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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A problem of foreseeable demand: Cameron Dick, Adani and the QCA

I stumbled onto the opportunity to make a request for declaration of Adani’s rail corridor as a ‘service’ by chance. I was seeking information from the Queensland Competition Authority (QCA) about the Mackay Conservation Group (MCG) declaration request made in October 2019 when they made me aware that I could make a request. QCA staff informed me that the MCG request was found to be “out of scope” and no recommendations were given to the treasurer for consideration. I recognised an opportunity to access valuable information about Adani’s secretive rail plans.

A short statement was placed on the QCA website following the MCG request:

On 24 October 2019, we received a request from the Mackay Conservation Group to review and recommend declaration of Adani Australia’s proposed Carmichael rail network for regulation by the QCA under Part 5 of the QCA Act.

After review it was determined that at the time there was no scope for the QCA to substantively consider the request to declare the proposed Carmichael rail network.

https://www.qca.org.au/project/declared-infrastructure/

I have to say the QCA did not manage my expectations well. I didn’t get a sense that they deal with members of the public very often, but they provided me with every courtesy that the QCA Act would allow. I semi-blindly worked my way through the submission process which included an opportunity to respond to material from Adani.

When my contact at the QCA informed me that they had provided recommendations to the treasurer following my request, I asked if that meant it was found to be “in scope”, but they declined to give me an answer. Clearly the QCA provided recommendations following my request because the infrastructure making up the ‘facility’ providing the ‘service’ was more developed than it was in October 2019 allowing them to substantively consider my application. The consideration given by the QCA is outlined in their letter of recommendations provided to the treasurer:

We provided Mr Swifte with an opportunity to comment on Adani’s submissions, including Adani’s submission that his request was not made in good faith.

https://www.qca.org.au/project/declared-infrastructure/

The QCA recommended that my request be found to be in ‘bad faith’, but the treasurer found that my request did not satisfy the access criteria and decided against making a declaration on that basis. The most significant failing of my request was the lack of supporting information regarding foreseeable demand and the dependent markets that come with that demand.

*The problem we have is that all the other proposed Galilee Basin coal mines have been effectively mothballed while Adani has established its own: vertically integrated rail corridor developer and rail infrastructure manager; rolling stock operators; and port operations. Without any firm information about other market operators and their service providers there is no way to foresee demand.

While my request failed to secure a declaration, it succeeded in unpacking some key components of Adani’s plans to make their rail corridor operational.

The following statement can be found on the QCA website along with links to the QCA recommendations and the treasurer’s statement of reasons:

On 6 September 2021, we received a request to review and recommend declaration of the Carmichael rail network service under Part 5 of the QCA Act.

Part 5 sets out the criteria for declaration recommendations, as well as the steps that are required before we can recommend to the Minister that a service be declared.

On 17 December, we provided our recommendation (see below) to the Minister, in accordance with section 79(1) of the QCA Act.

On 17 March, the Treasurer’s decision on this matter was published in the Queensland Government Gazette (Extraordinary Queensland Government Gazette no 41, vol 389).

https://www.qca.org.au/project/declared-infrastructure/

*Link for the QCA Act: Queensland Competition Authority Act 1997 (legislation.qld.gov.au)

An opportunity to comment and a positive outcome

The QCA gave me the opportunity to add to my initial request and respond to two letters provided by Adani Australia CEO Lucas Dow representing Adani’s rail proponent Carmichael Rail Network Pty Ltd. While both letters made roughly the same arguments, the second was supported by legal advice regarding requests made in bad faith, the ‘service’ under consideration and the QCA Act access criteria. I had the opportunity to offer counter-arguments to Lucas Dow’s assertions about the non-operational state of the Carmichael Rail Network (CRN). Cameron Dick and Shane Doyle QC both concurred with my interpretation of Section 72 of the QCA Act.

In a letter to the QCA CEO on September 15, 2021 Lucas Dow stated:

The CRN remains under construction and has not been commissioned (and is therefore not yet operational). At this point, it is not a facility that is sufficiently developed to be capable of supplying a service of the kind contemplated by s 77(1) of the QCA Act.

I responded on October 4, 2021 by arguing that the QCA Act can apply to a service that can be provided in the future:

In regard to the assertion that because the Carmichael Rail Network is not yet commissioned or operational and therefore “it is not a facility that is sufficiently developed to be capable of supplying a service of the kind contemplated by s 77(1) of the QCA Act.”, I would direct you to Section 70 ‘Meaning of a facility’ and Section 72 ‘Meaning of service’ of the QCA Act. Section 70(1)(a) reads “rail transport infrastructure”. Section 72(1) reads “Service is a service provided or to be provided, by means of a facility”.

In a letter to the QCA CEO on October 5, 2021 Lucas Dow restated his position:

(i) The CRN is not operational, and no coal has been railed, so matters such as the likely cost of the facility and technical and operational characteristics of the facility and service are not able to be determined.

The redacted legal advice letter dated October 8, 2021 that accompanied the Lucas Dow letter dated October 5, 2021 contains an interpretation of the QCA Act, Section 72(1) that concurred with my interpretation. Section 4.2 of the ‘Statement of Reasons’ provided to me by the Queensland Treasury Office on March 16, 2022 contains a refutation of Lucas Dow’s argument.

