Antinuclear

Australian news, and some related international items

Landmark High Court decision guides how compensation for native title losses will be determined

March 14, 2019 1.43pm AEDT William Isdale  Jonathan Fulcher 
theconversation.com/landmark-high-court-decision-guides-how-compensation-for-native-title-losses-will-be-determined-113346
‘The High Court has decided, for the first time, the approach that should be taken to resolving native title compensation claims. In a previous article, we said it would be “the most significant case concerning Indigenous land rights since the Mabo and Wik decisions”. The High Court’s decision yesterday certainly stands up to that description, and provides a degree of certainty for native title holders and governments. … ‘

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March 16, 2019 Posted by | aboriginal issues, AUSTRALIA - NATIONAL, legal | Leave a comment

Traditional owners and Western Australia’s Conservation Council continue legal action, to uphold environmental law  

Battle against Yeelirrie uranium mine continues for traditional owners and Conservation Council     https://thewest.com.au/business/uranium/battle-against-yeelirrie-uranium-mine-continues-for-traditional-owners-and-conservation-council-ng-b881125927z 5 March 2019  Traditional owners and the Conservation Council of WA are continuing their fight against a proposed uranium mine, fearing unique subterranean fauna in the project area will be made extinct if it proceeds.
Former State environment minister Albert Jacob gave the green light to Cameco’s Yeelirrie mine proposal in January 2017, just 16 days before the pre-election caretaker mode began. Yeelirrie is 70km southwest of Wiluna in the Mid West region.Together with members of the Tjiwarl native title group, CCWA challenged the approval in the Supreme Court but lost, and have now taken their   battle to the Court of Appeal.  CCWA director Piers Verstegen said the previous government was desperate to lock-in a uranium project before it lost power, going against the advice of the Environmental Protection Authority, which was concerned about the impact of mining on subterranean fauna.

“Stygofauna might be a relatively obscure species. In fact, these particular species of stygofauna were not known to science until the proponent started exploring for uranium in that area,” Mr Verstegen said on Tuesday.

“But the legal precedent here has much broader implications.

“We’re certainly very keen to be upholding environmental laws … which were never intended to be used by a minister or a government to approve the extinction of species.”

The matter was heard on Tuesday and a decision will be handed down at a later date.

March 7, 2019 Posted by | aboriginal issues, environment, legal, opposition to nuclear, uranium, Western Australia | Leave a comment

Conservation Council of Western Australia (CCWA) and three Tjiwarl Traditional Owners in court battle against uranium mining

WILDLIFE AND TRADITIONAL OWNERS REPRESENTED IN LANDMARK LEGAL CHALLENGE http://www.ccwa.org.au/landmark_legal_challenge?utm_campaign=nuclear_news68&utm_medium=email&utm_source=ccwa

The Conservation Council of Western Australia (CCWA) and three Tjiwarl Traditional Owners have continued their landmark legal bid to prevent the extinction of multiple species and protect Aboriginal lands from uranium mining at Yeelirrie, with a hearing in the WA Court of Appeal today.

The Yeelirrie mine proposal by uranium miner Cameco in the Northern Goldfields on Tjiwarl Native Title land was approved by the Minister for the Environment in the final days of the Barnett Government, against the advice of the Environmental Protection Authority (EPA), and against the outcome of an appeals process.

The EPA found that the proposal would cause the extinction of multiple species of subterranean fauna.

Bret Walker SC, Dr Hannes Schoombee, and the Environmental Defenders Office WA (EDOWA) represented Traditional Owners and CCWA in the legal challenge to the environmental approval for the Yeelirrie uranium mine.

CCWA Director Piers Verstegen said, “This important case is seeking to prevent the extinction of multiple species at Yeelirrie, and uphold the rights of Traditional Owners to protect sacred country from uranium mining.

“Mr Walker is one of Australia’s most eminent legal minds and his involvement with this case is an indication of its national legal significance.

“The approval of extinction at Yeelirrie at the stroke of a Minister’s pen cannot go unchallenged because it sets a dangerous precedent for all wildlife across Western Australia.

“We are proud to stand with three members of the Tjiwarl Native Title Group, Shirley and Elizabeth Wonyabong and Vicky Abdullah, who have been fighting to protect their country from uranium mining for many years.

“As well as the threat of extinction, Cameco’s uranium project would have a major impact on the landscape and ecosystems at Yeelirrie. It would involve a 9km open mine pit and processing plant, clearing 2421 hectares of native vegetation, and generating 36 million tonnes of radioactive mine waste to be stored in open pits.”

EDOWA Principal Solicitor Declan Doherty said, “This is a landmark case to test how Western Australia’s primary environmental law should be applied.

