When thinking about fossil fuel phase-outs: The key word is ‘unabated’

*This textual analysis is a follow up to my op-ed for Off-Guardian in November 2021. It’s a long read, but you will see how the realities I pointed out in during COP 26 were papered over through management of language in the intervening months.

Qualifying language makes a statement less certain. Any leader who says that they want to “phase out fossil fuels” will receive applause from climate warriors and have their message amplified in the media. For media organs like The Guardian and the various climate activist NGOs and think tanks, applause is all that matters. When conforming to particular attention-metrics yielding narratives, climate warriors and their stenographer friends in the media will ignore crucial qualifying language.

The word ‘unabated’ is the preeminent qualifier applied to language relating to phasing out fossil fuels under net zero modelling and commitments. Its application makes statements and commitments less certain by assigning them to one category of fossil fuels – those with CO2 abatement applied. When stenographers and narrative slaves choose not to attend to the uncertainty caused by the qualifier ‘unabated’, they are choosing to misinform the people.

The qualifier

The think tank E3G put out a good explainer on the meaning of ‘unabated’ ahead of COP26 in June 2021. In essence ‘unabated’ means: without some form of carbon capture and storage applied.

In May and June 2021, the term featured prominently in the IEA’s Net Zero Energy report and the official communiques from meetings of G7 Ministers and Leaders.

[SOURCE]

The term appears 52 times in the IEA Net Zero by 2050 report. In the Summary for Policy Makers – ‘Priority Action’ section, a call is made for a “massive clean energy expansion”.

Policies should limit or provide disincentives for the use of certain fuels and technologies, such as unabated coal‐fired power stations, gas boilers and conventional internal combustion engine vehicles.

[SOURCE]

Ignoring the qualifier

There are any number of examples of stenographers and pundits ignoring the qualifying term in question. Fiona Harvey ignored the ‘unabated’ qualifier when the IEA Net Zero by 2050 report was released in May 2021.

No new oil, gas or coal development if world is to reach net zero by 2050, says world energy body: Governments must close gap between net zero rhetoric and reality, says International Energy Agency head

When discussing Fatih Birol’s position on new technology, Harvey underplays the scope of CCS technology in development. The role projected for biomass as a feed stock and fossil hydrogen production at new decarbonisation hubs in Europe should be explored. The decarbonisation hubs planned around the Alberta Carbon Trunk Line should be considered when claims that CCS has not been proven ‘at scale’ are made. Blue ammonia import deals being hammered out in Asia should be analysed and the oil and gas giants like Saudi Aramco and Woodside making those deals should be investigated. The new CO2 pipelines proposed for Iowa, North Dakota, Illinois, Nebraska and Wyoming should be explained in terms of the political will and long term legislative efforts behind their development.

The crucial new technologies in development are: advanced batteries, particularly for use in electric vehicles; hydrogen; and carbon capture.

[SOURCE]

Damian Carrington provided a classic example of misrepresentation through silence in September 2021.

In May, an IEA report concluded that there could be no new oil, gas or coal development if the world was to reach net zero by 2050.

[SOURCE]

The Executive Director of the IEA, Fatih Birol used the ‘unabated’ qualifier in a session on ‘Navigating the Energy Transition’ at Davos Agenda in January 2022. He wasn’t ignoring the qualifier, but rather he was forefronting energy efficiency. His comments were largely ignored.

Either we continue to use unabated fossil fuels – coal, oil and gas – and live with climate change, much more frequent extreme weather events, or we change the way we produce and consume energy.

[SOURCE]

The recent ‘carbon bombs’ series at The Guardian entirely avoided the crucial qualifier and reasserted the unqualified claim made a year earlier.

The IEA advised almost exactly a year ago that no new gas, oil or coal development could take place from this year onwards if the world was to limit global heating to 1.5C.

The Guardian seem to be keen to avoid mention of the over-reliance on CCS in modelling and phase out-out commitments. In order to make the ‘carbon bombs’ argument they need to frame out the political will for CCS and the state of its development. In their 13 May 2022 article they included a picture of the Saudi Aramco, Hawiyah NGL gas plant which deploys CCS and pipes the produced CO2 to an enhanced oil recovery project. They did not mention that the Hawiyah NGL plant was a CCS facility. Surely a gas CCS plant is not a prime example of a carbon bomb?

[SOURCE]

The 195 projects listed in The Guardian ‘carbon bombs’ series were identified in the study titled ‘“Carbon Bombs” – Mapping key fossil fuel projects’. The study which was revised in February 2022 makes no specific mention of “unabated” fossil fuels, biomass or CCS, but it does contain an assertion that completely negates the existence of the ‘unabated’ qualifier and the stated strategies for deploying large scale CCS outlined in the IEA Net Zero by 2050 report.

The recent IEA roadmap for net zero by 2050 which arrived at the conclusion that no new oil and gas fields nor coal mines are needed (Bouckaert et al., 2021) aligns well with the argument

[SOURCE]

The IEA Net Zero by 2050 report uses the ‘unabated’ qualifier liberally, but it also spells out clearly the infrastructure needed for large scale CCS.

And the required roll‐out of hydrogen and CCUS after 2030 means laying the groundwork now: annual investment in CO2 pipelines and hydrogen-enabling infrastructure increases from USD 1 billion today to around USD 40 billion in 2030.

Fossil Fuel Treaty, an organisation spearheaded by Tzeporah Berman made a subtle acknowledgment that the IEA modelling allows future opportunities for CCS in their May 2021 media release. In doing so they contradicted their headline. They also made no mention of the crucial qualifier.

Headline:

New IEA scenario finds fossil fuel expansion is needless and incompatible with 1.5°C

Subtle acknowledgement:

At the same time, the IEA net zero report ignores the imperative of winding down oil, gas and coal production.

[SOURCE]

In an April 2022 media release Fossil Fuel Treaty selectively quoted the IPCC Working Group 3 on mitigation AR6 contribution, and provided a misleading headline. The term ‘unabated’ appears 21 times in the report. Section C on ‘system transformation’ contains the quote provided by Fossil Fuel Treaty in their media release. For contrast: the text immediately following the quote that was selected by Fossil Fuel Treaty contains an explanation of how “modelled mitigation strategies” support “transitioning from fossil fuels without CCS”.

Headline:

IPCC report reaffirms urgency to phase out fossil fuels to stave off climate crisis

Carefully selected IPCC quote:

all global modelled pathways that limit warming to 1.5°C with no or limited overshoot

[SOURCE]

Here’s the full quote from the ‘Working Group III Contribution
to the IPCC Sixth Assessment Report (AR6)’.

C.3 All global modelled pathways that limit warming to 1.5°C (>50%) with no or limited overshoot, and those that limit warming to 2°C (>67%) involve rapid and deep and in most cases immediate GHG emission reductions in all sectors. Modelled mitigation strategies to achieve these reductions include transitioning from fossil fuels without CCS to very low- or zero-carbon energy sources, such as renewables or fossil fuels with CCS, demand side measures and improving efficiency, reducing non-CO 2 emissions, and deploying carbon dioxide removal (CDR) methods to counterbalance residual GHG emissions.

[SOURCE]

Oil Change International (OCI) need to be called out for their vigorous efforts at ignoring the crucial qualifier. The headline on their press release following the publication of the IEA Net Zero by 2050 report fails to reflect the space held for CCS in the future. They selectively quote the report which contains the contradictory phrase that helped facilitate misrepresentation. This can be seen in the quote provided in David Turnbull’s comment. The authors celebrated the IEA report as a “tremendous win” while simultaneously acknowledging the projected “4,000 percent increase in carbon capture and storage by 2030”. One of the authors went on to argue that the IEA is not “accelerating the phase-out of fossil gas and coal” by “banking” on CCS. This is, in effect, an admission that the IEA are promoting a phase out of ‘unabated’ fossil fuels rather than all fossil fuels as their headline and selective quoting suggests.

Headline:

IEA’s first 1.5°C-aligned scenario bolsters call for no new fossil fuel extraction

David Turbull:

Critically, the 1.5°C-aligned scenario finds “no need for investment in new fossil fuel supply.” This represents a break from past IEA reports that boosted new oil and gas development by focusing on scenarios that steered the world towards catastrophic levels of warming. As next steps towards reform, energy analysts are calling on the IEA to transform the WEO to focus on 1.5°C-aligned policies and investments and fix persistent modelling flaws. The new scenario continues to underestimate wind and solar while overselling riskier, more polluting alternatives.

Kelly Trout:

It’s huge to have the world’s most influential energy modellers bolstering the global call to stop licensing and financing new fossil fuel extraction. Governments, banks, and Big Oil and Gas companies can no longer use the IEA as a shield to claim that their support for fossil fuel expansion is consistent with the Paris Agreement. The IEA’s own modelling now shows new oil and gas fields are not compatible with limiting warming to 1.5 degrees.

David Tong:

Today’s report is a tremendous win for climate advocates who have been demanding that the IEA align its analysis and communications with the critical 1.5?C limit. While we applaud the IEA for taking this step, they can rest assured that advocates will continue pushing for the institution to complete the job. Gambling the climate on a 4,000 percent increase in carbon capture and storage by 2030 is extraordinarily risky and, the IEA’s own analysis shows, not necessary. Instead of banking on a consistently underperforming and still polluting technology, the IEA should be accelerating the phase-out of fossil gas and coal by relying on proven wind and solar solutions.

