Traditional Owners Expose Adani’s Relentless Pursuit of W&J Country

In the third in a five part series on the proposed Adani Carmichael coal mine, Kristen Lyons looks at a deal struck between the miners and the local traditional owners, and why it just adds to the smell that pervades the entire project.

 

Introduction

The Indian industrial conglomerate, Adani Enterprises – well known for environmental damage and human rights abuses at its project sites around the world, and built upon a complex business structure with tax havens in the Cayman Islands – entered Australia in 2010 with the purchase of coal tenements in the Galilee Basin, in Central Queensland.

Despite its controversial back story, some of which has only come to light since approvals were granted for its Australian project, Adani quickly rose to become a poster child for the State Government, based on promises its Carmichael mine project would deliver jobs and economic growth for regional Queensland.

Managed by its domestic arm, Adani Mining Pty Ltd, over the following years it developed a project proposal that included a coalmine, as well as rail and port infrastructure, thereby opening up the massive Galilee Basin for coal exports.

With seven years gone since acquisition of the coal tenements, and marred by substantial project downsizing, Adani is yet to start construction of its mega mine.

Wangan and Jagalingou Traditional Owners Family Councils’ (W&J) defiant opposition to Adani’s proposed Carmichael mine has been central to this delay; opposition that has, in itself, exposed the dirty deeds Adani is willing to perpetrate against Traditional Owners who seek to defend their right to say no to a mine that would destroy their country.

This article exposes some of Adani’s deeds, including its nefarious actions in reaching an ‘agreement’ with Traditional Owners, as well as its use of an Indigenous Participation Plan and cultural heritage work as attempts to ‘blackwash’ its corporate brand, all while walking over Traditional Owners’ rights.

These tactics, alongside collusion with state and federal governments, are all part of Adani’s relentless pursuit of a land grab of Wangan and Jagalingou country. Yet the outcome of Adani’s bullying tactics has not simply failed to achieve agreement with Traditional Owners for the destruction of their country, it has also eroded the companies’ social license to operate in Australia.

 

W&J country is the heart of Adani’s Project

W&J are central to the unfinished story of Adani’s Carmichael mine. The coal tenements and mining leases are on part of the 30,000 square kilometres of land in Central Queensland that is included in the W&J’s native title claim, lodged in 2004.

Adani’s Carmichael mine – if it were to go ahead – would be built on Wangan and Jagalingou land.

The Adani project runs across country of four different Traditional Owner groups, including Wangan and Jagalingou country. This includes a 2,750-hectare area over which native title rights must be ‘surrendered’ to provide access to land required for critical infrastructure for mine operations (including an airstrip, workers’ village, washing plant and power).

Adani requires an Indigenous Land Use Agreement (ILUA) to obtain control of this land, unencumbered by native title rights.

Despite Adani posturing the economic viability and purported benefits of its mega mine – both of which were debunked in the Queensland Land Court – alongside its promise of “trinkets” in the form of business opportunities and jobs for Traditional Owners, Adani has failed to secure a legitimate land use agreement with W&J.

Even with strong State and Federal Government backing (as detailed in our earlier article), this continues to thwart Adani.

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. Without Traditional Owner agreement, Adani is unable to move forward with construction on W&J Country.

Adani’s inability to progress works is made worse by on-going struggles to secure project finance; apart from the potential Australian taxpayer funded subsidy of $1 billion from the Northern Australia Infrastructure Facility (NAIF), a growing number of banks have distanced themselves from Adani, and from the fossil fuels industry more broadly.

For some financial institutions, Adani’s failure to secure an agreement with Traditional Owners is central in their decision to boycott funding its proposed Australian mine project.

Adani is now seeking equity investment from Chinese state-owned banks that would undercut the already exaggerated claims to creating regional Queensland and other jobs in Australia.

 

Adani Mining Pty Ltd.’s Controversial Approvals Track Record

Adani Mining Pty Ltd acquired the coal tenement at the heart of this mine controversy from Linc Energy for $680 million. The plot has an estimated 7.8 billion tonnes of coal reserves.

