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

Advertisement

The Regulator Takes Over: ORIC appoints ‘special administrators’ to deal with Adani and Abbot Point native title holders

Today the Office of the Registrar of Indigenous Corporations (ORIC) has announced that they will be placing the Kyburra Munda Yalga Aboriginal Corporation (KMYAC) under ‘special administration’.
The ORIC media release provides a quote from the registrar:
‘Kyburra is currently facing many complex issues, and despite the passionate leadership and good work of its directors, the corporation requires external assistance’, said Mr Beven. ‘The special administrators will assist the Juru people and their native title corporation through this difficult period and then return the corporation to its members.’
That means that the Aboriginal corporation responsible for dealings with Adani over the rail corridor on which Adani are reportedly about to start digging has for a third time refused to show their books to the regulator.
ORIC has a fact sheet page explaining what happen’s during special administration. Here’s a quote from the fact sheet:

A special administration is when the Registrar appoints an independent and suitably qualified person (a special administrator) to take control and oversee the running of a corporation while, at the same time, helping it to fix its problems. These problems may be short-term financial troubles or the result of poor business practices, poor governance and/or a weak organisational structure.

The aim of a special administration is to restore the corporation to financial and organisational health and, once this is achieved, to give back control to the members.

In my August 2017 blog post titled ‘The Invisiblised Struggle of an Ally: Who will take notice of ORIC’s ‘show cause’ letter to KMYAC?’  I provide the background to the complaint made by a group of Juru people in September 2016 lead by elder Carol Prior. I’m sad to say few people took any notice of ‘show cause’ letter.
KMYAC are also currently in the middle of court proceedings to determine which Juru organisation is to receive funds from Adani over an Indigenous Land Use Agreement (ILUA) on the Abbot Point port: KMYAC or Juru Enterprises? Only one article has been written about this court case which involves large sums of money may be determined in late November 2017.
It should be noted that KMYAC director Angie Akee is also on the board of directors of the North Queensland Land Council and is on the Indigenous Reef Advisory Committee for GBRMPA. My blog post from September 2017 titled ‘Do you want Indigenous autonomy and to stop Adani?’ explains in some detail the networks that surround Angelina Akee including Juru Enterprises 2014 dealings with Adani before the NGBR ILUA.
I will reiterate what I have been saying since I first heard Ciaran O’Faircheallaigh’s speech on Indigenous autonomy. We need to look at all the business around the North Galilee Basin Rail Project ILUAs and dealings with Adani to determine if the native title system has delivered opportunities for Indigenous autonomy to be strengthened.
My strong position is that the Stop Adani coalition have chosen their spearhead traditional owner group and that all discussion about native title issues dealt with by amplification and funding of the chosen spearhead group leaving all other traditional owners out of the spotlight including those traditional owners who, having very little choice economically, choose to work with Adani.

Do you want Indigenous autonomy and to stop Adani?

Warning: This blog post looks closely at the Juru people’s business and corporate relationships relating to the development of the Galilee Basin coal complex. I do this only to provide context to Juru Elder Carol Prior’s recent calls regarding the need for greater efforts to protect Juru country and to give consideration to the desires and ambitions of those who choose to work with mining companies, governments, and other bodies involved in regional development.

*For an understanding of Indigenous autonomy listen to this recent speech by Ciaran O’Faircheallaigh.

Everything I’ve included in the blog post below is provided to explain the type and extent of networks and incorporated entities that can inform our understanding of Carol Prior’s complaint against her Registered Native Title Body Corporate (RNTBC), Kyburra Munda Yalga Aboriginal Corporation (KMYAC).

I’ve focused on a very visible leader among the Juru people, Angelina Akee who is the 1st director of KMYAC. Ms Akee holds a number of positions that are of significance. Any day now we will discover if KMYAC have been placed under ‘special administration’ for failure to cooperate with 2 examiners appointed by the Office of the Registrar of Indigenous Corporations (ORIC) in September 2016 and May 2017.

