We Suspect Silence

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

Tag: greenpeace

Digging into Adani’s Dealings: A learning journey into right to information applications with the Queensland government

Event:

December 10, 2018 at Turnstyle Community Hub from 4pm till 6pm

This event is in Brisbane. Check this link for details of the venue.

Description:

Anyone can make a right to information application with the Queensland government, and some people can get information released with minimal cost if they are experiencing financial hardship. If Adani don’t try to hold up my application I will receive a disclosure document on December 10.

Come along next Monday afternoon for an informal discussion about how ordinary people, putting their heads together, can work to liberate information about the Queensland state government’s dealings with Adani.

If a disclosure is provided to me on December 10, I will make it available to anyone who attends. The disclosure will be made publicly available by the Department of State Development who coordinate the Adani projects a week later. The first week is a crucial time for analysing an RTI disclosure and creating opportunities in the media to share new and possible explosive information.

Here is the disclosure listing: RTI1819-036-DSDMIP https://www.statedevelopment.qld.gov.au/right-to-information/disclosure-log-released-information.html

Background information: ‘Plan B, Separable Portion 1 and the new Adani proponent’ https://wesuspectsilence.wordpress.com/2018/10/01/plan-b-separable-portion-1-and-the-new-adani-proponent/

In detail:

I was able to get some support from the Environmental Defender’s Office Queensland in preparing my RTI application. EDO Qld were able to identify the relevant legislation and framed the crucial language that forms the most important element of an RTI application. Key words and terms determine the searches of departmental documents and communications conducted in response to an RTI application.

On December 10, 2018 the Queensland Department of State Development, Manufacturing, Infrastructure and Planning will either provide me with up to 215 pages of correspondence relating to the change of proponent for the North Galilee Basin Rail Project and the addition of a new proponent for the Carmichael Coal Mine and Rail Project, or they will inform me of an extension of time for consultation with a third party (Adani). The information I am seeking is significant because the new proponent is the subject of multiple approvals that could be described as being ‘stealthed’ through by multiple Queensland government departments. The new proponent is one of the Adani shell companies mentioned in the media in the lead up to last year’s NAIF inquiry and is reported to hold the royalty deed for the Carmichael mine.

The Queensland Office of the Information Commissioner determine how right to information processes are delivered across the Queensland government departments. It also reviews decisions made by government departments. In March it issued it’s judgement on the Queensland Department of Treasury decision not to release information to Greenpeace Australia Pacific. The below statement confirms the importance of access to information about Adani’s dealings.

“The Carmichael rail project is a matter of considerable community interest and debate. Disclosure of information relating to the project, such as that in issue, could reasonably be expected to promote open discussion of the ‘pros and cons’ of the project, contribute to informed debate on the project’s merits and ensure any decisions to advance public monies are made transparently and accountably.” L Lynch, Acting Right to Information Commissioner, 1 March 2018

The Office of the Information Commissioner provides guidelines for right to information officers across the Queensland government. These guidelines are very informative and can help members of the public understand how RTI officers do their job.

https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/processing-applications/consulting-with-a-relevant-third-party

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Plan B, Separable Portion 1 and the new Adani proponent

Plan B

Adani launched ‘Plan B’ on September 13, 2018.

Adani are retaining a 200 km section of the often quoted 388km “Carmichael Rail Project” (a fictional project). That 200km section is made up of the Carmichael Coal Mine and Rail Project (CCMR), Separable Portion 1 (SP1) – 78km and the remnants of the North Galilee Basin Rail Project (NGBR) which we can suppose is roughly 120km.

On September 14 I had a conference call with the media team at the Queensland Department of State Development, Manufacturing, Infrastructure and Planning (DSD). They asked me a lot of questions about my interest in when and how Adani had switched proponents for the NGBR and added a joint proponent to CCMR. I gave them my theories about the ENGOs, think tanks, the Greens, and non-NewsCorp newspapers avoiding mentioning the NGBR as it would highlight the Traditional Owners who signed with Adani in 2014.

At one stage in our call the DSD media people indicated that I may have to submit a right to information request to discover the date Adani made communication with them indicating that there was a new proponent, and the date the DSD website was updated. They also said something about there being “no time limit” for Adani to inform the DSD that there was a change of proponent. The idea that there is no time limit for a change of proponent leaves me with many questions about what it took to legally change proponents (for the world’s largest proposed coal project) and how easy it may have been for Adani to stealth in a new proponent, approvals, and accreditations. Indeed the approvals and accreditations granted by the DTMR and DNRM in May and September of 2017 have confirmed to me that it is absolutely necessary to identify the exact date and procedure for transferring proponents between companies within a conglomerate like Adani.

On September 19 I received a call back from Rebecca, the Adani media person. Rebecca was able to confirm that Adani had sent a communication to the Qld DSD in March 2018 asking to change the name of the listed proponent for the North Galilee Basin Rail Project (NGBR) and add a new proponent to the Carmichael Coal Mine and Rail Project (CCMR). They were also able to confirm that the DSD added the new proponent names to their website, ‘project overview’ pages in May 2018. It is on these DSD hosted pages that the key project information such as EIS documents are provided.

Here’s a link to the National Library of Australia web archive showing that on March 18, 2018 Adani Mining Pty Ltd were listed as the proponent for the NGBR.

http://webarchive.nla.gov.au/gov/20180324190301/http://www.statedevelopment.qld.gov.au/assessments-and-approvals/north-galilee-basin-rail-project.html

Here’s a link to the DSD project overview page for the NGBR which shows that the new proponent is Carmichael Rail Network Pty Ltd.

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

PlanAPlanB

The North Galilee Basin Rail Project became the Carmichael Rail Network when Plan B was announced

Accreditations and Approvals

On May 15, 2017 the Carmichael Rail Network Pty Ltd was accredited as a ‘rail transport operator’ by the Queensland Department of Transport and Main Roads (DTMR). On September 24, 2018 I sent a set of questions to DTMR asking them to provide information about how and when Carmichael Rail Network Pty Ltd applied for and received accreditation. I can expect a response by October 16, 2018.

Here’s a link to the download page for Rail Regulator’s Reports:

‘Rail Regulator’s Report 2016–17: A report on safety performance on the rail network in Queensland’. ‘Appendix 1: Accredited Rail Transport Operators as at 30 June 2017’. https://www.tmr.qld.gov.au/Safety/Rail-safety/Rail-regulator-yearly-report

It should be noted that, according to a report by Jenny Wiggins on September 14, 2018, the Carmichael Rail Network Pty Ltd had no employees and $1000 in assets at the end of the 2016/17 financial year. If this is the case then DTMR gave accreditation to nothing but a shell company.

