Indigenous Rights Litigation meets Global Climate Change in Queensland Australia

Benedict Coyne - 8th January 2016

Indigenous rights are currently going head to head with global climate injustice in Queensland, Australia. An important and novel judicial review case is afoot in the Federal Court of Australia, Brisbane, concerning a challenge by Adrian Burragubba of the Wangan and Jagalingou Peoples, to the proposed $16.5 billion Carmichael Coalmine in Queensland’s Galilee Coal Basin on their traditional lands. Their plight raises serious questions about how Australia’s first peoples are (mis)treated under native title law.

If developed, the Carmichael mine will be one of the largest in the world requiring 12.5 billion litres of water each year (from local sources) in order to extract up to 60 million tonnes of coal per annum. In December 2014, a joint expert report on the mine published for separate litigation in the Queensland Land Court stated that:

“The cumulative emissions related to this mine … are amongst the highest in the world for any individual project …The annual emissions associated with the Mine could be …equivalent to approximately three times Australia’s annual emissions reduction target of 5% below 2000 levels by 2020.”

Notwithstanding its reduced lifetime, the proposed mine will produce over 4.7 billion tonnes of greenhouse gas emissions. This is equivalent of 0.5% of the remaining global carbon budget to keep the global temperature below the 2 degree Celsius threshold of irreversible catastrophic climate change.

The current case before the Federal Court is a judicial review application of two future act determinations granted by the National Native Title Tribunal (NNTT) to Adani Mining Pty Ltd on 8 April 2015 which enable grants of mining leases to Adani in the native title jurisdiction.

The grounds of review include allegations that:

  1. Adani engaged in conduct analogous to fraud by firstly, providing information to the NNTT regarding the purported economic and employment benefits the mine would bring to Queensland which Adani’s own economic expert had suggested were inaccurate and, secondly, for failing to bring that divergent economic evidence to the attention of the decision-maker at the NNTT
  2. That the decision-maker failed to observe the rules of natural justice by failing to properly execute his duty to inquire into Mr Burragubba’s opposition to the mining leases being issued.
  3. That the decision maker failed to take into account a relevant consideration by failing to take account of material Mr Burragubba and another sent to the decision-maker outlining the Wangan & Jagalingou Peoples’ opposition to the mine and his authority to speak on behalf of their Family Representative Council.

 

However, the indigenous rights campaign against the Carmichael Mine has expanded into a global phenomenon. In May 2015, Adrian Burragubba issued a Statement to Banks on behalf of the Wangan & Jagalingou Peoples including an appeal for them to respect their human rights under international law, specifically the 2011 UN Guiding Principles on Business & Human Rights. Mr Burragubba then visited numerous international financial lending institutions to appeal to them not to invest in the Adani mine or related infrastructure. This included the Bank of America and Standard & Chartered who were advising and lending to Adani. To date, a total of 11 international banks have ruled out funding mines in the Galilee Coal Basin, including Société Générale, Crédit Agricole, BNP Paribas, HSBC, Barclays, Morgan Stanley and Citi.

Then, on 2 October 2015, the Wangan and Jagalingou people made submissions to Ms. Victoria Tauli‐Corpuz, Special Rapporteur on the rights of indigenous peoples, Ms. Farida Shaheed, UN Special Rapporteur in the field of cultural rights, and the UN Human rights Council’s Working Group on Business and Human Rights. The submissions, supported by Australian Lawyers for Human Rights (ALHR), appeal for urgent intervention to protect the basic, inherent human rights of the Wangan & Jagalingou Peoples including their rights to self-determination, culture, free prior and informed consent (FPIC) and the right to give or withhold consent to the mine.

While Australia officially endorsed the Universal Declaration on the Rights of Indigenous Peoples (UNDRIP) on 3 April 2009, it has not taken steps to implement UNDRIP domestically. In fact, Australia voted against the UN General Assembly adopting the UNDRIP in September 2007 along with New Zealand, Canada and the United States. During Australia’s recent second Universal Periodic Review before the UN Human Rights Council in Geneva on 9 November 2015, a large number of countries criticised Australia’s lack of progress on protecting indigenous rights including failures to implement UNDRIP.