4.2.5 I accept the submissions made by Mr Swifte and in Mr Doyle’s advice that the QCA Act permits declaration of a service that is anticipated or a future service or a service associated with an anticipated or future facility. For this reason, I do not accept Adani’s submission that the application for declaration cannot be assessed in relation to the CRN service/facility as it is not sufficiently developed.

https://www.publications.qld.gov.au/ckan-publications-attachments-prod/resources/04ee3497-3d7f-4550-9caa-6b0f1d4e6b4d/18.03.22-combined.pdf?ETag=%2281667823cfcc78147f4e99be688bc7cf%22

On October 27, 2021 I sent through my final responses in support of my request. This was the same day that Bowen Rail Company received its rolling stock operator accreditation from the Office of the National Rail Safety Regulator (ONRSR). One week earlier Carmichael Rail Network Pty Ltd varied their ONRSR accreditation for the third time that year. I had been so busy with my various complaints to the Office of the Coordinator-General and the Ombudsman that I had neglected to check the ONRSR website which had switched to real time reporting of new accreditations and variations.

On November 15, 2021 Bowen Rail Company were delayed by activists while load testing their new locomotives on Aurizon rail infrastructure. By late December Adani were claiming that they had their first shipment of export coal ready to go. It is clear that the rail infrastructure was very close to being operational at the time I made my request.

Defining the facility and the service ‘to be provided’

Lucas Dow’s redacted October 5, 2022 letter includes the assertion that my description of ‘the service’ which was amended at the request of the QCA was wrong in every key respect:

(A) fails to properly define the facility, the service or the owner/operator;

The information that would clarify my understanding and support the Adani CEO’s argument is either not included in the letter/legal advice or is part of the redacted sections of each document.

Here’s my description of ‘the service’ before making amendments to improve clarity which I negotiated with QCA staff:

Rail service infrastructure known as Carmichael Rail Network generally and as the North Galilee Basin Rail Project combined with Separable Portion 1 of the rail component of the Carmichael Coal Mine and Rail Project specifically.

The amended description of ‘the service’:

the service that is the use of the Rail service infrastructure known as Carmichael Rail Network generally and as the North Galilee Basin Rail Project combined with Separable Portion 1 of the rail component of the Carmichael Coal Mine and Rail Project specifically

In my request I asserted that Carmichael Rail Network Pty Ltd were the likely owner/operator of the service to be provided having assumed rail infrastructure management accreditations in May 2017 when they were relinquished by Adani Mining Pty Ltd. Documents exist on the public record explaining that the CRN is constituted of two sections attached to two projects, but sharing a single proponent, Carmichael Rail Network Pty Ltd. One of those documents is titled ‘Adani Infrastructure Pty Ltd: Supporting Information for an Application for a Water Licence to Take Unallocated Water from the Strategic Reserve in Sub-Catchment E of the Burdekin Basin’ that was included in the Department of Natural Resources, Mines and Energy right to information disclosure 16-417 made to Lock the Gate. The application for a water licence by Adani Infrastructure Pty Ltd was intended to facilitate the North Galilee Water Scheme.

At the time of the application Adani Mining Pty Ltd were still listed as the rail proponent by the Office of the Coordinator-General. It was not until May 2018 that Carmichael Rail Network Pty Ltd were formally acknowledged as the rail proponent for both the Carmichael Coal Mine and Rail Project (CCMR) and North Galilee Basin Rail Project (NGBR).

Here is a quote from RTI 16-417(A). I’ve made key phrases bold for emphasis:

Due to the size of the Project, Adani Mining has progressed the assessment for much of the rail, and the Port, separately to the CCP. The entire rail line from the mine to the Port of Abbot Point will be approximately 388 kilometres (km) long, known as the Carmichael Rail Network (CRN). The proponent for the CRN is the Carmichael Rail Network Pty Ltd as trustee for the Carmichael Rail Network Trust.


The CRN will comprise one contiguous rail corridor that has been subject to two separate assessments: the first 77 km (called the Carmichael Rail Line) was included in the CCP EIS and SEIS documentation, whilst the remaining 311 km was assessed as the North Galilee Basin Rail Project (NGBR Project).

The Carmichael Rail Line starts from the proposed Carmichael Mine, and heads east towards Mistake Creek west of the Gregory Developmental Road. This section of rail was assessed as part of the Carmichael Coal Mine and Rail Project EIS, SEIS and AEIS, in which it was known as Separable Portion 1 (SP1). The NGBR section of rail consists of approximately 311 km standard gauge rail from the connection with SP1 to the Port of Abbot Point.

‘Adani Infrastructure Pty Ltd: Supporting Information for an Application for a Water Licence to Take Unallocated Water from the Strategic Reserve in Sub-Catchment E of the Burdekin Basin’

The meaning of “not made in good faith”

I have never made a secret of the fact that I don’t want Adani’s rail corridor to succeed. Competition law in Queensland is founded on the assumption that infrastructure that is already approved and under development should exist and function well. My world view does not embrace the primacy of resource development and I have no faith in the regulatory frameworks and functions that are currently in place. My stated intention was to disclose information about the operations of Carmichael Rail Network Pty Ltd in anticipation of the opening of the means of export for Galilee Basin coal.

In the recommendations provided by the QCA is a quote from my final responses that captures my intentions and appeals to the desire for effective regulation:

I am exercising my fiduciary responsibility as a citizen/resident of Queensland to support the development of a political economy that does not damage the rights and interests of those impacted by infrastructure of ‘state significance’. Providing the QCA with ample time to investigate an anticipated facility that is to provide a service can help deliver robust regulation and transparency to support competition.

https://www.qca.org.au/wp-content/uploads/2019/05/request-for-declaration-recommendation-carmichael-rail-network.pdf

My request was assessed under Part 5 of the QCA Act which identifies a concern with “significant infrastructure” in Section 69(E), Object of Part 5:

The object of this part is to promote the economically efficient operation of, use of and investment in, significant infrastructure by which services are provided, with the effect of promoting effective competition in upstream and downstream markets.