Aecom’s contract was with Carmichael Rail Network, a subsidiary of Adani. But as its most recent annual report for the year ending March 2017, the Carmichael Rail Network had no employees and only $1000 in assets.

 

 

The ABC’s Stephen Long reported in March 2017 that Carmichael Rail Network Pty Ltd were assigned the royalty deed sold to Adani by Linc Energy in August of 2014. Long described Carmichael Rail Network Pty Ltd as a “shell company”.

But in August 2014, in dire financial straits, Linc Energy agreed to sell the royalty deed back to Adani at a fire sale price: just $150 million.

The obvious course would have been to extinguish the royalty deed, because it represented a multi-billion-dollar liability for the mine which is ultimately owned by Adani Enterprises Ltd, the Bombay-stock exchange listed company.

Instead, the royalty deed “was assigned by Linc Energy Limited to Carmichael Rail Network Pty Ltd as trustee for Carmichael Rail Network Trust,” notes in financial reports of Adani Mining Pty Ltd say.

Carmichael Rail Network is one of a group of companies behind the proposed North Galilee Basin rail line, which Adani is currently seeking a subsidised loan of up to $1 billion from the Federal Government’s Northern Australia Infrastructure Facility to build.

“What this means is that one of the companies currently seeking up to $1 billion in public subsidy is going to profit to the tune of up to $3 billion if the mine goes ahead,” Mr Walters said.

Adani Mining Pty Ltd, the proponent of the Carmichael mine and the holder of its environmental approvals, appears to have lent Carmichael Rail the funds to buy the royalty deed.

A spokesman for the Adani Group said the subsidiary assigned to the royalty right was an Australian registered and regulated company and “as such it pays all applicable Australian taxes charges”.

http://www.abc.net.au/news/2017-03-14/adani-carmichael-coalmine-to-shift-millions-to-cayman-islands/8350704

Long’s reporting relied on analysis from the Adam Walters at Energy and Resource Insights based in Sydney. It appears that it was Walters who provided the Institute of Energy Economics and Financial Analysis, and Environmental Justice Australia intelligence regarding an Adani report to the Australian Securities and Investments Commission indicating that among the “proponents” for the “Carmichael Rail Project” is “Carmichael Rail Network Pty Ltd”.

2. According to company filings to the Australian Securities and Investments Commission
dated 1 July 2015, the Australian domiciled Carmichael Rail Pty Ltd and Carmichael Rail Network Pty Ltd as trustee for the Carmichael Rail Network Trust are the “proponents of the Carmichael Rail Project”.

It was announced on June 6, 2017 that AECOM had a contract to build the rail link from the Carmichael mine to the port. While some reports used the term “Carmichael Rail Network” none specified that the contract was not with the existing proponent (according to the DSD website) Adani Mining Pty Ltd who made ILUAs for the North Galilee Basin Rail Project in 2014 and who were responsible for satisfying ‘unprecedented’ environmental conditions in seeking approvals for the Carmichael mine and associated rail corridors.

At the time of the AECOM contract announcement Carmichael Rail Network Pty Ltd had held rail transport operator accreditation for only 3 weeks. The announcement of the AECOM contract preceded the publication of the 2016/17 regulator’s report which also shows that Adani Mining Pty Ltd had ceased to possess accreditation.

On September 19, 2017 Carmichael Rail Network Pty Ltd was added as an ‘approved entity’ for the purposes of ‘Riverine Protection Permit Exemption Requirements’. The available documents don’t indicate if Adani Mining Pty Ltd have ever applied for, or been added as an ‘approved entity’.

Riverine protection permits allow entities doing work around water ways of various types to conduct earth works. Exemptions are sometimes given by the Department of Natural Resources and Mines for significant works.

It is quite possible that no information was available about the ‘approved entity’ status of Carmichael Rail Network Pty Ltd until after the creation date for the below linked document – August 7, 2018.

1.03 19/09/2017 Carmichael Rail Network Pty Ltd added as approved entity.

https://www.dnrm.qld.gov.au/?a=109113%3apolicy_registry%2friverine-protection-permit-exemption-requirements.pdf

Separable Portion 1

In early 2015 Jerome Fahrer provided an affidavit on behalf of Adani in proceedings brought by Land Services of Coast and Country Inc and Conservation Action Trust. Included in the instructions from Peter Stokes, a partner at McCullough Robertson Laywers who were engaged by Adani Mining Pty Ltd are three intriguing points.

Given that Peter Stokes was engaged and presumably briefed by Adani, the significance of the revelations made in the three points under the heading ‘Rail alignment’, must be recognised.

Once you know what “SP1” is the picture becomes clearer. SP1 stands for Separable Portion 1, the first section of the proposed 189km rail component of the Carmichael Coal Mine and Rail Project (CCMR). As the points below show, in early 2015 it was known that less than half of the CCMR rail corridor was going to be retained.

14 As you know, Adani is proceeding with the North Galilee [Basin] Rail Project alignment in preference to the full rail alignment as set out in the EIS and SEIS. The investment associated with this has been calculated at $2.2 billion.

15 However, a portion (but not all) of SP1 as presented in the EIS and SEIS will also be constructed, representing the first approximately 70 kilometres of the rail leading from the mine itself. The investment associated with the whole of the rail aspect of the project is approximately $2.5B (inclusive of contingency and transactional costs).

16 The revised SP1 alignment will no longer connect directly with the existing Goonyella or Newlands rail system.

http://envlaw.com.au/wp-content/uploads/carmichael43A.pdf

The reason that the admissions made in the instructions to Jerome Fahrer are so significant is because they show that the “rail” component of the Carmichael Coal Mine and Rail Project (CCMR) had been reduced to less than half only months after the final approvals were given by state and federal governments.

The name of the CCMR suggests that it’s rail component is so significant that it needed to be included in the project name unlike most mines which do not include the rail component in the name. Indeed the majority of Separable Portion 1 is located on Jannga country. The Jannga People represented by Bulganunna Aboriginal Corporation made 2 ILUAs with Adani Mining Pty Ltd for both the NGBR and CCMR. The National Native Title Tribunal numbers for the two Jannga-Adani ILUAs are: QI2014/065 and QI2014/022.