The project was, early on, championed as able to deliver 60 million tonnes of coal each year, over a 90-year lifespan. Despite significant scaling down – the project is described as one of the world’s largest thermal coal mines, and backed by the largest single investment by an Indian company into Australia.

Adani lodged an Initial Advice Statement to the Queensland Government for its ‘Carmichael coal mine and rail project’ in 2010, including a proposed greenfield coal mine that would involve both open-cut and underground mining, as well as mine processing facilities and a railway line.

On the back of this Initial Advice Statement, in late 2010 the Queensland Government declared Adani’s Carmichael coal mine and rail project a ‘significant project’, triggering project assessments, and providing the groundwork for state compulsory acquisition of land for the project.

In securing its Australian base, Jeyakumar Janakaraj was appointed the Chief Executive Officer of Adani Mining Pty Ltd in 2013. Previously, and revealed only subsequent to the assessment of Adani’s proposed Carmichael project, Janakaraj served as director of operations at the KCM copper mine in Zambia; a company found guilty of serious environmental breaches.

Despite requests from the Federal Environment Department for an environmental history of the company and its CEO, Adani failed to disclose these details during assessment of the proposed Carmichael coal mine and rail project. This is despite both Queensland and Australian laws recognising the importance of considering corporate and executive officers’ environmental history.

On this basis, Environmental Justice Australia (EJA) has called out the inadequate scrutiny of Adani’s proposed Australian operations, particularly given the high level of impact and risks associated with the proposed Carmichael mine project.

Adani’s proposed Australian project has faced at least 10 appeals and judicial processes, including a series from W&J. Appeals include opposition to the National Native Title Tribunal’s approval of a grant by the Queensland Government of leases for Adani’s project in April 2015, issued despite W&J rejection of Adani’s proposed land use agreement.

The mining leases issued to Adani subsequent to this, including the final lease in April 2016, all occurred whilst W&J’s legal cases were still to be heard.

 

Pressure Builds for Adani’s ‘Golden Shovel’ Moment

Without Indigenous consent – alongside structural decline in the coal industry and most Australians’ opposition to its mine – in late 2016 Adani confirmed it would downscale its Carmichael project.

Janakaraj announced coal production would be limited to 25 million tonnes per annum – less than half the original volume – and with an investment value of around $5.2 billion, representing an economic downsize to less than a quarter of its earlier projections.

There are other signs of Adani Mining Pty Ltd.’s retreat. In 2015, it retrenched most of its Australian employees. It also terminated, or placed on hold, all four of its external engineering contracts.

There are also growing questions about Adani’s financial viability (which we expose in detail later in this special series). Adani Mining Pty Ltd, the Australian subsidiary, shows a current debt of $1.421 billion, and it is reported as only remaining solvent via support from its Indian parent company.

In its latest financial half year reporting, Adani Mining Pty Ltd.’s profits were reported as having collapsed almost 50% year-on-year.

The Queensland Government’s once poster child has become a serious financial risk. Small businesses know this too well, with Adani failing to pay at least 12 Central Queensland based contracting companies in recent months.

Adani is also now renowned for its series of false starts. While earlier championing its project as starting in 2014 – and achieving peak coal production by 2022 – Adani advises that a ‘series of delays’ have shifted its first coal production into 2020 at the earliest, contingent upon achieving financial close.

In the absence of a ‘golden shovel’ moment – including the actual start of work – Adani has made a series of symbolic gestures to affirm its project remains on track.

Amongst these include multiple ‘investment decision’ announcements, such as Adani’s own final investment decision; a call that stands incongruent in the face of the industrial giants’ failure to secure either legal or financial close for its project.

It also includes perennial announcements of start dates for construction of the mine, including Adani’s latest proclamation it would ‘break ground’ in October 2017. But that was last month, right? It’s starting to look like a kind of fake it ‘til you make it approach, that flies in the face of the very real hurdles that continue to prohibit Adani’s mine from going ahead.

 

Adani Wont Take ‘No’

In the face of these frustrations, Adani has shown increasing disregard for the rights of Traditional Owners. This includes disregard for the right to free prior and informed consent – as recognised by the United Nations Declaration on the Rights of Indigenous People (UNDRIP) – before a project of such destructive scope can proceed.