We argued that in approving the Yeelirrie uranium mine, Minister Albert Jacob failed to correctly follow the process set out in the relevant legislation.

“It will be an important test for how the legislation should be applied, which could have significant implications for future decisions of this kind.”

March 7, 2019 Posted by | legal, opposition to nuclear, uranium, Western Australia | Leave a comment

Australia’s democracy is threatened by Adani’s ‘legal intimidation’ tactics against community groups

Adani’s ‘legal intimidation’ tactics against community groups a ‘threat to democracy’, Guardian, Ben Smee


Eminent members of legal profession, including a former supreme court judge, critical of law firm’s strategy document, 
The Adani mining company’s “legal intimidation” tactics against community groups are a “threat to democracy” and “gravely concerning”, say eminent members of the legal profession, including a former supreme court judge and an expert on corporate lawfare.The ABC reported on Tuesday that a law firm hired by Adani, AJ & Co, wrote a strategy document urging the Indian miner to “play the man” and adopt an aggressive legal posture against opponents.

The documents suggested Adani should trawl social media for evidence of bias among activists and decision makers. It recommended using the legal system to bankrupt poorly resourced opponents, silence commentators and put pressure on government……

Brian Walters, a Melbourne-based QC and human rights advocate, is an expert on so-called Slapp suits – strategic lawsuits against public participation. He wrote the 2005 book Slapping on the Writs and said using the law to silence community groups undermined the democratic process.

“It is a fundamental feature of free speech that people should be allowed to comment on the way that corporations and other powerful people are using their power,” Walters said.

“What appears to have happened here is a large corporation has agreed to use, or has tried to use, threats of legal intimidation to silence the public in speaking out about its proposals.

“When corporations attempt to use the law not to achieve a legitimate forensic outcome but to intimidate those who criticise them, they are abusing the process of the law. They are bringing the law and indeed their own corporation into disrepute.”…..

The Environmental Defender’s Office Queensland said on Tuesday it had received a legal letter sent on behalf of Adani on 12 September “clearly designed to intimidate us”.

“Instead of spending its legal energy on complying with Queensland’s laws, Adani is hiring lawyers to silence its critics in a well-funded campaign of intimidation, EDO Queensland’s chief executive and solicitor Jo-Anne Bragg said.

A faction of Wangan and Jagalingou traditional owners, who have been fighting a long-running native title case against Adani in relation to the Carmichael mine, said they had been targeted by the “malicious” tactics…… https://www.theguardian.com/business/2019/feb/19/adanis-legal-intimidation-tactics-against-community-groups-a-threat-to-democracy

February 21, 2019 Posted by | AUSTRALIA - NATIONAL, legal | Leave a comment

ADANI TO WAGE WAR ON AUSTRALIA

Paparc, 19 Feb 19 

Just how bad does Adani need this mine?

Bad enough that leaked information has shown Adani and their lawyers will go after individual people, and attempt to use our legal system on our own government in an effort to bankrupt, jail and silence anyone stopping theirr mine.

“Lawyers for mining firm Adani proposed waging “war” on opponents of its controversial Queensland mine by using the legal system to pressure government, silence critics and financially cripple activists, according to documents obtained by the ABC.”

Adani are under investigation for tax evasion, and fraud (1), and have found themselves between a rock and a hard place with the massive mobilisation against the Carmichael mine in Australia putting the brakes on their cash cow.

Adani have a reputation for exploiting and destroying local communities and environments for profit, like the coal mine in Parsa, that drained the entire village of water (2).

—-> .1 ADANI CORRUPTION INVESTIGATION:
https://mobile.abc.net.au/…/adani-companies-facing…/8140100…

—-> .2 PARSA DRAINED OF WATER:

https://thewire.in/…/in-chhattishgarh-adanis-coal-mine-leav…

—-> MAIN STORY:

https://mobile.abc.net.au/…/adani-law-firm-put-fo…/10821470…

February 19, 2019 Posted by | AUSTRALIA - NATIONAL, climate change - global warming, legal, politics | Leave a comment

Law firm AJ and Co to wage war for Adani coal company – as an “attack dog”

Adani’s new law firm put forward ‘trained attack dog’ strategy for waging legal ‘war’   https://mobile.abc.net.au/news/2019-02-19/adani-law-firm-put-forward-trained-attack-dog-strategy/10821470?pfmredir=sm&fbclid=IwAR0vOmyhhAWM3VjluLNby1RdjRC2WzreUxr465GFLLyT2oO8Qy-5kRB7od8    BY JOSH ROBERTSON  Lawyers for mining firm Adani proposed waging “war” on opponents of its controversial Queensland mine by using the legal system to pressure government, silence critics and financially cripple activists, according to documents obtained by the ABC.