The reality is that the rail component of the CCMR as indicated on the DSD website ‘project overview’ page was effectively severed from the mine project in late 2014 or early 2015. It’s likely that the Jannga People ILUA for the CCMR covers Separable Portion 1 and the Jannga People ILUA for the NGBR covers the remnant Plan B corridor which extends to the eastern boundary of the Jannga People’s determination area.

Separable Portion 1 is only mentioned in two types of documents: EIS documents for the Carmichael Coal Mine and Rail Project (CCMR), and two documents associated with Jerome Fahrer and the consulting firm he leads called ACIL Allen.

In my briefing in the lead up to the senate NAIF inquiry in 2017 I highlight an unreferenced statement about the composition of the 388km the “rail link” by ACIL Allen in their report for the NAIF inquiry commissioned by the Australian Conservation Foundation.

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.

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/NAIF/Submissions

Here’s a quote from an archive copy of the Adani Australia website, media releases section from November 1, 2015 (the earliest available).

The NGBR, the principal component of the company’s planned 388 km rail link from Carmichael to the port at Abbot Point, will be Queensland’s first standard gauge rail line, helping drive lower costs for Adani and other producers by with the longest, highest capacity trains for coal haulage in Australia.

https://web.archive.org/web/20160104010448/http://www.adaniaustralia.com:80/media/media-releases

The above statement is an acknowledgement of the reality of the fictional “Carmichael Rail Project”. If NGBR is the “principle” component, then Separable Portion 1 is the secondary component. By a fictional creation, a fake name that was unquestioned in the media, among ENGO spokespeople, and their think tank allies Adani masked the composition of their rail link. Through the withholding of information by both Adani and the Queensland and federal governments no reliable or intelligible information sources existed when needed. This created a situation where marginalised Traditional Owners, campaign groups, and the public could not analyse and determine what was really happening.

Additionally, the acknowledgements made in the instructions given by Adani Mining Pty Ltd legal representatives were entirely ignored by organisations like the Australian Conservation Foundation and Land Services of Coast and Country Inc. These organisations are well networked into the StopAdani coalition/alliance. Ignoring the significance of Separable Portion 1 may have strategically disadvantaged collective efforts at preventing the advancement of the Adani’s rail corridor plans.

The statement below from the introduction to the North Galilee Basin Rail Project (NGBR) EIS documents shows that Adani preferred the more direct route offered by the NGBR. I am left wondering if Adani ever intended to actually build the rail component of the Carmichael Coal Mine and Rail Project (CCMR). It seems quite possible that they pursued a less desirable corridor in order to attach a significant rail project to the mine. By presenting a fictional name for the connected rail projects created the suggestion that the NGBR was part of the mine project itself and not a separate project.

The proposed Carmichael Coal Mine and Rail Project includes a 120 km portion of dual gauge rail that will run west to east from the mine site to Diamond Creek, and a 69 km narrow gauge portion that will run east from Diamond Creek and connect to the Goonyella rail system south of Moranbah. This would enable carriage of product coal over the existing narrow gauge networks either directly to the Port of Hay Point (Dudgeon Point Expansion) or indirectly to the Port of Abbot Point. As such, the Carmichael Coal Mine and Rail Project rail infrastructure offers a short-term incremental solution that maintains port optionality, but is primarily only a medium – to long – term solution for export directly to Dudgeon Point.
Dual port capability for the export of coal is required by Adani to insure against potential force majeure conditions that may affect one of the mine-to-port supply chain routes. In addition, dual port capability will help to accommodate any future production increases from Adani and/or third-party mines in the Galilee Basin, which may exceed the capacity of one port. Given Adani’s interests in the existing and proposed export facilities at the Port of Abbot Point ( refer Section 1.4), a highly efficient, long-term and more direct transport route to the port was identified as a key business requirement.

 

Cut n paste journalists and busy people, could, and have quite reasonably assumed that the viability of the rail line would be impacted by any success achieved by the Wangan and Jagalingou Family Council in their efforts to stop the mine. These assumption were made possible by the absence of investigation of the political and economic context of the negotiation of ILUAs for the North Galilee Basin Rail Project. As I have pointed out many many times, the Stop Adani coalition/alliance NGOs and think tanks, the Fairfax, Guardian Australia, and ABC have consistently avoided investigating the reality of the diversity of Traditional Owners in the Galilee Basin coal complex area.

Here’s a map that was provided to DNRM in March 2016 and only made available in a right to information disclosure in February 2018. Neither Adani nor the Queens;land government saw fit to release this very enlightening map when it would have been valuable for public understanding. I have not been able to ascertain which organisation made the initial RTI (DNRM 15-315) that yielded this map. I am left to assume that they did not have an interest in sharing it with the public.

Traditional Owner Areas_map_Adani_March 2016_2

 

Put the North Queensland Land Council in the frame

On September 23, 2017 the North Queensland Land Council (NQLC) held it’s ward elections for 2017 – 2019. At those elections the then chair of Kyburra Munda Yalga Aboriginal Corporation (KMYAC) was reelected to the position of ward director for the NQLC Townsville/Ayr ward.

Here’s a quote from NQLC CEO Steve Ducksbury.

 I also offer my warm congratulations to the existing Directors who were re-elected: Ms Kaylene Malthouse and Ms Tracey Heenan in the Tablelands Ward, Mr Garry Mooney in the Mackay/Proserpine Ward, Mr Terry O’Shane in the Cairns Ward, Ms Angie Akee in the Townsville/Ayr Ward; Ms Patricia Dallachy in the Charters Towers/Hughenden Ward; and Mr Victor Maund in the Innisfail Ward.

On September 22, 2017 the North Queensland Land Council ceased to act for KMYAC who were at that stage in the second period of examination by the regulator of Aboriginal corporations, the Office of the Registrar of Indigenous Corporations (ORIC).

Here’s another quote from NQLC chief executive Stephen Ducksbury.

The NQLC ceased to act for (Kyburra) on 22 September 2017 following an unsuccessful mediation … where it became apparent that the parties could not reach agreement

On August 25, 2017 ORIC issued a ‘show cause’ letter to KMYAC directors asking why KMYAC should not be placed into special administration.

I am writing to tell you that I am considering putting the Kyburra Munda Yalga Aboriginal Corporation RNTBC (ICN 7581) (the corporation) under special administration under Division 487 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).