Read my previous blog posts here for some background: https://wesuspectsilence.wordpress.com/2017/09/03/the-invisiblised-struggle-of-an-ally-who-will-take-notice-of-orics-show-cause-letter-to-kmyac/

 

Angelina Akee – Networks

 

Great Barrier Reef Marine Park Authority (GBRMPA)

Angelina Akee is a member of the Great Barrier Reef Marine Park Authority, Indigenous Reef Advisory Committee:

Angie is a Juru Traditional Owner and is the chair of the Kybra Munda Yalga Aboriginal Corporation which is the prescribed body corporate for the Juru Traditional Owners.

http://www.gbrmpa.gov.au/about-us/reef-advisory-committee/indigenous-reef-advisory-committee

A recent statement by Agelina Akee and Gavin Singleton at the GBRMPA Reef Summit 2017:

First nations people of Australia continue an age old long established spiritual and physical bond with the Great Barrier Reef that has existed for over 60,000 years. The Reef is a place that is highly significant for sustaining cultural celebration and community wellbeing for over 70 Traditional Owner groups. Recent events occurring on the Reef, both natural and manmade have had a disastrous impact on its state of health. Our tears of joy when connecting with the reef as young people has turned to tears of deep sadness as elders. We watch this wonder of the natural world show us that it needs our immediate care. We the first nations people of Australia send an urgent call to all people of the world to please give us your help to turn back the clock of deterioration. We believe it is no longer a question of resilience but a desperate need for intervention. With deep respect, we call out to all global citizens and international story tellers who have, in the past, and wish to in the future, experience the majesty of the Reef, to walk with us on this journey of courage, to give back her dignity, by nursing her back to health. We the first nations people of Australia, acknowledge the Great Barrier Reef World Heritage Area is a natural wonder and a global asset and as such requires solutions to come from the global village to stop this tragedy from happening in our lifetimes. Let us be a generation of action and restoration. We must ensure the universal songlines of the Great Barrier Reef continue to endure for many generations to come. Indigenous Reef Advisory Committee (Great Barrier Reef Marine Park Authority) 2017

http://elibrary.gbrmpa.gov.au/jspui/bitstream/11017/3203/1/GBR-Summit-proceedings-and-outputs-report.pdf

 

North Queensland Land Council (NQLC) – Townsville/Ayr Ward

Angelina Akee is on the board of directors of the North Queensland Land Council and is responsible for the Townsville/Ayr ward.

http://www.nqlc.com.au/files/9414/7908/0841/NQLC_Annual_Report_2015-2016.pdf

Statement by Angelina Akee upon the 3rd consent determination from the Federal Court, June 22, 2015:

The Juru People can now move forward with a strategic plan for the management of our land and sea country. This highlights the importance of recognition of the our people’s land and sea. – Angelina Akee (Kyburra Chairperson and NQLC Director)

https://nqlc.com.au/files/3614/4184/9047/20150902_MS_Q3_FINAL_WEB_v2.pdf

 

Local Networking

2015 Bowen Basin Mining Club – contractor networking event 2015

Photos:

1. Angie Akee with Adani, Department of Aboriginal and Torres Strait Islander (DATSIP) Partnerships, and Department of State Development Infrastructure and Planning (DSDIP) staff

screenshot.443.jpg

2. Juru Enterprises Limited (JEL) staff Trevor Prior and Damein Aidon

screenshot.444

https://issuu.com/miningadvocate/docs/qia_march_2015

 

KMYAC and JEL connection

Juru Enterprises Limited provide employment, health, education, and cultural services within the Juru determination area boundaries including jobs in the mining industry.

Facebook post: https://www.facebook.com/pg/Juru-Enterprises-Limited-1505795609645605/posts/

Juru Enterprises Limited

20 January

Juru Enterprises will no longer receive any bursary funding.
Please contact Kyburra Munda Yalga
5 Charles Street Gulliver, Townsville QLD 4812
E-mail: admin@kyburramundayalgacorp.com
Phone: (07) 47281117
Fax : (07) 4775222

In 2014 shortly before voting meetings on the ILUA with Adani over the North Galilee Basin Rail Project, KMYAC and JEL held their AGM and an SGM at the same event.

Facebook post: https://www.facebook.com/pg/Juru-Enterprises-Limited-1505795609645605/posts/

Juru Enterprises Limited

27 March 2014

Good Afternoon Everyone

A Special General Meeting will he Held in:
Townsville at the Centre Base Child Care, 33-37 Aitken Street Aitkenvale on the 29.04.2014

This Special General Meeting is to movie a resolution to Amend the Constitution to Accept the Rosie Wake Family.

