Mar­cia Lang­ton on Adani and threats to na­tive ti­tle

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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 McAvoy and Bur­ragubba 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

MAR­CIA LANG­TON is an Abo­rig­i­nal writer, a de­scen­dant of the Yi­man peo­ple of Queens­land. She is pro­fes­sor of Aus­tralian In­dige­nous Stud­ies at the Univer­sity of Mel­bourne.

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