Antinuclear

Australian news, and some related international items

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.

Advertisements

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

Adani aims to quash traditional owner challengers, tells court they’re ‘impecunious’

 ABC by Josh Robertson 16 Dec 18 

The mining company applied for a court order to secure potential legal costs if it wins against Wangan and Jagalingou (W&J) representatives, who are seeking to overturn a crucial mine site land deal

……Lawyer Col Hardie for the W&J challengers told an earlier Federal Court hearing that legal bills were paid by the W&J traditional owners corporation through fundraising appeals to the public…….

In August, Federal Court judge John Reeves upheld Adani’s Indigenous land Use Agreement (ILUA) with the W&J, saying none of the grounds for challenging it had “any merit”.

Five W&J representatives who unsuccessfully argued it was a “sham” agreement — Delia Kemppi, Lester Barnard, Linda Bobongie, Adrian Burragubba and Lyndell Turbane — are appealing that ruling before the full bench of the Federal Court.

The court will hear Adani’s bid to make its opponents pay security on 18 December.

Last month, Adani announced it would “self-finance” the controversial project and was ready to begin building and operating a scaled-down mine.

But the company needs the ILUA to have the Carmichael mine site title converted to freehold and to carry out major works…….

Queensland Mines Minister Anthony Lynham said in September that Adani “needs to prove they can reach financial close [certainty] before we finalise processes for this project”.

He also said the Government recognised the rights of traditional owners to legally contest the ILUA.

The W&J mine opponents vowed to take their fight to the High Court.

Their solicitor Mr Hardie told the ABC: “My view is that Adani desperately want to have the appeal determined before there’s a change in Federal Government”…….https://www.abc.net.au/news/2018-12-14/adani-aim-quash-traditional-owner-challengers-over-money/10616732?fbclid=IwAR1v3RuVPidk994vhBJiqnRUSgRXKE6tw2Cgnsge7c7uHtzEzuRQQBt8RIM

December 17, 2018 Posted by | aboriginal issues, AUSTRALIA - NATIONAL, climate change - global warming, legal | Leave a comment

Northern Territory – legal case over climate change

December 10, 2018 Posted by | climate change - global warming, legal, Northern Territory | Leave a comment

Queensland Supreme Court hearing Big Coal’s case aimed to shut down climate activism

The term, “climate crisis” is now the most commonly used descriptor when discussing global warming. Extreme weather events, firestorms, heat waves, flooding rain, loss of ice, snow and species are rightly seen within the frame of an emergent climate crisis. But if we are really witnessing a climate crisis – one with the potential to destroy our way of life and end our lives – how should we respond as a community?

This is a question being tested in Australia’s classrooms and Parliament right now and later today, in fact. The Queensland Supreme Court will be asked to decide whether, despite this crisis, it is reasonable for a large corporation to dictate how the community should be allowed to use social media to try and prevent this crisis.

The background to the case is this. Aurizon, the rail freight company formerly owned by the Government of Queensland, has been targeted by a number of individuals and communities because it plays a key role in the coal industry managing the 2,670 km Central Queensland coal network. It is also critical to Indian mining company Adani’s plans to ship coal from the proposed Carmichael mine to Abbott Point, as Adani plans to build a 200km line that will connect to Aurizon’s existing Goonyella and Newlands rail network.

Without Aurizon there is no Adani mine.

One of those groups protesting the proposed Adani mine, and Aurizon’s involvement in the expansion of the coal industry, is a small community group called FLAC – Front Line Action on Coal. Unlike the large environmental NGO’s, FLAC is still committed to supporting people who take direct action to prevent the expansion of the coal industry and they have had some serious successes of late.

So much so that Aurizon has taken the extraordinary action of getting interim orders against FLAC. Those orders include prohibiting FLAC from inciting anyone by Facebook, website, and Twitter to enter rail corridors across Aurizon’s network or interfering with any of the company’s coal trains.

On Tuesday the Supreme Court will be asked to make these interim orders permanent thus preventing FLAC from using social media to inform people and to be prohibited from going within 20 meters of the entire Queensland rail corridor. That’s a lot of rail corridor.

But there are concerns Aurizon will want more than just clear corridors. For many in the climate movement FLAC has become a touchstone as a moral force and an inclusive community that takes seriously the discipline and commitment to non-violent, safe, direct action. And this is what Aurizon is keen to shut down.

The company wants to prevent this small community group from encouraging, supporting or training anyone to take non-violent action to prevent this crisis. The less there are of these kinds of communities the better things are for large corporations like Aurizon.