[SOURCE]

At the same moment that the OCI authors were ignoring the crucial qualifier, Kelly Trout was unironically pointing out the difference between the IEA headlines and their CCS gamble without ever mentioning the word ‘unabated’ or quoting one of the 52 instances in which the word appears in the IEA report. Again, the headline didn’t match the details revealled in the body.

Headline:

IEA’s First 1.5°C Climate Model Rejects New Fossil Fuel Extraction

Body:

Clinging to fossil gas. By gambling on a massive scale-up of CCS taking away some of its emissions, the IEA’s 1.5°C scenario also makes room for dangerous levels of fossil gas reliance this decade.

[SOURCE]

A year after the IEA Net Zero by 2050 report was released and 6 months on from COP 26, David Tong and Kelly Trout, along with an extensive list of NGO supporters, produced ‘Big Oil Reality Check 2022’. This time the introduction continued the misrepresentation of the IEA Net Zero by 2050 report and the World Energy Outlook 2021.

Also in 2021, the International Energy Agency (IEA) concluded that there is no room for new fossil fuel expansion beyond fields and mines already under development in its first-ever full 1.5°C-aligned scenario

Here are some quotes directly from the OCI report that reveal the real agenda.

To achieve its targets while continuing to produce fossil fuels, Shell plans to use large volumes of carbon sequestration and offsets

Equinor plans to rely heavily on CCS

ExxonMobil expressly aims to rely heavily on CCS

BP’s targets explicitly depend on CCS

Though Eni has set a 2050 “net zero” target…the company’s climate goals depend on extensive uses of CCS

TotalEnergies plans to rely significantly on technological CCS, alongside afforestation and other “nature based solutions”

The IEA’s 1.5°C scenario depends on less carbon dioxide removal than some other scenarios, but still includes a 4,000 percent increase in energy sector CCS by 2030

[SOURCE]

Last minute changes to the COP 26 draft text

On 4 November 2022, a week before the first draft text came out, The Guardian reported on the commitments lauded by the UK establishment. On that day COP 26 produced multiple statements with the word ‘unabated’ used frequently as a qualifier when discussing coal phase-outs and fossil fuel phase-outs. Again the headline misrepresented statements being cited.

Headline:

More than 40 countries agree to phase out coal-fired power

Reasserting an untruth:

The IEA has said all new development of fossil fuels must cease from this year, if the world is to stay within the 1.5C limit.

[SOURCE]

39 countries signed the ‘Statement on International Public Support for the Clean Energy Transition’.

the findings of the Intergovernmental Panel on Climate Change (IPCC) and IEA net-zero analysis show that in the pathways consistent with a 1.5°C warming limit and the goals of the Paris Agreement, the global production and use of unabated fossil fuels must decrease significantly by 2030;

[SOURCE]

45 countries signed the ‘Global Coal to Clean Power Transition Statement’.

Unabated’ coal power generation is described by the G7 and the IEA as referring to the use of coal power that is not mitigated with technologies to reduce carbon dioxide emissions, such as Carbon Capture Utilisation and Storage (CCUS).

[SOURCE]

On the same day that the transition statements were released the UNFCCC put out a misleading headline that was not supported by the body of the text.

Headline:

End of Coal in Sight at COP26

Body:


At least 25 countries and public finance institutions commit to ending international public support for the
unabated fossil fuel energy sector by the end of 2022

[SOURCE]

On 10 November 2021 the first draft agreement was released. The word ‘unabated’ does not appear and the phase out commitment is specific to coal and subsidies.19.

Calls upon Parties to accelerate the phasing out of coal and subsidies for fossil fuels;

[SOURCE]

On 11 November 2021 it was reported that climate advocates found the first draft to be “vague” and lacking in ambition. A new draft would need to be hammered out.

A new version of the draft agreement text is expected to be published at some point Thursday night, but COP26 President Alok Sharma made it clear the negotiations are far from over — so don’t be surprised if they continue past the deadline.

[SOURCE]

When The Guardian reported on the second and final draft on 12 November 2021 they quoted both key phase-out texts, but focused on the word “inefficient” with regard to subsidies rather than “unabated” with regard to mitigation. The headline asserts that the language has “softened”, but there’s nothing in the article to suggest that the inclusion of the word ‘unabated’ was part of that softening.

Headline:

Second Cop26 draft text: Coal phaseout remains in but some language softened

Body:

The latest draft proposal from the Cop26 chair, released soon after 7am on Friday in Glasgow, calls on countries to accelerate “the phaseout of unabated coal power and of inefficient subsidies for fossil fuels.The addition of “inefficient” could help countries that want to retain some fuel subsidies for the poor, while removing subsidies for major fossil fuel interests. This change to the language could also provide cover for countries that want to retain subsidies, however.

The word ‘unabated’ appears 3 times in the article. 2 of those instances can be found in a quote by Bob Ward of the Grantham Research Institute on Climate Change. In the quote he sums up the concession position on CCS held by the members of the Design to Win group of philanthropies and many of the recipients of funding spearheaded by John Podesta.

The call for countries to phase-out unabated coal power and inefficient fossil fuel subsidies is very important and historic. Unabated coal power releases carbon dioxide into the atmosphere, and all subsidies for fossil fuels are inefficient.

[SOURCE]

Item 19 in the first draft agreement became item 20 in the second and final draft. Unlike the transition commitments made a week before, the qualifier ‘unabated’ is only applied to coal power rather than to fossil fuels in general.

20. Calls upon Parties to accelerate the development, deployment and dissemination of technologies, and the adoption of policies, to transition towards low-emission energy systems, including by rapidly scaling up clean power generation and accelerating the phaseout of unabated coal power and of inefficient subsidies for fossil fuels;

[SOURCE]

In a 12 November 2021 article titled ‘COP26 cop-out on coal as fossil fuel phaseout diluted’, Helen Mountford, World Resources Institute vice-president for climate and economics identified the inclusion of the word ‘inefficient’ as a weakening point.

but the reference to “inefficient” fossil fuel subsidies “does weaken that a little”.

[SOURCE]

On 13 November 2021 statements from Greenpeace International Executive Director Jennifer Morgan were published. Morgan described the outcomes from COP 26 as weak, but stated they send a “signal”. The inclusion of the word ‘unabated’ in relation to phasing out coal power suggests to me that coal extraction will only end when we have dug it all up. Does Morgan not see this?

It’s meek, it’s weak and the 1.5C goal is only just alive, but a signal has been sent that the era of coal is ending. And that matters.

Morgan, who is now Germany’s special climate envoy described the phase-out item as a “breakthrough” despite its weakness. It’s hard to tell if the inclusion of the word ‘unabated’ is the reason Morgan perceives the phase-out item as weak. Greenpeace International have provided weak resistance to CCS development, but are on record as critical of an over-reliance on CCS and offsets.

The line on phasing out unabated coal and fossil fuel subsidies is weak and compromised but its very existence is nevertheless a breakthrough, and the focus on a just transition is essential.

[SOURCE]

The contradictions of Guterres

On the night before Greta Thunberg’s big speech in New York in September 2019 the UN Secretary General’s special adviser gave an address to the Oil and Gas Climate Initiative (OGCI). I don’t believe the remarks were ever meant to be made public, but a group of activists made it into the swanky event. It’s unlikely they knew the significance of the transcript they provided to the journalist Emily Atkin who was a favourite of Bill McKibben at the time. It’s unlikely that any of the activists were aware of the embargoed media release which contained an announcement of the OGCI’s massive global ‘Kickstarter’ plan to fund CCS decarbonisation hubs.

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Your industry has the assets and the expertise to demonstrate the ambition we need and to lead the way. The world needs, and is demanding, an ambitious road map to reduce the carbon intensity of your industry, and to demonstrate your commitment to align with the goals of the Paris agreement.

Robert Orr, Special Adviser to Antonio Guterres, September 22, 2019

[SOURCE]

At the completion of COP 26 Guterres gave a pre-recorded address in which he neglected to acknowledge the ‘unabated’ qualifier.

I reaffirm my conviction that we must end fossil fuels subsidies. Phase out coal.

[SOURCE]

Guterres continues to ignore the qualifier. In recent tweets Guterres has echoed the sentiments he expressed at COP 26, but not the sentiments he expressed via his assistant in that luxury New York hotel with the world’s wealthiest oil and gas executives.

17 June 2022:

For decades, the fossil fuel industry has invested in pseudo-science & public relations, with a false narrative to minimize their responsibility for climate change & undermine ambitious climate policies. They exploited the same scandalous tactics as Big Tobacco decades before.

[SOURCE]

19 June 2022:

The only true path to energy security, stable power prices, prosperity & a livable planet lies in abandoning polluting fossil fuels – especially coal – and accelerating the renewables-based energy transition. Renewables are the peace plan of the 21st century.

[SOURCE]

Why has Guterres neglected to attend to the significance of the ‘unabated’ qualifier? Is he too a narrative slave like most of the climate justice movement? It’s clear that in not attending to the qualifier he poses no threat to the OGCI.

