Full Federal Court unable to investigate or remedy potential human rights breaches in Adani project negotiations
Australian Lawyers for Human Rights (ALHR) has expressed support for members of the Wangan and Jagalingou (‘W&J’) People following the loss of their appeal in the Full Federal Court.
The Court has upheld the validity of an Indigenous Land Use Agreement (ILUA) and ordered the W&J traditional owners pay Adani’s legal costs.
Justice Melissa Perry explained that the ILUA is valid “notwithstanding any deficiencies which might have tainted the validity of the certification.” This highlights that the decision hinged only on the question of whether the certification and registration of the Adani ILUA was handled according to the legal requirements of the Native Title Act 1993 (Cth).
W&J family council senior spokesman Adrian Burragubba said, “It will not pull back the veil on the … process leading up to and after the authorisation meeting. Nor will it confirm whether in fact the people in attendance at the Adani meeting were entitled under the laws and customs of Wangan and Jagalingou people to make that decision to sign away W&J rights in land for monetary compensation.”
In December 2018, the United Nations’ Committee on the Elimination of Racial Discrimination (CERD) sent a letter to the Australian Government in which it expressed its concern regarding allegations that the Adani Project does not enjoy the free, prior and informed consent of the W&J traditional owners and that negotiations with them were not in good faith. CERD also said that, if these allegations are true, the project would infringe the human rights of the W&J people, as protected under the International Convention on the Elimination of All Forms of Racial Discrimination.
ALHR has echoed the concerns of the W&J traditional owners, the UN and prominent Australian barrister, Tony McAvoy SC, that the native title agreement-making process may be inconsistent with Australia’s obligations under both the CERD and the UN Declaration of the Rights of Indigenous Peoples.
ALHR is concerned about this decision in light of the potential gravity and far-reaching consequences of the subject matter of some ILUAs, including the potential for native title to be permanently extinguished. The Queensland government has been waiting for the outcome of the court case, and can act at any time to formally extinguish the native title of the W&J people at the Carmichael mine site.
ALHR is calling on the Australian Government to incorporate the principle of free, prior and informed consent into the Native Title Act 1993 (Cth).
“It is imperative that a system purportedly created to address the injustices of past dispossession does not perpetuate the disadvantaged position of Indigenous Australians by denying them the freedom to decide how to realise the economic potential of their land,” ALHR President Kerry Weste said.
Contact: Matt Mitchell, ALHR media manager 0431 980 365.