We Suspect Silence

What you don't say and what you don't do will define you.

Month: May, 2018

If we focused more on the political economy of the Galilee Basin coal complex we might see less aversive racism toward Traditional Owners

All of us privileged types exhibit aversive racism from time to time, some of the time, or all of the time, myself included. Aversive racism is a product of privilege.

Here’s a good definition of aversive racism.

Aversive racism can be defined as exhibiting racist tendencies while denying that those thoughts, behaviors, and motives are racist (Schneider, Gruman, and Coutts, 2012).

I don’t need to provide a dry definition of political economy here. I do need to point out that any serious analysis of political economy in relation to a development project like the Galilee Basin coal complex needs to identify and acknowledge all stakeholders in that economy, and all the legal and process based factors that can be exploited to enforce political will in shaping economic development. A person applying a political economy analysis has a professional and ethical obligation to look at all stakeholder groups without prejudice.

Traditional Owner Areas_map_Adani_March 2016_2

A map of the Traditional Owner groups along Adani’s preferred rail corridor, the North Galilee Basin Rail Project – released after February 20, 2018.

The above map ‘Attachment 2 – Map of Traditional Owner areas’ was supplied by Adani to the Queensland Department of Natural Resources and Mines (DNRM) in March 2016. It was included in a RTI disclosure that was made at some point after the last document modification date of February 20, 2018. RTI 15-315 contains only content and communications generated between February 3 and April 3, 2016. The recipient of the RTI disclosure cannot be provided by DNRM staff and neither can the dates the disclosure was made available to the recipient and/or the public.

I wish I had access to this map in January 2018. On January 24 the ABC published a piece by David Chen titled ‘Adani jobs in high demand as Indigenous groups call for a bigger share’. This article was shared in a Facebook post of a Queensland based activist group working on anti-Adani campaigns. The comments from followers of the Facebook page in response to this story demonstrate aversive racist assumptions about Indigenous people living in regional areas and their community members living in the big cities and regional centres. I would contend that these assumptions were cultivated by the media driven narrative of the StopAdani coalition and their allies.

Here’s a selection of comments that were captured on January 24, 2018. I will not be individually analysing each comment. I’d rather you interpret them for yourself after reading the article in question.

I thought that the indigenous people of Australia did not want their Mother Earth ripping apart. What are we fighting for if they don’t really care? They are expecting jobs that will not materialise.

 

Nobody but people set to make $$ want Adani, greed over our environment, they should be put behind bars and Adani should be kicked out of the country.

 

I’m sure most of the indigenous groups do not want this mine to go ahead.
It goes against their love of country.

 

Does this not go against everything the culture believes in.

 

I was of the opinion the that aboriginal groups are totally opposed to the mine?

 

We need to talk about what it’s really like to be a Traditional Owner/native title claimant.

The starting position for many Traditional Owners is an absolute desire for economic autonomy, and freedom from paternalism and the micromanagement of coloniser bureaucracy.

Traditional Owners are often presented with the threat of compulsory acquisition through discreet channels. This is what happened for all TOs along the North Galilee Basin Rail corridor. It is a strategy of non-cooperation exercised by governments in collusion with business interests. The collusive efforts of governments and business ensure they enter negotiations with a win-win strategy. Traditional Owners can only make themselves a stakeholder in protecting country through negotiating as the weaker party for the long haul to achieve some measure of agency and reasonable compensation.

The native title system is largely about managing extinguishment while affording a right to negotiate in order to protect rights and interests in country. The threat of compulsory acquisition or forced extinguishment fundamentally acts against the spirit of that right. The right to refuse, in most negotiations, does not exist.

The process of making a native title claim is long and can be excruciating while creating and exposing divisions. During and after the native title determination process Traditional Owners are compelled to negotiate and engage with corporate and government stakeholders with long-term plans for development. Most Traditional Owners have limited/problematic avenues for funding social programs and developing autonomy in the face of relentless pressure from resource companies and multiple levels of government. Add to this the fact that the most crucial bureaucratic functions performed in the native title sector are delivered by opaque organisations like Queensland South Native Title Services and the North Queensland Land Council who work with mining companies to deliver voting meetings and certify agreements along with providing enabling services like legal and technical support and representation within the native title system.

 

The truth doesn’t feel nice. What can we be passionate about?

It would be great if TOs had the choice to reject the deals put before them under our colonised/post colonial economy, but TO communities need services and jobs. Many TO communities need healing that can only be administered by themselves in their own way. If we want a country where TO communities have the autonomy to reject mines, rail lines, ports, dams, and other damaging developments then we need to start by looking at the political and economic truth of what is happening now. We need to look at the local economies and at the part to be played by the global economy. This is especially the case in relation to the Galilee Basin coal complex and the commodities we trade with the world to enable our consumer economy.

We can be passionate about getting to the truth and making our way to the point where TOs can negotiate from a position of strength. We can feel passionate about hearing and sharing the testimony of TOs in their struggle – whether it feels nice or not.