The judicial review hearing in the Federal Court will continue on 1 – 2 February 2016. However, rumours are circulating in the media that the Queensland Government may try to compulsorily acquire the land and extinguish native title, which would be an unprecedented and bold move by the government. Mr Burragubba has indicated such conduct may lead to further legal challenges, including in the High Court of Australia. Other rumours are also emerging regarding Adani’s seemingly desperate measures and political lobbying.

 

Author profile

Benedict Coyne is a human rights lawyer at Boe Williams Anderson running innovative and strategic litigation including on indigenous rights and climate change related issues. He is also a Qld Convenor and national committee member of Australian Lawyers for Human Rights (ALHR). He was awarded the Australian Lawyers Alliance/Amnesty International ‘Emerging Lawyer of the Year’ Award in 2014 and was a co-recipient of the 2015 Queensland Civil Justice Award.

Citations

Benedict Coyne, ‘Indigenous Rights Litigation meets Global Climate Change in Queensland Australia’, (OxHRH Blog, 8 January 2016), <http://ohrh.law.ox.ac.uk/indigenous-rights-litigation-meets-global-climate-change-in-queensland-australia/> [Date of Access].

Comments

  1. Lynette Landers says:

    Thank you Benedict Coyne and all the legal S assisting our people the W& J Traditional owners in this very messy situation the QLD State government and Adani keep pursuing when an authorisation meeting emphatically voted NO to any mining agreement with Adani last year. And now the stupid federal government has become involved. We are with you all the way.

  2. Wayne Evans says:

    At a time when Australia needs to step up to meet the challenge of climate change the fact that this coal mine is even being considered by the Federal Government or the State Government of Queensland is beyond belief.
    This is THE battle line for climate activists. Legal and direct action will win the day – let’s “stick it to the man”

  3. Barb Mason says:

    I am a person who is 100% behind the Wangan and Jagalingou People and not only to keep their traditional land, but to also watch and not to trust the Australian Government who are considering taking away their rights of land title to get this disastrous Adani’s Carmichael Mine off the ground. Every email I have from the Wangan and Jagalingou people has been forwarded through Forums, Friends, Family and anyone else who will listen. I have many overseas friends who also want to sign but are not permitted to, and they believe in the rights of the Native people as well.
    We have to win this fight, or Australia will become a land with no Native titles or ownership. “The land does not belong to the Wangan and Jagalingou people, they belong to the land”, and until those in Government realize that fact, they will continue to brow beat, force or trick people into doing what they want.
    Australia does not need a filthy mine, it may well supply more jobs initially, but Adani are well noted for their employment of their own people once the venture is up and running. In the end we will gain nothing. Plus Adani has the poorest safety rating and for obeying rules and conditions. Known for its short cuts which in turn affects safety for people and the environment. Go home Adani you are not wanted here in Queensland.

  4. Gillian Holdsworth says:

    I really do not want this to go ahead. Our Country is beautiful. Why can these companies come and destroy our land. It is a disgrace!!!!

  5. Gillian Holdsworth says:

    I am also who is 100% behind the Wangan and Jagalingou people in their fight for their traditional land!!!

  6. Knud Bartels says:

    Stop the coal mine and go home Adani !

  7. Harry Elliffe says:

    Lets keep the pressure on this project. This has always been a disaster for the Land Owners, for the Port and for the Reef and the Climate Movement.
    Go for it now.

  8. Barb Smith says:

    How long will our governments support coal mining, do they not listen to the people of Australia.
    Is it going to take indigenous people to change things in government.
    This comment from Adrian Burragubba is worth our government noting:
    “We will not trade away our human rights for the false promises of a foreign-owned mining company. We deserve better than being thrown the bait of a few jobs in a dirty coal pit or driving buses for fly-in fly-out workers – while Adani hopes to rake in billions of dollars.”

  9. Lisette Vis says:

    When Adani is involved it means BIG trouble.

  10. Gwen says:

    Adani -OUT -so too the Governments who back this foreign-owned company – such short sightedness.

  11. Kevin Oxford says:

    How can the governments allow a corporation with a reputation as bad as Adani’s to operate in Australia, especially in such environmentally fragile areas? Shameful.

  12. Margo van der Voort says:

    The widespread bleaching of coral reefs in the Great Barrier Reef at the moment should be a dire warning that climate change is destroying marine eco systems all over the planet. This dirty mega mine will drive more pollution into the atmosphere and will drive climate change to the point of no return. All power to the Indigenous peoples for fighting for country, water and air. Environment Minister Greg Hunt should be sacked for NOT doing his job!

