Mining company Adani wishes to build an airport, power station and accommodation for its Carmichael mine on leasehold land it owns in central Queensland. ABC now reports that the Queensland Coordinator-General has proposed that the government convert Adani’s leasehold land into freehold land. The effect of this conversion would be to extinguish native title over the land, held by the Wangan and Jabilingou people. While the government has extinguished native title this way in the past, this is apparently the first time that it will be done without the agreement of the traditional owners.

This move calls into question the Queensland government’s commitment to human rights – notably the right to free, prior and informed consent. This post explores the implications of this decision, and the precedent it sets for land dealings – notably against the backdrop of the pro-development approach of the Northern Development White Paper.

Infrastructure and government power

Government has extensive powers under the State Development and Public Works Organisation Act 1971. Under the Act, major infrastructure projects, including private projects, come under the authority of the State Coordinator-General. The Coordinator-General is to

devise such ways and means, give such directions, and take such steps and measures, as the Coordinator-General thinks necessary or desirable to— (a) secure the proper planning, preparation, execution, coordination, control and enforcement of a program of works, planned developments, and environmental coordination for the State and for areas over which the State claims jurisdiction…

The purpose of the legislation is ensure that economically important infrastructure projects go ahead, subject to a prescribed process for approving private infrastructure facilities. Provided the government complies with the process, it has broad powers including to compulsorily acquire property. Compulsory acquisition affects all kinds of rights holders, including native title holders. Under Queensland legislation, a person whose interest is compulsorily acquired will be paid compensation. The effect of this proposal is therefore that the native title holders, presumably, will be paid compensation for the compulsory acquisition of their rights.

Importantly in this case also, negotiations with traditional owners about the land use will shift from negotiations within the native title regime, to the compulsory acquisition regime. Negotiations will be between traditional owners and government, instead of traditional owners and Adani – which has reportedly had a fairly troubled history of negotiating with the Wangan and Jabilingou people.

Free, prior and informed consent

Perhaps most importantly, the government’s proposal to extinguish native title despite the objections of the Wangan and Jabilinou people appears to fall foul of the international human rights principles of free, prior and informed consent contained in the UN Declaration of the Rights of Indigenous Peoples (‘UNDRIP’).

These principles afford a framework for genuine engagement with Indigenous peoples to ‘alleviate misunderstandings about land ownership, safeguard indigenous sovereignty, ensure fair dealing, and formulate relationships built on trust.’ These principles are not binding law in Australia, but are recognised internationally as best practice for ensuring the human rights of traditional owners in dealings with their lands.

Even if the correct legislated processes have been undertaken by the Queensland government in making the decision to freehold Adani’s land, failing to engage appropriately with traditional owners according to principles of free, prior and informed consent, leaves the decision suspect.

Independently of this latest proposal for compulsory acquisition, the Wangan and Jabalingou people are presently involved in a number of other processes objecting to the mine. They are challenging the native title process itself before the Federal Court, appealing a decision of the National Native Title Tribunal. Earlier this year, the traditional owners asked the UN Special Rapporteur on the Rights of Indigenous Peoples to investigate whether the Carmichael mine might breach international law. They have already claimed that their rights under the UNDRIP are not being recognised or enforced.

The Wangan and Jabilingou people are therefore already concerned that they are not being afforded their human rights under the native title process. If the latest proposal for compulsory acquisition is played out, these concerns seem to be well founded.

The bigger picture across Northern Australia

A government strategy of compulsory acquisition in denial of free, prior and informed consent is not only concerning for the Wangan Jabilingou people. The Northern Development White Paper released in mid 2015 promotes ‘secure and tradeable tenures’ across the north as a key driver of economic growth or development. In particular, it seeks to cut red tape to facilitate dealings with land.

There is no doubt that a decision by a Coordinator-General to compulsorily acquire native title will cut red tape for private investors – where that ‘red tape’ is compliance with obligations to negotiate with traditional owners. However like the White Paper itself, there is no mention in reports the latest proposal that government seeks to ensure free, prior and informed consent where traditional owners’ interests are at stake.

This proposal sets a benchmark of exclusion of Aboriginal and Torres Strait Islander Australians as stakeholders in the decision-making processes affecting their lives and their country. This is fundamental not only to justice but also to a viable, sustainable approach to development.