Agenda:
5:00pm Dinner (Buffet Style)
6:00pm Kyburra Munda Yala Corporation – AGM
6:45pm Juru Enterprises Special General Meeting
Close of Meeting 9:00pm

Letters will be Mailed out to Juru Members this week

Thank you

An excerpt from the May-August 2014 edition of the JEL newsletter:

Adani Mining In July, a delegation of Juru representatives will be meeting with representatives from Adani Mining to discuss employment opportunities for the Juru people. While in Brisbane, the delegates will also be meeting with prospective Adani contractors to discuss the possibilities of joint ventures.

http://www.juruenterprises.com.au/assets/newsletter-issue-4.pdf

 

Kyburra Munda Yalga Aboriginal Corporation

Documents from the Office of the Registrar of Indigenous Corporations show that Angelina Akee is a director of Kyburra Munda Yalga Aboriginal Corporation.

http://register.oric.gov.au/reports/generatereports.aspx?rpt=cmpext&fmt=pdf&concernID=2035210

 

 

 

Michael West, ACF and the Dirty Deeds report: An incredible silence

The Australian Conservation Foundation (ACF) have claimed that they will “pursue all avenues”  to stop the 1 billion Northern Australia Infrastructure Facility (NAIF) loan that was broadly reported in early December, 2016. I will show here that there are many reasons why one of those avenues should be telling the truth and not staying silent in the face of the shell game played by Adani, all levels of government, senior editors, and quite probably the impact philanthropists who drive the green movement.

Michael West prepared the Dirty Deeds report for ACF, but nowhere in the report is there any reference to the North Galilee Basin Rail Project. NAIF and Matt Canavan have never named the rail project for which the loan is earmarked, and they have never named the Adani entity that has applied for the loan.  I would argue that this lack of confirmation is no reason for an investigation that completely ignores a rail project for which there have been significant developmental goals achieved.

A bad example.

In December Greenpeace released their ‘Off Track: Why NAIF can’t approve the Carmichael Rail Project’ report which cites the ‘North Galilee Basin Rail Project, EIS Executive Summary’ in reference to the exclusivity of “the rail line”.

Greenpeace effectively invented a project called the “Carmichael Rail Project” which kept the name of the actual rail project under investigation out of the spotlight. No project with the name “Carmichael Rail Project” is mentioned on any Queensland Department of State Development publications, nor does any other environmental group use this contrived proper name. The two projects in question are called the Carmichael Coal Mine and Rail Project (CCMR) and the North Galilee Basin Rail Project (NGBR).

Off Track: Why NAIF can’t approve the Carmichael Rail Project

Off Track_rail line_6

Off Track_reference_6_NGBR_EIS

A good example.

The Environmental Defenders Office Queensland (EDO Qld) in their April 18, 2017 update titled ‘North Galilee Basin Rail approvals and NAIF’ take the position that it was “broadly reported” that the NAIF loan was earmarked for the NGBR and as such consideration should be given to the elements of that particular project. Just like all of us, they are required to work with provisional assumptions in the absence of a primary source provided by NAIF showing precisely which Adani entity is applying for the loan and which particular rail project would receive funding. This was the first time that EDO Qld has issued an update or advice about the NGBR.

http://www.edoqld.org.au/north-galilee-basin-rail-approvals-and-naif/

 

Getting the content right and wrong.

Gail Burke and Dea Clarke prepared a piece on December 3, 2016 that was cited by EDO Qld in their April update and by Greenpeace in their Off Track report. It now contains a map showing both the CCMR and the NGBR. Before I got in contact with Gail Burke on December 3 the image shown in the article showed only the CCMR.

http://www.abc.net.au/news/2016-12-03/adani-carmichael-rail-line-closer-to-federal-loan/8089790

Gail Burke_Dec 3_before
Screen grab of the image attached when the article was first posted showing the Carmichael Coal Mine and Rail Project
Gail Burke_Dec 3_after
Screen grab of the image attached after my communication with Gail Burke showing the North Galilee Basin Rail Project not mentioned in the article
Gail Burke_response_NGBR image
Screen grab of the reply from Gail Burke

 

How do we know?