Key points:

  • Law firm AJ & Co promised to be Adani’s “trained attack dog”
  • The firm launched bankruptcy proceedings against an Indigenous mine opponent
  • Head of commercial litigation Alex Moriarty quit after a falling out over strategy

The draft copy of Adani’s new law firm’s aggressive strategy to bring the Carmichael mine to life is labelled “Taking the Gloves Off” and outlines a commercial proposal by AJ & Co to win a multi-million-dollar legal contract with the Indian mining giant.

In the document, the Brisbane firm promised to be Adani’s “trained attack dog”.

The strategy recommended bankrupting individuals who unsuccessfully challenge Adani in court, using lawsuits to pressure the Queensland Government and social media “bias” as a tool to discredit decisionmakers.

In a section called “Play the Man”, it recommended “where activists and commentators spread untruths, use the legal system to silence them”.

It also urged Adani to hire private investigators to target activists and work “with police and a criminal lawyer to ensure appropriate police action is taken against protesters”.

“Like a well-trained police dog, our litigations know when to sit and shake, and when it is time to bite,” the law firm promised. “To achieve its commercial goal, Adani needs to accept it is involved in a war.”

The AJ & Co plan pledged to “assess each battle as part of the overall war” and to “know when to negotiate and known when all out attack is required”.

An Adani spokeswoman said “we won’t apologise for pursuing our legal rights”.

“Like many organisations, we have a panel of law firms that service our business on a wide range of matters to ensure we are complying with Australia’s legal and regulatory frameworks,” the Adani spokeswoman said.

“We will not comment in detail on the legal firms we use, their marketing material and any matters where they may represent us or advice we may receive.”

Lawyer quit firm over strategy

The ABC can reveal AJ & Co’s former head of commercial litigation, Alex Moriarty, quit after an internal falling out over strategy in the wake of the proposal.

Mr Moriarty — who did not leak the planning document and now runs his own legal firm — also alleged he was assaulted by a colleague who confronted him over dealings with Adani, a complaint that Queensland police were investigating.

The ABC understands the alleged incident did not involve physical contact.

Mr Moriarty said he disavowed the “aggressive commentary” at the heart of the proposal, and that he believed it “tends to bring the legal profession into disrepute”.

“Such comments tend to damage the professional independence and integrity of the legal profession as a whole.”

The AJ & Co proposal suggested Adani “not settle for government departments dragging out decisions — use the legal system to pressure decisionmakers”.

It also argued that “social media is a tool to use against activists and decisionmakers”.

“Look for evidence of bias and use it to show the court system is being used for political activism,” the law firm wrote.

Since it was engaged by Adani, AJ & Co has pushed to bankrupt a cash-strapped Indigenous opponent of the mine, threatened legal action against a community legal service and an environmental group, and applied to access an ABC journalist’s expenses and documents.

Queensland Deputy Premier Jackie Trad told the ABC she believed it was “clear that their strategy has been activated … and we should be concerned”.

“We’ve seen the attacks on government — they clearly don’t like the role that the independent regulator [the Department of Environment and Science] is performing in terms of using science to make recommendations around final approval,” she said.

“I mean, seriously, what’s Adani going to do next? Are they going to start pressuring the CSIRO around the ground water management plan?

“And quite frankly, I am quite alarmed by some of the language used in the report like pursuing individuals so that they become bankrupt.

“I, like most Australians, don’t want to see us go down an Americanisation path of heavy litigation and corporate attack.”

Murrawah Johnson from the anti-Adani faction of the mine site’s traditional owners, the Wangan and Jagalingou (W&J), told the ABC that in recent months “Adani’s strategy has definitely changed — it’s become more aggressive”.

On Adani’s behalf in December, AJ & Co launched bankruptcy proceedings against vocal W&J opponent Adrian Burragubba over unpaid legal costs.

“My uncle Adrian has been public enemy number one for Adani,” Ms Johnson said.

“Going after him, I think, has been their plan all along — to essentially stamp out our resistance to the coal mine going ahead on our country.”

A day after the ABC revealed Adani was under investigation for alleged unlawful site works, AJ & Co wrote to Queensland’s Environmental Defenders Office (EDO).

EDO chief executive Jo Bragg, who commented in the ABC story, said the letter was “clearly designed to intimidate us”, although she declined to elaborate.

“It appears Adani has built an entire, well-funded strategy around hiring lawyers to bully community groups into silence,” she said.

AJ & Co later applied under federal Freedom of Information laws to access ABC journalist Mark Willacy’s expenses, and documents relating to the story.