Hoping we’ll forget

In the muddied waters of time, most of the disingenuousness, douchebaggery and outright deception will be disappeared or be forgotten. Is this what the stenographers, pundits, NGO spokespersons and leaders are hoping for? How will the narrative framers respond as many of the projects they currently ignore come to fruition? Perhaps John Podesta and the billionaire philanthropists he represents have already got a plan?

We should remember that the captains of industry always like to turn a waste product into a feed stock for value adding. There are numerous examples of waste products being used as fillers, and there are celebrated examples of companies transforming their waste products into cost lowering and even profitable revenue streams. CO2 has, for decades, been viewed by the fossil fuel industry as a waste product that could be transformed into a valuable feed stock. This is precisely what is being deployed by virtually every major fossil fuel company on the planet. Is it conceivable that the oldest and wealthiest pillar of industrial globalist power could contrive to use philanthropy and every other covert means available to shape and compromise the resistance to their efforts? It certainly is!

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Understanding GERAIS (Guidelines for Ethical Research in Aboriginal and Islander Studies) Part 1: My abstract

This is the abstract I submitted for consideration by Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), AIATSIS National Indigenous Research Conferences (ANIRC) Program Committee, for inclusion as a presentation at the 2019 AIATSIS National Research Conference: Research for the 21st Century.

My proposed presentation was declined, but I’m sharing the abstract here because I believe my questions continue to be relevant.

Title Green-Black Relations and the Galilee Basin Coal Complex: Political economy, aversive racism and public discourse
Paper Status Declined
Presenting Author Mr Michael Swifte

Abstract:

To have a belief in protecting nature while supporting the right of Traditional Owners/Sovereign First Nations to exercise autonomy is to hold two ideas in enormous tension. It is not for me as a non-Indigenous person to tell Indigenous people how to care for nature or who they ought to negotiate with in regards to rights and interests in country.

The public discourse is influenced by particular environmental and activist groups, but do these groups represent the truth of the political economy that Indigenous peoples are confronted with on a daily basis? How do these representations shape the public consciousness and influence decision making around resource extraction projects like the Galilee Basin coal complex?

My close examination of the public discourse, many phone calls to case managers at the NNTT and ORIC, and my reading of the work of Ciaran O’Faircheallaigh and Lily O’Neill has left me with two key questions: (1) What can be learned from academic inquiry that observes the Guidelines for Ethical Research in Aboriginal and Islander Studies? (2) How can independent researchers support the kind of critical inquiry that can contribute to a more informed public discourse regarding the native title system, environmental protection and resource extraction?

The lies and prevarications of Quiggin et al

There is a trio of academics charged with the job of reinforcing the StopAdani coalition narrative as it relates to native title. They lie and prevaricate to shape perceptions about the functioning of native title and the place of the struggles of the Traditional Owners in the Galilee Basin; along Adani’s proposed rail corridor; and at Abbot Point.

To prevaricate is to lie using devious means like silence. I will show that Quiggin et al not only prevaricated in their collected writings since June 2016, they also repeated a bare faced lie about a controversial “Self-determined authorisation meeting”.

 

Sections:

The project at the Global Change Institute

Collected writings

Two controversial meetings

The outright lie

An entirely ignored court document

Holding onto the talking point

Who has claim to the name “W&J”?

A gambit makes a talking point

Doing solidarity

Framing out the coal complex

A judgement not to be ignored

 

The project at the Global Change Institute

This trio were first brought together under the banner of the Global Change Flagships Projects through the Global Change Institute at the University of Queensland. The Wangan Jagalingou Traditional Owners Aboriginal Corporation and Family Council and Australian Lawyers for Human Rights are listed as partners in the project called ‘We Are The People From That Land: Centring Indigenous Peoples’ Rights in the Transition to a Sustainable, Low-Carbon Future’ which is funded by impact philanthropist and long term supporter of anti coal campaigns in the Galilee Basin, Graeme Wood. The project effectively frames out all other Traditional Owner groups affected by the development of the Galilee basin coal complex other than the Wangan and Jagalingou people. The Wangan and Jagalingou organisation who partner in this project represent a faction of the Wangan and Jagalingou claim group within the native title system.

Their collected works suggest that Quiggin et al are attending to the issue of native title in connection with the development of a particular coal mine, but what they have actually done is accept the prescribed spotlighting of one Traditional Owner group that is part of a larger claim group that is one of four Traditional Owner groups in the proposed coal complex. All four Traditional Owner groups had to contend with the native title system and may have been unduly pressured with threats of compulsory acquisition during negotiations. Three of the four groups had signed ILUAs over the crucial rail corridor. One of those Traditional Owner groups is embroiled in the controversy over the little reported corporate failure of Kyburra Munda Yalga Aboriginal Corporation which was presided over by the treasurer and Townsville director of the North Queensland Land Council.

Rather then presenting any arguments about why only one Traditional Owner group should be spotlighted, the partners in ‘the project’ chose silence. None of the Traditional Owners struggles along the rail corridor and at the proposed port were ever discussed in the collected writings in which Quiggin et al give a voice to ‘the project’ partners. Spotlighting casts all others into shadow. It is a passive strategy that supports the wider narrative of the project funder and other stakeholders like Earth Justice who are allied with Stop Adani coalition leaders the Australian Conservation Foundation.

The Stop Adani narrative holds that we need to stop Adani’s mine and that the Wangan and Jagalingou are the last line of defence against a mining company with the local, state and federal governments, and the native title system on it’s side. The development we are asked to resist is “the mine” and the Traditional Owners we are asked to support are “the W&J”. But when we acknowledge that we are witnessing the development of a coal complex, then economic reality – if we believe that the native title system fails to deliver justice to Traditional Owners – requires that we look without bias at the whole context in it’s diversity. We should be looking at the indigenous land use agreements (ILUAs) that form the milestones that make the coal complex possible. If we did this we would be considering the political economy of the entire proposed developments. Spotlighting frames out reality, creates silences where there ought to be investigation, and raises serious doubts about claims of solidarity with Traditional Owners.

 

Collected writings

Quiggin et al assisted in shaping the StopAdani coalition narrative through their prevarications in a report called ‘Unfinished Business’ which forms the basis of the arguments presented in an article for The Conversation and a 5 part series in New Matilda called ‘Killing Country’. These writings, none of which contain citations, reveal strategic silences, manipulation of language, and outright lies. The prevarications leave members of the public uninformed about the functions of the native title system and create a picture of Indigenous struggles that spotlights one group and one mine amid the development of a complex of mines, rail, and ports.

The collected writings of Quiggin et al were published contemporaneously with writings by members of the Wangan Jagalingou Traditional Owners Aboriginal Corporation and Family Council (W&J FC). There are some key differences in how the W&J FC describe significant and controversial events such as the March 2016 ‘self determination’ meeting that is the subject of a legal judgement made in April 2017, and the determination meeting held in April 2016 that is the subject of a forthcoming judgement.

‘We Are The People From That Land: Centring Indigenous Peoples’ Rights in the Transition to a Sustainable, Low-Carbon Future’, project report

‘UNFINISHED BUSINESS: ADANI, THE STATE, AND THE INDIGENOUS RIGHTS STRUGGLE OF THE WANGAN AND JAGALINGOU TRADITIONAL OWNERS COUNCIL’

http://earthjustice.org/sites/default/files/files/Unfinished-Business.pdf

Morgan Brigg, John Quiggin, and Kristen Lyons in The Conversation

‘The last line of defence: Indigenous rights and Adani’s land deal’ https://theconversation.com/the-last-line-of-defence-indigenous-rights-and-adanis-land-deal-79561

5 part ‘Killing Country’ series in New Matilda

Part 1. https://newmatilda.com/2017/11/16/adani-carmichael-coal-mine-introduction-special-five-part-series/

Part 2. https://newmatilda.com/2017/11/22/the-queensland-government-is-the-real-driver-in-adanis-dirty-land-grab/

Part 3. https://newmatilda.com/2017/11/23/traditional-owners-expose-adanis-relentless-pursuit-of-wj-country/

Part 4. https://newmatilda.com/2017/12/24/the-numbers-dont-stack-up-wjs-rights-on-the-chopping-block-for-adanis-non-viable-project/

Part 5. https://newmatilda.com/2018/01/30/native-title-colonialism-racism-adani-and-the-manufacture-of-consent-for-mining/

 

Two controversial meetings

Quiggin et al framed Adani as responsible for manipulation of voting meetings by deemphasising the functioning of certain organisations that perform an essential function within the native title system. These organisations, known as Native Title Representative Bodies (NTRBs), plan and deliver the voting and decision making meetings that determine if land use agreements get approved. NTRBs perform these functions as representatives of the claim group by liaising with the applicant group, mining companies and other entities who seek to make agreements. They provide legal support, manage apical ancestor lists, handle logistics for authorisation meetings, and certify that authorisation meetings were delivered to the standards set out by the Native Title Act. Their role is absolutely essential to the functioning of the native title system.

