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?’.