350.org.au created an archive copy of the Courier Mail exclusive from December 3, 2016 by Renee Viellaris. This piece has become the compromised primary source for information about the Adani NAIF loan application. No other digital copy of this article is available online.

https://350.org.au/press-release/courier-mail-adanis-2b-rail-on-track-for-jobs-boom/

The Sydney Morning Herald & The Guardian Australia reported the content of the CM article on December 3 which includes mention of NGBR and various details from the CM exclusive.

Joshua Robertson

https://www.theguardian.com/business/2016/dec/03/adani-coal-mine-green-groups-fume-over-plan-for-1b-federal-loan

Michael Koziol and David Wroe

http://www.smh.com.au/federal-politics/political-news/turnbull-government-eyes-1-billion-adani-loan-backed-by-new-infrastructure-fund-20161204-gt3joz.html

 

2 key industry players we don’t talk about.

In contradiction to the assertion by Greenpeace that “the rail line” will be “exclusive”, Resolve Coal who have their proposed Hyde Park mine site adjacent to the proposed Carmichael mine site claim to have an “existing” MOU with Adani.

https://www.hydeparkcoal.com.au/project

Resolve coal_MOU_Adani
Screen grab from the Hyde Park coal website

On their web page titled ‘BIODIVERSITY OFFSETS FOR MAJOR GALILEE BASIN PROJECTS’ CO2 Australia specify that they delivered offsets for both CCMR and NGBR.

CO2 Australia_NGBR_offsets
Screen grab from the CO2 Australia website

 

Others bother to name the project.

The Australia Institute ‘Don’t be so Naif’ report was cited multiple times by Michael West in the Dirty Deeds report and mentions NGBR describing it as the “specific proposal under consideration”.

Dont be so Naif_NGBR
Screen grab from ‘Don’t be so Naif’

 

3 Indigenous Land Use Agreements relating to the North Galilee Basin Rail Project signed with Adani Mining PTY LTD in 2014.

Juru

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

Birriah

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

Jannga

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

 

The 2 rail projects.

Carmichael Coal Mine and Rail Project

http://statedevelopment.qld.gov.au/assessments-and-approvals/carmichael-coal-mine-and-rail-project.html

North Galilee Basin Rail Project

http://statedevelopment.qld.gov.au/assessments-and-approvals/north-galilee-basin-rail-project.html

 

Largely ignored by Australian media.

Recent and very clear statements made by Adani spokespersons and Adani Australia CEO Jeyakumar Janakaraj in the Economic Times of India.

March 17, 2017 http://economictimes.indiatimes.com/industry/indl-goods/svs/metals-mining/adanis-australian-project-to-generate-22-billion-in-taxes-and-royalty/articleshow/57692866.cms

Adani statement standard gauge Economic Times 17 March 2017
Screen grab shared by me on Twitter at or around the time of publication

May 4, 2017 http://economictimes.indiatimes.com/industry/indl-goods/svs/metals-mining/adani-signs-steel-supply-deal-with-australian-group-arrium/articleshow/58512122.cms

Adani_JJ_statement_May 4 NGBR
Screen grab shared by me on Twitter at or around the time of publication

 

The “combined project” and “critical infrastructure” announcement.

Jackie Trad announced that the NGBR was part of a ‘combined project” and “critical infrastructure” last October.

http://us8.campaign-archive1.com/?u=541717bc9163bd82c24975b72&id=c59bb2b298&e=fd675b2531

screenshot.264
Screen grab: October 13, 2016. Jackie Trad announcing the creation of the Adani Combined Project

Queensland Law Society, October update following the combined projects announcement.

file:///C:/Users/User/Downloads/doc20161019_Legislation_update_No41_2016.pdf

RTI disclosure showing stakeholder and bureaucrat communications leading up to the combined projects, critical infrastructure announcement.

http://services.dip.qld.gov.au/opendata/RTI/DSD/documents-for-publication-RTIP1617-030.pdf

QCF response to combined projects

https://wbbec.files.wordpress.com/2016/10/ltr-to-qld-premier-re-adani-critical-infrastructure-declaration.pdf

 

Stop the means of export.