Part 5: Section 76(2)(c) on ‘access criteria’ states:

that the facility for the service is significant, having regard to its size or its importance to the Queensland economy;

The idea of ‘importance’ to the economy is the object under contestation for some First Nations people, some farmers, environmentalists and climate campaigners. It is the fact that I want to see Adani’s rail corridor scrutinised in the public sphere and that I see the importance of the CRN not succeeding that I was not seen as making my request in ‘good faith’.

Shane Doyle QC cited a phrase from case law “fidelity to the bargain” in reference to how ‘good faith’ might be understood under the QCA Act:

an obligation to act honestly and with a fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained.

https://jade.io/article/388086

Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50 – BarNet Jade – BarNet Jade

The way I understand it: I entered into a preexisting bargain in which the success of infrastructure deemed “significant” by government and industry is assumed to be the primary objective.

A trigger for the treasurer

Under the QCA Act, Section 77(2) Cameron Dick can choose to declare a service without the need for a request from an industry group, advocacy organisation or member of the public:

The Minister may ask the authority to consider whether a particular service should be declared by the Minister.

Section 79(5) of the QCA Act affirms that “the Minister” can make a request to the QCA for declaration:

Unless the request is made by the Minister, the authority must give a copy of the request to the Minister with the recommendation.

The Queensland treasurer can expedite proceedings and bring a declaration forward, but he is limited by a lack of information regarding foreseeable demand. Without knowledge of the Adani-Aurizon access agreement we cannot know the upper limits for coal haulage on the CRN, and without a concrete upper limit for export volumes from the Carmichael mine in the short and long term we cannot properly assess the capacity for Adani to support the promised multi-user infrastructure. The decision to build a narrow gauge rail corridor places hard limits on expanding the CRN capacity beyond 60 mpta.

Waiting for the Aurizon-Adani access agreement

The announcement of an access agreement between Adani and Aurizon – which I’m assuming is already complete – is the next key event to take place. It will likely immediately precede commercial operation or coincide with the announcement of a start date. Adani are unlikely to allow a period of scrutiny of the deal with Aurizon before commercial operations begin.

I tried to sound out my contact at the QCA regarding the likelihood of an access agreement coming through very soon, but they were not forthcoming. Access agreements are squarely within the QCA remit. I’m working with the assumption that the QCA will be called-in when the access agreement is announced.

From my reading of the QCA Act I cannot discern any triggers for publication at any time near the announcement of commencement of commercial operations. It is the information that makes it onto the public record that is of vital importance right now. There appears to be plenty of scope in the QCA Act for the regulator to seek information from Aurizon as an access provider of a declared service and Adani as an access seeker.

All this is speculative of course. I am no expert at this stuff and I wish there were more specialists speaking up. As a generalist my expertise is not in competition law or economic development, but in unpacking processes, identifying primary sources, and recognising patterns in language and information giving. I’m mindful that the CRN project is unprecedented in the history of the QCA Act.

The multi-user promise and royalty deal

There is very little information on the public record regarding Adani’s revised rail corridor. I can’t explain why the Office of the Coordinator-General has not seen fit to update the NGBR project page. I imagine that severing more than 100km of rail corridor would require some kind of ‘change request’ under the State Development and Public Works Organisations Act. The most recent project variation for the NGBR under the Environmental Protection and Biodiversity Conservation Act (EPBC) dated 25 August 2021 contains information about the “approved action” wherein the NGBR project is a 310km corridor. The variation document contains a map of the original NGBR corridor segmented into individual maps for each section including the sections that were severed in 2018. It should be noted that Adani Mining Pty Ltd remain the EPBC approval holder despite Carmichael Rail Network Pty Ltd being appointed as rail proponent for the NGBR and CCMR. Nothing exists on the public record to demonstrate how Adani’s revised rail corridor plan was instituted.

VARIATION OF CONDITIONS ATTACHED TO APPROVAL: North Galilee Basin Rail Project, Abbot Point to Galilee Basin, Queensland (EPBC 2013/6885)

http://epbcnotices.environment.gov.au/_entity/annotation/3666c674-2c09-ec11-80c8-00505684c137/a71d58ad-4cba-48b6-8dab-f3091fc31cd5?t=1649387035483

The royalty deferral deal is, in theory, contingent on Adani keeping their multi-user promise. This promise can only be kept if the access agreement and upgrades to Aurizon infrastructure demonstrate that Adani’s vertically integrated facility would retain sufficient capacity to provide a service to third parties. Other coal miners and their haulage providers would be the third parties seeking access to the CRN service. We don’t know if Adani’s statements about the capacity of the revised narrow gauge corridor are based in fact. The capacity of the original corridor was 100 mtpa with no need for an access agreement with Aurizon. The capacity of the new corridor is – as reported by Adani – is 40 mtpa. We are told in media statements put out by Adani that they will ramp up from 10 to 27.5 mtpa over a decade. It seems that without the QCA or the treasurer acting proactively, the QCA are forced to respond reactively to the approaches of third parties before any transparent multi-user framework can crystallise.

*The problem we have is that the Queensland government has used words like “open” and “transparent”, but each time they are tested they just kick the can down the road. We know almost nothing about the royalty deal, barely anything about the revised rail corridor, and nothing about how the Queensland government will make Adani keep its multi-user promise.