 

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The Adani court case nobody is talking about

JEL (Juru Enterprises Limited) KMYAC (Kyburra Munda Yalga Aboriginal Corporation) RNTBC (Registered Native Title Body Corporate) ILUA (Indigenous Land Use Agreement) ORIC (Office of the Registrar of Indigenous Corporations) NNTT (National Native Title Tribunal) NQLC (North Queensland Land Council) DSD (Department of State Development) NTRB (Native Title Representative Body) NQBP (North Queensland Bulk Ports) CHMP (Cultural Heritage Management Plan) ATSI (Aboriginal and Torres Straight Islander) APGGP (Abbot Point Growth Gateway Project)

 

The court case QUD244/2017

In June last year a news article appeared titled ‘Juru missed out on $1m from Adani: court’. It was written by NewsCorp regional reporter Geoff Egan (15). To my knowledge there are no other news articles or writing relating to the court proceedings mentioned in the article. Geoff kindly shared links to Commonwealth Court documents with me (16,17). Here’s a quote from his article that sums up the court proceedings:

Juru Enterprise has taken Adani and Kyburra Munda Yalga Aboriginal Corporation to the Federal Court claiming Kyburra did not have approval to replace Juru under an Indigenous Land Use Agreement amendment.

Through my research I’ve gathered that Juru Enterprises Limited (JEL) were assisted in making Indigenous Land Use Agreements (ILUAs) with Adani by the North Queensland Land Council (NQLC). I’ve also found that agreements over Abbot Point have been made or entered into by JEL after the Aboriginal corporation specifically set up to deal with native title matters for the Juru People, Kyburra Munda Yalga Aboriginal Corporation RNTBC (KMYAC) came into existence.

 

KMYAC on the verge of insolvency

It’s important to understand that at this stage KMYAC are still under special administration by the Office of the Registrar of Indigenous Corporations (ORIC) (10). This is the final run in an 18 month long process. ORIC appointed a small firm for the first incomplete examination back in October 2016, and then, in May 2017 appointed a second larger firm for the 2 following unsatisfactory examinations. In October 2017, a year after the first examination began KMYAC were placed under special administration which has been extended twice. The examiners, special administrators, and independent auditors appointed by ORIC have reported a lack of financial information supplied by KMYAC (11(a), 13).  Reports from the special administrators and financial auditors strongly suggest that on May 18, 2018 when the third period of special administration finishes KMYAC will be insolvent (11(a), 13). It seems there is no money for JEL even if they are successful.

 

The origins of Juru Enterprises Limited

JEL were created as a company in 2012 to “implement” an ILUA QI2011/063 made with North Queensland Bulk Ports (NQBP) in 2011 (20, 2). JEL did not exist until shortly before the this ILUA was registered (21). Here’s a quote from the North Queensland Land Council 2012/13 annual report.

The Juru People authorised the ILUA on 13 August 2011 at Bowen and the ILUA was registered on 12 May 2012. Juru Enterprises Ltd (JEL) was established in April 2012 to implement the ILUA and NQLC continue to assist JEL in these activities.

The Juru People were assisted in making the ILUA with NQBP by the NQLC who also assisted them in making another ILUA in 2013 QI2013/036 (3).  The Adani – Abbot Point ILUA covers part of Abbot Point and was made with JEL as the applicant. The earlier ILUA was made by a group of Juru claim group members represented by the NQLC. KMYAC, who at that stage had been a Registered Native Title Body Corporate (RNTBC) with ORIC for more than a year, were not a party to this agreement (5). The NQLC certified both agreements acting as the Native Title Representative Body (NTRB).

In 2014 Juru Enterprises Limited (JEL) were assisted to set up a head office on Lot 8 West St, Bowen by the Whitsunday Shire Council and the Department of State Development (DSD) who owned the land on which the JEL head office now stands (8, 22). In a previous blog post I explained how JEL have been involved in meetings with Adani representatives and other contractors (18). It’s fair to say that the Whitsunday Shire Council, the Queensland Coordinator General, and the North Queensland Land Council working with Adani and North Queensland Bulk Ports have helped Juru Enterprises Limited come into being.

 

After the big determination

In his “REASONS FOR JUDGEMENT” as part of the [2014] FCA 736, determination of  native title for Federal Court file number QUD 554 of 2010, Justice Steven Rares ported some rights and interests in native title matters from JEL to KMYAC “on trust” (23).

Determination that native title is to be held on trust

32 The Juru people should understand that some very significant native title rights and interests to which the claim group is entitled are not presently to be held on trust for it by Kyburra Munda Yalga Aboriginal Corporation. Those rights and interests are covered by two indigenous land use agreements. One of those agreements was entered into by the original applicant in these proceedings and Adani Abbot Point Terminal Pty Ltd, Adani Abbot Point Terminal Holdings Pty Ltd, Mundra Port Holdings Pty Ltd and Mundra Port Pty Ltd, which are developing a large coal mine and the Abbot Point facilities.

