In Central Queensland there is a sense the much-discussed Adani Carmichael coal mine is poised to go-ahead. On Tuesday, Lucas Dow, Adani Australia’s CEO said, with all the approvals in place it would only be a matter of days before work could begin.
The latest hurdle, though, is a review of the mine’s groundwater management plan by the Queensland Department of Environment and Science.
But an appeal to the full bench of the Federal Court on the validity of the Indigenous Land Use Agreement (ILUA) struck between the Wangan and Jagalingou Traditional Owners and the Indian mining giant in 2016 presents no problem.
According to an Adani spokesperson on Tuesday night, construction of the mine is not dependent on the outcome of the appeal.
“Therefore, we will begin construction of the Carmichael Project after the Queensland State Government signs off the two outstanding environmental management plan,” the company said in a written statement to The Point.
However, a spokesperson for the W&J Family Council says it’s not that simple.
“They cannot proceed without extinguishment of W&J's Native Title to build the critical infrastructure for the mine," the council representative said.
"This is why they must have an ILUA - and then they must rely on the State Government to extinguish the native title and transfer the W&J's land to Adani in free hold title. The State has not done this and is unlikely to until after the appeal decision is known.”
The National Native Title Tribunal has agreed the mine can go ahead regardless of Traditional Owner consent, so long as there is no extinguishment of their Native Title.
Even if these matters are window-dressing for the project, ask any Queensland LNP politician running in this election and they will trumpet the almost unanimous support Traditional Owners (TOs) gave the deal with Adani at a meeting held in the Fraser Coast city of Maryborough back in April 2016.
For that meeting, Adani CEO, Lucas Dow, said his company followed standard proceedure throughout the community consultation process and that TOs were able to properly assess the agreement and make an informed vote on it.
“I should also reinforce that it was voted in support of the ILUA: 294 (votes) to one,” Mr Dow told The Point last week.
Another Traditional Owner faction – The Wangan and Jagalingou (W&J) Family Council –which is opposed to the mine scoffs at Mr Dow’s insistence of the company observing standard protocol during the ILUA agreement process, describing it as a concrete manifestation of all that is wrong with Native Title legislation, which they say was set-up to favour big miners.
Adrian Burragubba, leader of the W&J Family Council, said Aboriginal people were always of the understanding that they could not veto mining interests under the Native Title system.
“They disrespect us, they disrespect our law, they disrespect our protocols,” he said in reference to state and federal government bureaucrats within the Native Title sector. “And they disrespect our self- determination by trying to control our people: by buying people off and getting our people to fight against each other.”
At the core of this story is the validity of the April 2016 Maryborough meeting. Five of 12 members of the Applicant group which represents the broader W&J community and their extended families boycotted the vote. They knew the meeting was a last-ditch effort by Adani to engineer support for the mine. Prior to the Maryborough meeting there had been three meetings of W&J TOs, the most recent, a month earlier in March 2016: all voted strongly against the Adani proposal.
The pressure to accept Adani’s proposal began in earnest in January of that year when the supporters of the mine met Queensland’s super bureaucrat, the Coordinator-General, Barry Broe.
Applicant member, Craig Dallen, a proud W&J man who at the time was supportive of working with Adani, recalls the Coordinator-General pressuring the W&J representatives to accept the ILUA. .
“The way I understand the meeting was: take the deal or we'll extinguish Native Title. He was very careful how he said it and he didn't say it in that way, but that's the way I took it,” Mr Dallen told The Point.
Patrick Malone, a fellow Applicant member and also a chief supporter of working with Adani, confirms Mr Dallen’s recollection of the meeting with Mr Broe.
“We weren't given any options. The option was just to back off and do nothing…and a lot of us just didn't want to do that”.
(The Point is not suggesting Mr Broe did anything improper in that meeting, but the fact that at least two W&J Applicant members left the meeting with QLD’s Coordinator-General uncertain of their options suggests a question mark stands over the prospect of their informed consent.
With almost half the Applicant members and their extended families steering clear of the April 2016 Maryborough meeting, it might be said that Adani was faced with the challenge of how to make it a ringing endorsement of a project to extract millions of tons of coal from Country that is sacred to the W&J people.
The first step was to hold the gathering in Maryborough, a regional hub for the Fraser Coast area and just a bus ride away from the big Aboriginal communities in Cherbourg and Woorabinda which are full of both direct and distant relatives of the W&J.
Mr Dallen, who feels he was used by Adani, said he wanted it to be held on W&J Country, but that request from some TOs was swiftly vetoed by the mining company who was hosting the gathering.
Next, as is usual practice and legal protocol, the “Proponent” – Adani in this case– funded all transport, accommodation, sitting fees and food for the attendees. No one would be out of pocket. Mr Dallen described the arrangement as “rent-a-crowd”.
