeves, there is the Wangan Jagalingou Traditional Owners Corporation. Then there is the Wangan Jagalingou Aboriginal Corporation. It appears this corporation is also called the Wangan and Jagalingou Family Council, as per its Facebook page. Then there is the Wangan and Jagalingou Traditional Owners’ Council, which does not appear to be incorporated.
Who is funding the Adrian Burragubba group’s litigation? One grant came from the Rainforest Action Network, based in San Francisco, California, with the purpose of paying for “activists to embark on an international tour to meet with major banks and Indigenous community and NGO allies as part of the Wangan and Jagalingou peoples’ campaign to prevent Australia’s largest coalmine from being established on ancestral land”.
Another donor to Burragubba and McAvoy’s group is Graeme Wood, founder of Wotif.com and financial backer of Guardian Australia. Wood helped set up a company structure for the Wangan and Jagalingou families’ opposition to the development of Queensland’s Galilee Basin and also offered ongoing financial support for a body referred to as the Wangan and Jagalingou Families Representative Council. An offer to this council was made in 2014 by The Sunrise Project, co-founded by Graeme Wood, to have a Brisbane office established, along with an initial payment of $325,000 over 12 months to help start a community development program to “explore alternatives to mining on their country” and a scholarship program linked to the University of Queensland worth $600,000 over five years. The heads of agreement endorsed The Sunrise Project to help provide funding to the Wangan and Jagalingou people, including Adrian Burragubba, although it said that funding could be taken away if negotiations with Adani were re-entered. Burragubba has also used activist organisation GetUp! to help raise funds for the legal challenge against Adani.
The Greens party senators who voted against the amendments were exploiting the vulnerabilities of the Native Title Act and threatening our established native rights to pursue an anti-coal agenda. Fortunately, common sense has prevailed with the McGlade amendments passed in the senate. As a result traditional owners’ right to have a majority vote on agreements rather than the utter impossibility of a unanimous vote is now law. In other words, one or a few native title applicants are now not able to disqualify a lawful agreement settled by the majority of the members of their group by playing green lawfare politics.
In an ideal world, Aboriginal traditional owners should have a right to veto mining or any other development project. However, the Native Title Act does not give us that right, and stops well short of a veto by offering a “right to negotiate”. This frail right was put at risk by opposition to the McGlade amendments.
I have made the point repeatedly over the past quarter of a century that the Native Title Act is flawed. Without the few protections of the act, however, terra nullius would be the status of our lands. McAvoy claims that I do not understand that native title should be recognised as a property right – my doctoral thesis was concerned with exactly this problem.
The problem with megaphone politics is that almost no one reads the original documents but respond to often incorrect or distorted media grabs and the echo chamber of social media. I agree with the Wangu and Jagalingou clients of Tony McAvoy on one issue: this is about our native title rights and interests. It is not about Adani.
This article was first published in the print edition of The Saturday Paper on Jul 1, 2017 as "Traditional land mines". Subscribe here.