On October 26, 2015 in a response to a 14 point submission regarding the Abbot Point Growth Gateway Project (APGGP) from an unnamed Juru Traditional Owner who argued in point 7 that “agreements with Kyburra that are binding on the Juru common law holders are null and void”, the DSD stated that the rights and interests in Native Title in relation to cultural heritage management for Abbot Point lay with KMYAC for “the project”, and “[KMYAC] is the appropriate party to enter into such an agreement under the Aboriginal Cultural Heritage Act 2003”. In another statement responding to point 2 from the same submission the DSD stated that “duty of care” in relation to procedures under a Cultural Heritage Management Plan (CHMP) as part of an ILUA made with “the Juru People Native Title claimants, JEL (as the Juru Nominated Body)” under the Aboriginal Cultural Heritage Act 2003 was “in compliance” (24).

Another document from the same date and tranche of APGGP EIS publications titled ‘Abbot Point Growth Gateway Project Environmental Impact Statement Volume 4 – Supplement Report’ provides an “editorial correction” to the executive summary document created on August 17, 2015 (25, 26). The correction strikes through text indicating that KMYAC are the Juru body with which “the proponent intends to develop a cultural heritage management agreement”. Here’s the complete text:

5.4 Editorial corrections
Volume 1 – Executive Summary: Section 3 ‘Native Title and Cultural Heritage’

“The Juru People hold non-exclusive native title rights and interests in land and waters within the Port of Abbot Point and the Abbot Point State Development Area.

(struck through) In accordance with the Aboriginal Cultural Heritage Act 2003, as registered native title holder, the Juru People have special legal status as the primary party in charge of Aboriginal cultural heritage within the boundaries of the registered native title determination. Therefore, the proponent intends to develop a cultural heritage management agreement with Kyburra Munda Yalga Aboriginal Corporation to identify and manage any project impact on Aboriginal cultural heritage values in both onshore and offshore areas. The engagement process has already been initiated and is ongoing.

The Native Title determination is subject to a suite of tenures and Indigenous Land
Use Agreements (ILUAs) that deal with development at Abbot Point and in the APSDA. This includes the Port of Abbot Point and APSDA ILUA (QI2011/063). The parties to this ILUA are the Juru People, the State of Queensland, NQBP, the Coordinator General and Juru Enterprises Limited. It also includes the Juru People and Adani Abbot Point Terminal ILUA (QI2013/036)”

I’m no legal expert, but it seems unclear if the rights and interests over native title relating to the ILUA made by the Juru People with North Queensland Bulk Ports Corporation (QI2011/063) are held by Kyburra Munda Yalga Aboriginal Corporation RNTBC (KMYAC). This ILUA was signed after KMYAC was incorporated on July 5, 2011 and registered after KMYAC was registered with ORIC as an RNTBC on March 6, 2012 (4, 5).

It is clear that the DSD changed it’s position between August 13, 2015 when the APGGP executive summary was created and October 26, 2015 when the tranche of supplementary documents were created.

The May 24 hearing may provide clarity on issues of who has rights and interests under Native Title at Abbot Point and issues relating to the state of KMYAC finances.

 

The final hearing

After a fair bit of research on how to attend Federal Court – Queensland Registry hearings I was able to convince a friend and erstwhile native title expert to attend the February 8, 2018 case management hearing in preparation for a final hearing in Brisbane on May 24, 2018. My friend reports that a figure of 1.6 million was mentioned during the very fast-paced proceedings. My friend also noted that there was another unrelated matter heard in the same sitting involving financial mismanagement of an Indigenous corporation that left both of us asking “how many other cases of corporate failure end up in court?”.

I would note that the National Native Title Tribunal are not monitoring these proceedings. My conversations with the NNTT were confusing and I was not able to determine which organisation might be interested in monitoring and reporting on these proceedings.

The only acknowledgment of the upcoming court hearing by the regulator, the Office of the Registrar of Indigenous Corporations (ORIC), was in a special administration ‘newsletter’ in April, 2018 (11(c)). Here’s a quote from the newsletter.

Federal Court matter—JEL vs Adani and KMYAC QUD244/2017 This matter is still progressing in the Federal Court. On 8 February 2018 at a case management hearing, the Court ordered various documents and pleadings to be filed by specified dates. A trial date of 24 May 2018 has been set. We have been able to obtain funding from the Department of the Prime Minister and Cabinet (via NQLC) so that KMYAC can receive legal advice and be represented in relation to this matter. A barrister has been briefed, and we have engaged a new lawyer. They are advising us on what KMYAC should do to achieve the best outcome in this matter.

ORIC have a stated interest in reducing corporate failure. They shared positive figures in November 2017, shortly after KMYAC was placed into special administration (27). They have not commissioned a report into corporate failure since 2010 (28).