The claim made by the Queensland government is that under the secret ‘transparent policy framework’, Adani will be held to its multi-user promise. It is not clear how this instrument might be enforced other than by prospective third parties approaching the QCA with information about foreseeable demand. I imagine that in the worst case scenario the Queensland government would issue a demand for royalties with interest.

In his October 5, 2021 letter Lucas Dow stated that the policy to support the multi-user promise will be in place “at or around” the time the CRN commences operation. I can find no statements demonstrating that the Queensland government have made the timing of the release of Adani’s access policy clear. Any access policy would have to fit within the QCA Act access regime which is contingent upon the declaration of a service. Will Adani’s open access policy also be a secret?

Lucas Dow’s October 5, 2021 letter offers arguments to support the assertion that my request was “premature”. In this quote he indicates that an access framework has already been developed:

Adani has not yet put in place its commercial framework governing access to the CRN. As Mr Swifte is aware, Adani and the Queensland Government (State) have made clear that an open access policy will be put in place by Adani, at or around the time that it commences operation. [REDACTED]. It is impossible for the QCA to meaningfully assess the impact of declaration without understanding the access framework already intended to apply.

Forums where rail boffins discuss technical aspects can be informative though not always reliable. I was interested to read discussion about Adani’s shift from a standard gauge, vertically integrated rail corridor to the present largely unspecified arrangements. Like all of us the boffins are left to speculate. There appeared to be agreement that Adani reached for a ‘gold plated’ standard gauge corridor knowing they could scale back to narrow gauge.

A comment from a member of RailPage.com.au forum following the announcement of Adani’s Plan B rail corridor:

Adani likes vertical integration operations and tries to keep it’s mining, transport, ports and power generation in-house – which is where the stand-alone standard gauge line fits in. I suspect the company is now more interested in getting the coal out of the ground and making money rather than bleeding any more cash on this project.

Aurizon’s Newlands System will also need capacity upgrades to carry Adani’s traffic, this will almost certainly include double tracking several sections and extending RCS (CTC signalling) south from Collinsville to Newlands. Tonnages north of Collinsville could exceed 80-million tonnes if existing tonnages and Adani traffic are combined. I can’t say it’s clear who will be paying for those upgrades, but I assume some sort of agreement has been made prior to this announcement.

https://www.railpage.com.au/f-t11398398-0-asc-s0.htm

This is no time to give up

I’m still reeling from an interview I heard on local radio yesterday where a leader of the frontline resistance, a member of Frontline Action on Coal interviewed a leader of what I call the ‘distributed resistance’, a person variously affiliated with the StopAdani Alliance. The StopAdani aligned activist, now connected with a group called Tipping Point, effectively stated that other than pressuring some more companies and ‘standing in solidarity’ the Wangan and Jagalingou Traditional Owners resisting the mine, the battle had been lost. To be clear; I listened to a conversation between a person who is in the best position to stop Galilee Basin coal trains and a person who represents the efforts of the best funded NGOs in the climate justice movement, and it seemed like they had both given up on stopping Adani’s rail corridor from becoming operational.

For me the battle is just heating up. I would urge those with legal and public administration backgrounds to step in and interrogate Adani’s shell companies while being mindful of the bias against disclosure being demonstrated by the Queensland and federal governments. Only a clear and thorough understanding of the information that does and does not exist on the public record can help us to understand the shell games played by extractivist corporations and their friends in the establishment.

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

Unpacking the Galilee Basin shell game

The “Carmichael Rail Project” listed on the Adani Australia website is a fiction. There is no such project listed with the Queensland Department of State Development. The “Carmichael Rail Project” is the fusion of the mine access rail component of the Carmichael Coal Mine and Rail Project, and the North Galilee Basin Rail Project.

screenshot.622
State Development map showing the west-east rail corridor for the Carmichael Coal Mine and Rail Project.

screenshot.623
State Development map showing the North Galilee Basin Rail Project corridor.

Galilee_Carmichael+Rail+Network
Part of the rail component of the Carmichael Coal Mine and Rail Project (78 km) added to the North Galilee Basin Rail Project (310 km) equals the “Carmichael Rail Project” (388 km), but that’s not the project name on this map.

The Adani Australia website lists three projects in Australia: the Carmichael Coal Mine, the Carmichael Rail Project, and Adani Abbot Point Terminal O. The links provided for the “Carmichael Mine Project” list the project as the Carmichael Coal Mine and Rail Project, and the links for the “Carmichael Rail Project” list the project as the North Galilee Basin Rail Project.

screenshot.608
The 2 Carmichael projects are misnamed. These project names are not the names listed with the Queensland Department of State Development.

The Queensland Department of State Development website lists the length of the North Galilee Basin Rail Project as 310 kms while the Adani website lists the length of the “Carmichael Rail Project” as 388 kms. The other 78 kms could only come from part of the rail corridor providing mine access to the Carmichael Coal Mine and Rail Project

mine_project_description_pdf
This map appears in the “Mine Location” subsection of the “Carmichael Coal Mine” section of the Adani Australia website. Interestingly the Adani brand and the name ‘Carmichael Coal Mine and Rail Project’ don’t appear on this map.

In my blog post The Galilee Basin Shell Game Continues I explained how ACIL Allen who prepared the Australian Conservation Foundation’s report for the senate NAIF inquiry broke down the numbers for the rail corridor length. They did not provide any references for these calculations or their certainty regarding the name of the rail project in line for the NAIF loan.

