• W&J Traditional Owner Adrian Burragubba says a number of sacred cultural sites will be lost if construction of the Adani mine continues. (AAP)Source: AAP
The Brisbane federal court has dismissed an injunction against Adani, paving the way for the Queensland Government to permanently extinguish Wangan and Jagalingou native title rights over a section of land in the Galilee Basin.
Ella Archibald-Binge

6 Feb 2018 - 3:49 PM  UPDATED 6 Feb 2018 - 4:05 PM

Five members of the Wangan and Jagalingou (W&J) native title claimant group had sought to extend an interim injunction granted in December, but their application was dismissed by Justice John Reeves on Friday. 

They will now appeal the decision, with the interim injunction to remain in place while the appeal is pending.

Anti-Adani Traditional Owners sought the injunction after the Indian company moved to activate a surrender process, whereby W&J native title rights over a portion of land would be permanently extinguished to allow construction of infrastructure for the Carmichael mine project. 

The surrender process was endorsed under Adani's Indigenous Land Use Agreement (ILUA), originally authorised by seven out of 12 W&J native title claimants. One of those claimants, however, has since withdrawn his support, leaving the group split down the middle. The validity of what some have dubbed a "sham" ILUA will be tested during a legal challenge scheduled for March 12. 

Native title could be lost forever, say Traditional Owners seeking extension to Adani injunction
Wangan and Jagalingou Traditional Owners who oppose the Adani coal mine have sought to extend their injunction against the multi-billion dollar project.

In deciding whether to grant the injunction, Justice Reeves considered the potential consequences for each party.

Justice Reeves accepted that "damages are not an adequate remedy for the extinguishment of an Aboriginal person's native title rights and interests". However, he rejected the assertion that the five W&J applicants were acting on behalf of the native title claim group.

"Where there are multiple members of... a registered native title claimant, the members have to act jointly and collectively in discharging their role," Justice Reeves said in his reasoning. 

“[The applicant] is not just seeking, by this application, to prevent Adani and the State from acting under the ILUA, [they are] also indirectly seeking to challenge the decision of the Wangan and Jagalingou people to consent to the extinguishment of their native title rights and interests...

“Whatever prejudice [the applicant] may suffer has already been brought about by the decision of the majority of the Wangan and Jagalingou people to authorise the making of the ILUA and therefore the extinguishment of the native title rights and interests in question.”

'Significant' cultural sites at risk

Legal counsel for the W&J group told the court that the surrender zone included a number of significant cultural sites, including birthing trees traditionally used to provide cover and shade during childbirth. 

In an affidavit, W&J Traditional Owner Adrian Burragubba claimed the Adani mine would “prevent me from keeping my song lines alive and this will result in the country in the vicinity of the Adani project becoming culturally and physically barren”.

“My people will no longer be able to obtain sustenance from the country and my sister’s birthing sites will be desecrated,” the affidavit went on to say. 

Adani's barrister argued that the company had cultural heritage management plans to identify and protect Aboriginal heritage on the site. The company's head of mining, Llewellyn Lezar, claimed any delay caused by the granting of an injunction would "create uncertainty" for the mine, despite Adani having already spent $1.4 billion on the project. 

Ultimately, in assessing the potential consequences of the injunction, Justice Reeves found the competing interests didn't "tip the balance one way or the other". 

His decision to dismiss the application hinged heavily on the W&J group's refusal to "give the usual undertaking to damages", whereby the applicant agrees to pay damages to affected parties if their bid is unsuccessful. While the practice can be costly to the applicant, failure to adhere to this arrangement is often fatal when applying for an injunction. 

W&J have since agreed to pay any potential damages, in a bid to have their appeal heard.

The matter is scheduled to return to court on February 13.