 

The former KMYAC director and the NQLC

The North Queensland Land Council has a relationship with both JEL and KMYAC. It has done it’s job under the native title system to assist the Juru People to make claims and agreements. But anyone looking at the political and economic reality of the developments at Abbot Point and on the Adani rail corridor ought to be concerned about the fact that the former director of KMYAC is also a director of the NQLC and responsible for the Townsville Ward which covers Abbot Point. The former director of KMYAC is associated with multiple instances of financial mismanagement of Aboriginal and Torres Straight Islander (ATSI) organisations in the Townsville area. If this person was convicted in any one of those instances they would not qualify to hold the position of director in the NQLC. Here’s a quote from the fact sheet titled ‘What it means to be an NQLC director’.  (29)

You are disqualified from election to the board under the CATSI Act if you are a person who:

Conviction

Section 1
(a) is convicted on indictment of an offence that: i. concerns the making, or participation in making, of decisions that affect the whole or a substantial part of the business of an Aboriginal and Torres Strait Islander corporation; or ii. concerns an act that has the capacity to affect significantly the financial standing of an Aboriginal and Torres Strait Islander corporation; or (b) is convicted of an offence that: i. is a contravention of this Act and is punishable by imprisonment for a period greater than 12 months; or ii. Involves dishonesty and is punishable by imprisonment for at least 3 months; or

The former director may also lose their position as an NQLC director in the event of KMYAC insolvency.

You are disqualified by the Head Agreement for Indigenous
Grants and the Project Schedule thereto for general grants
for native title representative bodies and service providers
if:

[ ]

Is or was a director or occupied an influential position
in the management or financial administration
that had failed to comply with funding or grant
requirements of the Commonwealth, the Aboriginal
and Torres Strait Island Commission or its
predecessors

The North Queensland Land Council are responsible for guidance and legal support for Aboriginal corporations, claim groups, and other entities to make Indigenous land use agreements with governments and corporations. That means they are extensively involved in appointing everyone from anthropologists to legal counsel. The strength of connection between the NQLC and the KMYAC director is very problematic and ought to be given some serious scrutiny.

Anyone looking at the role of the North Queensland Land Council in the political economy of North Queensland in relation to mining and infrastructure development ought to read the series of recent articles in the Townsville Bulletin written by Clare Armstrong outlining the anger and sorrow at the financial mismanagement of KMYAC at the recent AGM and the subsequent fallout (10). The articles written for the Townsville Bulletin in 2016 and 2017 by Samantha Healy contain important testimony from Carol Prior. My blog post titled ‘Do you want Indigenous autonomy and to stop Adani?’ is also useful reading (18).

 

PS. The briefing document below is a detailed set of references and links for the this blog post. It is a modified version of the briefing I send to interested persons.

 

JEL, KMYAC, and the state of play: Briefing Document 2

By Michael Swifte

JEL (Juru Enterprises Limited) KMYAC (Kyburra Munda Yalga Aboriginal Corporation) RNTBC (Registered Native Title Body Corporate) ILUA (Indigenous Land Use Agreement) ORIC (Office of the Registrar of Indigenous Corporations) NNTT (National Native Title Tribunal) NQLC (North Queensland Land Council) DSD (Department of State Development) NTRB (Native Title Representative Body) NQBP (North Queensland Bulk Ports) CHMP (Cultural Heritage Management Plan) ATSI (Aboriginal and Torres Straight Islander) APGGP (Abbot Point Growth Gateway Project)

This briefing has been prepared in anticipation of the Federal Court hearing QUD244/2017 set for May 24, 2018 in Brisbane. The proceedings have been brought by Juru Enterprises Limited to determine the appropriate distribution of funds from Adani to one of two organisations representing the Juru People relating to ILUAs made with Adani by two organisations, JEL and KMYAC. Quotes and references have been collected to provide political and economic context to the proceedings on May 24. A key component of context here is the apparent corporate failure of KMYAC who have been under ‘special administration’ by ORIC since October 2017. My conversations with NNTT staff in early February 2018 indicated that they are not tracking this case.

 

JEL and KMYAC, ILUAs with Adani, KMYAC is the Juru RNTBC

1. Koori Mail October 9, 2013: Correction notice.

Juru Enterprises Ltd listed as ILUA “applicant”, NNTT Number: QI2013/036

http://aiatsis.gov.au/sites/default/files/docs/digitised_collections/the_koori_mail/561.pdf

2. North Queensland Land Council 2012/13 annual report

Juru People – Port of Abbot Point and State Development Area ILUA An ILUA to facilitate the expansion of the Abbot Point Port and State Development Area was negotiated by the Juru People, North Queensland Bulk Ports and the Co-ordinator General. The Juru People authorised the ILUA on 13 August 2011 at Bowen and the ILUA was registered on 12 May 2012. Juru Enterprises Ltd (JEL) was established in April 2012 to implement the ILUA and NQLC continue to assist JEL in these activities.