The rail link comprises the 78-km Carmichael rail project from the mining and processing operation to Mistake Creek, and the 310-km North Galilee Basin Rail (NGBR) project from Mistake Creek to Abbot Point. The NGBR facility will be accessible by other enterprises.

The ACIL Allen report can be downloaded at this link: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/NAIF/Submissions

Another clue to the source of the 78 km figure may be in the document called Species Management Plan – Carmichael Rail Network SP1 prepared for Adani by Eco Logical Australia. This document can be located on the Adani Australia website in the “Carmichael Coal Project” section, in a table contained in the “Plans, Reports and Programs” subsection.

1. Carmichael Coal Mine and Rail Project, comprising the Carmichael Coal Mine and 77 km of rail line known as Separable Portion 1 (SP1)
2. North Galilee Basin Rail (NGBR) Project, comprising 311 km of rail from the connection with SP1 to the Port of Abbot Point.

It seems that some time before May 2016 when the Eco Logical Australia ‘Species Management Plan’ was published and after a document with the short title Mistake Creek Water Application was published in September 2013, the distance of Separable Portion 1 was changed from roughly 120 km to 77 km.

The rail line is divided into several different portions. This application is concerned only with Separable Portion 1 (SP1), which is known as ‘west rail’ which traverses approximately 120km from the Carmichael Coal Mine (mining lease area) east towards Moranbah.

screenshot.635
A map of the roughly 120 km Separable Portion 1 rail corridor as at September 2013.

At the heart of the Galilee Basin shell game are manipulations of nomenclature and information architecture by Adani Australia. Naming systems and the way supposed facts have been organised have helped shape the public perception on the coal complex development. It seems the Carmichael Coal Mine and Rail Project is really just a coal mine with the usual rail access. The 189 km west to east rail corridor indicated on the map in the ‘Mine Location’ sub-section of the “Carmichael Coal Mine” section of the Adani Australia website is never mentioned in either the “Carmichael Coal Mine” or “Carmichael Rail Project” sections. It seems that 111 km of those 189 km were dispensable. I’m sure the old aficionados of the shell game had a name for that move.

By omission, and by manipulation of project names, Adani Australia have constructed text that masks the true nature of the rail components of two projects listed with the Queensland Department of State Development. The actual names of the projects don’t appear in the relevant section of the Adani Australia website, and the rail corridor distances listed with State Development don’t appear either.

The text Adani Australia have constructed is designed to feed cut n paste journalism ensuring that key search terms don’t enter the general consciousness. The Adani Australia website is a primary source for the purposes of reporting on the Galilee Basin coal complex. The manipulation of project names and rail corridor distances limits members of the general public from possessing either the key terms for research and the key pieces of information to consider what might be happening on the ground in a crucial component of the development of the Galilee Basin coal complex.

Completely Spooked or Relieved of Duty?

It seems likely that the Australian Charities and Not for Profits Commission (ACNC) has half of the organisations that form the StopAdani coalition under investigation. I can confirm that 350.org.au has been under investigation for more than a year.

I’ve have watched in dismay as the StopAdani coalition members have largely ignored 3 recent direct actions in the Galilee Basin that have stopped work on the North Galilee Basin Rail Project. These direct actions occurred on October 25, October 30, and November 15, 2017.

My first reading of the situation which was based on the observations I published in a blog post on October 25 was that StopAdani coalition members were withholding reach in order to protect their narrative by avoiding acknowledging that these direct actions were happening on the rail corridor that they never name.  Frontline Action on Coal (FLAC) indicated that the first direct action on October 25 occurred on Jannga country where Adani have successfully secured Indigenous Land Use Agreements (ILUAs). The November 15 direct action may well have occurred on Birriah country where Adani also have an ILUA.

Now I’ve come to the conclusion that the StopAdani coalition members have been spared from unpacking the rail corridor, the deals done with traditional owners, and the role of the Queensland government and the native title system in securing agreements. These are things they’ve never shown any willingness to unpack and things that would threaten their particular narrative.

The most important signifier that the StopAdani coalition members are happy to be relieved of their duty is that they haven’t pulled out all the stops to get the message out about the recent direct actions. None of the Stop Adani ambassadors have stepped in to get the message out. Where was the support from Missy Higgins, Michael Caton, Nell Schofield, Tim Winton, John Butler, and Peter Garrett? The StopAdani coalition have many avenues to empower individuals with reach into social media audiences in Australia to share news and content from FLAC direct actions.

Most disturbing to me is the apparent disinterest in the recent Galilee Basin direct actions by Fairfax, The Guardian Australia, and the ABC who seem to be leaving reportage of the direct actions to NewsCorp papers like the Townsville Bulletin and The Courier Mail. This effectively leaves the news of extremely important direct actions inside NewsCorp’s paywalled silo. I would argue that if the Guardian, Fairfax, and ABC journalists were reporting as vigorously on direct actions in the Galilee Basin as they do on other less illegal StopAdani campaign actions that Stop Adani coalition members would find it hard to avoid discussion of these direct actions.

It’s my opinion that Michael West who has done research for the Australian Conservation Foundation has definitely done his bit for the accepted narrative. He wasn’t interested in Galilee Basin direct actions when I challenged him to share content and news back in October. He tweeted this flippant response to my request that he share content and news.

“Start with the rail line to Abbot Point” though NAIF is yet to approve it? Surely not with non-taxpayers’ money.

On November 14 he published a piece called ‘Corporate lobby in clover, charities SLAPPED’. It’s a comparison of the privilege and favour that private and industry lobbyists receive over not for profit organisations. He goes into some detail about the ACNC and the attacks against various NGOs with charitable status. The below quote highlights just how little these organisations are prepared to say publicly about the threats to their existence.