Four weeks after the NQLC ward elections, on October 17, 2017 KMYAC was placed into special administration. KMYAC directors, under the leadership of the Townsville ward director and treasurer of the NQLC, were actively avoiding providing financial records to ORIC from October 2016 when the first examiner was appointed until October 2017 when KMYAC was placed into special administration.

On October 17, 2017 through placing KMYAC into special administration, ORIC special administrators effectively deposed the KMYAC directors making the NQLC treasurer and Townsville ward director a former chair of KMYAC.

June 29, 2018 marked the end of the fourth period of special administration of KMYAC and it is abundantly clear from the recent judgement by Justice Rares in court proceedings brought against KMYAC and Adani by Juru Enterprises Limited (JEL) that KMYAC is highly likely to be placed into insolvency with significant debts including worker’s entitlements. Justice Rares’ judgement confirms the repeated statements made by the ORIC administrators in communications available on the ORIC KMYAC documents page.

In spite of the repeated warnings of the imminent insolvency of KMYAC by the special administrators ORIC has once again extended special administration of KMYAC until August 31, 2018.

Here’s a quote from Justice Rares May 24 judgement.

Contemporaneously, when filing Kyburra’s defence on 19 April 2018, the administrators wrote to the Court. The letter stated that Kyburra had a deficiency of assets over liabilities, was insolvent, was likely to be placed into liquidation and would take no further part in the proceeding.

The NQLC allowed the KMYAC chair to be reelected while there was a ‘show cause’ letter in effect. The KMYAC chair was on the verge of being deposed as a director of the very type of Aboriginal corporation for which NQLC ward directors have responsibility. The  main purpose of the NQLC is to support Registered Native Tittle Bodies Corporate (RNTBCs) like KMYAC to securely manage and negotiate rights and interests under native title system.

As a director and office holder of NQLC the now former KMYAC chair is an agent of the Native Title Representative Body (NTRB) which acts as intermediary between government, corporations, and other entities on behalf of RNTBCs in relation to land use agreements. The expectations placed on an NQLC director are high.

Here’s a quote from the NQLC fact sheet ‘What it means to be an NQLC Director’.

 The vision of the NQLC is for a region in which the native title rights and interests of every Native Title Holder has been legally recognised and in which Aboriginal people benefit economically, socially and culturally from the secure possession of their traditional land and waters. To ensure the continuance of an organisation with good governance as a fundamental and which gives Traditional Owners a representative Board through the Ward election process.

Here’s a quote from the same fact sheet that strongly suggests that the former KMYAC chair’s position as a NQLC director is untenable.

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

[ ]

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

 

Who should put the NQLC in the frame?

The Guardian Australia’s Ben Smee wrote two articles last week about the outcome of a Federal Court hearing that I attended on May 24, 2018 in Brisbane. These were the first two non-paywalled mainstream media stories to be published on this particular controversy. Reportage has remained inside the NewsCorp/Townsville Bulletin paywall since Samantha Healey wrote about the efforts of Juru people to get ORIC to investigate KMYAC back in October 2016.

‘Indigenous group hid more than $2m in payments from Adani mining giant’. Ben Smee, The Guardian Australia. June 22, 2018.

https://www.theguardian.com/australia-news/2018/jun/22/indigenous-group-hid-more-than-2m-in-payments-from-adani-mining-giant?CMP=share_btn_tw

‘Adani coal port under threat of stop order amid concern for sacred sites’. Ben Smee, The Guardian Australia. June 28, 2018.

https://www.theguardian.com/environment/2018/jun/28/adani-coal-port-under-threat-of-stop-order-amid-concern-for-sacred-sites

It wasn’t until June 29, 2018 that StopAdani coalition members and their allies began to share, for the first time ever, a news story or any other content about the trevails of KMYAC. Carol Prior (they call her “Aunty”) who spearheaded the complaint to ORIC and whose face the Stop Adani coalition routinely include in the promotional content, has been fighting to reveal the financial mismanagement of  KMYAC for years. The story the StopAdani coalition members shared today was the second of the two pieces written by Ben Smee.

Ben Smee and The Guardian Australia should put NQLC in the frame. Right now it seems that the Ben Smee pieces were written to put Adani in the frame. It is concerning that Adani appear to be stonewalling JEL who are the Juru Nominated Body for the Indigenous land use agreement made with the assistance of the NQLC in 2013. The full judgement by Justice Rares was published on June 12.

Ben Smee has his own sources for Adani’s stonewalling behaviour. The May 24, 2018 court proceedings related to the actions of KMYAC and Justice Rares’ judgement indicates that KMYAC took actions that were not in accordance with the Native Title Act.  But, the issue of Adani stonewalling JEL is separate from the court proceedings brought against KMYAC and Adani. Justice Rares did not find against Adani, he found against KMYAC for making themselves the Juru Nominated Body for an ancillary agreement to the 2013 ILUA . The court judgement relates specifically to actions taken in April 2017 by KMYAC directors while the organisation was likely insolvent and actively resisting the first ORIC examiner.

The  comments quoted below were posted to the Stop Adani Facebook page on June 28. They appear to have been copied verbatim by the Mackay Conservation Group (MCG)on their facebook page. The MCG are a long term partner to the StopAdani coalition and it’s predecessors. These comments demonstrate a deliberate conflation of the outcomes of the May 24, 2018 Federal Court proceedings and the Adani stonewalling reported by Ben Smee.

Quote from a StopAdani.com Facebook post with Ben Smee’s June 28, 2018 article. A truncated version of this comment appeared in a tweet by @StopAdani on Twitter on June 28.

Adani yet again disregards the rights of Traditional Owners, this time ignoring repeated demands by Juru elders to review unauthorised cultural assessments of their sacred sites at Abbot Point, amid concerns these sites haven’t been properly protected.

Quote from a StopAdani.com Facebook post announcing a video of Carol Prior speaking about her land and her opposition to Adani.

Adani’s cultural heritage assessments of Juru land near the Abbot Point coal port & proposed rail line have been ruled INVALID by the federal court.

Adani can’t be trusted to respect the land & rights of Traditional Owners & must be stopped!

Arguing that this situation is merely the product of manipulations by Adani masks the function of a range of state and federal departments, and the spectrum of bodies that deliver services and functions within the native title system. It also serves to disregard the significance of corporate failure in the native title system, it’s impacts, and the failure of the collective efforts to support autonomy and robust organisations.