In the Dirty Deeds report Michael West shares the questions he presented to the office of the Minister for Trade, Tourism and Investment, Steven Ciobo. The second of the 3 questions intrigued me:

“2. Has the Minister discussed this kind of solution (as the rail line is dependent upon the mine being built and Efic is already devoting resources to assist NAIF in project evaluation)?”

I would argue that the rail line is not dependent on the mine getting built, but rather the rail line getting built will assure that the many mines proposed for the Galilee Basin get developed. The rail line is the means of export that makes opening up the Galilee possible, and a greenfield, vertically integrated, multi-user standard gauge rail line is the most profitable way of delivering the necessary economies of scale to justify investment in the Galilee Basin.

ORIC to redo examination into Indigenous corporation involved in negotiations with Adani

When I make a call to an organisation seeking information about an issue I assume that organisation has a process to vet callers to ensure that the appropriate person deals with that individual (me). When I call I usually say my first name and ask for information. This is what I did today when I called the Office of the Registrar of Indigenous Corporations (ORIC). I was put through to a case manager who, at the end of the call when I asked for them to repeat their last name, refused saying they were concerned with my involvement with the media. I took lots of notes before the case manager twigged to my line of questioning and asked about my purpose and intentions. I told the case manager I was a blogger and was encouraging journalists to explore this story, I also told the case manager I was fighting for justice for Carol Prior, a complainant, native title holder, and member of  the Indigenous corporation under examination. I didn’t tell the case manager I was glad I’d taken lots of notes and quotes.

Some context: Samantha Healy reported in October last year in the Townsville Bulletin that at the time Carol Prior and her fellow complainants spoke to her about their initial complaint “the watchdog [ORIC] refused to confirm the existence of the complaint”. I cover the issue here:  https://wesuspectsilence.wordpress.com/2017/03/30/the-notice-of-examination-that-could-reveal-adanis-dirty-dealings-in-securing-the-ngbr-corridor/

Now we are witnessing the further delaying of the examination process with the appointment of a new examiner and a new examination. This is at a crucial time in the fight to #stopadani. In my previous phone call to ORIC I was told that the first examiner was delayed in their examination due to health issues and the holiday season. The case manager explained to me that because the first examination “wasn’t completed properly” due in part to instances when the examiner was “unable to access the [Indigenous] corporation” and unable to access “other” parties. The case manager also revealed “we had issues obtaining information”. 

I was told by the case manager that we would not see anything published by ORIC until at the earliest “the first week in June”, a full 10 months after the complaint was first lodged and over 8 months after the publication of the Notice of Examination. I asked if the complainants would be informed before publication of any outcomes by ORIC and if they would receive any more information than would be made available for the public in any publication. The case worker said Carol Prior “will have to watch the website” and indicated that the complainants will receive no more information than any member of the public.

I explained how the timing of this delay only favoured powerful interests. I pointed out that proposed native title system reforms relating to Indigenous Land Use Agreements could be impacted by the outcome of the ORIC examination and that the NAIF funding final approval could come through in the next few weeks. I explained that the 1 billion Adani loan for a rail link is likely to be for the North Galilee Basin Rail Project for which Adani have a signed Body Corporate Indigenous Land Use Agreement which is one of the subjects of the Kyburra Munda Yalga Aboriginal Corporation members complaint and therefore part of the ORIC examination.

This phone call raises so many questions. By “other” parties was the case manager referring to Adani? Why was “the corporation” unavailable? Why did ORIC, a regulator of corporate behaviour under the CATSI Act fail to ensure a prompt and accountable process? And why is a well resourced organisation like ORIC not prepared for calls from concerned citizens about a controversial coal complex on which their work could have a crucial impact?

 

The National Native Title Tribunal: Arbiter or “record keeper”?

Today I spent 40 minutes on the phone with the case manager for the three Indigenous Land Use Agreements (ILUAs) registered with the National Native Title Tribunal (NNTT) relating to Adani’s North Galilee Basin Rail Project.
 