These are extraordinary days climatically and politically. On Friday there was the sight of thousands of Australian school kids leaving their classrooms to demand governments – State and Federal – take the action necessary to secure their future. It was an action that happened with blessing of the Australian Senate.

Globally the divestment campaign has seen billions divested from companies involved in the fossil fuel business. While banks with a high exposure to fossil fuel companies have been forced to either rule out further investment or explain their plan to manage the escalating risk posed by stranded assets.

Then there’s the science. According to the most recent Intergovernmental Panel on Climate Change report the world is confronting the real risk of mass wildfires, food and water shortages, super storms and dying coral reefs by as soon as 2040. The last week alone in Australia has seen Sydney experience a one in 100-year rain event, while Queensland continued to burn.

These are extraordinary times and the science tells us they will get even more extreme as the global political leadership fails to materialise to prevent it. It is in this context that Aurizon’s request to the Supreme Court to gag FLAC must be viewed.

The Supreme Court must decide if Aurizon, an enormously powerful and well connected corporation, should have the power to deny a small community group the right to inform Australians how to help to prevent this climate crisis.

Obviously the people who make up FLAC have a direct interest in the outcome, but should this corporation succeed in gagging free speech to this degree, we will all be the worse for it.

Finally, Aurizon’s action is based on the assumption that if FLAC stops training concerned citizens on how to take non-violent, safe, direct action, people will stop taking action. Unfortunately what may well happen is that people continue to act to prevent a climate catastrophe, but do so without the training, discipline or principles of non-violence.

December 6, 2018 Posted by | AUSTRALIA - NATIONAL, climate change - global warming, legal | 1 Comment

Legal challenge against Adani coal mine plan, over water use

Adani coal mine water licence faces Federal Court challenge over move to bypass EIS, ABC , By Kate McKenna 4 Dec 18 The Australian Conservation Foundation (ACF) has launched a legal challenge to a Federal Government decision to bypass an impact assessment of planned water use by Adani’s Carmichael coal mine in central Queensland.

Key points:

  • Federal Minister made an “error of law” in bypassing EIS, ACF alleges
  • Adani licensed to take up to 12.5b litres a year from Suttor River
  • Indian miner says it can only take water after other licensed users

The ACF applied to the Federal Court, challenging Federal Environment Minister Melissa Price’s decision not to activate the “water trigger” for the proposed pipeline infrastructure, which avoided a full environmental impact assessment (EIS).

The move comes less than a week after Adani announced it would push ahead with construction of a scaled-down version of its Carmichael project.

Last year, the Indian mining giant was granted a water licence by the Queensland Government, meaning it could take up to 12.5 billion litres a year from the Suttor River.

Under federal law, coal mining projects must undergo a full environmental assessment if they are likely to have a significant impact on water resources.

But in September, the Federal Government decided the water trigger did not apply to the Carmichael project, instead saying it would only require “preliminary documentation”……..https://www.abc.net.au/news/2018-12-04/adani-water-licence-acf-court-challenge/10582602

December 6, 2018 Posted by | AUSTRALIA - NATIONAL, legal | Leave a comment

Aboriginal Rights: Michael Anderson: No treaty or contract valid if the parties are at war

Ghillar, Michael Anderson, Convenor of Sovereign Union of First Nations and Peoples in Australia, and Head of State of the Euahlayi Peoples Republic www.sovereignunion.mobi Under international law and domestic contractual law–no treaty or contract can be classified as legal if we are under the ‘rules and disciplines of war’. If our First Nations Peoples are not fully aware of these facts, then any contract entered into, treaty or otherwise, can be argued to be invalid.

Ghillar, Michael Anderson, Convener of the Sovereign Union, last surviving member of the founding four of the Aboriginal Embassy and Leader of the Euahlayi Nation said from Goodooga today:

The upcoming Sovereign Union Gathering of Nations sponsored by the Yorta Yorta Nation will focus on key rights that we have as First Nations Peoples of this continent. These rights are now supported by international laws and developing international customary legal norms, for example, as collated inHuman Rights at Your Fingertips published by the Federal Attorney-General’s department: https://www.humanrights.gov.au/sites/default/files/hrayf_2012.pdf

One international legal norm is the progressive recognition of redress for past wrongdoings perpetrated by ambitious French, Portuguese, English, Dutch, Spanish and German colonialists.

What is interesting, however, is understanding that the Pope in Rome was instrumental in instigating invasions of other countries. In order to settle the Spanish, Portuguese, French and English wars across the English Channel/La Manche, the key warring parties had to find a third party to mediate an end to their violent clashes against each other in the 1400s and 1500s. History shows that they turned to God’s representative on earth, the Pope, seen as the ‘divine ruler’.