In November, AJ & Co demanded environmental campaigners Market Forces abandon a trip to South Korea with W&J opponents to lobby banks not to invest in Adani.

Market Forces executive director Julien Vincent said the law firm accused the campaigners of injurious falsehood, unlawful conspiracy to cause economic loss to Adani and threatened legal action.

“It was pretty aggressive,” Mr Vincent said.

“It came across with a tone that had little substance to back up the allegations it made, and was quite threatening in the steps that would be taken if we didn’t comply with everything they wanted.”

A barrister for Market Forces told AJ & Co its allegations were “doomed to fail” and no more was heard from the firm.

Mr Vincent said Adani’s mine was “a massive public issue … and it is entirely reasonable for people to speak up and voice their concerns”.

An AJ & Co spokesman said “we don’t discuss matters which may relate to clients”.

February 19, 2019 Posted by | aboriginal issues, climate change - global warming, legal, politics, Queensland | Leave a comment

Northern Territory passes law on nuclear wastes, reiterates opposition to NT nuclear waste dump

NT moves to clarify offshore oil, gas industry’s nuclear waste obligations http://m.miningweekly.com/article/nt-moves-to-clarify-offshore-oil-gas-industrys-nuclear-waste-obligations-2019-02-15

15th February 2019 BY: ESMARIE IANNUCCI  CREAMER MEDIA SENIOR DEPUTY EDITOR: AUSTRALASIA PERTH  – The Northern Territory has passed the Nuclear Waste Transport Storage and Disposal (Prohibition) Amendment Bill, providing the offshore oil and gas industry with a blueprint of their obligations around the management of nuclear waste.

The nuclear waste covered by the Bill included naturally occurring radioactive materials (NORMs) that could be incidentally generated from offshore oil and gas activities and subsequently brought into the Northern Territory, Environment and Natural Resources Minister Eva Lawler said.

“The Bill demonstrates the Northern Territory government’s commitment to protecting the Territory’s environment, while listening to and responding to concerns raised by the offshore oil and gas industry about the ambiguities in the regulatory environment.

“The Amendment Bill addresses ambiguities in exemptions for nuclear waste, including NORMs that may be created as a by-product of industry activities.”

NORMs are widespread in sands, clay, soils and rocks and many ores and minerals, commodities, products and by-products.

Lawler said that the amendments to this Bill became necessary after uncertainties were raised by industry about whether NORMs were exempt from the Act. The Amendment Bill reframes the exemptions while maintaining the Parliament’s original intention when passing the original Act.

She noted that the Northern Territory maintains a strong environmental stance against nuclear waste being dumped in the Territory, and from becoming a nuclear waste dump for the rest of Australia.

“Jobs are the number one priority for the Territory Labor government and we believe that good environmental policy makes good economic sense,” Lawler added.

February 16, 2019 Posted by | legal, Northern Territory, politics | Leave a comment

Court judgment a precedent for climate to weigh more than coal business in legal cases?

Landmark Rocky Hill ruling could pave the way for more courts to choose climate over coal, ABC, The Conversation By Justine Bell-James, 12 Feb 19, On Friday, Chief Judge Brian Preston of the New South Wales Land and Environment Court handed down a landmark judgementconfirming a decision to refuse a new open-cut coal mine near Gloucester in the Hunter Valley.

The proposed Rocky Hill mine’s contribution to climate change was one of the key reasons cited for refusing the application.

The decision has prompted celebration among environmentalists, for whom climate-based litigation has long been an uphill battle.

Defeating a mining proposal on climate grounds involves clearing several high hurdles.

Generally speaking, the court must be convinced not only that the proposed mine would contribute to climate change, but also that this issue is relevant under the applicable law.

To do this, a litigant needs to convince a court of a few key things, which include that:

  • the proponent is responsible for the ultimate burning of the coal, even if it is burned by a third party, and
  • this will result in increased greenhouse emissions, which in turn contributes to climate change.

In his judgement, Judge Preston took a broad view and readily connected these causal dots, ruling that:

The project’s cumulative greenhouse gas emissions will contribute to the global total of GHG concentrations in the atmosphere. The global total of GHG concentrations will affect the climate system and cause climate change impacts. The project’s cumulative GHG emissions are therefore likely to contribute to the future changes to the climate system and the impacts of climate change.

Other courts (such as in Queensland, where the proposed Adani coalmine has successfully cleared various legal hurdles) have tended to take a narrower approach to statutory interpretation, with climate change just one of numerous relevant factors under consideration.

In contrast, Judge Preston found climate change to be one of the more important factors to consider under NSW legislation.