Adani’s relentless pursuit of an ‘agreement’ with Traditional Owners, and its distortion of the native title process, demonstrates their contempt.

To date, Adani has been granted three mining leases by the Queensland Government – all of which are authorised by the National Native Title Tribunal (NNTT) – and all issued without the consent of the W&J.

The third of these mining leases includes the 2750-hectare area required for the mine’s critical infrastructure, the ‘surrender’ of which is currently being contested in the courts by the W&J.

With a court hearing set for March 2018, Adani has far from cleared the approvals process, or bedded down an agreement with Traditional Owners.

It is a necessary requirement that a ‘land use agreement’ is obtained to complete the process of issuing mining leases, or the State may be left only with the option of compulsory acquisition – the forcible taking of native title rights by law.

The first ILUA, proposed to the Wangan and Jagalingou people in 2012, was unanimously rejected by the applicant.

Adani’s revised offer was then presented in 2014, and this was again rejected by the Traditional Owners claim group. As a further expression of Traditional Owners’ opposition to any offer from Adani in exchange for the extinguishment of their native title rights, W&J held a “self-determined” meeting in March 2016, which also confirmed, for a third time, their rejection of any deal with Adani.

But Adani, unwilling to take no for an answer, circumvented the agreement making process to deliver an outcome that would supplant those meetings where a no vote was recorded.

To do this, Adani mobilised some Traditional Owners – leveraging from the well-trodden fear that any deal afforded under the native title regime is better than no deal at all – to reach an agreement. But how was this turn of events possible, given the resounding opposition amongst Traditional Owners, spanning across three separate meetings, and over four years?

As part of its surreptitious path to lock in a deal, Adani has cultivated relationships with individual members of the claim group; the outcome of which ‘convinced’ them to work with Adani to get the agreement back on the table, as well as persuading others to join.

As part of its ‘relationship building’ with Traditional Owners, Adani paid inducements to seven individual applicants.

This ‘block of seven’ applicants received a combined figure from Adani of at least $10,500, in addition to the receipt of travel and accommodation costs for attendance at separate meetings with Adani to split the applicant and overturn the previous decisions of the W&J claim group to reject the ILUA. And they subsequently received thousands more dollars each to recruit pro-Carmichael mine people to attend an ‘authorisation’ meeting for Adani’s ILUA, while the other applicants who upheld the original decisions of the claim group were ignored or marginalized.

Despite the requirements imposed on their appointment by the claim group, that any payments should be made known to the full applicant group, and held in trust for all its members, these payments were undisclosed, and made direct into individual bank accounts.

This ‘block of seven’ applicants directly stepped into do Adani’s bidding, including being showcased in Adani PR materials and regional and national media as the ‘rightful’ Traditional Owners and as champions of Adani’s mine. Two of the group have also been specifically named and quoted in Adani media releases as supporters of its project.

Adani has worked to build credibility around this ‘block of seven’, while at the same time sidelining and denigrating anti-Adani Traditional Owners, including specifically Adrian Burragubba. Adani has been assisted to do this by elites with privileged access to media, including the Mineral Resource Councils, Government advocates and prominent academics (which we expose in detail later in this special series).

Adani then organised a meeting in April 2016 – which it fully funded, including the provision of generous travel and accommodation expenses for attendees – at which the deal on offer from Adani was accepted, in a vote recorded at 294 in support, and 1 against.

Outspoken Aboriginal leader, Warren Mundine, heralded this as a win for Traditional Owners; who had succeeded in making a decision about their country without “meddling by special interests”. Yet ironically, while Mundine was referring to white anti-coal activists as meddling in indigenous agreements with mining companies, it was Adani that played the key hand in securing this agreement, including by bankrolling people into attending a meeting where Indigenous consent was seemingly delivered, and paying for the lawyer who worked with the block of seven to engineer the ILUA.

Yet one of the block of seven, Craig Dallen, later split with the group, robbing them of their ability to do any upfront deals with Adani by ‘controlling the numbers’, and filing affidavits in the Federal court against the ILUA, the compensation package, and the way the land deal was obtained.