“You know, you come down, you get paid and why not? You get a free trip down. You get a motel, And then you go to a meeting. You get fed and then you get paid. If you're broke and you’ve got nothing, I'd jump into a bus too," he said.
A tweet sent from the floor of the meeting by Matty Girrabah Malone, a nephew of Patrick Malone, encapsulated what Mr Dallen describes. It read: “Only come meeting for money”.
The post left his uncle, Patrick Malone furious.
“They got into trouble with me for that. They were my nephews and my son, okay? And they were talking drunk and stupid and I told them that I don't do that.”
Patrick Malone received $2,500 to attend and that, he said, was all above board.
“Under the native title conditions, proponents have to pay to get people there. So people got paid money and that was for accommodation and travel. Some people showed up on buses that were provided, that sort of thing” he told The Point.
The largesse appears to have worked, with an analysis of the meeting’s minutes suggesting 341 people registered: about 100 more than previous gatherings. Later, not only the meeting’s size but its composition were prime talking points at Maryborough’s festival of Native Title democracy. Lawyers for W&J TOs opposed to the mine analysed previous attendance records to discover that 60 per cent of attendees at the Maryborough meeting had never been to a W&J meeting before or since.
It’s an assessment confirmed by W&J Family Council lawyer, Colin Hardie: “That’s what happened. They brought busloads of people that normally do not associate themselves with W&J affairs,” he told The Point.
For Wangan woman, Jasmine Broome, the whole registration process was slapdash.
“They didn't have anybody there checking your identification, whether you were who you say you were, and checking which clan you were from. … it was like open-slather really and anyone was just walking in and just signing away,” she said.
Mr Hardie, who from 2006 through to 2010 was the Principal Legal officer with Queensland South Native Title Services, says the steps taken to ensure those who raised their hands in support of Adani were entitled to do so, were grossly inadequate.
“They didn't apply the proper claim group description. It's fundamental to the claim group description that those people have to identify as W&J people,” he told The Point.
Even more telling was a review of the registration process itself. Under Native Title law, it’s fundamental to be the descendent of what is termed an “Apical Ancestor”: a family member undeniably connected to Country.
Seventy-one of the 341 owners who registered to attend the Maryborough meeting did not record any apical ancestor on the formal registration forms, leaving the space blank. It is not known how many of the 71 cast a vote, but Mr Hardie said it places the integrity of the ballot in question.
“From looking at the records again, they just let anyone who said they were a descendent of a particular ancestor through the door. Those people may have been a descendent but they aren’t connected with that country.”
However, there is another more serious area of potential conflict of interest. Adani Australia paid the native title service provider, Queensland South Native Title Services , $30, 000 to both run the crucial Maryborough meeting and then to certify the consequent ILUA.
Mr Hardie said while again this is common practice, Queensland South Native Title Services should not have run that meeting,
“If they're responsible for certifying that the meeting was being held in accordance with the requirements of the Act, then they should not have been involved in the meeting,” he told The Point, then went on to explain that Queensland South Native Title Services is an independent statutory company which gets most of its funding from the Australian government.
For Mr Hardie, being paid by the Proponent or mining company is a conflict of interest not just restricted to the Adani ILUA, it taints decisions throughout the sector and needs legislative reform.
“If you’re a rep body, a Native Title representative body certifying agreements, you shouldn’t be seen to accept funds from a proponent for certifying that agreement. You should stand totally independent from that process,” he said.
Mr Hardie said the provision of wide ranging advice is crucial at meetings like the one in Maryborough.
“I think the outcome of the meeting could have been affected by an independent expert giving a true appraisal of the value of the ILUA to the Aboriginal people. On a true appraisal of that ILUA no group of Aboriginal people would accept the Adani ILUA. It is substandard compared to other projects,” he said.
Applicant member Mr Dallen said if those who voted Yes to the Adani deal had known the pitiful nature of the agreement they would probably have voted, No. He claimed the ILUA’s value is less than $700,000-per-year, with promises of “employment and business opportunities”. He wants Adani to re-negotiate a fairer agreement with the W&J people.
“I don't feel good about it. Everything that happened, I've let my family down. I've let the W&J people down. Yeah, I guess we didn't do our job."
Adrian Burragubba said that hoping the mining company will throw a few more crumbs at the W&J people is unacceptable. His Family Council has drawn a line in the sand and will take the fight to Adani even if the appeal against the ILUA is lost.
“I mean this will essentially have to go into the High Court. We will exhaust every single legal avenue in this country and then we will go to the international community. We'll go to The Hague if we have to. Because our rights are being denied in this country and Australia's got to grow up and stop being childish about this. They've got to be in step with the rest of the world.”