To rule against a coalmine on climate grounds, the court also needs to resist the “market substitution” argument — the suggestion that if the proponent does not mine and sell coal, someone else will.

This argument has become a common “defence” in climate litigation, and indeed was advanced by Gloucester Resources in the Rocky Hill case.

Judge Preston rejected the argument, describing it as “flawed”. He noted that there is no certainty that overseas mines will substitute for the Rocky Hill coalmine.

Given increasing global momentum to tackle climate change, he noted that other countries may well follow this lead in rejecting future coalmine proposals.

He also stated that:

An environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact……..

This decision potentially opens up a new chapter in Australia’s climate litigation history.

Judge Preston’s ruling nimbly vaults over hurdles that have confounded Australian courts in the past — most notably, the application of the market substitution defence.

It is hard to predict whether his decision will indeed have wider ramifications.

Certainly the tide is turning internationally — coal use is declining, many nations have set ambitious climate goals under the Paris Agreement, and high-level overseas courts are making bold decisions in climate cases.

As Judge Preston concluded:

An open-cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time … the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.

Indeed, it is high time for a progressive approach to climate cases too.

Hopefully this landmark judgement will signal the turning of the tides in Australian courts as well.

Justine Bell-James is a senior lecturer at The University of Queensland. https://www.abc.net.au/news/2019-02-12/rocky-hill-ruling-more-courts-choose-climate-over-coal/10802930

February 14, 2019 Posted by | climate change - global warming, legal, New South Wales | Leave a comment

This New South Wales court ruling will shake the coal industry to its core

Paparc  People Against Political and Religious Corruption, 8 Feb 19, 

In an Australian first, and a decision that will no doubt set a precedent in this country, and shake the coal industry to its core, a proposed coal mine in Gloucester has been denied and rejected by the Chief Justice of the Land and Environment Court.

“Wrong place because an open-cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts.

“Wrong time because the [greenhouse gas] emissions of the coal mine and its coal product will increase global total concentrations of [greenhouse gases] at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in emissions.”

‘Dire consequences’: NSW court quashes plans for new coal mine
http://www.abc.net.au/…/rocky-hill-mine-plans-qaus…/10792902

 

February 8, 2019 Posted by | environment, legal, New South Wales | Leave a comment

Queensland’s First Indigenous Judge Appointed

Attorney-General and Minister for Justice The Honourable Yvette D’Ath  March 22, 2018

Attorney-General and Minister for Justice Yvette D’Ath today announced the appointment of barrister Nathan Jarro as a District Court Judge in Brisbane.

Nathan Jarro will be the state’s first Indigenous judge.

“This is an important appointment for Queensland justice” Mrs D’Ath said.

“Nathan Jarro brings significant litigation experience to the role as a barrister.  He initially practised in family and criminal law but has later focused on insurance, administrative, commercial and property law.”

He has held the role of Deputy Public Interest Monitor since 2011.

“He’s also adept at alternative dispute resolution techniques as a long-standing tribunal member for the Queensland Civil and Administrative Tribunal and Mental Health Review Tribunal,” Mrs D’Ath said.

“And he has a strong history of involvement in his community, as a current Board Director for the Queensland Theatre company, chair of the QUT Indigenous Education and Employment Consultative Committee, and former Board Director of the National Indigenous Television LTD (NITV).”

Mr Jarro received his Bachelor of Laws from QUT in 1999 and, after working as a solicitor in private practice, came to the Bar in 2004.

He has been one of Queensland’s most senior practising Indigenous lawyers, identifying as Ghangulu on his father’s side, with connections to Bidjara on his mother’s side.

He takes up his new position on Monday March 26.

 

February 2, 2019 Posted by | aboriginal issues, legal, Queensland | Leave a comment

Traditional Owners continue to resist Adani’s ‘invasion’

“Full Bench Federal Court Appeal against ‘rent a crowd’ ILUA to proceed, 28 Jan 19 

UN demands Australia explain why Adani’s project has not been suspended over rights concerns

Bankruptcy threat to W&J leader to be resisted nationally and internationally”

“W&J Traditional Owner and lead spokesperson Adrian Burragubba said: “Adani is attempting to invade, occupy and plunder our land, contravening our human rights and denying us our property, under the cover of a bogus land use agreement. Their rent-a-crowd ILUA is not supported by the legitimate W&J Traditional Owners from the Carmichael Belyando native title claim area.

“We have made sure our Federal Court appeal can proceed because we are determined to prove that Adani does not have our consent for its mine, and to ensure it is never allowed to destroy our country and our future.

“Our people have survived 230 years since the start of colonisation in this continent, and we can survive this onslaught from Adani. We are determined to defend our country from destruction”, he said.