I was armed with the knowledge, passed on from an expert in this particular area, that the NNTT is not only a record keeper for native title agreements, it is also responsible for arbitration of many of the issues that might occur in negotiation processes such as those articulated by Carol Prior in 2 media stories from 2014 and 2016. There is at least one story currently somewhere in the NewsCorp pipeline in anticipation of the outcomes from the Office of the Registrar of Indigenous Corporations (ORIC) examination into Adani dealings with the Juru Indigenous corporation Kyburra Munda Yalga Aboriginal Corporation. Since my starting assumption is that high quality publicly available information is the last line of defence for black fellas who’ve been excluded from the negotiating and voting process, I was prepared to test the NNTT information giving culture. My lengthy conversation with the NNTT case manager involved an exchange of assertions about the role and function of the organisation. Each time the case manager asserted that the organisation was a “record keeper” I responded with the assertion that through the information architecture embedded in the digital records it provides along with it’s actual functions in arbitration it serves to limit access to information and justice to traditional owners.   
 
Between the NNTT and ORIC lies the responsibility for regulating the activity of Indigenous corporations, mining companies, and their representatives. There are difficult to interpret limits on how much information is made publicly available, and when it comes to information that can support an argument that a mining company has not negotiated in good faith, there’s scarce little published. We are expected to accept the word of the NNTT that the representatives of Indigenous corporations have satisfied all the requirements under the Native Title Act, Section 24 to ensure that traditional owners with an interest in a native title claim or determination are made aware of negotiations and meetings. 
 
In attempting to build a timeline to support my analysis of various Queensland government RTI documents I’ve discovered that I need to send a request letter to the NNTT to explain the purpose for my request for information regarding submission dates, and dates of meetings with native title holders and traditional owners. The NNTT will then give consideration to my request. The information I unsuccessfully requested today from the NNTT case manager, dates for submission of ILUA documents by 3 different Indigenous corporations, could not be categorised as either privileged or available for the public upon request. I don’t see how my purpose in seeking the information I am requesting should have any impact on how the NNTT interprets the Native Title Act with respect to particular pieces of information about the dates certain documents were created. The NNTT is an organisation that by virtue of it’s nature – both arbiter and record keeper – should be able to assess the status of a record it is keeping and make appropriate decisions accordingly. 
I was advised that I should speak with the legal firms listed each applicant or Indigenous corporation, or check the public record for notifications. The later option will likely require exhaustive research involving listings of events in local papers and specialist media.

Only a “standard gauge” rail line will deliver the economies of scale to open up the Galilee Basin.

In 2014 David Quinn was the Executive Director of Projects Queensland in Queensland Treasury. He was responsible for all coordinated projects worth more than 50 million AUD.

In a right to information request (RTI) disclosure made to Jeremy Tager at the North Queensland Conservation Council (RTI 493) David Quinn explains how the unspecified Galilee Basin rail project was “standard gauge” and that this was the key to “get the economies of scale”.

There are 2 rail projects proposed by Adani, the North Galilee Basin Rail Project is the one listed as “standard gauge”. It is a greenfield project that will vertically integrate Adani into the Galilee Basin coal complex providing rail infrastructure for several other mines for decades. The other rail project proposed by Adani is part of the Carmichael mine application. It is listed as “dual gauge” and is designed to connect to the existing narrow gauge system.

Here’s the full quote from David Quinn in RTI NQC493:

 “The other issue here is that it is standard gauge which in a Qld sense is bespoke but makes sense for Galilee due to the need to transport the higher tonnages to offset the longer distances to get the economies of scale.

The benefit if it could be realised is the reasons you have previously outlined in that it becomes a vital piece of infrastructure, underwritten by ToP (noting the aversion of miners to this once common contractual arrangement) and that we would not drop a sleeper onto the ground until the Adani’s, GVK’s et are well and truly committed. Certainly a more liquid asset to allow our exit in the future.”

David Quinn NQC493 scale

Adani have a tendency to telegraph their announcements through exclusives with large newspapers like the Courier Mail and India’s Economic Times. It was through a Courier Mail exclusive that we learned about the 1 billion dollar NAIF loan and for which rail project it had been earmarked.

Renee Viellaris in The Courier Mail:

The Northern Australia Infrastructure Facility has ticked off conditional approval for the North Galilee Basin Rail Project and will now undertake more detailed assessments of the project. “

While the Queensland premier was visiting India recently the Economic Times printed part of a statement from Adani. This statement, while widely syndicated across English language media in India, was never picked up in Australia.