A familiar critique of the native title system is offered in the first of the collected writings, ‘Unfinished Business’. I can’t say I disagree. Quiggin et al argue that NTRBs could be seen as “facilitators and enablers” for the “settler-state regime”. This assertion is has some substance and there exist evidence and case studies to support that argument. Those case studies and evidences appear in more often in court documents than in publicly available communications from the National Native Title Tribunal (NNTT) or any other entity. Those court documents contain the most detailed explanations of the functioning of NTRBs that are available to the public. It is only through analysing how NTRBs serve the interests of mining companies to the detriment of the Traditional Owners in the process of negotiating ILUAs that we can understand how they become facilitators of the coloniser agenda. NTRBs ostensibly act for the Traditional Owner claim group through the applicant groups, registered native title bodies corporate (RNTBCs), common law land holders, and other nominated bodies. It is only through a thorough examination of the processes revealed largely through court documents that any assessment of the appropriateness of the actions of NTRBs can be made.

Quiggin et al discussing NTRBs in ‘Unfinished Business’:

Native Title Representative Bodies (NTRBs), appointed under the NTA, were established to assist Indigenous people with their claims. NTRBs are ostensibly facilitators of Indigenous access to native title rights, and indeed they do serve that function.
But the extent to which native title facilitates industry access to Indigenous lands also arguably positions NTRBs as facilitators and enablers of a settler-state regime that is ill-disposed to substantive recognition of Indigenous rights on Indigenous terms.

‘Unfinished Business’ is very much an academic piece. In it Quiggin et al identify Queensland South Native Title Services (QSNTS) as the NTRB acting for the W&J people claim group for the April 2016 authorisation meeting. They outline that the W&J FC have some very serious objections to the way QSNTS conducted the April 2016 voting meeting. In this piece the authors summarise the reportage of their project partners the Wangan Jagalingou Traditional Owners Aboriginal Corporation and Family Council rather than make explicit arguments about the way QSNTS facilitated negotiation processes under the Native Title Act (NTA). This could be seen as a device to posit particular talking points attaching ownership of those talking points to a partner organisation while distancing the authors from ownership. Here’s an example in relation to QSNTS and the April 2016 meeting:

A large part of the W&J’s grievance and grounds for contestation relate to their claims about the way in which QSNTS oversaw and Adani ran the meeting. The W&J also contrast what they see as QSNTS facilitation of a meeting for Adani’s benefit with QSNTS’s refusal to assist with, and active opposition to, the W&J’s efforts to hold the aforementioned “self-determined” meeting.

Quiggin et al did not make reference to QSNTS or the role of NTRBs in their article in The Conversation or in any of the first four parts of the ‘Killing Country’ series.

 

 

The outright lie

What started as reportage of a position of project partners the W&J FC became a talking point employed by Quiggin et al for the majority of the ‘Killing Country’. The collected works span roughly 7 months.

Quote – Unfinished Business

W&J describe a “self-determined” meeting held in March 2016 as also confirming, for a third time, they were resolute in rejecting any offer from Adani in exchange for the extinguishment of their native title rights.

Quote – The Conversation. ‘The last line of defence: Indigenous rights and Adani’s land deal’.

While Adani has filed for registration of an Ilua, the W&J calls it a “sham”, asserting that the Wangan and Jagalingou people have rejected a deal with Adani on three separate occasions since 2012.

 

In Killing country parts 1,2,3 & 5 the assertion was made that the March 2016 ‘self determination meeting was “bona fide”; that it was a ‘claim group’ meeting; that the Adani ILUA was “rejected”; that the meeting was the third such meeting to reject the ILUA.

All such claims hinge on the March 2016 ‘self determination’ meeting adhering to requirements of the of the NTA.

Quote – Killing Country Part 1

What differentiates the Wangan and Jagalingou is that they are the only Traditional Owner group, through the Wangan and Jagalingou Traditional Owners Family Council (W&J), who have said no – on 3 occasions, at bone fide meetings of the Native Title Claim Group – to an Indigenous Land Use Agreement with Adani.

Quote – Killing Country Part 2

Despite three separate claim group meetings spanning over four years, where W&J has rejected an ILUA with Adani, an agreement was signed in 2016. Yet the meeting, and the ILUA it posits, is shrouded in controversy, raising serious and as yet unresolved questions about its legitimacy.

Quote – Killing Country Part 3

W&J have said no, on three separate occasions at bone fide meetings of the claim group, to a registered Indigenous Land Use Agreement (ILUA) with Adani.

Quote – Killing Country Part 5

In addition, and against Wangan and Jagalingou decisions in 2012 and 2014, QSNTS has continued to facilitate Adani’s ongoing efforts to seek agreement, through an ILUA, to the surrender of native title rights in up to 2,750 hectares of land that are necessary for infrastructure critical to the mine. QSNTS declined to in any way facilitate a ‘self-determined’ meeting of the claim group that was run in March 2016 – a meeting that once again rejected an ILUA with Adani, as well as any further dealings with them. They also refused to attend, or share the notice of the most recent claim group meetings in December 2017 – meetings to address the progress of the native title claim. These meetings also revisited, and as it turned out, de-authorised the ILUA that Adani was seeking to have registered.

 

An entirely ignored court document

In ‘Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 (11 April 2017)’  Justice Reeves found that the March 2016 ‘self determination’ meeting was called for a minority of the Wangan and Jagalingou claim group and that the meeting was not a legitimate authorisation meeting.

37. First, as has already been mentioned above, the central purpose of the 19 March meeting, as disclosed by the notice for that meeting, was to address concerns held by a minority of the members of the existing W & J Applicant and those members of the W & J claim group who held the same concerns, relating to the ILUA negotiations with Adani.

and

35. It follows that the notice was not, by its terms, a notice directed to all the members of the W & J claim group notifying them that an authorisation meeting had been convened for that claim group to consider the authority of its authorised applicant for the purposes of ss 66B and 251B of the NTA. That being so, it could not result in a meeting being convened that would be fairly representative of the views of the whole of the W & J claim group concerning the membership of the W & J Applicant. It therefore follows that the replacement applicant is not able to rely upon resolution 12 passed at that meeting for the purposes of establishing condition 3 (s 66B(1)(a)(iii)), or condition 5 (s 66B(1)(b)).

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2017/373.html?context=1;query=Burragubba;mask_path=#

The entire collected works of Quiggin et al as part of their partnership with the Global Change Institute were published after the April 11, 2017 judgement. Not one of the 7 pieces makes any mention of Justice Reeves’ judgement that the meeting was not a valid claim Wangan and Jagalingou claim group meeting. Any claim that the March 2016 ‘self determination’ meeting was “bona fide” is an assertion that the meeting was seen as satisfying the requirements under the NTA which it certainly did not.

The continued claim to the legitimacy of the March 2016 meeting after the April 2017 judgement served to preserve a talking point that had been presented by the W&J FC in the year preceding the April 2017 judgement. It also served to mask the factional nature of the W&J FC and the meeting they facilitated.

The March 2016 ‘self determination’ meeting was a gambit designed to unseat the NTRB  the was continuing to act for the claim group and seven of the applicant group members.  If given effect under the NTA the actions taken at that meeting would serve to reform the delivery of W&J claim group meetings under the auspices of the W&J FC faction.

Marcia Langton wrote about the Justice Reeves judgement and the factional nature of the W&J FC gambit in July 2017:

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.

https://www.pressreader.com/australia/the-saturday-paper/20170701/281517931139165

 

Holding onto the talking point

The W&J FC issued a reply to a Warren Mundine piece from shortly after the April 11 judgement. Here the W&J FC authors conflate the W&J claim group with the W&J FC who boycotted the April 2016 claim group meeting. Only by conflating the W&J FC faction with the W&J claim group, and by misrepresenting the established illegitimacy of the March 2016 meeting, is it possible to make the claim that the Adani ILUA was rejected “three times”.

Here’s a quote from the W&J FC reply to Warren Mundine that shows the talking point they retained after the April 2017 judgement and in the lead up to the publication of ‘Unfinished Business’.

The “one individual, holding himself out as representing the group” that Mundine disparages is assumed to be the one person who voted ‘no’ at the Adani meeting. We know that’s a reference to the Councils’ leader, Adrian Burragubba. But he wasn’t even at that meeting; and Mr Burragubba is backed by the family representatives and the W&J claim group who rejected Adani three times before. He is joined in litigation against the mining leases and the dodgy ILUA by other members of the registered claimant. He is also a member of the W&J Applicant and has uncontested rights as a primary Traditional Owner for the land on which Adani wants to build its mine.

http://wanganjagalingou.com.au/mundine-reduces-aboriginal-land-rights-and-first-nations-treaties/

In May 2017 W&J FC authors asserted that they have a mandate to object to Adani on behalf of the W&J claim group.

The W&J Traditional Owner Council, including representatives of 9 of the 12 apical families, has upheld the original decisions of the W&J claim group to reject an ILUA with Adani, and has followed through on the mandate given it to object to Adani’s deal.

 

http://wanganjagalingou.com.au/federal-resources-minister-senator-matt-canavan-is-misrepresenting-wangan-and-jagalingou-people-again/

This submission by the W&J FC to the Committee on the Elimination of Racial Discrimination in October 2017 shows that they retained their talking point even in the face of the Office of the United Nations High Commissioner for Human Rights.

Despite our rejections, Adani persisted, and our people again rejected an ILUA and any further dealings with Adani in March 2016.