The body that deserves the most attention is the NQLC as it is primarily responsible for the functioning of the native title system in the 9 wards which it administers. But there is also every reason to challenge the Queensland Department of State Development, the Department of Natural Resources and Mines (DNRM), the National Native Title Tribunal (NNTT), the Office of the Registrar of Indigenous Corporations (ORIC), and the Department of Prime Minister and Cabinet (D PM&C) in which the Indigenous Affairs portfolio sits.

 

An honest opportunity

Ben Smee and other non-NewsCorp journalists have an opportunity to dig into the apparent confusion demonstrated by the DSD back in 2015 as shown by the corrections issued to the ‘Abbot Point Growth Gateway Project Environmental Impact Statement Volume 1 – Executive Summary’. The DSD and Advisian who prepared the Abbot Point Growth Gateway Project documents were clearly confused about which Juru group had the responsibility for rights and interests in native title and cultural heritage management at Abbot Point. Representatives from JEL continue to make the same arguments.

It would also be wise to investigate why it is that in the DSD annual report for 2016-17 the following statement was included:

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.

Federal court documents indicate that JEL initiated proceedings on June 30, 2017 more than 3 months before the DSD annual report was published.

Any honest investigator with editorial arrangements that support genuine journalism, or any ethical research and reporting would look at how the departments and bodies collectively responsible for regional development in concert with the bodies that form the native title system failed to support good corporate governance and a responsive, tangible, effective engagement with the Juru People. I’ve provided some significant avenues of inquiry for anyone who actually wants to understand what happened to the Juru People’s rights and interests over Abbot Point since the 2013 ILUA with Adani.

For a detailed briefing on the JEL vs KMYAC and Adani court case check out my blog post titled ‘The Adani court case nobody is talking about’. For more discussion of the role of NTRBs check out my blog post titled ‘The lies and prevarications of Quiggin et al’. For more background on the former KMYAC chair check out my blog post titled ‘Do you want Indigenous autonomy and to stop Adani?’.

 

 

 

The lies and prevarications of Quiggin et al

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

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

 

Sections:

The project at the Global Change Institute

Collected writings

Two controversial meetings

The outright lie

An entirely ignored court document

Holding onto the talking point

Who has claim to the name “W&J”?

A gambit makes a talking point

Doing solidarity

Framing out the coal complex

A judgement not to be ignored

 

The project at the Global Change Institute

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

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

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

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

 

Collected writings

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

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

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

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

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

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

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

5 part ‘Killing Country’ series in New Matilda

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

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

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

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

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

 

Two controversial meetings

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

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

Quiggin et al discussing NTRBs in ‘Unfinished Business’:

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

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

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

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

 

 

The outright lie

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

Quote – Unfinished Business

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

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

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

 

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

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

Quote – Killing Country Part 1

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

Quote – Killing Country Part 2

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

Quote – Killing Country Part 3

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

Quote – Killing Country Part 5

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

 

An entirely ignored court document

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

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

and

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

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

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

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

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

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

Then on May 4, 2016, Adrian Burragubba applied to the court to have four of these people dismissed and replaced with another four people. Justice Reeves dismissed his application on April 11, 2017. His reasons were clear: the notice issued by Burragubba and his minority faction was designed to ensure that only those Wangan and Jagalingou claimants who agreed with him received the notice and the majority of the Wangan and Jagalingou claimants were excluded.

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

 

Holding onto the talking point

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

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

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

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

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

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

 

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

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

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

 

 

Who has claim to the name “W&J”?

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

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

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

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

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

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

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

 

 

A gambit makes a talking point

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

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

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

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

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

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

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

 

Doing solidarity

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

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

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

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

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

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

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

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

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

 

 

Framing out the coal complex

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

A quote from Part 4 of ‘Killing Country’

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

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

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

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

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

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

 

A judgement not to be ignored

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

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

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

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

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

 

 

 

 

 

 

 

 

Aboriginal Autonomy and the Galilee Basin Coal Complex

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

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

Submission by:

Michael Swifte

February 2018

Email: mgswifte@yahoo.com.au

Blog: We Suspect Silence

Twitter: http://twitter.com/empathiser

Member: Wrong Kind of Green critical thinking collective

Sections

1. Motivated by understanding Green-Black relations.

2. Auto-didactics and an unstructured methodology.

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

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

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

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

List of acronyms

NNTT – National Native Title Tribunal

NTA – Native Title Act

PBC – Prescribed Bodies Corporate

RNTBC – Registered Native Title Bodies Corporate

ORIC – Office of the Registrar of Indigenous Corporations

ILUA – Indigenous Land Use Agreement

NAIF – Northern Australia Infrastructure Facility

KMYAC – Kyburra Munda Yalga Aboriginal Corporation

JEL – Juru Enterprises Limited

NGBR – North Galilee Basin Rail Project

NPIC – Non-Profit Industrial Complex

WKOG – Wrong Kind of Green

CSG – Coal Seam Gas

RTI – Right to Information

1. Motivated by understanding Green-Black relations.

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

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

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

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

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

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

2. Auto-didactics and an unstructured methodology.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Juru QI2014/072

Registered: 24/11/14

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

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

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

Birriah QI2014/080

Registered: 24/04/2015

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

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

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

Jannga/Bulganunna QI2014/065

Registered: 05/01/15

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

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

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

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

Juru

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

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

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

Birriah

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

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

Public notice 1.

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

Public notice 2

BIRRIAH NATIVE TITLE CLAIM GROUP NATIVE TITLE AUTHORISATION MEETINGS

Public notice 3

BIRRIAH PEOPLE NATIVE TITLE MEETING TO AUTHORISE INDIGENOUS LAND USE AGREEMENTS

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

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

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

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

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

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

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

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

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

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

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

Juru Enterprises Limited

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

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

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

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

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

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

Work is also continuing with the local native title group, through Juru Enterprises Limited, to provide further skills and capacity building while undertaking land management activities within the Abbot Point SDA.” (27)

WJ Corporation

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

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We know less about Aurizon’s NAIF application than we knew about Adani’s

Aurizon’s Central Queensland Integrated Rail Project (CQIRP) has lapsed as you can see on the Queensland State Development (DSD) website.

Before their rail project lapsed Aurizon entered into an agreement with GVK Hancock. You can can read about it on the Aurizon website.