https://nqlc.com.au/files/7114/4549/3755/NQLC-AR-201213.pdf

3. Juru Enterprises Ltd as the “applicant” in the NNTT extract of ILUA QI2013/036

c/- Applicant, Juru Enterprises Ltd PO Box 748

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/ILUA%20Register/2013/QI2013.036/ILUARegisterExport.pdf

4. An AIATSIS summary document indicating that KMYAC was incorporated on 05/07/2011

http://nativetitle.org.au/PDFs/QLD_Kyburra_Munda_Yalga.pdf

5. KMYAC was registered with ORIC as an RNTBC on 06/03/2012

Certificate of Registration of Kyburra Munda Yalga Aboriginal Corporation RNTBC (March 2012)

http://register.oric.gov.au/document.aspx?concernID=2035210

6. Extract from Register of Indigenous Land Use Agreements. NNTT Number QI2014/072

Kyburra Munda Yalga Aboriginal Corporation RNTBC and Adani Mining North Galilee Basin Rail Project ILUA

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/ILUA%20Register/2014/QI2014.072/ILUARegisterExport.pdf

7. An Adani EIS document from October 2012 where “Juru Enterprises Ltd” are listed as the contact for Juru people in consultations over Abbot Point developments.

All those involved in the consultation process from the Juru people were contacted through Juru Enterprises Ltd.

http://s3-ap-southeast-2.amazonaws.com/adani/pdf/eisdoc_e11-indigenous-social-and-economic-impact-assessment.pdf

8. Whitsunday Regional Council meeting notice containing a proposal that a head office be set up for Juru Enterprises Ltd with help from the Coordinator General of the Queensland Department of State Development.

PROPOSAL The purpose of the proposal is to develop an appropriate head office for Juru Enterprises Ltd where the business of land care and pest management will be provided. The Office of the Coordinator General has engaged Juru Enterprises Ltd to undertake land care and pest management as per an Indigenous Land Use Agreement (ILUA) for the Port of Abbot Point State Development Area. In order for Juru Enterprises Ltd to operate and establish a business, the West Street property (Lot 8 SP257305) owned by the Office of the Coordinator General, has been nominated for the development. Ranbury Management Group is acting as Project Managers for the Office of the Coordinator General to establish this project.

https://www.whitsunday.qld.gov.au/DocumentCenter/View/556

9. The Queensland Department of State Development Annual Report 2016/17 mentions Juru Enterprises Ltd in relation to the Abbot Point State Development Area.

Work is also continuing with the local native title group, through Juru Enterprises Limited, to provide further skills and capacity building while undertaking land management activities within the Abbot Point SDA.

https://www.statedevelopment.qld.gov.au/resources/publication/annual-report/dsd-annual-report-2016-17-part-06.pdf

 

KMYAC Under Special Administration

10. Townsville Bulletin article March 22, 2018. ‘Anger building as meeting reveals Kyburra paid cash to people wanting to avoid Centrelink‘.

CLARE ARMSTRONG, Townsville Bulletin. March 22, 2018

MEMBERS of an embattled Townsville indigenous corporation are angry about its management after discovering millions in undeclared revenue.

Emotions ran high at the Kyburra Munda Yalga Aboriginal Corp AGM in Bowen as many attendees expressed their dismay at the finances of the organisation, which is now under special administration.

Kyburra was incorporated in 2011 to represent the Juru people. The Bulletin revealed last month directors failed to declare about $1.8 million in revenue between 2014 and 2017.

The Office of the Registrar of indigenous Corporations (ORIC) found more than 70 potential breaches of the Corporations (Aboriginal and Torres Strait Islander) Act (CATSI), including that $205,828.76 in payments from July 2014 to March 2017 were unaccounted for.

At the AGM, former Kyburra bookkeeper Evelyn Lymburner said “everything was done by the books” but admitted the cash payments were at the request of members conducting cultural heritage work.

They said ‘no, we want the cash over the counter because we don’t want it to go to Centrelink, we’ve got debits on our accounts’,” she said. “So we gave the cash. I know we shouldn’t have done that, but that’s how it was done.”

Ms Lymburner said directors had “found a clause” saying there was no requirement to pay tax on such payments.

I don’t know how far the audit’s got to go back … because we might have to pay tax on them all,” she said.

There’s millions of dollars that have gone through, how did we end up $150,000 in debt, why should we have to sell our freehold land (to cover that),” one member yelled.

An elder asked why bursaries had not been granted.

What about the students that want training and what about all Juru people … they don’t know anything that’s going on,” she said.

ORIC examiners had also raised concerns that directors were paid thousands in “attendance and negotiation fees” in breach of the CATSI Act.

Ex-director Jenny Pryor said the North Queensland Land Council (NQLC) and a rule in Kyburra’s constitution allowed for the payments.

