Traditional owners who took discreet payments of $4,000 each to meet Adani and revive a land use deal for the Carmichael mine should be axed as representatives of their group, it will be argued in the federal court.
The case stems from a split within the Indigenous group whose consent is crucial for the planned $16bn mine in Queensland’s Galilee basin to go ahead.
A court action by opponents of Adani within the Wangan and Jagalingou people also alleges that a disputed vote in support of the deal in April was stacked with people who were not even members of the Indigenous land claim group.
The contest in the W&J over support for the mine is set to play out in a legal bid to have four pro-Adani representatives sidelined over “monetary benefits” they allegedly pocketed against the terms of their appointment.
The Queensland and federal governments are set to back the pro-Adani W&J representatives when the court begins hearing the case on Tuesday.
Indigenous rights advocate and W&J elder Adrian Burragubba and others – on behalf of an anti-Adani faction that includes Australia’s first Indigenous senior counsel, Tony McAvoy – argues in an application filed in court that the four who took “sitting fees” to meet Adani exceeded their authority as representatives.
Lawyers for Burragubba and others allege the four did not take all necessary steps to pay a total of $16,000 – which came on top of travel, meal and accommodation costs covered by Adani – into a trust for the W&J. They argue that according to their terms of appointment by the claim group, they were not entitled to personally benefit from sitting fees.
They also allege the four – Gwendoline Fisher, Priscilla Gyemore, Les Tilley and Norman Johnson Jnr – exceeded their authority by continuing to negotiate with Adani despite a W&J claim group meeting calling for talks to end in March and for a land use deal to be rejected.
The payment of discreet sitting fees by Adani was revealed by Guardian Australia in April.
The four are among seven pro-Adani members of a representative group of 12, made up of the 12 descent groups of the W&J, including Burragubba and the other applicants.
The pro-Adani representatives swung majority support behind the mine for the first time this year, after the W&J had formally voted down an Indigenous land use agreement twice in 2012 and 2014.
Lawyers for Burragubba argue the four were replaced at a claim group meeting in March by new representatives who also oppose the mine.
Lawyers for Fisher, Gyemore, Tilley and Johnson Jr responded in court papers by arguing that the March meeting was not legitimate on procedural grounds, including that inadequate notice was given to the broader W&J group.
They argue that the sitting fees were not a “monetary benefit” but a “bona fide reimbursement for travel, accommodation or expenses related to attending a meeting or negotiation”.
The four were therefore entitled to retain the $16,000, they submitted.
They argued a W&J meeting in April attended by 340 people claiming an interest in native title in the area scrapped any resolutions taken by the previous meeting. Lawyers for Burragubba’s group allege that the April meeting was invalid, in part because it allowed Indigenous people who were not even W&J to vote.
“Numerous persons voting at the 16 April 2016 meeting were not members of the W&J native title claim group,” they alleged in court papers. “Many persons voting had never been to a prior W&J claim group meeting, and had no recorded apical ancestor.”
The lawyers for Fisher, Gyemore, Tilley and Johnson Jr in court papers filed before the hearing did not directly address these allegations.
The four are represented by Queensland South Native Title Service, which is handling the W&J native title claim over traditional lands including the proposed site of the Carmichael mine in north Queensland’s Galilee basin, west of Bowen.
Indigenous consent looms as crucial to Adani’s plans. Without it, banks that subscribe to the equator principles would be obliged to withhold finance and state government approvals could be subject to further challenge.