GVK chairman Dr G V Krishna Reddy was extremely confident about their deal to connect the south Galilee Basin block of mines. He is quoted on the Aurizon website saying:

This is one of the most significant deals in Queensland’s coal history. The development of the rail and port infrastructure will unlock the Galilee Basin and see the development of Alpha, Kevin’s Corner and Alpha West, creating one of the largest integrated coal development projects globally.

The reason the GVK chairman was so confident was because, like Adani, GVK Hancock possessed multiple Indigenous Land Use Agreements (ILUAs) covering their proposed rail corridor. The GVK Hancock rail corridor is designed to connect Abbot Point to mining leases nearly 500 kilometres south-west of the port. One of these ILUAs was made with the Wangan and Jagalingou People. It covers the southern most section of the GVK Hancock rail corridor and some mining infrastructure, but not mining activity.

You can find the Hancock Alpha Coal Project ILUA (Wangan and Jagalingou Area) on the National Native Title Tribunal website.

Here’s a map of the section of rail corridor covered by the ILUA with NNTT number QI2011/011

screenshot.693

The northern most portion of this rail corridor section passes over Mistake Creek before it crosses the Gregory Highway adjacent to Mazeppa National Park. On the DSD website page for the North Galilee Basin Rail Project it states:

The southern end of the rail line would connect with rail infrastructure proposed as part of the Carmichael Coal Mine and Rail Project in the vicinity of Mistake Creek (west of Moranbah) and would run north to the Port of Abbot Point (near Bowen).

What the GVK Hancock rail project and the Adani rail project have in common is that they are both planned as standard gauge projects unlike CQIRP which was planned to be a narrow gauge extension of the existing Newlands and Goonyella systems currently in use servicing the Bowen Basin mines. What these two projects have in common that separates them from Aurizon as a rail project developer is that they have the necessary ILUAs to support project development. Adani have the three necessary ILUAs to develop the NGBR and GVK Hancock have the four necessary ILUAs to develop the rail component of the Alpha Coal Project and in the process connect four or more other coal mines to Abbot Point. You can read about these mines in the Queensland Department of State Development – Annual Report 2016/17.

GVK Hancock’s very confident media release from March 2015 titled ‘GVK HANCOCK HAS ALL INDIGENOUS AGREEMENTS IN PLACE FOR ITS PROPOSED MINE, RAIL AND PORT’.

Aurizon don’t appear to have any rail project ILUAs with the Wangan People, Jannga People, Birriah People, or Juru People. It seems highly likely that Aurizon’s ambitions to build a rail line with NAIF funding are connected to their relationship with GVK Hancock who have the necessary agreements in place.

It is not likely that Aurizon will seek to revive their narrow gauge CQIRP project. It has been reported from many sources that the coal industry strongly prefers new coal rail projects in the Galilee Basin to be standard gauge. One key source indicating a preference for standard gauge is an RTI disclosure from 2014 revealing communications between Queensland Treasury, State Development, and the Department of Premier and Cabinet bureaucrats. I discussed the disclosure in this blog post.

When I say “we know less” I’m not referring to “we” as in the general public, because the general public have been misinformed by silence and lies and cut n paste journalism. When I say “we know less” I’m referring to those who know some actual true information, and who, for the most part, don’t share that information. I’m referring to the messaging masters of the Stop Adani coalition NGOs and their think tank allies, the political parties (including the Greens), Fairfax, The Guardian, the ABC, and the NewsCorp press.

 

GVK Hancock and all the rail project ILUAs.

Alpha Coal Project (GVK Hancock) – State Development page

QI2011/011 – Hancock Alpha Coal Project ILUA (Wangan and Jagalingou Area)

QI2011/003 – Hancock Alpha Coal Project ILUA (Jangga Area)

QI2011/004 – Hancock Alpha Coal Pty Ltd & Birri Native Title Claim Group ILUA

QI2011/019 – Hancock Alpha Coal Project (Port Area Native Title Group)

 

Parties to the Galilee Basin shell game: The Greens

When The Australia Institute became the first entity of any kind to acknowledge that Matt Canavan placed the name of the Adani rail project – that was in line for the 1 billion NAIF loan – on the public record in February 2017, I was sent into a flurry of activity to find senate estimates hearings with NAIF and ONA staff to see what had been said by Greens senators Scott Ludlam and Larissa Waters at two key senate estimates hearings that both followed revelations of the Adani rail project name via answers to questions on notice arising from previous hearings. I was also compelled to review the senate NAIF inquiry transcripts to see how Janet Rice and Richard Di Natale allowed the NAIF inquiry hearing to pass without any mention of Matt Canavan’s revelations from February and May.

To me it was understandable that Labor and LNP senators would have an interest in helping mask details of the rail corridor from scrutiny, but not the Greens. Surely the Greens would have an interest in exposing Matt Canavan breaching his own standards of “commercial-in-confidence”, and allowing the public the opportunity to have the fullest possible knowledge of developments in the Galilee Basin to help inform their choices.

The first of these hearings was on March 2, 2017, two weeks after Matt Canavan had issued his answer to a Question On Notice from Larissa Waters from October 2016. I found no actual reference to QoN SI.36 by Scott Ludlam during the March 2 senate estimates hearing, but I found an exchange in which Ludlam, Canavan, and NAIF CEO Laurie Walker failed to acknowledge the communication placed on record by Matt Canavan in February 2017. While the bureaucrat Walker can hide behind protocol, and Matt Canavan can say in his defence “what’s an entity?”, Ludlam was perfectly free to acknowledge the very clear response from Matt Canavan to his colleague’s question on notice. Scott Ludlam had every opportunity to put it to the NAIF CEO and Matt Canavan that Adani Mining Pty Ltd were the likely proponent since they are the proponent for the mine and rail projects listed with the Queensland Department of State Development who are charged with coordinating the mine, rail, and water projects for the Carmichael mine/Galilee Basin coal complex.

Senator LUDLAM: On notice if you need to, can anybody at the table please shed some light on which particular Adani entity has applied for the loan? I understand it is quite a complex corporate structure and there are various shell entities and goodness knows what else. Which particular entity is it that has lodged the request for assistance?
Senator Canavan: I am not aware.
Senator LUDLAM: I will maybe put that to Ms Walker.
Ms Walker: The NAIF has a protocol that it treats all its business dealings as commercial in confidence.
Senator LUDLAM: The minister announced one of them last December, so that is not working out super well.
Ms Walker: There are very limited exceptions for information that is able to be disclosed publicly; it is agreed with some of the proponents.
Senator LUDLAM: Are you heading towards not being able to tell us which particular Adani entity you are dealing with?
Ms Walker: Yes, because from a financing perspective, which the NAIF is, we regard it as very important to maintain the commercial in confidence information.