 

 

Who has claim to the name “W&J”?

The group referred to as “W&J” in the collected writings of Quiggin et al is the Wangan and Jagalingou Traditional Owners Family Council. When I write about this particular entity which is effectively the same entity as the official partner organisation for the Global Change Institute project, I refer to them as W&J FC. It makes common sense that the earliest and most formally composed entity should be referred to with the initials W&J. In this instance the title “W&J” ought to refer to the Wangan and Jagalingou People claim group for the purposes of native title claims and  determinations. The W&J FC can be shown to have splintered off from the original claim group. The use of “W&J” to refer to a faction of the wider claim group serves to create the suggestion that the W&J FC are the active party representing the claim group in native title matters.

Indeed Quiggin et al create confusion by referring to the wider claim group as “W&J” when referring to events that happened before W&J FC was formed.  In Part 1 of Killing Country Quiggin et al made the following statement:

What differentiates the Wangan and Jagalingou is that they are the only Traditional Owner group, through the Wangan and Jagalingou Traditional Owners Family Council (W&J), who have said no – on 3 occasions, at bone fide meetings of the Native Title Claim Group – to an Indigenous Land Use Agreement with Adani.

This statement clearly delineates the two entities while conferring the assignation W&J onto the group formed after mid 2014 when the claim group rejected a second ILUA.

The W&J first refused an agreement with Adani in 2012 and launched their public campaign in 2015, and since then have sustained a complex legal campaign that is now coming to the pointy end, with an outstanding case to be heard in March 2018.

There is no evidence to show that the W&J FC and associated entities existed in 2012. The above statement to conflate the W&J FC with the W&J claim group through the suggestion that the same entity rejected the same Adani ILUA at bone fide claim group meetings in 2012, 2014, and 2016 which is not the case.

There are numerous examples predating and following the collected writings of Quiggin et al showing journalists, politicians, and corporate spokespeople using “W&J” to refer to the “Wangan and Jagalingou people” or “W&J people” or the “W&J claim group”.

 

 

A gambit makes a talking point

From a story posted to the W&J FC website announcing the March 2016 meeting as a success.

In a landmark moment of self-determination and a major blow to the Adani Carmichael coal mine, the Wangan and Jagalingou (W&J) people, traditional owners of the proposed mine site in QLD’s Galilee Basin, on the weekend voted for the third time to reject a land deal with Indian giant Adani for its proposed mega-mine.

W&J traditional owners came from all over Queensland to a meeting of the claim group and made it clear they will not be dictated to by a mining giant and manipulated by a complicit Government.

W&J traditional owner and spokesperson, Adrian Burragubba said, “Our people voted unanimously at an authorisation meeting to reject Adani’s repackaged deal, and to condemn them for falsely representing the position of the W&J people. We confirmed that no further negotiations with Adani will take place”.

The vote on Saturday follows two previous decisions of the majority to reject the Carmichael Mine, in 2012 and 2014, and heads off a third attempt by Adani to force a land use deal onto the W&J people.

It’s important to note that the National Native Title Tribunal had not had any time to respond to or process the outcomes of the March 2016 meeting at the time of the above statement.

http://wanganjagalingou.com.au/no/

 

Doing solidarity

Here’s a quote from a speech by Adrian Burragubba at the April 2016 Beyond Coal and Gas Conference.

The second part of our strategy is about the big picture — where we as First Nations people confront the dispossession and injustice that are met by Traditional Owners all across the country every day. It is a long-running political challenge that has been going on since colonisation in 1788.

In the same speech Adrian Burragubba shows that his thinking does not encompass the entire complex or the threat posed to W&J country by proposed rail corridor for which three other Traditonal Owner groups have signed ILUAs. His thinking does not seem to take account of the many other mines that a completed standard gauge rail project could help open upin the Galilee Basin to the North and South of the Carmichael mine site.

If we are successful in stopping this mine, then our country and our culture will be saved from destruction. So this is serious business for us.

https://www.greenleft.org.au/content/adrian-burragubba-struggle-save-country-adani

The ‘solidarity’ with Traditional Owners exercised by Quiggin et al is entirely contingent on the framed experience of one faction of one Traditional Owner group. While Adrain Burragubba states that he is concerned with the “big picture”, neither he nor any of his non-Indigenous allies have ever discussed or acknowledged the native title based struggles of the other Traditional Owners in the Galilee Basin coal complex area.

The phrase “Centring Indigenous Peoples’ Rights” appears in the name of the project for which Quiggin et al are the collective voice. This suggests that the experiences of all the Traditional Owners in the Galilee Basin coal complex ought to be considered. The failure of Quiggin et al to explicitly acknowledge the other Traditional Owners in the Galilee Basin coal complex demonstrates that no actual “centring” is taking place.

As far as I’m concerned solidarity with Traditional Owners requires consideration of the whole political economy. That means looking at the experiences of all the Traditonal Owners involved and consideration given to the effects of the threat of compulsory acquisition on the negotiating position of Traditional Owner groups who also negotiated with Adani. I’m left with the question of what can be expected of someone like Adrian Burragubba? Is it enough that his struggle and the struggles of his people and his family council may reveal the failures of the native title system in the context of mining developments and the manipulations of the local, state, and federal governments?

Personally, I think Adrian Burragubba and the W&J FC have been captured by interests with a desire to keep the narrative about native title in the development of the Galilee Basin coal complex simple, one group fighting valiantly to stop a mine. This places the W&J FC at risk of completely missing the opportunity of stopping the rail line which will deliver a potential flood of mines that will swamp their country in the future. Those interests who’ve captured the W&J FC do not fight to win the battle against the coal industry, rather, they fight to achieve attention metrics and further the interests of their funders who are largely based in the US. They are more concerned with ‘the narrative’ then they are about effective strategy.   There is no strategy to stop the rail line.

 

 

Framing out the coal complex

The “last line of defence” refrain from The Conversation article by Quiggin et al serves to frame the Carmichael mine project, and thereby the Traditonal Owners seen to be offering resistance to that project, as the primary means by which Adani poses a threat. By framing the Carmichael mine as the crucial project to stop, those who employ the “last line of defence” refrain further obscure the means of export – the North Galilee Basin Rail Project – that makes the Carmichael mine and all the other proposed mines in the Galilee Basin possible.

A quote from Part 4 of ‘Killing Country’

The Adani mine-rail-port project is not commercially viable, even under the most optimistic assumptions. That Adani has failed to achieve final close reflects the dubious economics on which this project is based.

While much remains obscure, it is clear that any public funds advanced to the project – a project that does not have the consent of the Traditional Owners – will be at high risk of loss.

https://newmatilda.com/2017/12/24/the-numbers-dont-stack-up-wjs-rights-on-the-chopping-block-for-adanis-non-viable-project/

The “Adani mine-rail-port project” does indeed – under the native title system – have the consent of the four Traditional Owner groups at the port, along the rail corridor, and at the mine site. In the above quote Quiggin et al conflate the coal complex with the mine while conflating the W&J FC with “the Traditional Owners”. This conflation reveals a fundamental failure to reflect the political and economic reality of the coal industry that their allies claim to be resisting. This can only lead to entrenched failure.

Quiggin et al appear to not be motivated by the desire to faithfully describe the relationship between multiple Traditional Owner groups and the leading proponent of a coal complex spanning a vast area. Though they acknowledge that the native title system offers weak ‘rights to negotiate’ and limited agency to exercise ‘rights and interests’, they resile from acknowledging the struggles of the majority of Traditional Owner groups who have negotiated with Adani under the same threat of compulsory acquisition.

As the voice of a project with partners involved in climate change campaigning, human rights law, environmental law, and the protection of sacred country, Quiggin et al were delivered talking points and framings that compelled them to direct their writing and perhaps their own thinking away from the ethical application of social and economic analysis. They focused their investigations and analysis on a deliberately isolated component project of a much larger development through their remit to make their analysis support the talking points of a faction of a single Traditional Owner group.

 

A judgement not to be ignored

Justice Reeves will provide his judgement on the very serious objections about how the April 2016 claim group meeting was run in the near future. The judgement will be controversial no matter who it favours. It will reveal detail about the function of Queensland South Native Title Services as the Native Title Representative Body for the Wangan and Jagalingou People claim group.

The W&J FC present many many legitimate questions for which the answers would be highly enlightening to many students and academics in the fields of law, anthropology, and political economy. In their March 2018 statement following Justice Reeves holding over his judgement regarding the April 2016 claim group meeting the W&J FC rightly point out that all members of the applicant group were notified by the Coordinator General of an intention to compulsorily acquire “all” W&J native title.

They ignore the claim that those individuals who engineered the deal with Adani say they were coerced by the Coordinator General by a threat of losing all native title rights.

http://wanganjagalingou.com.au/palaszczuk-whitewashes-our-rights-for-adani/

The March 2018 statement discussed above is the only publication I could find in which the W&J FC go into any detail about the functions of the QSNTS while actually naming them. I would argue that the W&J FC deliberately framed Adani as the active agent in manipulating the April 2016 claim group meeting by avoiding mention of the role and functions of the Queensland South Native Title Service in delivering authorisation meetings. The forthcoming judgement by Justice Reeves will show the depth of involvement of QSNTS in delivering the April 2016 claim group meeting and reveal Adrian Burragubba’s and the W&J FC’s Adani blaming as a misrepresentation of the functioning of the native title system in the delivery of authorisation meetings.