Debjoy Sengupta quoting Adani in The Economic Times:

Our vision is to operate a vertically integrated model – with the extraction of coal from our Carmichael Mine, transported by rail to Abbot Point, and exported to meet consumer and business demands in offshore markets. The project will build Australia’s largest thermal coal mine in the north Galilee Basin approximately 160km north-west of Clermont in Central Queensland, linked by a standard gauge North Galilee Basin Rail Line to two terminals at Abbot Point Port near Bowen,”

Why would the media in Australia ignore such a clear statement in favour of a specific piece of infrastructure that is under constant discussion here in Australia? One of the reasons is because they can, because no official media release is publicly available, and because the statement quoted in The Economic Times is a compromised primary source that can be easily ignored.

Either way the Adani quote specifies a “a standard gauge North Galilee Basin Rail Line” for a reason and that reason could well be because they want the market in India to feel confident that they are serious about having a vertically integrated model”. 

My current crowdfunding campaign is about digging up more answers by going back to a successful Qld Treasury RTI disclosure from 2014 on which the processing charge had never been paid. Treasury RTI 488.

RTI requests are all about the particulars of language.

Text of the RTI request:

All documents relating to the announcement on November 17th in relation to the Infrastructure Enabling Agreement, including but not limited to the decision to provide Queensland government funding to facilitate Adani Mining Pty Ltd’s North Galilee Basin Rail project, including correspondence with the Department of Premier and Cabinet, Queensland Treasury, or Adani Mining Pty Ltd, its related entities or agents for the period from 1 September 2014 to 9 December 2014.”

Text of Treasury response:

Decision made. Applicant did not pay the processing charges within required timeframe. Documents available upon payment of the processing charges of $509.20. Please contact the Administrative Review Unit on (07) 3035 1863 or by email rti@treasury.qld.gov.au if you wish to access these documents.”

Here’s a link to my crowdfunding campaign:

https://chuffed.org/project/50920-to-disclose-some-truths-about-adanis-rail-plans

The ‘Notice of Examination’ that could reveal Adani’s dirty dealings in securing the NGBR corridor.

One of the Indigenous Land Use Agreements (ILUAs) that makes the North Galilee Basin Rail Project possible could have been scuppered, or at least had a spot light pointed at it, if Adani hadn’t pulled the sort of scammy behaviour Twiggy Forrest would be proud of. That’s what I believe based on Carol Prior’s testimony from October 2014 and ongoing challenges to the Kyburra Munda Yalga Aboriginal Corporation (KMYAC) the representative body for the Juru native title claim.

Testimony:

“A lot of them didn’t show up and a lot of them don’t know what’s going on,”

“They don’t even know what’s in the ILUA [Indigenous land use agreement] or the auxiliary agreement because in both of them, when I was there around the negotiating table, there’s a confidentiality paragraph in there where you’re not able to talk about it to your family.”

Carol Prior and 4 other KMYAC members won a Notice of Examination on September 30, 2016 from the Office of the Registrar of Indigenous Corporations allowing it to be given full and free access to the corporation’s books. KMYAC were responsible for negotiations involved in the signing of ILUAs with Adani. The 5 KMYAC native title holders have concerns about “financial irregularities” and accountabilities, but they also have concerns about the exclusion of Juru people from negotiations.

Concerns:

“It is our submission that Kyburra has actually received monies from Adani Mining Pty Ltd during 2014-15 in the amount of $1.225 million.

“In addition, a Cultural Heritage Management Plan is in place and Adani transferred $825,000 to Kyburra for cultural heritage survey activities.”

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The Juru ILUA signed with Adani and the Kyburra Munda Yalga Aboriginal Land Corporation was the first of 3 ILUAs making the North Galilee Basin Rail Project possible.

#StopAdani #Keepitintheground #NGBR #ILUA

Key articles:

Native title holders lodge objection to proposed North Galilee Basin rail project

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

Calls for Aboriginal corporation to hand over its books

http://www.townsvillebulletin.com.au/news/calls-for-aboriginal-corporation-to-hand-over-its-books/news-story/e693fce3968570b53931b9bf9810f65f?nk=edc9bc18ba7fc11278a22ebc3e1bdd60-1490768902