Link: Senate Hansard March 2, 2017 

Another exchange caught my eye due to the suggestion by Labor’s Chris Ketter that NAIF protocol may have been breached by the release of unspecified information. The NAIF CEO Walker said that her organisation did not breach protocol and the Office of Northern Australia – Head, Mark Coffey said that the protocol had recently changed. Matt Canavan indicated that he had made public comment about the Adani rail project loan application, but did not specify the type of public comment. Matt Canavan indicated that he spoke to the “proponent” before making public comments to ensure they were “comfortable” with the information he was sharing. From the below exchange we can assume that the information Matt Canavan had sought permission to share is an exception to the “commercial-in-confidence” arrangements often presented by Matt Canavan, his office, and NAIF and Office of Northern Australia staff.

Senator KETTER: Ms Walker, could you give us a breakdown of the four projects that are in the due diligence stage, in the same way that you have done with the inquiry stage? How would you characterise those? I think we know that one is a pipeline.
Ms Walker: I have given you a breakdown at the very high level, because we obviously want to be as transparent as we can with the pipeline. But I think to break down four deals that are in due diligence would be revealing information about those transactions, and our protocol would be that we maintain commercial-in-confidence of what those projects are.
Senator KETTER: I am sorry; I said pipeline before. I think you told us that one of those four projects is a rail link.
Ms Walker: Yes.
Senator KETTER: So we know that.
Ms Walker: As I said, we have a protocol that has a very limited exception as to information that we can disclose, and we can on that one under our protocol. But I am not at liberty to reveal the others at this moment.
Senator KETTER: I am a bit confused as to why we can know one of those four but not the other three.
Ms Walker: As I said, our general protocol is that we regard all business information in relation to proponents—whether or not a proponent has approached us—as information that is commercial-in-confidence that can give signals to the market that are valuable. Perhaps when I respond on that other question—the question on notice—about why we wish to maintain commercial-in-confidence, that would be the way I would like to handle it.
Senator KETTER: Has there been a breach of protocol in relation to the rail link project?
Ms Walker: NAIF have not breached a protocol.
Mr Coffey: Senator, maybe I can answer that. Last year in estimates I answered that question and at the time that high-level information was released through my office and there was not a breach of protocol at that time. NAIF have a policy now that they treat that information as commercial-in-confidence and they will maintain that.
Senator KETTER: So there has been a change in policy?
Ms Walker: As clarification: on that particular deal, we had the consent of the proponent to acknowledge that they have expressed interest in approaching the NAIF. That is the information that I have made public.
Senator Canavan: While I am obviously not party to the protocols and policies of the Northern Australia Infrastructure Facility—and it is a matter for them—I only commented publicly on that particular project after speaking to the proponent and ensuring that they were comfortable with that. I have not sought to do the same with other projects, because there simply is not the same level of public interest. That is of course a judgement call on my behalf, but I am trying to be as open as I can. In fairness to Adani, while I am not here to talk to them, they have not tried to hide anything either. They are being completely open and upfront about their project. There will certainly be a lot of commentary on it and a lot of interest in it.

Link: Senate Hansard March 2, 2017

QoN AI.70 is a set of written questions by Larissa Waters, submitted after the March 2 estimates hearing and directed to Matt Canavan’s office. Question 3 reads:

3. When the Minister publicly announced in early December last year that the NAIF is looking into the Adani rail proposal did he discuss that with you or your office before he let the media know? a. If yes how was it communicated – phone or email?

The answer to Question 3 was published a little over a week before the June 1, 2017 senate estimates hearing and contains the second revelation of the Adani-NAIF project name. Waters made no mention of this or the previous revelation in her extensive questioning of NAIF and ONA staff on June 1, 2017.

3. As the Minister stated at 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.’

Download link: QoN SI.36

Download link: QoN AI.70

Waters and Ludlam had been sidelined by the time the first and only hearing in the senate NAIF inquiry took place. Senators Rice and Di Natale were in attendance for the Greens and did not mention the two answers to questions on notice that explicitly named the North Galilee Basin Rail Project as the Adani project in line for the NAIF loan. They did not seize on Australian Conservation Foundation and Environmental Justice Australia lawyer David Barnden’s mention of the North Galilee Basin Rail Project and the December 2016 Courier mail article which broke the news.

Senator IAN MACDONALD: Mr Barnden, could you just assist us by giving me on notice the reference to where in Hansard you say the NAIF board spoke about Adani and what processes they were proceeding with at NAIF on the Adani application?
Mr Barnden: Yes, we can take that on notice.
Senator IAN MACDONALD: You’ve said that the NAIF board have discussed it, and I just wish you to—
Mr Barnden: I believe there’s a Senate estimates answer to question on notice SI-35, 20 October 2016, which states that Adani and NAIF have been in discussions. There was also a Courier Mail article in early December 2016 which—
Senator IAN MACDONALD: Not everything that’s in the Courier Mail—
Mr Barnden: Yes, but there’s been no public response by NAIF refuting that.
Senator IAN MACDONALD: But you’re suggestion NAIF are going through the process. I just want the reference to that because I know that’s not true and I’d like to see the reference.
Mr Barnden: If you can tell us any more about NAIF not analysing the Adani proposal, we’d be welcome to hear it.
Senator IAN MACDONALD: No, no. This is the point: your submission and those of the previous witnesses are based entirely upon Adani, and yet—
Senator RICE: The minister acknowledges it.

Senator DI NATALE: The minister has acknowledged it. Don’t expect the witness to refute what is patently false.
CHAIR: Senator Macdonald, the witness has agreed to take your question on notice, so have you got another question?
Senator IAN MACDONALD: Yes. I am asking: do you have any evidence at all—real evidence—that Adani have made application and put in the necessary applications, and, if so, what is that evidence?
Senator DI NATALE: If you’d paid more attention at Senate estimates you would have seen that NAIF confirmed that Adani had applied for the loan.