The Bulletin has confirmed Kyburra’s constitution does not allow for the payments and the rule referred to by Ms P.ryor is not yet in effect.

NQLC chief executive Stephen Ducksbury said “at no time” were Kyburra directors told they were entitled to be paid fees, but it was “standard practice” that traditional owners could be paid to participate in Native Title negotiations.

Subscriber only

https://www.townsvillebulletin.com.au/news/townsville/anger-building-as-meeting-reveals-kyburra-paid-cash-to-people-wanting-to-avoid-centrelink/news-story/7096bbeb4c4a2998bedaa1824e4da0eb

11(a) On April 5, 2018 ORIC published a Special Administration Newsletter for KMYAC which has some alarming assessments.

As you can see KYMAC is in a serious financial position. Finding bail-out monies to pay the debts is proving very difficult. We have spoken to government and to various proponents to ask if they can help. Everyone we have asked for help has told us that they cannot provide any money.

And,

If we cannot get any money to repay the bills then KMYAC will have to go into liquidation. If this happens, the native title land that has been returned to the Juru people by Federal Court will remain with the Juru people however it will be necessary to set up a new prescribed body corporate (PBC) to look after and manage the native title. The financial situation is very serious. We are working hard to find a solution, so far without success. There is a real possibility that KYMAC may need to go into liquidation at the end of the special administration. We are working with ORIC to end the special administration as soon as possible, however a further extension may be required to allow enough time for the appointment of a new board or a liquidator.

11(b) The April 5, 2018 ORIC Special Administration Newsletter for KMYAC also has a table of unpaid debts which is also alarming.

Unpaid debts as at 12 April 2018 Staff wages 2017 $15,679 Staff superannuation and penalties 2014–17 $44,071 GST and PAYG $92,109 Rent $12,985 Legal and accounting fees $17,211 Other $2,329 Total amounts payable $184,384 Less available funds $16,130 Estimated shortfall $168,254

11(c) The upcoming Federal Court case is mentioned including mention of Department of Prime Minister and Cabinet funding for legal expenses.

Federal Court matter—JEL vs Adani and KMYAC QUD244/2017 This matter is still progressing in the Federal Court. On 8 February 2018 at a case management hearing, the Court ordered various documents and pleadings to be filed by specified dates. A trial date of 24 May 2018 has been set. We have been able to obtain funding from the Department of the Prime Minister and Cabinet (via NQLC) so that KMYAC can receive legal advice and be represented in relation to this matter. A barrister has been briefed, and we have engaged a new lawyer. They are advising us on what KMYAC should do to achieve the best outcome in this matter.

11(d) Under the subject “Other native title issues” there is mention of “the rail corridor”.

We have held discussions with Adani about the proposed rail corridor and other sites in the Abbot Point area. We have requested further meetings with Adani representatives, so that members of the advisory group, and elders can get a better understanding of the existing agreements, the path of the rail corridor, Adani’s requirements, and advise Adani of any concerns of the Juru people.

Kyburra Munda Yalga Aboriginal Corporation RNTBC – Special Administration Newsletter (April 2018)

http://register.oric.gov.au/document.aspx?concernID=2035210

12. On April 20, 2018 ORIC extended special administration for the second time. New date the end of special administration is May 18, 2018.

AND TAKE NOTICE THAT: 1. Under subsection 487-15(1) of the CATSI Act, I, Kevin Vu, a delegate of the Registrar extend the period of the special administration of the corporation until 11:59pm (AEST) on Friday, 18 May 2018. 2. Under subsection 490-5(2) of the CATSI Act, I appoint Mr Gerry Mier and Mr Tony Jonsson as the joint and several special administrators for the period of the special administration. Dated this 20th day of April 2018

Section 487-1 Determination and Section 490-1 Instrument of Appointment

http://register.oric.gov.au/document.aspx?concernID=2035210

13. From the ORIC audited financial statement for 2016/17. The below quote follows multiple mentions of “insufficient supporting documentation”.

Emphasis of Matter Inherent Uncertainty as to Going Concern

We draw attention to Note 2 in the financial report which indicates that the corporation incurred a net surplus of $105,623 during the year ended 30 June 2017, but despite this, the Corporations current liabilities exceeded its total assets by $10,670 due to historical losses. These conditions, along with other matters as set forth in Note 2, indicate the existence of a material uncertainty that may cast significant doubt about the corporations’ ability to continue as a going concern and therefore the entity may be unable to realise its assets and discharge its liabilities in the normal course of business.

Audited financial statements – 30 June 2017

http://register.oric.gov.au/document.aspx?concernID=2035210

14. Three audited financial statements prepared for KMYAC under special administration provide revenue figures relating to Adani covering the 2014/15, 2015/16, and 2016/17 financial years.