  13. Barbary Clarke says:

    Remember the words of Judy Small’s song, ‘The Futures Exchange’ (two words of which I’ve altered for this occasion: ‘For the silver that the men have paid who THINK they own the land, it is the silver of Iscariat, the silver of the damned! It is part of the accounting in which we all must pay: trading in our children’s futures for false promises today’

  14. Barbary Clarke says:

    OOPS! I forgot an important bit: ‘Roxby, Ranger AND CARMICHAEL will be words to conjure shame, for the sparks they help to kindle will ignite the devil’s flame!’

  15. Phil says:

    In the current political climate, law does not stand for much. Governments are willing around the world to sell their souls for investment and their peoples for slave labour. It’s absolutely vital that Wangan/Jagalingou matters going to court are properly and completely resourced in all aspects. Adani must go.

  16. Barb Mason says:

    What the hell is going on? I saw on the news last night that the Qld PM has said yes to the Adani Mine? Is the fight lost? Has the Native Title been highjacked? And quite honestly, who in the hell is getting the kick backs under the table and shafting the Wangan and the Jagalingou Peoples?
    When it fires up and the workers come flooding in from every other state in Australia for employment, I am gone. I will never return to Queensland because what will be left wont be worth burying a dead body in.
    I am hopping mad that all those with accreditation can’t see past all the dollar signs and into the total destruction of the reef, the aquatic animals, the land animals, the river systems and our underground water supply which many of us rely upon as there are no mains water out here anywhere.

  17. Barb Mason says:

    Brisbane’s Federal Court announces…..
    “The court has found that under our current laws, Minister’s Hunt’s approval of Adani’s Carmichael coal mine will stand”.
    There is to be a rally in Brisbane Brisbane – Tuesday 30 August 6-7pm
    King George Square
    and one in Melbourne
    Melbourne – Wednesday 31 August 6-7pm
    Federation Square
    To fight this travesty of justice.

    I am really angry. How can the Government legally approve the biggest coal mine in Australia’s history when pollution is killing our reef at an alarming rate.

    This aint over till the fat lady sings, I am off to email all in my address book and post on every forum I am on.

  18. Barb Mason says:

    This is the only way to get their own way. The Government is not listening to the people who DONT want this darn mine. I guess it really does down to money, as the Govt will get between $200 – 300 million from this in taxes and revenue. But at what price to the land.

    http://www.9news.com.au/national/2016/10/09/17/45/qld-govt-invokes-special-power-for-adani

    5:42pm October 9, 2016
    Qld govt invokes special power for Adani
    AAP
    By

    AAP
    FTBA

    The Queensland government has invoked special powers to ensure the controversial Carmichael coal and rail project starts next year.

    The combined mine, rail and associated water infrastructure have all been declared critical infrastructure – the first time this has happened in seven years.

    As well, the development’s special “prescribed project” status has been renewed and expanded to include its water infrastructure.

    State Development Minister Anthony Lynham says the decision will mean less red tape for the proposed $21.7 billion Adani venture.

    “This step bundles together major elements of the project for the first time – the mine, the 389 kilometre rail line and the water infrastructure, including a pipeline, pumping stations and a dam upgrade,” he said.

    Adani how has the 22 commonwealth, state and local approvals for its project.

    However Whitsunday residents are taking court action in a bid to show the Queensland government failed the environment when it approved a port expansion for the mine.

    Whitsunday Residents Against Dumping said last week dredging required for Adani’s expansion of the Abbot Point coal terminal, north of Bowen, could do untold environmental harm and the mine itself will fuel global warming and endanger the reef.

    Dr Lynham said in a statement on Sunday the critical infrastructure declaration was based on advice from the independent co-ordinator-general.

  19. Barb Mason says:

    Here’s something that will be a wake up call and comes from a friend in Russia who I have been corresponding with for years.

    Hi Barb:

    Seems like you are dealing with HARD Anthracite Coal there..

    They can clean that with an Air Blast and/or Vacuum – then save all the Coal Dust and sell it – they do that in Kurdistan – nice operation there

    The Water Washing of the Coal is much cheaper to do (Someone must be getting a kickback $$$); but the Dust Particles will travel in the water table and to every ones wells, so eventually every one’s wells will be no good..

    Seems like no one did any environmental study at all

    Rob

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