A number of [Not for Profits] were contacted for this article. All spoke but most on condition of anonymity. There has been a chilling effect on advocacy; the charities are afraid to speak out.

Before she blocked me – unfairly of course – 350.org.au CEO Blair Palese and I had a brief email exchange regarding my issues with the lack of sharing content and news of direct actions. In an email dated October 30 Palese outlined what could be described as an existential threat to her organisation. Now that I’ve been – unfairly – blocked I’ve decided to share a quote from that email.

In the mean time, if we post directly, we will cease to exist as an organisation until we can challenge the ACNC’s interpretation of what promotion of illegal activity means.

I’m of the opinion that it’s crunch time. Adani have begun work on the rail line and it’s time to confront the machinery. Because I believe that stopping the means of export is the only way to stop a coal complex from being developed, I also believe that we need to stop the rail line being built by every means possible. We need to do everything we can to support direct action that stops the machinery. The StopAdani coalition members ought to consider the value of falling on their swords or allowing themselves to be martyrs for the cause. What is the value of protecting an institution, a brand, a chunk of market reach when the most important front, the one where the machinery of destruction gets stopped, is being neglected?

 

PS. Check out the digital2 page on the Frontline Action on Coal website. Digital2 are the remote support team working to get news and content from direct action out to the public. It is very clear that they are determined to get content and news to travel far and wide. They are working in very remote areas which poses enormous challenges to getting communications out. https://frontlineaction.org/digital2/

 

Withholding Reach: The Stop Adani coalition has a problem supporting direct action

Today was the first day of the battle to stop Adani building the rail line in the Galilee Basin linking the Carmichael mine to the Abbot Point port. But looking at the social media feeds of Stop Adani coalition partners 350 dot org, GetUp, the Australian Conservation Foundation, and StopAdani dot com, you wouldn’t know there was a marathon 11 hour lock-on in stifling conditions in the Galilee Basin on the rail corridor where Adani and their contractor AECOM have machinery set up for building the rail line.

The reason you wouldn’t know that today’s direct action was happening was because these key partners shared nothing about the protest. No retweeted photos from the direct action organisers Frontline Action on Coal (FLAC) though Bob Brown, Greenpeace Australia Pacific, and the Australian Youth Climate Coalition retweeted photos shared by FLAC.  There was no sharing of stories from the Courier Mail or the Townsville Bulletin, nothing, on Facebook or Twitter, nothing.

Townsville Bulletin: http://www.townsvillebulletin.com.au/news/antiadani-protesters-chain-themselves-to-machinery/news-story/5e318b4362b8f3834048f75856687ff1?nk=edc9bc18ba7fc11278a22ebc3e1bdd60-1508902888

Courier Mail quote:

The protest is in the state development area on the Gregory Highway 35km from the Belyando Roadhouse.

At 8 pm this evening FLAC provided this announcement:

https://www.facebook.com/plugins/post.php?href=https%3A%2F%2Fwww.facebook.com%2FFrontLineActionOnCoal%2Fposts%2F1385041661608720&width=500

At this time, which is about 8.30 pm October 25, 2017, Missy Higgins is trending higher than today’s direct action under the #StopAdani hashtag. Missy Higgins, it was announced about 6 hours into the lock-on, is the latest ambassador for the Stop Adani coalition. Did Missy Higgins make her first action as ambassador the exuberant celebration of the efforts of the 3 activists, 2 of which were arrested? She did not.

I’m not the only one who noticed the absence of allies with reach sharing content from today’s direct action. At about 5 hours into the direct action CounterAct coordinator Nicola Paris (@peacenicsta) tweeted:

it sure is – not much online support from people with big followings – help us boost the call! x

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.

Not Ready to Blockade: The Impact of Graeme Wood

“If we can’t stop it in the parliament, we’ll stop it by standing in front of those bulldozers. It won’t go ahead,” Senator Richard Di Natale, 15/10/17.
 
The bulldozers will start digging the Carmichael rail link (whose name barely anyone knows) in just a few days according to reports based on a statement not published on the Adani website. The reason barely anyone in the general public knows the name of the rail link ( North Galilee Basin Rail Project) is because the Stop Adani coalition members, their allies in the think tanks and NGOs, the Greens, all the other political parties, and the mainstream media (this includes The Guardian Australia) barely even say it’s name. In not saying it’s name they cut off in advance any discussion or exploration of the struggles of traditional owners along the nearly 400 kms of the proposed rail corridor, many of whom have signed with Adani. In refusing to acknowledge the rail project name as confirmed by Matt Canavan in February and May, all of those I previously listed act to mask the economic reality of traditional owners who are already burdened by the native title system which heavily favours mining companies.
 
Journalists like Michael West and Joshua Robertson see very little reason to name the rail project or explore the implications of the indigenous land use agreements signed along it’s length back in 2014. They tell me they’ve read my writings but, even at this time when Adani have announced that they’ll start digging in “days”, they don’t see why I’m so concerned with naming the rail project for the public.
 