 

 

 

 

 

 

 

 

Aboriginal Autonomy and the Galilee Basin Coal Complex

First published by the Native Title Unit of the Australian Attorney-General’s Department

Submission to Reforms to the Native Title Act 1993: Transparent agreement-making

Submission by:

Michael Swifte

February 2018

Email: mgswifte@yahoo.com.au

Blog: We Suspect Silence

Twitter: http://twitter.com/empathiser

Member: Wrong Kind of Green critical thinking collective

Sections

1. Motivated by understanding Green-Black relations.

2. Auto-didactics and an unstructured methodology.

3. My key themes and areas where I shine a spotlight.

(a) Theme one: Indigenous Land Use Agreements relating to the crucial Adani rail link to the Galilee Basin.

(b) Theme two: Information giving and oversight of negotiation processes.

(c) Theme three: Non PBCs/RNTBCs making ILUAs

List of acronyms

NNTT – National Native Title Tribunal

NTA – Native Title Act

PBC – Prescribed Bodies Corporate

RNTBC – Registered Native Title Bodies Corporate

ORIC – Office of the Registrar of Indigenous Corporations

ILUA – Indigenous Land Use Agreement

NAIF – Northern Australia Infrastructure Facility

KMYAC – Kyburra Munda Yalga Aboriginal Corporation

JEL – Juru Enterprises Limited

NGBR – North Galilee Basin Rail Project

NPIC – Non-Profit Industrial Complex

WKOG – Wrong Kind of Green

CSG – Coal Seam Gas

RTI – Right to Information

1. Motivated by understanding Green-Black relations.

I started out as an anti-CSG (coal seam gas) activist in 2011 working with Generation Alpha and Zombie-A-Frack. I then moved on to be a founding member of the Galilee Blockade group. Around that time I was a shareholder activist against Aurizon as part of the Over Our Dead Bodies campaign. These were the earlier stages of the Queensland based environmental resistance against the development of the Galilee Basin coal complex.

As a member of Galilee Blockade I was focussed on strategy and capacity building for future blockades and direct actions in the Galilee Basin. I fell out with the Galilee Blockade group but maintained an interest in good strategy to inform direct action in the Galilee Basin.

My research into native title issues in the context of large scale coal mining development in the Galilee Basin – which I began tentatively in mid 2015 – was focussed on analysis of the ‘means of export’ and the economic position/agency of Traditional Owners in relation to the development of the Galilee Basin coal complex. At this time I was not conscious of the concept of ‘Aboriginal autonomy’ as articulated by Professor Ciaran O’Faircheallaigh from the School of Government and International Relations, Griffith University. (1)

I have moved from a position of support for stopping the development of the Galilee Basin coal complex ‘at all costs’ to a more nuanced position that takes account of the experience of Traditional Owners and their communities in dealing with the apparatus of the native title system. There is an inherent tension in valuing both Aboriginal autonomy and the prevention of destructive mining developments. It is my belief that in this tension lies the great challenge of decolonisation as it relates to all Indigenous and non-indigenous people. There is no value – in terms of decolonisation – in ignoring particular issues and groups of people when attempting to engage Indigenous and non-indigenous people in support of a particular agenda. Indeed, only thorough and honest assessments of the economic reality of all Traditional Owners as they engage or are excluded from engaging in the negotiation processes afforded to them by the native title system can we properly inform and underpin our fiduciary responsibility to Aboriginal people with regard to the institutions and corporations they are compelled to form and maintain.

Corruption and corporate failure occur in all modern cultural contexts, and as such the expression of these phenomena are a legacy of the post-colonial/colonised era in which our native system operates. Transparent agreement making must be supported by processes and information-giving that allow the general public and more specifically Traditional Owners who have been marginalised from their representative bodies to make assessments about the integrity and effectiveness of the native title system. In the following passages I will make the case that rather than being accountable, accessible and fair, the key institutions that make up the native title system fail to deliver justice through ineffective and poorly defined information-giving, lack of oversight and disclosure regarding negotiation processes, and significant bureaucratic/administrative/institutional failures in attempting to make the native title system navigable.

My involvement with the critical thinking collective Wrong Kind of Green (WKOG) began in 2014 after my first blog post on my blog called We Suspect Silence under my Twitter handle @empathiser. (2) The relationship has deepened since. The non-profit industrial complex (NPIC) critique is at the centre of WKOG’s entirely self funded work. Broadly, the non-profit industrial complex critique contends that through funding relationships with philanthropy, and through networked relationships with a broad range of government, corporate, and non-government institutions, the not-for profit sector effectively captures the efforts of Indigenous and non-indigenous activists for the benefit neo-liberal forces.

2. Auto-didactics and an unstructured methodology.

I subscribe to the understanding of intelligence articulated by anti-war activist Stan Goff in his 2007 essay ‘On Strategy, Tactics & Intelligence’.

Intelligence is information analyzed for its value to develop plans for action. Most of it, even in the world of government intelligence, doesn’t come from breaking codes or running agents — contrary to the media myths — but from information that is readily available to everyone. Basically, that means if we do intelligence gathering and analysis right, then ours is going to be as good as theirs… maybe better, since we don’t have bureaucratic ambitions and political agendas distorting ours as much.” (3)

My journey has been a learning one. I entered into this area only seeking to get to the truth and as such did not have a predetermined or structured plan. I have had to become an investigative journalist and a pundit to compliment my environmental activism, but it has been my determination to never forget or ignore the economic impacts on all Traditional Owners and their communities that has kept my eyes open. The depth and breadth of economic impacts on Traditional Owner communities and the nature of the negotiating processes that lead to key decision making events have only been revealed to me because I make a special effort of digging around to extract information that Traditional Owners are entitled to know but would otherwise be buried. The decision making events I have investigated – voting meetings, ILUA authorisation meetings, execution meetings – fall under the focus of the ‘Transparent Agreements’ proposals contained in the Reforms to the Native Title Act 1993 Options Paper. I will include information not published by the National Native Title Tribunal (NNTT) but derived from my investigative efforts in the section titled ‘My key themes and areas I spotlight’.

My phone calls to NNTT case workers and other staff helped me get clarification of basic elements of it’s information-giving and information architecture. I was always mindful of the experience of and challenges put before a claim group member who was marginalised from the negotiation process. I routinely asked myself “How much useful information could a blackfella get from calling the NNTT?”.

The process of finding the relevant ILUA documents was haphazard and involved many phone calls to NNTT staff. I encountered issues with information architecture, broken links, and a general lack of guidance for researchers in the online environment. As I outlined in my blog post titled ‘The National Native Title Tribunal: Arbiter or “record keeper”?’ some staff who deal with the public need to seek guidance about which non-privileged information in their possession can be provided to a member of the public. As a record keeper the NNTT is inconsistent.(4) Non-privileged information relating to ILUAs that I was told by one staff member would need to be provided in response to an email request, was freely provided over the phone by other staff members.

3. My key themes and areas where I shine a spotlight.

Rather than attend to the elements of the Native Title Act (NTA) and regulations, I will be presenting particular sets of information gathered since mid 2015, much of which is rarely, if ever, discussed in public forums.

(a) Theme one: Indigenous Land Use Agreements relating to the crucial Adani rail link to the Galilee Basin.

The North Galilee Basin Rail Project (NGBR) is the standard gauge rail project which was the subject of the Northern Australia Infrastructure Facility (NAIF) loan application. This was revealed to me during the inquiry conducted by the Senate Economics References Committee titled ‘Governance and operation of the Northern Australia Infrastructure Facility (NAIF)’. I analysed the revelations presented in this inquiry at length in my blog post titled ‘Confirmation that the North Galilee Basin Rail Project is the Adani rail project being considered by the Northern Australia Infrastructure Facility’. (5)

The NGBR is currently under development by Adani and is the crucial piece of export infrastructure without which the Galilee Basin coal complex could not be developed. As I highlight in my blog post titled ‘Unpacking the Galilee Basin shell game’ the project has been erroneously named the ‘Carmichael Rail Project’ by Adani Australia in the ‘Projects’ section of their website. (6) This is a contradiction of the actual name of the project which appears in the relevant Indigenous Land Use Agreement (ILUA) documents and in the Queensland Department of State Development project listings. One notable environmental organisation echoed this nomenclature in relation to the NAIF in December 2016. Greenpeace Australia Pacific published a document titled “OffTrack: Why NAIF can’t approve the Carmichael Rail Project’. (7)

By capitalising the words “rail” and “project”, both Adani and Greenpeace suggest a formal title for a project which in all official documents has a different name. The actual project name, the ‘North Galilee Basin Rail Project’, can be used as a targeted search term to direct researchers and the general public to documents that would show that negotiations, including voting meetings leading to signed ILUAs, took place between Adani and Traditional Owners in the second half on 2014. The absence of this name from popular discourse could be interpreted as a deliberate tactic to confound and mislead. Questions ought to be asked of Adani Australia and Greenpeace AP about their purpose in using a misleading title in this context.