It should be remembered that during the internal wars over land titles in England, the key players also turned to God’s representative, the Pope (Innocent III) and his ‘disciples’, and that to break the tyranny of King John of England, it was a Catholic Archbishop of Canterbury, Stephen Langton, who drafted the Magna Carta that King John agreed to on 15 June 1215.

Having mediated European struggles over land and resources, the Pope then issued new decrees which divided the world up for the warring parties to rape, pillage and plunder in order to end the wars in Europe. Thus began the flow of Papal Bulls (seals) whereby an order of the Pope, supposedly representing the biblical Judeo-Christian God on earth, divided the world up for kingdoms such as Portugal, Spain, England and France to invade under the Doctrine of Discovery, which became deeply entrenched. This alleged Christian right to usurp the lands and the usufructuary rights of the native inhabitants, ‘pagans’ and ‘infidels’ was decreed in The Bull Romanus Pontifex (Nicholas V), January 8, 1455 and The Bull Inter Caetera (Alexander VI), May 4, 1493 which instructed the invaders to ‘overthrow’ and ‘vanquish’ ‘barbarous’ nations, ‘and all other infidels whatsoever’ and ‘enemies of Christ wheresoever placed’ and ‘subdue certain gentile or pagan peoples living between, who are entirely free from infection by the sect of the most impious Mahomet and to preach and cause to be preached to them the unknown most sacred name of Christ’. In order ‘more zealously to pursue … this most pious and noble work’ ‘to conserve their right and possession’ it is ‘supported by … the Apostolic See with favors and graces’. The ‘Christian rule’ acquired ‘by the right of conquest’ ‘from the lands of infidels or pagans’ ‘all those provinces, islands, harbours, and seas whatsoever’. First Nations Peoples were also decreed to remain unarmed by preventing trade in ‘iron instruments, wood to be used for construction, cordage, ships and any kinds of armor’.[1]

The Doctrine of Discovery had its origin in the biblical text, which was articulated by the Papacy in Rome and circulated as supreme authority by the Papal Bulls. These Judeo-Christian decrees were the basis for the right of ‘First Discoverers’ to plunder and enslave, and in so doing asserted that the word of God had superior force over pre-existing claims and right of occupation.

Therefore, the zealous taking of lands during the imperial colonial expansion was promoted as a God-given right. The justification was that lands would be classified as terra nullius (nobody’s land)and uncivilised, if populated by those who did not believe in Jesus Christ or an equivalent.

Then comes the Mabo High Court case in 1992Limited though the questions were, the High Court took a giant step to firstly overturn existing legal precedents and to recognise the continuing proprietary interests and usufruct rights of the First Nations Peoples in Australia. But the conviction of those who made the decision was counteracted by their cowardice in refusing to recognise the decision of Chief Justice Willis in the NSW Supreme Court caseR v Bonjon 1841, in which Willis held that the colonists are the intruders and Aboriginal Peoples are the ‘sovereigns of the soil’. Willis CJ is also reported as ruling:

But the frequent conflicts that have occurred between the colonists and the Aborigines within the limits of the colony of New South Wales make it, I think, sufficiently manifest that the Aboriginal tribes are neither a conquered people, nor have tacitly acquiesced in the supremacy of the settlers. …

I repeat that I am not aware of any express enactment or treaty subjecting the Aborigines of this colony to the English colonial law, and I have shown that the Aborigines cannot be considered as Foreigners in a Kingdom which is their own.

This cowardice of the High Court judges that I speak of, is where the High Court realised that they were between a rock and a hard place with the Mabo case. At paragraph 29 they lamented:

… It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not …

In other words, had the High Court known where this case would lead, they may not have agreed to hear the case in the first place.

So the judges in Mabo had to stretch a very long bow when they ruled that Australia was ‘settled’ on an ancient English legal foundation, which was the feudal land system. The irony of this decision falls into two categories:

·      the concept of terra nullius (or land belonging to no-one)

·      the law of feudalism and its legal impacts which are null and void, because feudalism disappeared from the English legal system in 1660.

In order to justify the alleged Crown Land ownership in Australia, the High Court resurrected a non-existent ancient land law system belonging to Britain, while feudalism has no legal authority in common law anywhere in the world, except in Australia.

The end of feudalism in England, permitted private ownership of land throughout the United Kingdom and destroyed the King’s or Queen’s right to own all the land. But by the High Court ruling that land tenure in Australia is based on feudalism, the judges could find that the king came and claimed all the land as his. This ties in with Governor Darling denouncing the Batman Treaty in Victoria, because no other person but the king could sign away land.