The first senate NAIF inquiry hearing explored the issue of our collective knowledge of the rail project earmarked for the 1 billion concessional loan. Two people discussed the source of this knowledge during the first hearing, Tom Swann and David Barnden. Both spoke of a December Courier Mail article as the primary source of information regarding the likely project. While David Barnden mentioned the rail project named in that CM article, Tom Swann raised doubts about the voracity of certain claims in the article. As it turns out both men knew coming into the hearing that Matt Canavan had placed the rail project name on the public record. Tom Swann has acknowledged this in a tweet to me and the Environmental Justice Australia submission to the inquiry references the answer to question on notice SI.36 in which Matt Canavan first passes on the message given to him by his department on behalf of the NAIF. 
Following the NAIF inquiry The Australia Institute submitted their own answers to questions on notice. These answers included references to previously mentioned QoN SI.36. This is the first public reference of any kind to the acknowledgement by the NAIF board of the name of the rail project, and therefore the likely proponent and project location. I explain the importance of the TAI response in this blog post
Clearly Richard Di Natale should be publicly pushing for another NAIF hearing and encouraging Senator Janet Rice to push as well. Di Natale should be asking Senators Ian MacDonald, Jane Hume and Murray Watt to agree to a second hearing. 
Are we ready to blockade?
We are not ready to blockade. We don’t collectively know the name or nature of the rail project Richard Di Natale says he’s so keen to stop. Di Natale did not take the opportunity at the first NAIF inquiry hearing to mention the rail project name and that it had been placed on the public record. Nobody in the party he leads, despite the fact that they had 6 months and 2 senate estimates hearings, and a inqiury hearing has raised the issue or acknowledged Matt Canavan’s communication. What makes things worse is that Matt Canavan contradicted his own statements from December that the project name, location, and proponent were “commercial-in-confidence”. Why was this contradiction not enough to make the Greens politicians motivated to name the rail project?
Richard Di Natale’s statements about standing in front of bulldozers are hollow and improvised. He is siding with and wearing the logo of the coalition NGOs working with plans funded by impact philanthropy. It just so happens that the single biggest donor to the Greens, Graeme Wood is the impact philanthropist who has been intimately involved in funding or facilitating funding for the groups that form the StopAdani coalition. If Graeme Wood was seeking to have impact in stopping the mine he has failed, but if he was seeking to control the resistance, to not test the foundations of corporate law and the native title system, to place a single traditional owner group in the spotlight and cast almost all others in shadow, then he has succeeded.

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

 

 

 

Confirmation that the North Galilee Basin Rail Project is the Adani rail project being considered by the Northern Australia Infrastructure Facility

 

Yesterday, in response to questions on notice arising from the August 11 hearing of the Senate Inquiry into the Governance and Operation of the Northern Australia Infrastructure Facility (NAIF), The Australia Institute and the Department of Industry, Innovation and Science (DIIS) provided detailed answers relating to their knowledge about the NAIF. A series of answers provided by Senator Canavan’s Industry, Innovation and Science Portfolio to questions on notice was referenced and quotes provided that show that on two occasions, the first in February and the second in May, Senator Canavan informed senators of the name of the specific project that Adani and the NAIF were considering, the North Galilee Basin Rail Project (NGBR).

Senator Canavan not only mentioned the name of the project, but he also contradicted earlier statements that naming the project would breach “commercial in confidence” provisions with the NAIF. No submissions to the NAIF inquiry referenced Senator Canavan’s answers to questions on notice that named the Adani project. Nobody at the hearing mentioned the senator’s answers even though at least two of the NGO submissions mentioned NGBR. The transcript from the NAIF inquiry shows that both Tom Swann representing The Australia Institute and David Barnden representing Environmental Justice Australia discussed the Renee Viellaris exclusive from December 2, 2016 which broke the news of the Adani-NAIF loan and is cited in TAI’s ‘Don’t be so Naif’ in reference to working assumptions that NGBR is the specific rail corridor under consideration.

The TAI and DIIS responses are downloadable here:

http://www.aph.gov.au/sitecore/content/Home/Parliamentary_Business/Committees/Senate/Economics/NAIF/Additional_Documents

The Australia Institute provided a response to questions on notice to the Senate Economics Committee dated September 5, 2017 which includes references and quotes from two key documents from Senator Canavan’s portfolio QoN numbers SI.36 and AI.70.

Quote:

ANSWER

During Senate Estimates on 20 October 2016, the Office of Northern Australia took a

question on notice on behalf of NAIF.

The Answer was submitted on 16 February 2017 by the Office of Northern Australia:

“Adani is one of the 13 projects. Adani has expressed interest in accessing the NAIF

for purposes of supporting the North Galilee Basin Rail Project”.9

Reference:

SI-36 Waters, Larissa Office of Northern Australia Adani 16/02/2017

9 http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/economicsctte/estimates/sup16

17/Industry/index

Quote:

22 May Office of Northern Australia advises Senate Estimates:

“there has been no public formal announcement from Government.

The NAIF had informed the Minister via email that Adani had

consented to disclose the following: ‘Adani has expressed interest in

accessing the NAIF facility, for the purposes of supporting the North

Galilee Basin Railway Project.’”xliii

The ONA does not say what date this information was provided.

Reference:

AI-70 Waters, Larissa Office of Northern Australia NAIF interaction with Minister’s office 23/05/2017

http://www.aph.gov.au/~/media/Committees/economics_ctte/estimates/add_1617/Industry/answers/AI-70_Waters.pdf

I have communicated with Tom Swann via Twitter and asked “Who knew about SI.36 when they were at the senate NAIF inquiry?”, he confirmed that at the time of the August 11 hearing he was aware of SI.36 saying “I did, but couldn’t recall date\ number etc. Who would’ve thought Committee demand evidence Adani’s had applied?!”.

