Wangan & Jagalingou People and Adani Mining Carmichael Project Indigenous Land Use Agreement (ILUA)

The Extract from the Register of Indigenous Land Use Agreements describes the area subject to this agreement as per the co-ordinates contained in Schedule 1 of the Agreement.

Registered with the National Native Title Tribunal (NNTT) on the Register of Indigenous Land Use Agreements on 8 December 2017. This is an authorised area agreement under the Native Title Act 1993 (Cth).

The Wangan and Jagalingou People and Adanai Mining Carmichael Project Indigenous Land Use Agreement (ILUA) was made under the provisions of the Native Title Act 1993 (Cth), between:

• Adani Mining Pty Ltd;
• Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the Native Title Claim and on behalf of the W&J [Wangan and Jagalingou] People; and
• the State of Queensland.

The agreement covers an area of about 725 sq km, approximately 120 km north-east of Clermont.

The purpose of the agreement is to provide consent for the development of the coal mining project and for the surrender of native title within the specified Surrender Area.

The Native Title Representative Body for this area is Queensland South Native Title Services Ltd.

Background to the Agreement:

This agreement was subject to a legal challenge in March 2018 due to issues regarding consent (Wangan & Jagalingou Family Council, 2018). Conflict between different Traditional Owners and Native Title groups means that there is significant controversy regarding the agreement and the registration was contested by a minority group of the Wangan and Jagalingou (W&J) Traditional Owners Family Council, who opposed the extinguishment of native title in the area subject to the agreement (Wangan & Jagalingou Family Council, 2017). 

In December 2018, the United Nations Committee on the Elimination of Racial Discrimination raised concerns that the consultations on this agreement were not conducted in good faith and accordingly the Carmichael Coal Mine and Rail Project may infringe the rights of the Wangan and Jagalingou people protected by the International Convention on the Elimination of All Forms of Racial Discrimination (Amir, 2018). The Committee requested information regarding these allegations from Australia (Amir, 2018).

The Full Federal Court of Australia (FFCA) upheld the agreement, which had been approved by seven of the twelve native title applicants (Smee, 2019).

Details of the Agreement:

Commencement:

This agreement commenced on the date which the last party executed the agreement, and was registered with the National Native Title Tribunal (NNTT) on 8 December 2017.

Termination:

Clause 16 of the agreement contains the provisions for its termination. This clause is not included in the Extract.

Native Title Provisions:

Right to negotiate

The parties agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) ('the NTA') do not apply to any of the agreed acts or to any surrender of native title.

Extinguishment

Apart from the allowance for extinguishment of native title in the Surrender Area, to the extent that it is a Future Act under the NTA, the Non-Extinguishment Principle applies to any grant or agreed act or the undertaking of any aspect of the agreement. This means that under s 24EB(3) of the NTA any such activity which may be inconsistent with native title rights and interests does not extinguish these interests; instead they are revived when the activities are finished.

Future act provisions

The agreement provides consent for the purpose of section 24EB(1) of the NTA for agreed future acts by non-native title bodies. Consent is provided for the grant of the approvals, without conditions, as set out in Schedule 2 of the agreement as well as consent to the agreement project, which includes the construction, development, extension and operation of:

(a) a coal mine or mines within the agreement area including exploration and drilling for coal;

(b) removal and stockpiling of overburden;

(c) extraction, processing and production of coal;

(d) conveying and haulage transportation of coal;

(e) loading and marketing of coal;

(f) railway lines and railway infrastructure;

(g) facilities for the extraction, storage, processing and transportation of gas including gas

pipelines and other gas infrastructure;

(h) facilities for the extraction, storage, processing and transportation of water including water

pipelines, dams, bores and other water infrastructure;

(i) power generation facilities, power transmission facilities and power lines;

(j) access roads, haul roads and bridges;

(k) levees and groin walls;

(l) quarries and borrow pits;

(m) laydown areas and stockpiles;

(n) construction camps, accommodation villages and buildings;

(o) offices, workshops and any other building or structures;

(p) utility and industrial facilities and areas;

(q) airports, airstrips and associated infrastructure;

(r) telecommunication lines, communication cables and towers and other communication

facilities;

(s) sewer pipelines and associated infrastructure;

(t) navigational equipment or aids; and

(u) fuel, oil and explosives storage facilities.

The agreement also contains provisions for the automatic surrender of land and the extinguishment of native title within a specified area in accordance with Adani's approval requirements.

Native Title in the Area:

The agreement area is located within the area subject to the native title application submitted to the Federal Court of Australia (FCA) in the application Wangan and Jagalingou People, QUD85/004. The FCA recognised the existance of native title over the determnation area in the proceeding Patrick Malone & Ors v State of Queensland & Ors (The Clermont-Belyando Area Native Title Claim), FCA File No.: QUD25/2019; NNTT File No.: QC2004/006).

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