The confirmation of the appeal comes as the UN CERD has intervened under its early warning and urgent action provisions to demand Australia answer concerns about breaches of the W&J People’s internationally protected rights. The UN expressed concern over the ‘Adani amendments’ to the Native Title Act in 2017, as well as alleged breaches of the International Convention on the Elimination of All Forms of Racial Discrimination, and the failure to obtain the genuine “free, prior and informed consent” of the relevant Traditional Owners.

Ms Linda Bobongie, Chairperson of the W&J Council said: “We have called on the UN CERD to highlight our plight and to bring pressure onto the Australian and Queensland Governments to prevent these threats from Adani to our people and to our traditional lands and waters.

“The legal system is being used as a weapon against us because we have chosen to stand up to defend our lands and waters, and our rights. Discriminatory legislation, such as the Native Title Act, and punishing costs, are allowed to override our rights and leave us open to ruthless suppression by an increasingly desperate and farcical Adani”, she said.

Ms Bobongie, is writing on behalf of the Council to Mr. Michel Forst, United Nations Special Rapporteur on the Situation of Human Rights Defenders, and Ms. Victoria Tauli-Corpuz, United Nations Special Rapporteur on the Rights of Indigenous Peoples, over ongoing abuses in relation to the Carmichael project and Adani’s recent move to bankrupt W&J leader, Mr Adrian Burragubba.

Ms Bobongie said: “We are requesting interventions from the UN Rapporteurs, and we will be calling on social justice groups and our hundreds of thousands of supporters around Australia to back our demands.

“We ask the Queensland Government to provide protection from bankruptcy to Mr Burragubba and the other appellants. We demand Adani cease its harassment and undermining of Mr. Burragubba and cease its bankruptcy proceeding. And we call on the Commonwealth Government and Opposition to ensure that access to equal justice to defend our rights is not undermined by punitive cost orders and the kind of aggressive corporate conduct Adani is allowed to engage in.

“Australia’s legal system does not recognise that human rights defenders, such as Mr Burragubba, are acting in the public interest and we are therefore subject to potentially crippling costs. This is a recognised problem with serious consequences.

“UN Rapporteur Tauli-Corpuz has reported that ‘a global crisis is unfolding. The rapid expansion of development projects on indigenous lands without their consent is driving a drastic increase in violence and legal harassment against Indigenous Peoples… The root of this global crisis is systematic racism and the failure of governments to recognize and respect indigenous land rights’”, she said.

Mr Burragubba concluded: “Adani will not stop us by trying to silence our voice with their awful bankruptcy tactic, which is intended to intimidate us. They will not succeed. They cannot have our lands, our heritage and our children’s futures, which are worth far more than they could ever compensate us from their ill-conceived mine.” … “

January 27, 2019 Posted by | aboriginal issues, AUSTRALIA - NATIONAL, climate change - global warming, legal | Leave a comment

Flinders Ranges Traditional Owners take radioactive waste concerns to Australian Human Rights Commission

 18 December 2018

Traditional Owners have lodged an Australian Human Rights Commission (AHRC) complaint alleging a fundamentally flawed process in the consideration of a site near Hawker as a proposed national radioactive waste facility.

The complaint, also being provided to the Australian Government, demonstrates the Traditional Owners’ continuing opposition to the nomination of Wallerberdina Station as a place to both dispose and store federal radioactive waste.

The complaint has been prepared on a pro-bono basis by Maurice Blackburn Lawyers on behalf of the Adnyamathanha Traditional Lands Association (ATLA).

It alleges that both the ballot to assess community support for the waste facility, which excludes many traditional owners, and the damage done to significant cultural heritage sites by Commonwealth contractors constitutes unlawful discrimination.

Maurice Blackburn lawyer Nicki Lees, acting for ATLA, said the nomination process for the Hawker site has been fundamentally flawed from its inception and the AHRC complaint is necessary to seek independent insight into the adequacy of the process.

“From day one this process has shown a complete lack of regard for the Traditional Owners and for the significance of this site to the Adnyamathanha people,” Ms Lees said.

Vince Coulthard, CEO of ATLA and proud Adnyamathanha man, said that “ATLA remains strongly opposed to any nomination of their land for a future radioactive waste dump site and the lodging of an AHRC complaint is important in seeking a fair hearing for our deep concerns”.

There are also serious probity questions to be answered about this process – including the nomination of the site by senior South Australian Liberal Party figure Grant Chapman, without prior consultation with the Traditional Owners.

A separate application challenging the lawfulness of a ballot to assess community support in the Kimba region by the Barngarla people for the proposed waste facility is also currently before the Federal Court of Australia.