Three key ILUAs relating to the NGBR have been signed without objection by the Juru, Birriah, and Jannga People’s representative bodies. These ILUAs were never discussed in any form, nor were the Traditional Owner representative groups mentioned by name in the New Matilda five part series titled ‘Killing Country’, which ostensibly focussed on native title issues in the Galilee Basin coal complex (though the Wangan and Jagalingou Traditional Owners Council was placed at the forefront of the story). These unreferenced pieces make no mention of the North Galilee Basin Rail Project. The authors, Kristen Lyons, John Quiggin, and Morgan Brigg were supported by the Global Change Institute at the University of Queensland to write the June 2017 report from which the New Matilda five part series follows on. The report is titled ‘UNFINISHED BUSINESS: ADANI, THE STATE, AND THE INDIGENOUS RIGHTS STRUGGLE OF THE WANGAN AND JAGALINGOU TRADITIONAL OWNERS COUNCIL’. (8)

(b) Theme two: Information giving and oversight of negotiation processes.

All the negotiation meetings in preparation for the registration of an ILUA come down to one or two voting meeting(s). After ascertaining that Adani had two rail projects, one of which was rarely ever named in the media or in government business, I was able to track down and identify – with the help of NNTT staff – the registered ILUAs that made the rarely-named (and sometimes mis-titled) rail project possible.

The below list is taken from my February 2017 blog post titled ‘Why is there so much silence around the North Galilee Basin Rail Project and related Indigenous Land Use Agreements?’. (9)

Indigenous Land Use Agreements applying to the North Galilee Basin Rail Project

QI2014/072 – Kyburra Munda Yalga Aboriginal Corporation RNTBC and Adani Mining North Galilee Basin Rail Project ILUA (10)

QI2014/080 – Birriah People and Adani Mining North Galilee Basin Rail Project ILUA (11)

QI2014/065 – Bulganunna Aboriginal Corporation and Adani Mining Carmichael North Galilee Basin Rail Project ILUA (12)

When I established through a 2014 Right to Information (RTI) disclosure that these ILUAs were significant to the development of the standard gauge rail project that is central to the Galilee Basin coal complex I began to develop a time line and identified key non-commercial-in-confidence data points that would help me ascertain if every effort was made to ensure that each claim group member was able to attend voting meetings on crucial ILUAs. (13) (14) My concern about voting meetings was driven by a single ABC regional article about Juru elder Carol Prior who stated that claim group members who were on Palm Island didn’t know about a crucial voting meeting. (15) She stated that she intended to object to the ILUA. No objection is recorded by the NNTT for any of the three ILUAs that I investigated. (16)

I determined that the dates when voting meetings occurred, the dates when voting meetings were advertised, and the dates when claim group members were notified of their right to object to an ILUA ought to published by the NNTT and be available to any member of the public. With these particular data points I would be able to ascertain if news paper ads had been placed and every effort had been made to notify claim group members.

After my initial requests for various advertising and voting dates was rejected by an NNTT case worker who suggested I write an email request, I decided to try other NNTT staff who were happy to provide me with what dates they were able to find. None were able to find any dates for advertising of authorisation/voting meetings. (17) I later returned to the first case worker with the data I had gathered and was told again that I should send through an email. I created a set of fields which included the data I had gathered and mistakenly did not specify that I was also requesting dates for the advertising of voting meetings. I received a reply to the email which included the dates of the authorisation meetings for each ILUA and an explanation that body corporate agreements – two of the three – did not require a public notification of intention to register an ILUA. (18) Having confirmed the voting meeting dates I was able to discern that for each of the three ILUAs the commencement date was also the date of the second of two voting meetings. My searches based on the execution dates provided by the NNTT case worker provided incomplete and interesting results.

Below are the data fields for voting meetings and advertising of notification periods. All of the information other than the tribunal numbers and registration dates was acquired or clarified through phone conversations and emails with NNTT staff in late 2016 and in 2017. (19) The execution dates for the Birriah and Jannga ILUAs (blue text) was provided via email with the NNTT case worker. (20)

Given the effort it took to gather unpublished dates for voting/authorisation/execution meetings I cannot see how the NNTT can effectively arbitrate a conflict over the delivery of a voting meeting if it does not acquire and retain information regarding the efforts made to ensure all claim group members have an opportunity to attend voting meetings and lodge objections. The lack of published information about meeting advertising dates, notification advertising dates, authorisation meeting dates signifies that the NNTT is neither actively providing oversight in regards to crucial authorisation meetings nor actively capturing and publishing non-commercially sensitive data that is relevant to marginalised Traditional Owners and other researchers.

Juru QI2014/072

Registered: 24/11/14

Votes: 05/08/14 and 16/09/14

Notification: 21/10/14 to 21/11/14

Advertised: Body Corporate Agreement. Not advertised in newspapers. No grounds for objections by claim group members.

Birriah QI2014/080

Registered: 24/04/2015

Votes: Agreement was executed by the parties between 27/09/2014 and 4/11/2014

Notification: 21/01/2015 to 21/04/2015

Advertised (notice of application to register an ILUA): 14/01/15

Jannga/Bulganunna QI2014/065

Registered: 05/01/15

Votes: Agreement was executed by parties on 4/07/2014 and 6/08/2014

Notification: 28/11/14 to 29/12/14

Advertised: Body Corporate Agreement. Not advertised in newspapers. No grounds for objections by claim group members.

Armed with the 6 execution dates for the three NGBR ILUAs I was able to find notices published in the Koori Mail on two dates in 2014. These notices relate to the Juru and Birriah people information sessions and/or authorisation meetings. I was not able to find public notices for the Jannga/Bulganunna authorisation meetings.

Juru

The July 30, 2014 public notice of information sessions in the Koori Mail for the Juru ILUA with Adani relating to the North Galilee Basin Rail Project lists August 5, 2014 as an information session date but not an authorisation meeting. No authorisation meeting dates are specified. No mention is made of any dates scheduled for the September 16 execution meeting.

Here’s is a statement from the July 30, 2014 public notice that clearly reinforces that the dates indicated are specifically for “information sessions”.

Under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) Kyburra cannot make a decision to enter into the ILUA unless it has consulted with and obtained the consent of the Juru People to enter into the ILUA. Kyburra must also consult with and consider the views of the native title representative body for the ILUA Project. Kyburra and Adani have organised a number of consultation and consent information sessions (Information Sessions) for the Juru People to attend for this purpose.” (21)

Birriah

There were three public notices of information sessions and authorisation meetings for the Birriah People placed in the Koori Mail on September 10, 2014.

The three public notices relating to Birriah information sessions, a reformulation meeting, and authorisation meetings carried similar headlines texts.

Public notice 1.

PUBLIC NOTICE OF AUTHORISATION MEETING TO CONSIDER PROPOSED INDIGENOUS LAND USE AGREEMENT (AREA AGREEMENT) UNDER THE NATIVE TITLE ACT 1993 (CTH)

Public notice 2

BIRRIAH NATIVE TITLE CLAIM GROUP NATIVE TITLE AUTHORISATION MEETINGS

Public notice 3

BIRRIAH PEOPLE NATIVE TITLE MEETING TO AUTHORISE INDIGENOUS LAND USE AGREEMENTS

Public notice 1 lists the authorisation meeting as September 27, 2014 while public notice 2 and 3 list the authorisation meeting as September 28, 2014.

Public notice 2 lists two meetings, the first of which is a reformulation meeting to change the apical ancestor list. The current and proposed apical ancestor lists are provided in all three notices.

Public notice 3 lists the start time of the authorisation meeting as 8.30am which is the same time listed in public notice 2 as the starting time for the reformulation meeting.

Public notice 2 outlines the order of proceedings as the reformulation meeting followed by the authorisation meeting for those still deemed to have an apical ancestor.

Meeting 2 – Meeting of the reformulated Birriah Native Title Claim Group If a decision is made to change the description of the Birriah Native Title Claim Group a further meeting of the re-formulated claim group will be held immediately following Meeting 1 for the purpose of authorising an Applicant to deal with all matters arising in relation to the Native Title Claim. Note: If the proposed amendments to the description of the native title claim group are authorised at Meeting 1, then only persons who fall within the re-formulated claim group description may participate in Meeting 2.” (22)

No mention is made in the Birriah public notices of any authorisation meetings scheduled for November 4, 2014.

A public notice announcing that an application to register an area agreement on the Register of Indigenous Land Use Agreements was issued in the Koori Mail on January 14, 2015. Here’s a quote from that notice indicating the a Birriah Traditional Owner could not make an objection to the registration of an ILUA in this particular circumstance unless they made a registered native title determination application during the notification period.

Responses to an application to register an ILUA—where the application has not been certified: Because this application for registration of the agreement has not been certified by the Representative Aboriginal/Torres Strait Islander Body/ies for the area, there is no opportunity to make a formal objection to its registration. However, if you claim to hold native title in relation to any of the land or waters covered by this agreement, you may wish, within the notice period, to make a native title determination application or equivalent application under a law of a state or territory in respect of any part of the area. The application must be made by 21 April 2015. If that application is registered on the Register of Native Title Claims, the registered native title claimants must be a party to this agreement before it can be registered.” (23)

(c) Theme three: Non PBCs/RNTBCs making ILUAs.