In calling out Adani’s manipulation of the attendees at this meeting, W&J spokesperson Murrawah Johnson describes “Adani (as) herding our people in, they actually look like cattle”. Adani’s recruitment of meeting attendees that voted in favour of its agreement has raised serious questions about the legitimacy of many accorded entry and voting rights, including concerns that many are not Wangan and Jagalingou claimants – and this is now the subject of a trial in the Federal Court in March next year.

 

Adani’s Blackwash… Doesn’t Wash

Despite its divisive tactics to influence who counts as the ‘rightful’ Traditional Owners of W&J Country, bankrolling a meeting to lock in an Indigenous agreement, and sidelining the interests of the W&J families represented by the Traditional Owners Council, Adani describes holding deep “respect for W&Js cultural heritage”. It’s a claim that is hard to reconcile with the industrial giants’ actual conduct, including their pathological disregard for the rights of Traditional Owners.

Adani’s cognitive dissonance regarding its relationship with Indigenous Australia is also demonstrated in its claim as having close working relations with W&J. Its Australian chief operating officer, Samir Vora, for example, has described “their relationship with Traditional Owners (as) key in determining the future of their mine project”, and that his company understands that “it is critical that the Wangan and Jagalingou benefit directly from the jobs and economic benefits that the Carmichael mine will bring to Queensland”.

Adani describe their Indigenous Participation Plan – a state and federal legislative requirement – as a key mechanism for ensuring an effective working relationship with W&J, and in delivering positive outcomes on the ground for Indigenous communities.

Ironically, Adani signed a Memorandum of Understanding for this plan with a private entity – Cato Galilee Pty Ltd, controlled by two of the block of seven – that has no authority on behalf of the claim group while claiming they were dealing with the real W&J representatives.

Adani’s disregard for governance of Indigenous businesses is hardly the basis for building effective working relations with Traditional Owners, and a far cry from the aspirational tone Adani draws upon to describe its relationship with W&J.

Adani’s $250 million Indigenous Participation Plan was re-launched with much fanfare, including its indigenous relations Manager, Brad Maher, promising Indigenous traineeships and apprenticeships, employment and business opportunities.

He described the Plan as part of Adani’s approach to building a long-term relationship with Traditional Owners. Yet such rhetoric flies in the face of the fact that W&J have stayed resolute in their opposition to any deal with Adani. This is a reality Adani continues to ignore.

W&J have rejected, outright, Adani’s offers as the basis for extinguishment of native title over their Country, including those included in their Indigenous Participation Plan.

W&J have also rejected Adani’s sweeteners, funding for W&J to support protection of the Doongmabulla Springs, as well as a proposal to use solar rather than a coal-fired plant at the infrastructure site – a token in the face of the water extraction and carbon pollution, as well as the destruction of country and heritage, that would ensue from the project.

Whilst maintaining a sustained resolve against Adani’s relentless pursuit of their country, W&J have closely scrutinized the Indigenous Land Use agreement and broader cultural heritage works, and point to the details of what is actually on offer as a parlous deal. In particular, they draw attention to the very limited job creation associated with the mine, including the conditional provision of some bus driving jobs to a Wangan and Jagalingou “certified” bus company.

On the basis of figures provided by Adani, W&J explain that workers would be paid just $35,000.00 per year, a figure that barely meets Australia’s minimum wage.

Anything that is promised as part of Adani’s Indigenous Participation Plan, however, as meagre as it may be, will be contingent upon reaching legitimate agreement with Traditional Owners. Yet, after seven years, Adani has failed to secure a legitimate land use agreement with Traditional Owners. Adani have neither legal or financial close for its proposed Australian project.

Adani’s impious actions as part of its attempts to secure consent from Traditional Owners has damaged its relationship with both Indigenous and non Indigenous Australians. It is difficult to see how such damage could be undone.

In the meantime, no amount of corporate black washing – including Indigenous participation plans that champion strong and effective relationships between Adani and W&J, alongside jobs and traineeships – can hide Adani’s direct and immediate part in walking over the rights of Traditional Owners.

It is through W&Js sustained resolve in the defense of their country that Adani’s dire conduct – now well known internationally – has been brought to light as also modus operandi in Australia.