Maurice Blackburn Lawyers previously acted pro-bono on behalf of Traditional Owners who successfully overturned the nomination of Muckaty Station as a radioactive waste dump in the Northern Territory.

December 28, 2018 Posted by | aboriginal issues, AUSTRALIA - NATIONAL, civil liberties, legal | Leave a comment

W&J UPDATE: Our Federal Court appeal against Adani is on track

www.facebook.com/notes/wangan-and-jagalingou-traditional-owners-council/our-federal-court-appeal-against-adani-is-on-track/2478213712193791/

Friends, we did it!

With your backing, we fought off Adani’s effort to knock us out of the courtroom.

Our court case against Adani will proceed. Our fight goes on. Thank you so much!

In the Federal Court on Tuesday, we beat back Adani and their high-priced legal team.

The judge ruled that Adani’s demand for $160,000 was “disproportionate and unpersuasive”. Instead, we have to put forward $50,000, a figure we can cover thanks to the incredible solidarity of our many supporters, who responded generously in the face of this serious threat.

We have held our ground, and together we thwarted Adani’s bid for a “guillotine order” to get us out of the way. This means our court case to throw out Adani’s ‘rent-a-crowd ILUA’ goes on. Our campaign to protect our ancestral lands and waters is as strong as ever.

Adani’s determination to knock us out has backfired: we are still in the fight – strengthened with even more public support – and their maneuver has put off the case until May next year, causing them even further delays.

And even better, the judge upheld our appeal to the full bench of the Federal Court, saying there is an “arguable case of error” in the decision of the primary judge. It’s what we had hoped to hear.

Our legal challenges are exacting and we have faced an uphill battle for four years, made more difficult by Adani’s relentless bullying, and the piling on of legal costs designed to make us fold. It’s not working.

We are still in the way of Adani building its catastrophic mine. We are confident in our arguments, and sure of the rightness of our cause. We know Adani does not have our consent and never will. 

Thank you again for standing in solidarity with us, as we stand for the rights of our people to keep our country intact and to protect our culture and law.

Adrian Burragubba, Murrawah Johnson & Linda Bobongie

for the Wangan and Jagalingou Traditional Owners Family Council

December 22, 2018 Posted by | aboriginal issues, AUSTRALIA - NATIONAL, legal | Leave a comment

Aboriginal landowners say that radioactive waste contractors ‘damaged’ cultural sites

Radioactive waste contractors ‘damaged’ cultural sites, allege traditional owners, SBS News, 19 Dec 18 Traditional owners in South Australia have launched a complaint to the Australian Human Rights Commission over the federal government’s plans for a nuclear waste facility.

Traditional owners in South Australia’s Flinders Ranges have launched a complaint to the Australian Human Rights Commission, alleging contractors damaged a precious cultural site while assessing land for a new nuclear waste facility.

Maurice Blackburn lawyer Nicki Lees, acting for the Adnyamathanha Traditional Lands Association (ATLA), said Adnyamathanha traditional owners were concerned about the alleged actions of contractors on their lands.

“Earlier this year, contractors of the Commonwealth caused significant harm and damage to an area that is particularly significant to traditional owners, and in particular female Adnyamathanha women,” she said.

“What we’re doing today is saying that the Commonwealth failed to deal with that damage, and they failed to take seriously the complaint that ATLA made to the Commonwealth regarding that damage.”

The complaint also alleges that a vote to determine support for a nuclear waste site excluded a large number of traditional owners.

“The complaint alleges that because a large number of traditional owners are not included in the vote, it is therefore discriminatory and unlawful,” Ms Lees said.

Earlier this year, Barngarla traditional owners launched a similar complaint alleging a community vote was discriminatory because it failed to include native title holders who didn’t reside in the community.

Vince Coulthard, Chief Executive of ATLA, said his people deeply opposed the nuclear waste proposal.

“The Adnyamathanha people have voted against the waste dump. We don’t want the waste dump on our country,” he said.

“The department on this consultation has gone and spoken with other people in the region, other interest groups, they’ve never come out and spoken directly with us.”……..

Three South Australian sites have been short-listed to house Australia’s low and medium level nuclear waste. Two are near Kimba, on the Eyre Peninsula. The third is near Hawker in the Flinders Ranges.

A planned community vote to determine support for the facility had to be postponed earlier this year after Barngarla traditional owners were granted an injunction by the South Australian Supreme Court.

This Barngarla matter will return to court in January. Three South Australian sites have been short-listed to house Australia’s low and medium level nuclear waste. Two are near Kimba, on the Eyre Peninsula. The third is near Hawker in the Flinders Ranges.