Download link: NAIF inquiry hearing August 11, 2017

As I outlined in my blog post Confirmation that the North Galilee Basin Rail Project is the Adani rail project being considered by the Northern Australia Infrastructure Facility, Tom Swann had seen QoN SI.36 as early as July 2017 and acknowledged to me on twitter that he was aware of it coming into the inquiry and claimed he couldn’t recall on the day. When he was asked by Janet Rice to provide details, examples and time lines he stopped at a January 18 response from the NAIF to an FOI request. Janet Rice does not encourage him to continue the time line or press him to provide more concrete details, but she did come to some agreement stating “So the NAIF, Adani and the statements from the government all seem to be intersecting and influencing each other quite inappropriately.”

Tom Swann knew full well that QoN SI.36 and QoN AI.70 superseded the Renee Veilaris exclusive from December 2016 in terms of primary sources and yet he seemed to raise doubts about the sources for the article pointing out that the NAIF did not appear to be a source. Janet Rice had every opportunity during her time with Mr Swann to press him to reveal the very specific revelations of the 2 offending QoNs, but did not.

Senator RICE: Thank you, Mr Swann and Mr Campbell. There are very clear recommendations in your submissions about how the NAIF could operate and how it is currently operating. I want to focus on your concerns regarding political interference with the NAIF, which you mentioned in your submission and in your testimony just then, and the contradictory statements made by Adani in terms of their relationship with the NAIF. Can you talk us through in more detail your concerns with political interference—including, if you have some details, time lines and specific examples?
Mr Swann: Sure. The NAIF was announced in the ’15-’16 budget and was actually set up in the ’16-’17 budget. There were media reports that Adani had applied quite early on, but the controversy really took off on 3 December when there was a front page Courier-Mail story. Interestingly, the NAIF itself was no part of this story, and it was not clear where the story came from. On 5 December, a couple of days later, the Adani spokesperson boasted that the loan was not critical. We have obviously applied because it is available. It doesn’t mean it’s make or break for the project. Interestingly, at the same time, Minister Canavan promoted the project and promoted the loan, and emphasised that it will be a multiuser rail line. On 6 December I had some correspondence with the NAIF in which they refused to acknowledge that the proposal even existed. On 18 January, in response to an FOI request, the NAIF refused to say that it had any documents containing the words ‘Adani’ or ‘Galilee’ or ‘Carmichael’—
Senator IAN MACDONALD: But that doesn’t worry you at all—
Mr Swann: on the basis that it would breach confidence—
Senator IAN MACDONALD: You still assume—
Mr Swann: It wasn’t that there were no documents but rather that to even consider whether there were documents or not would prejudice their decision-making. So how could it be that an independent agency that was assessing a proposal was bound to confidentiality while the minister could essentially run national PR for the proposal?
Senator RICE: Yes. Indeed. Then ongoing from that—other issues in terms of that?
Mr Swann: There was another example of the issue around Adani’s boast that the loan was not critical for it to go ahead. On 4 May, Adani announced that it had promised to buy steel from Arrium, from the steelworks in Whyalla, and this was touted as a lifeline for the Whyalla Steelworks, despite the fact that it represented less than two per cent of the steelworks’ capacity for about 2½ years. So it really was quite small, as the Whyalla Steelworks spokesperson acknowledged at the Adani press conference. But, at the same time, Adani said that it would go ahead with this order, regardless of whether it got the NAIF loan. So again there are real questions about why the NAIF didn’t, at that point, dismiss the application. And then, on 7 June, suddenly Adani changed its mind: the day after having given the investment proposal the so-called green light, it said that the funding was critical, and that subsequent requirements from state and Commonwealth to make the rail project an open-access common-user line increased costs. But, as I said, it has always been a multiuser rail line. The word ‘multiuser’ is in the first sentence of Adani’s 2013 environmental impact statement.
Senator RICE: So the NAIF, Adani and the statements from the government all seem to be intersecting and influencing each other quite inappropriately.
Mr Swann: Absolutely. And that raises real concerns. The NAIF has made a lot of noise about its confidentiality, and much more noise about its confidentiality than the projects that it is assessing. If we accept what the NAIF has said—that that’s really important—it raises incredibly big concerns about the way that the minister and the proponent have been allowed to promote their project in the national media in the intervening period.

Download link: NAIF inquiry hearing August 11, 2017

Ian MacDonald pressed Tom Swann for what Murray Watt called “real evidence”. The committee secretariat presented the chair (Chris Ketter) with the text of QoN SI.35 which was mentioned earlier in the hearing by David Barnden. That text does not go as far as QoN SI.36 in confirming that Adani are indeed “in discussions” with the NAIF over a rail project as it does not expressly name the rail project while strongly suggesting the likely rail project. It’s clear that in this exchange was another opportunity missed for senators Rice and Di Natale. They would have seen all the responses to Larissa Waters’ questions on notice and would have known that QoNs SI.36 and AI.70 were a more appropriate and powerful response to questions about primary sources.

Senator IAN MACDONALD: You acknowledged to Senator Hume that NAIF have said something publicly about Genex, because Genex apparently gave them approval to do it. Do you have any real evidence at all of Adani making an application, whether the facts and figures have gone in or whether NAIF has actually been investigating it? Do you have any evidence at all?
Mr Swann: The proponent has repeatedly discussed its application. This is a quote I read out before: ‘We have applied for it because it’s available.’ That was 5 December. The minister wrote an opinion piece about why it was a good idea to provide this loan and, again, promoting that it was multiuser. That was on 8 December. I cannot refer to it, I’ll have to take it on notice, but I do remember seeing a note on Hansard in which the NAIF acknowledged that the Adani proposal was one of the proposals they were considering, yes.
Senator IAN MACDONALD: I’ve asked previous witnesses for that. Give me that Hansard.
Senator WATT: It sound like real evidence.
Mr Swann: In the last week, or maybe this week, the Australian CEO of Adani was in the media discussing how big a loan might be required from the NAIF by Adani and expressing that there was some uncertainty around that. So there have certainly been repeated references.
Senator IAN MACDONALD: Can you on notice refer me to that? Which paper was that in?
Mr Swann: Um—
Senator IAN MACDONALD: Doesn’t matter.
CHAIR: Senator Macdonald, in the interests of the record here, you have asked questions about this a couple of times. The secretariat has pointed out to me that in answer to question on notice at supplementary budget estimates on 20 October last year, the NAIF said:
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 discussion are commercial in confidence and we are unable to provide further information.

Download link: NAIF inquiry hearing August 11, 2017

 

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.

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.