I’ve identified two occasions in the negotiation of ILUAs relating to the development of the Galilee Basin coal complex when Traditional Owners have been represented in ILUA negotiations by groups that are not the claim group, Prescribed Body Corporate (PBC) or the Registered Native Title Body Corporate (RNTBC).

This raises some serious questions about the oversight of the NNTT. While I’m no expert on native title, it seems to me that the claim group ought to be represented by bodies that are subject to regulation by the Office of the Registrar of Indigenous Corporations (ORIC) and were incorporated for the specific purpose of making native title claims and negotiating with parties on behalf of the claim group defined under the native title system.

Juru Enterprises Limited

Juru Enterprises Limited made an ILUA with Adani in January of 2014. The Juru RNTBC, KMYAC were not a party to this ILUA.

The title of the ILUA isJuru People and Adani Abbot Point Terminal ILUA’. NNTT number: QI2013/036 (24)

Juru Enterprises Limited and Kyburra Munda Yalga Aboriginal Corporation are currently in pre-hearing case management in the Federal Circuit Court of Australia.

Case management hearings are being presided over by Justice Steven Rares. (25)

From my research only Geoff Egan, a reporter from Central Queensland is the only person to write about these proceedings in a piece titled ‘Juru missed out on $1m from Adani: court’. (26)

The Queensland Department of State Development Annual Report 2016/17 mentions Juru Enterprises Limited.

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.” (27)

WJ Corporation

Kate Arnautovic’s honours these provides are very useful background on negotiations between the Wangan and Jagalingou People and Adani. The quote below should interest anyone who is concerned with transparent agreement making during the pre-determination phase.

In December 2012, Adani attempted to sideline the authority of the applicants and seek authorisation from the Wangan and Jagalingou Traditional Owners Aboriginal Corporation (WJ Corporation). The WJ Corporation is a representative body with a board of Wangan and Jagalingou family representatives (Adani Mining v. Jessie Diver & Others, 2013). While its membership is comprised of many Wangan and Jagalingou claimants, it also represents people who are not claimants. Patrick Malone told the NNTT that the membership of the WJ Corporation included ‘large numbers’ of people who were not descendants of the 12 families that constitute the claim group (Adani Mining v. Jessie Diver & Others, 2013).” (28)

References

(1) O’Faircheallaigh, Ciaran. ‘Mining royalties and Aboriginal autonomy’. Distinguished Lecture presented by the School of Government and International Relations, Griffith University. 9 August 2017 (Broadcast ABC Radio National: September 13, 2017).

http://www.abc.net.au/radionational/programs/bigideas/mining-royalties-and-aboriginal-autonomy/8808038

(2) Swifte, Michael. ‘Australia’s climate movement has been bought for a pittance.’ Blog: We Suspect Silence, May 13, 2014.

https://wesuspectsilence.wordpress.com/2014/05/13/australias-climate-movement-has-been-bought-for-a-pittance/

(3) Goff, Stan. ‘On Strategy, Tactics & Intelligence’. Huffington Post: The Blog.

Originally published February 1, 2007. Updated May 25, 2011. https://www.huffingtonpost.com/stan-goff/on-strategy-tactics-intel_b_40222.html

(4) Swifte, Michael. ‘The National Native Title Tribunal: Arbiter or “record keeper”?’ Blog: We Suspect Silence, May 10, 2017.

https://wesuspectsilence.wordpress.com/2017/05/10/the-national-native-title-tribunal-arbiter-or-record-keeper/

(5) Swifte, Michael. ‘Confirmation that the North Galilee Basin Rail Project is the Adani rail project being considered by the Northern Australia Infrastructure Facility’. Blog: We Suspect Silence, September 8, 2017.

https://wesuspectsilence.wordpress.com/2017/09/08/confirmation-that-the-north-galilee-basin-rail-project-is-the-adani-rail-project-being-considered-by-the-north-australia-infrastructure-facility/

(6) Swifte, Michael. ‘Unpacking the Galilee Basin shell game’. Blog: We Suspect Silence, December 24, 2017.

https://wesuspectsilence.wordpress.com/2017/12/24/unpacking-the-galilee-basin-shell-game/

(7) Greenpeace Australia Pacific. ‘Off Track: Why NAIF can’t approve the Carmichael Rail Project’. December 2016.

https://d68ej2dhhub09.cloudfront.net/2021-Off_Track_-_Why_NAIF_can%E2%80%99t_approve_the_Carmichael_Rail_Project_(web_version).pdf

(8) Lyons, Kristen, Brigg, Morgan, and Quiggin, John. ‘UNFINISHED BUSINESS: ADANI, THE STATE, AND THE INDIGENOUS RIGHTS STRUGGLE OF THE WANGAN AND JAGALINGOU TRADITIONAL OWNERS COUNCIL’. 2017.

http://earthjustice.org/sites/default/files/files/Unfinished-Business.pdf

(9) Swifte, Michael. ‘Why is there so much silence around the North Galilee Basin Rail Project and related Indigenous Land Use Agreements?’. Blog: We Suspect Silence, February 17, 2017. https://wesuspectsilence.wordpress.com/2017/02/17/why-is-there-so-much-silence-around-the-north-galilee-basin-rail-project-and-related-indigenous-land-use-agreements/

(10) National Native Title Tribunal: Register of Indigenous Land Use Agreement Details. ‘QI2014/072 – Kyburra Munda Yalga Aboriginal Corporation RNTBC and Adani Mining North Galilee Basin Rail Project ILUA’. November 24, 2014.

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=QI2014/072

(11) National Native Title Tribunal: Register of Indigenous Land Use Agreement Details.

‘QI2014/080 – Birriah People and Adani Mining North Galilee Basin Rail Project ILUA’. April 24, 2015.

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=QI2014/080

(12) National Native Title Tribunal: Register of Indigenous Land Use Agreement Details.

‘QI2014/065 – Bulganunna Aboriginal Corporation and Adani Mining Carmichael North Galilee Basin Rail Project ILUA’. January 5, 2015.

http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=QI2014/065

(13) Queensland Treasury: RTI disclosure log – 2016 and earlier. RTI 493. Disclosure made to Jeremy Tager at the North Queensland Conservation Council. Released December 17, 2014.

https://www.treasury.qld.gov.au/about-treasury/right-to-information/previous-disclosure-log-php/

(14) Swifte, Michael. ‘Only a “standard gauge” rail line will deliver the economies of scale to open up the Galilee Basin’. Blog: We Suspect Silence. April 14, 2017.

https://wesuspectsilence.wordpress.com/2017/04/14/only-a-standard-gauge-rail-line-will-deliver-the-economies-of-scale-to-open-up-the-galilee-basin/

(15) Roe, Isobel. ‘Native title holders lodge objection to proposed North Galilee Basin rail project’. ABC News. October 20, 2014.

http://www.abc.net.au/news/2014-10-20/native-title-holders-lodge-objection-to-proposed/5826168

(16) Pers, Comm,. NNTT. May 10, 2017.

(17) Pers, Comm,. NNTT. May 10, 2017 and May 23, 2017.

(18) Pers, Comm,. NNTT. October 18, 2017.

(19) Pers, Comm,. NNTT. (multiple occasions in late 2016 and 2017).

(20) Pers, Comm,. NNTT. October 18, 2017.

(21) Koori Mail. Ed 581. July 30, 2014.

https://aiatsis.gov.au/sites/default/files/docs/digitised_collections/the_koori_mail/581.pdf?width=900&height=800&iframe=true

(22) Koori Mail. Ed 584. September 10, 2014. https://aiatsis.gov.au/sites/default/files/docs/digitised_collections/the_koori_mail/584.pdf?width=900&height=800&iframe=true

(23) Koori Mail. Ed 592. January 14, 2015. https://aiatsis.gov.au/sites/default/files/docs/digitised_collections/the_koori_mail/592.pdf?width=900&height=800&iframe=true

(24) National Native Title Tribunal. Extract from Register of Indigenous Land Use Agreements. ‘Juru People and Adani Abbot Point Terminal ILUA’. January 20, 2014. http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/ILUA%20Register/2013/QI2013.036/ILUARegisterExport.pdf

(25) Federal Court of Australia, Queensland Registry. File number: QUD244/2017. JURU ENTERPRISE LIMITED v ADANI AUSTRALIA COMPANY PTY LTD ABN 87 163 221 609 AS TRUSTEE OF ADANI AUSTRALIA HOLDING TRUST& ANOR. Updated February 8, 2018. https://www.comcourts.gov.au/file/Federal/P/QUD244/2017/actions

(26) Egan, Geoff. The Morning Bulletin. ‘Juru missed out on $1m from Adani: court’. June 1, 2017. https://www.themorningbulletin.com.au/news/juru-missed-out-on-1m-from-adani-court/3184689/

(27) Queensland Government. Department of State Development. Annual Report 2016-2017. http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2017/5517T1706.pdf

(28) Arnautovic, K. (2017). Resources, race and rights: A case study of Native Title and the Adani Carmichael coal mine. Retrieved from http://ro.ecu.edu.au/theses_hons/1503