The related legal question is: Does ‘feudalism’ have any legal validity today?

Like the justices of the High Court, lawyers who are committed to the Bar and the Bar Association of Australia, are just big cowards and fear challenging what needs to be challenged and what is justly correct. This cowardice is represented by the lawyers following black letter law, e.g. in the Native Title Act. Don’t rock the boat!

The question that we, as First Nations People, must ask next is: Are we happy with the current situation and, if not, what is our next move?

Having asked this question, I put it to all our First Nations Peoples, who are proposing to come to our Gathering of Nations to give thought to the following:

In Native Title applications, the question that the lawyers ask the applicant group is: ‘Do you have the ability to prove your connection to Country under your Law and customs at the time of ‘British Sovereignty’. (N.B. should state alleged British Sovereignty). If we are to prove our connection to Country at the time of alleged ‘British Sovereignty’, we need to go back to Justice Willis’s New South Wales Supreme Court decision in R v Bonjon 1841, which has never been overturned. The High Court in Mabo indirectly observed R v Bonjon 1841 (without it being mentioned) by ruling that our proprietary law rights have their authoritative origins in our own pre-existing and continuing Law and customs. As the Mabo decision ruled at paragraph 65, these rights under our Law and custom are inalienable and no foreign parliament, such as Australia and its federated States and its two mainland Territories, have the legal capacity to take them from us:

65. … Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law..

In other words, the High Court in Mabo ruled that they are inalienable rights and that the Commonwealth Parliament and its State and Territory counterparts cannot legislate to take them away, because they are inherent sovereign rights that belong to another authoritative jurisdiction, independent of the colonial occupying power. This is why the expert on the Australian Constitution, Professor George Williams, says Aboriginal people need not ask for sovereignty, they should simply assert it under their Law and customs.

So, the next question is: How does the Australian authority maintain its power over us? The answer is very simple. What gives this answer its fluency and authority comes from the Orders issued to Governor Phillip, in which the Colonial Secretary’s Office and the British Admiralty, now known as the War Office, instructed him on 12 August 1786 to apply the ‘rules and disciplines of war’ when establishing the colony of New South Wales:

… you are to observe and follow such orders and directions from time to time as you shall receive from us, or any other of your superior officers according to the Rules and Disciplines of War … [2]

There is no evidence that this lawful instruction from England was ever repealed and the history of Australia thereafter clearly demonstrates that the State police are used as their military wing to crush Aboriginal resistance, which is made to look like acts of civil disobedience that is dealt with under the criminal law. Conversely, the Howard government did use the military to enforce the Northern Territory Intervention.

Politicians, through their propaganda and electioneering, argue for and on behalf of the public that ‘law and order’ is a key policy objective, but the electorate does not realise that the act of war is being perpetrated against our First Nations Peoples and is written into these pretended ‘law and order’ control mechanisms. This is evidenced by the fact that First Nations people sit in jails around this country in large numbers, including our youth and children, for alleged offences that non-First Nations People would never go to jail for. The colonial administrators argue this when they use the term ‘recidivism’ (the tendency of a convicted person to reoffend) and they catch our people in these nets of incarceration with the three-strike rule principle and ‘paperless arrests’, but these only apply to First Nations people, because this is who they are targeting.

The Native Title Act is in itself a law that attacks our inherent rights and, in fact, diminishes these rights to a point where they no longer exist. In short, this is yet again another act of war against First Nations Peoples.

It therefore follows under international law and domestic contractual law–no treaty or contract can be classified as legal if we are under the ‘rules and disciplines of war’.

It further follows that, if our First Nations Peoples are not fully aware of these facts, then any contract entered into, treaty or otherwise, can be argued to be invalid.

These and other issues must be addressed if we are to get the justice due to us.

It is imperative that we as First Nations People know all the wrongdoings, so as to ensure that we have a clear understanding of our legal rights now and going forward. To act in a knee-jerk reaction will cause us all to be in the same boat as the Noongar people in south-west Western Australia now find themselves.

We will be making the call, not the colonists.

Our rights, our future–never forget it.

SovereignUnionSourcewww.nationalunitygovernment.org/content/no-treaty-or-contract-valid-if-parties-are-war

November 15, 2018 Posted by | aboriginal issues, AUSTRALIA - NATIONAL, history, legal, reference | Leave a comment

Legal action in Western Australia means delay, uncertainty, for Cameco’s Yeelirrie uranium mine

October 29, 2018 Posted by | legal, uranium, Western Australia | Leave a comment