Revenue from North Galilee Basin Rail Project (NGBR) – $140,872

Revenue from Adani Mining Pty Ltd – $395,380

Revenue from combined NGBR and Adani Mining Pty Ltd (NGBR proponent) – $536,252

Revenue from Abbot Point/port/bulk coal – $302, 735

Total revenue from Adani entities -$838, 987

Audited financial statements – 30 June 2017, 30 June 2016, and 30 June 2017.

http://register.oric.gov.au/document.aspx?concernID=2035210

 

JEL vs Adani and KMYAC in Federal Court

15. ‘Juru missed out on $1m from Adani: court’ by Geoff Egan, The Morning Bulletin.

Juru Enterprise has taken Adani and Kyburra Munda Yalga Aboriginal Corporation to the Federal Court claiming Kyburra did not have approval to replace Juru under an Indigenous Land Use Agreement amendment.

https://www.themorningbulletin.com.au/news/juru-missed-out-on-1m-from-adani-court/3184689/

16. Federal Court documents for a final hearing with Justice Rares on May 24 in Brisbane. Mediation hearings have preceded this hearing. Proceedings relate to a reported 1.6 million AUD in disputed revenue.

JURU ENTERPRISE LIMITED Applicant ADANI AUSTRALIA COMPANY PTY LTD ABN 87 163 221 609 AS TRUSTEE OF ADANI AUSTRALIA HOLDING TRUST and another named in the schedule Respondent

Second Respondent KYBURRA MUNDA YALGA ABORIGINAL CORPORATION RNTBC

The proceeding be fixed for final hearing on 24 May 2018 at 9.30am in Brisbane.

(accessed 23/04/18)

https://www.comcourts.gov.au/file/Federal/P/QUD244/2017/3789232/event/29191598/document/1114116

17. Federal Court of Australia, Queensland Registry portal. Number: QUD244/2017

Court 5 Level 7 Harry Gibbs Commonwealth Law Courts

https://www.comcourts.gov.au/file/Federal/P/QUD244/2017/actions

 

Further context on my blog We Suspect Silence.

18. The most relevant of my blog posts looks into the business and networks of JEL and KMYAC.

Do you want Indigenous autonomy and to stop Adani?

https://wesuspectsilence.wordpress.com/2017/09/25/do-you-want-indigenous-autonomy-and-to-stop-adani/
19. My submission to Reforms to the Native Title Act 1993 provides in depth detail about the ILUA making process and the role of the NNTT.

Aboriginal Autonomy and the Galilee Basin Coal Complex

https://wesuspectsilence.wordpress.com/2018/03/10/aboriginal-autonomy-and-the-galilee-basin-coal-complex/

 

Supplementary references

20. Port of Abbot Point and Abbot Point State Development Area ILUA. QI2011/063

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/ILUA%20Register/2011/QI2011.063/ILUARegisterExport.pdf

21. ASIC Company Info – Juru Enterprises Limited.

Incorporated April 3, 2012

https://www.asiccompany.info/australian?utm_term=Juru-enterprises-limited&utm_source=157951203

22. JEL head office

8 West St, Bowen QLD 4805

http://www.juruenterprises.com.au/contact.html

23. Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 (11 July 2014)

Determination that native title is to be held on trust

[ ]

32 The Juru people should understand that some very significant native title rights and interests to which the claim group is entitled are not presently to be held on trust for it by Kyburra Munda Yalga Aboriginal Corporation. Those rights and interests are covered by two indigenous land use agreements. One of those agreements was entered into by the original applicant in these proceedings and Adani Abbot Point Terminal Pty Ltd, Adani Abbot Point Terminal Holdings Pty Ltd, Mundra Port Holdings Pty Ltd and Mundra Port Pty Ltd, which are developing a large coal mine and the Abbot Point facilities.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/736.html?stem=0&synonyms=0&query=title(Lampton%20on%20behalf%20of%20the%20Juru%20People%20and%20State%20of%20Queensland%20)

24. Appendix A: Detailed Submission Responses – Abbot Point Growth Gateway. October 26, 2015

Traditional Owner Submission

2. The current Cultural Heritage Management Plan (CHMP) between Juru Enterprises Limited (JEL), NQBP and the Coordinator General has not been efficient thus far in the identification of and preservation of the Eastern Dune System (Abbot Point Beach), Dingo Beach and Shark Bay. The current measures do not protect these areas enough as they are currently not registered as Significant Aboriginal Areas as they should be, and minimum buffer zones of 50m need to be enforced to maximise protection

Response

Potential impacts on Aboriginal cultural heritage in undertaking the Project have been managed under the cultural heritage management procedures in the Port of Abbot Point and Abbot Point State Development Area Indigenous Land Use Agreement QI2011/063 (Abbot Point ILUA). The parties to the Abbot Point ILUA are the Juru People Native Title claimants, JEL (as the Juru Nominated Body), the State of Queensland, NQBP and the Coordinator-General. Compliance with the cultural heritage management procedures in the Abbot Point ILUA satisfies the cultural heritage duty of care under the Aboriginal Cultural Heritage Act 2003.

and

7. In application of Section 58(a) of the Native Title Act 1993, due to Kyburra only holding Juru people’s Native Title in trust, Kyburra cannot act as agent or representative of the Juru common law holders and cannot enter into agreements binding them. Therefore any agreements with Kyburra that are binding on the Juru common law holders are null and void.