A planned community vote to determine support for the facility had to be postponed earlier this year after Barngarla traditional owners were granted an injunction by the South Australian Supreme Court.

This Barngarla matter will return to court in January.https://www.sbs.com.au/news/radioactive-waste-contractors-damaged-cultural-sites-allege-traditional-owners?fbclid=IwAR1IMP4yisi_kHZ30Bslg2ftYw75j6IjMAcsKLOmFvboX9d1G1EbMJ1iQJE

December 20, 2018 Posted by | aboriginal issues, AUSTRALIA - NATIONAL, legal | Leave a comment

The legal clause which could allow Adani to sue Australia,

 https://www.theguardian.com/commentisfree/2018/dec/17/the-legal-clause-which-could-allow-adani-to-sue-australia

Opposition leader Bill Shorten has stated again that a future Labor government should not cancel the Adani mine licence for environmental reasons because of “sovereign risk”.

All major banks and financial institutions have refused to fund the Adani project because of both financial and environmental risks, and there is a strong grassroots movement which has moved public opinion and resulted in Labour opposing any use of federal funds to support the project.

So the Adani project itself is regarded by investors as very risky. As prominent economist Saul Eslake has argued, its demise is unlikely to result in a sudden fall of more general investor confidence in Australia, which is what “sovereign risk” implies.

There is a bigger risk for a future government which might choose to cancel the licence. Adani could sue the Australian government for millions of dollars through the process known as Investor-State Disputes Settlement (ISDS), using the now terminated Australia-India Bilateral Investment Treaty.

ISDS gives giant global companies like Adani special legal rights that are not available to local companies to claim millions in compensation if they can argue that a law or policy has reduced the value of their investment, known as “indirect expropriation” and/or if they can claim that they were not properly consulted about the change in the law or policy.

The cases are heard by international tribunals that have been criticised by legal experts such as former High Court Chief Justice Robert French because they have no independent judges, no precedents and no appeals. There are now over 900 known cases and many are against healthenvironmentindigenous rights or other public interest regulation.

Even when governments win, they lose, because it takes years and millions of dollars to defend ISDS cases. The US Philip Morris tobacco company lost its claim for compensation for Australia’s 2012 plain packaging legislation in the Australian High Court. The company could not sue under the Australia-US Free Trade Agreement because the Howard government had not agreed to ISDS in that agreement. The company moved some assets to Hong Kong and used ISDS in a Hong Kong-Australia investment agreement to sue the Australian government. It took over four years for the tribunal to decide that Philip Morris was not a Hong Kong company. It took an FOI case to reveal that it cost the government $38m of taxpayer dollars in legal fees to defend the case.

The Australia-India treaty was terminated by India on March 23, 2017 but it has an extraordinary grandfather clause that means its provisions apply to investments made before that date for another 15 years. India, South Africa and a number of other countries have terminated all such investment treaties because of the risks and costs to governments from unfair tribunal decisions. Australia’s Productivity Commission has condemned ISDS for the same reasons, as did the previous Rudd-Gillard Labor government.

The European Court of Justice found recently that ISDS limits national sovereignty and that any trade agreement containing ISDS could not be negotiated by the European Commission, but had to be approved by each EU national parliament. Fearing rejection of ISDS, the EU has ceased including ISDS in its recent trade deals, including the one currently being negotiated with Australia

Current Labor policy opposes ISDS in trade and investment agreements because it “undermines fair competition, judicial independence and the Australian people’s sovereign right to legislate and implement policies in their interests through democratic processes”.

The cancellation of the Australia-India investment agreement in March 2017 means that Adani cannot claim compensation for investments made after that date. But under the 15-year grandfather clause, Adani could seek compensation for what it has claimed is the $3bn of investment made before March 2017 in preliminary costs including the Abbot Point port lease to export the coal.

Even the threat of an ISDS case can deter governments from taking action in the public interest. The New Zealand government deferred its plain packaging legislation for over four years until the Philip Morris ISDS case was over. Now it seems that Labor could be deterred from developing a policy against the Adani project because of the threat of ISDS.

This is yet another example of why Labor should implement its policy against including ISDS in all trade agreements, and remove it from current agreements like the TPP-11. Global corporations should not have special legal rights to undermine the policies of democratically elected governments. It would be a travesty of democracy if a government elected on the basis of majority support for regulation of carbon emissions and other action against climate change faced challenges from global companies aiming to frustrate their implementation.

 Dr Patricia Ranald is convener of the Australian Fair Trade and Investment Network and a research fellow at the University of Sydney

December 18, 2018 Posted by | AUSTRALIA - NATIONAL, climate change - global warming, legal | Leave a comment