In fact Tom Swann knew of the existence of SI.36 in early July. His report titled Palaszczuk’s Promise’ which makes no mention of the NGBR and has a creation date of July 10, 2017 references SI.36 in relation to a February 2016 letter:

Quote:

On 18 February 2016 the Queensland Treasurer Curtis Pitt wrote to the federal government requesting that it consider a subsidised loan of nearly $1 billion to Adani for its rail line, via the Northern Australia Infrastructure Facility (NAIF).4

Reference:

SI-36 Waters, Larissa Office of Northern Australia Adani 16/02/2017

4 http://www.aph.gov.au/~/media/Committees/economics_ctte/estimates/sup_1617/Industry/answers/SI-36_Waters.pdf

Reference:

Palaszczuk’s Promise’

http://www.tai.org.au/sites/defualt/files/Swann%202017%20Palaszcuk%20subsidies%20for%20Adani.pdf

 

The Department of Industry, Innovation and Science provided written responses to questions on notice to the Senate Economics Committee in a document created September 7, 2017 which includes a clarification citing the same key document referenced by TAI, QoN number SI.36.

Quote:

Senator Hume: We don’t even know whether Adani is approved or part of the due diligence process or short-listed (transcript page 16).

Clarification: Question No. SI-36, SI-140, Supplementary Budget Estimates, 20 October 2016, confirmed that the Adani Group has expressed an interest in the NAIF.

 

QoN SI.36 was created by Senator Canavan’s portfolio and published on February 20 in response to questions placed on notice at the Senate Estimates, October 20, 2016. QoN SI.33, SI.35, and SI. 39 which were all created by the senator’s portfolio and published on or shortly after December 16, 2016 argue that “commercial-in-confidence” considerations include details like the name, proponent and location of NAIF projects. It’s clear that in naming the project in SI.36 and AI.70 the senator has contradicted himself.

I will go through each question on notice and explain how naming the project automatically gives you the location and proponent.

SI.33

Quote:

In accordance with Clause 17(2) of the Northern Australia Infrastructure Facility Investment Mandate Direction 2016, within 30 business days of an Investment Decision, the NAIF must publish information regarding all transactions on its website, subject to commercial confidentiality, including:

a) the name of the Project Proponent;

b) the goods/services involved;

c) the location;

d) the type of Financing Mechanism; and

e) the amount of the Financing Mechanism.

Reference:

SI-33 Waters, Larissa Office of Northern Australia NAIF Proposals 15/12/2016

http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/economicsctte/estimates/sup1617/Industry/index

SI. 35

Quote:

ANSWER

I can confirm that discussions have occurred between Adani Australia representatives and the Northern Australia Infrastructure Facility in respect of their rail project in the North Galilee Basin. These discussions are commercial-in-confidence and we are unable to provide any further information.

Reference:

SI-35 Waters, Larissa Office of Northern Australia Meetings between NAIF and Adani 16/12/2016

http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/economicsctte/estimates/sup1617/Industry/index

SI. 39

This answer is emphatic about not naming the project or proponent.

Quote:

The location and name of the projects are commercial-in-confidence.

One formal proposal has been submitted and this has progressed to due diligence phase. The location and name of the project is commercial-in-confidence.

In accordance with Clause 17(2) of the Northern Australia Infrastructure Facility Investment Mandate Direction 2016 (Investment Mandate) within 30 business days of an Investment Decision, the NAIF must publish information regarding all transactions on its website, subject to commercial confidentiality, including:

a) the name of the Project Proponent;

b) the goods/services involved;

c) the location;

d) the type of Financing Mechanism; and

e) the amount of the Financing Mechanism.

Reference:

SI-39 Ketter, Chris Office of Northern Australia Funding under the NAIF 15/12/16

http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/economicsctte/estimates/sup1617/Industry/index

*Once you have the name ‘North Galilee Basin Rail Project’ you can easily find this link which provides you with the project proponent and the location: https://www.statedevelopment.qld.gov.au/assessments-and-approvals/north-galilee-basin-rail-project.html

Larissa Waters’ line of questioning at the March 2, 2017 senate estimates is interesting. By this time the senator would have seen the response to QoN SI.36 and accessed the relevant Queensland Department of State Development documents and seen that Adani Mining Pty Ltd were the NGBR project proponents. But in QoN AI.71 she asks a question for which she ought to know the answer.

Quote:

QUESTION No.: AI-71

1. Can you shed any light at all on which Adani company has applied for financial assistance? The reason we’re interested is that the company which owns the Carmichael mine (Adani Mining Pty Ltd) is ultimately owned by a company registered in the tax haven Mauritius, and the company that owns their proposal for the railway line is ultimately owned in the Cayman Islands. The company that owns the Abbot Point coal port is also owned ultimately in the Cayman Islands.

Reference:

AI-71 Waters, Larissa Office of Northern Australia Adani loan 22/05/2017

http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/economicsctte/estimates/add1617/Industry/index

Having read the submissions, the August 11 hearing transcript, responses to questions on notice; because I prepared a blog post dedicated to references by environmental organisations to the North Galilee Basin Rail Project in relation to the North Australia Infrastructure Facility, and because none of those reports ever mentioned Senator Canavan naming the project, I’m left scratching my head wondering how the hell did this happen? Nobody pointed out that the senator had expressly stated it would be a breach of commercial-in-confidence guidelines to name the project and somehow nobody thought to mention the existence of SI.36 and AI.70 in the NAIF senate inquiry.

‘References to NGBR in reports by environmental organisations about the NAIF concessional loan to Adani: Briefing Document’.

https://wesuspectsilence.wordpress.com/2017/09/01/references-to-ngbr-in-reports-by-environmental-organisations-about-the-naif-concessional-loan-to-adani-briefing-document/