Response

The Queensland DSD entered into an agreement with Kyburra Munda Yalga Aboriginal Corporation (Kyburra) in relation to the management of cultural heritage for initial geotechnical site investigations for the Project. Kyburra, as the registered Native Title body corporate for the Juru Native Title determination at Abbot Point (QUD554/2010), is the appropriate party to enter into such an agreement under the Aboriginal Cultural Heritage Act 2003, as the project area is within the external boundaries of the Juru Native Title determination.

https://www.statedevelopment.qld.gov.au/resources/project/abbot-point-apx/supplement-report-appendices-part2.pdf

25. Abbot Point Growth Gateway Project Environmental Impact Statement Volume 4 – Supplement Report

5.4 Editorial corrections
Volume 1 – Executive Summary: Section 3 ‘Native Title and Cultural Heritage’


“The Juru People hold non-exclusive native title rights and interests in land and waters within the Port of Abbot Point and the Abbot Point State Development Area.


(struck through) In accordance with the Aboriginal Cultural Heritage Act 2003, as registered native title holder, the Juru People have special legal status as the primary party in charge of Aboriginal cultural heritage within the boundaries of the registered native title determination. Therefore, the proponent intends to develop a cultural heritage management agreement with Kyburra Munda Yalga Aboriginal Corporation to identify and manage any project impact on Aboriginal cultural heritage values in both onshore and offshore areas. The engagement process has already been initiated and is ongoing.


The Native Title determination is subject to a suite of tenures and Indigenous Land
Use Agreements (ILUAs) that deal with development at Abbot Point and in the APSDA. This includes the Port of Abbot Point and APSDA ILUA (QI2011/063). The parties to this ILUA are the Juru People, the State of Queensland, NQBP, the Coordinator General and Juru Enterprises Limited. It also includes the Juru People and Adani Abbot Point Terminal ILUA (QI2013/036)”

https://www.statedevelopment.qld.gov.au/resources/project/abbot-point-apx/supplement-report-part1.pdf

26. Abbot Point Growth Gateway Project Environmental Impact Statement Volume 1 – Executive Summary 17 August 2015

Section 3 Native Title and Cultural Heritage

The Juru People hold non-exclusive native title rights and interests in land and waters within the Port of Abbot Point and the Abbot Point State Development Area. The Juru people are represented by the Kyburra Munda Yalga Aboriginal Corporation. In accordance with the Aboriginal Cultural Heritage Act 2003, as registered native title holder, the Juru People have special legal status as the primary party in charge of Aboriginal cultural heritage within the boundaries of the registered native title determination. Therefore, the proponent intends to develop a cultural heritage management agreement with Kyburra Munda Yalga Aboriginal Corporation to identify and manage any project impact on Aboriginal cultural heritage values in both onshore and offshore areas. The engagement process has already been initiated and is ongoing.

https://www.statedevelopment.qld.gov.au/resources/project/abbot-point-apx/abbot-pt-eis-vol-01-exec-summary.pdf

27. ORIC – Registrar’s Year in Review

Aboriginal and Torres Strait Islander corporations are less likely to fail than mainstream corporations. In 2016–17 not a single corporation was placed into liquidation, receivership or voluntary administration—that’s 0 per cent.

http://www.oric.gov.au/publications/yearbook-section/registrars-year-review

28. ORIC: ‘Analysing key characteristics in Indigenous corporate failure’ by Dr James Swansson

http://www.oric.gov.au/publications/other-report/analysing-key-characteristics-indigenous-corporate-failure

29. What it means to be an NQLC director

You are disqualified from election to the board under the CATSI Act if you are a person who:

Conviction

Section 1
(a) is convicted on indictment of an offence that: i. concerns the making, or participation in making, of decisions that affect the whole or a substantial part of the business of an Aboriginal and Torres Strait Islander corporation; or ii. concerns an act that has the capacity to affect significantly the financial standing of an Aboriginal and Torres Strait Islander corporation; or (b) is convicted of an offence that: i. is a contravention of this Act and is punishable by imprisonment for a period greater than 12 months; or ii. Involves dishonesty and is punishable by imprisonment for at least 3 months; or

and

You are disqualified by the Head Agreement for Indigenous
Grants and the Project Schedule thereto for general grants
for native title representative bodies and service providers
if:

[ ]

Is or was a director or occupied an influential position
in the management or financial administration
that had failed to comply with funding or grant
requirements of the Commonwealth, the Aboriginal
and Torres Strait Island Commission or its
predecessors

http://nqlc.com.au/files/1715/0207/4463/20170807-factsheet_nqlc-director-V1.0.pdf