The Invisiblised Struggle of an Ally: Who Will Take Notice of ORIC’s ‘Show Cause’ Letter to *KMYAC?

We Suspect Silence

September 3, 2017

by empathiser

 

*Kyburra Munda Yalga Aboriginal Corporation 

 

This is an article about two stories that tell a little of the struggles of a group of native title holders who’ve become marginalised from the corporation their people were compelled to form in order to make a claim on their traditional lands and negotiate for the protection of important places, access to country, and a stake in the economic development of the region. What makes these two stories important is that they are all that exists in the mainstream, alternative, and environmental media in Australia. This is in spite of the fact that this struggle revolves around a controversial mining company and a very controversial proposed rail line that will ensure that the largest coal complex in the world can be opened up. Negotiations over land use agreements for the proposed rail line were held under the threat of compulsory acquisition and subject to the usual unequal and opaque processes that native title holders are made subject to under the Native Title Act.

The bodies responsible for arbitrating and regulating Indigenous corporations play a part in my article. Much of the information I gathered from them was hard-won. I can’t say that either the arbitrator or the regulator prioritise information giving or have consistent practices/knowledge organisationally. They certainly are not geared up to support a blackfella marginalised from their Indigenous corporation. The ‘show clause’ letter mentioned in the title is the regulator’s third attempt at compelling the Indigenous corporation to cooperate and allow their dealings with the controversial mining company to be put under scrutiny.

Photo: Counteract

A largely ignored story

On October 20, 2014 the ABC published a story by Isobel Roe titled ‘Native title holders lodge objection to proposed North Galilee Basin rail project’. 

Here’s the opening line of the story:

The Juru people are the traditional owners of land that Adani Mining is using to build the North Galilee Basin rail project.

The second line explains how there exist allegations of poor information giving around negotiations over an Indigenous Land Use Agreement (ILUA) with Adani:

They said most of the traditional owners did not know what Adani’s plans were and were unable to attend information meetings, including a forum in Townsville.

The third line explains what action Carol Prior and her fellow native title holders were going to take:

Chairwoman Carol Prior said they were lodging an objection with the Native Title Tribunal because they had not been properly consulted.

In my conversation with an unnamed National Native Title Tribunal (NNTT) employee on May 23, 2017 I was able to gather information relating to Adani/NGBR ILUAs that for unknown reasons is not available on the NNTT website or anywhere else. I was told that following the second vote on the ILUA that is listed with the NNTT under tribunal number QI2014/072, a ‘notification’ period of one month starting Oct 21, 2014 was made available for to lodge objections to the ILUA. I was told by the NNTT employee that no objection was lodged. Not only was there no objection lodged by Carol Prior or her fellow native title holders, but no objections were lodged against any of the three ILUAs relating to the North Galilee Basin Rail Project (NGBR) that were voted on, lodged, and registered between August 2014 and April 2015.

For background on the NNTT see my blog post titled ‘The National Native Title Tribunal: Arbiter or “record keeper”?’.

Another largely ignored story

On Oct 21, 2016 the Townsville Bulletin published a story by Samantha Healy titled ‘Calls for Aboriginal corporation to hand over its books’.

The story outlines how Carol Prior and fellow KMYAC members have made a complaint to the regulator of Aboriginal corporations which involves allegations of mismanagement and “financial irregularities” relating to payments from Adani amounting to more than 2 million dollars.

The story quotes the complaint document:

“It is our submission that Kyburra has actually received monies from Adani Mining Pty Ltd during 2014-15 in the amount of $1.225 million.”

and

“In addition, a Cultural Heritage Management Plan is in place and Adani transferred $825,000 to Kyburra for cultural heritage survey activities.”

I first called ORIC on April 19, 2017 and was told that ORIC had received a report from the examiner and would publish something in “3 weeks”. I called ORIC again on May 1 and confirmed that “May 10ish” was the date when something would be published. On May 15 I called ORIC again and spoke to a case manager who read sections of what I’ve now come to discover was the draft report from the first examiner appointed in September 2016. A senior ORIC media officer would not confirm the voracity of any of the quotes I took from my conversation with the case manager. I cover this phone call in my blog post titled ‘ORIC to redo examination into Indigenous corporation involved in negotiations with Adani’.

Here’s a section from that blog post with quotes from the case manager reading from the draft examination:

The case manager explained to me that because the first examination “wasn’t completed properly” due in part to instances when the examiner was “unable to access the [Indigenous] corporation” and unable to access “other” parties. The case manager also revealed “we had issues obtaining information”. 

I put some questions to the senior ORIC media officer via email and was able to confirm that an incomplete draft examination report was submitted to ORIC on March 6, 2017.

Here’s a quote from the ORIC senior media officer on July 31, 2017:

On 6 March 2017 Mr James Barrett lodged with ORIC a draft examination report which was incomplete. A final examination report was never lodged with ORIC.

Between March 6 and May 10 ORIC decided that they would need to appoint a new examiner and when they posted the new Notice of Examination they removed the previous notice. The senior media officer would not explain why the the old notice was removed.

Corporate Failure

In June, 2017 I had an in depth conversation with Dr James Swansson, author of a research paper prepared for ORIC called ‘Analysing key characteristics in Indigenous corporate failure’. Dr Swansson indicated that the data he used was at least 10 years old and the research paper itself was published in 2010.

The research paper outlines the types of corporate failure and the role of ORIC in regulating and responding to various circumstances that Indigenous corporations may encounter. I explained the context of the examinations into KMYAC to Dr Swansson and was advised that KMYAC would likely fail to cooperate with the second examiner.  This is precisely what the release by ORIC on August 25, 2017 of a ‘show cause’ letter threatening “special administration” demonstrates has happened. ORIC are exercising their powers under the CATSI ACT in response to repeated refusal by KMYAC to cooperate with the appointed examiner.

Here’s a quote from the ‘show cause’ letter issued by Ruth Jones, Delegate of the Registrar of Indigenous Corporations:

I am writing to tell you that I am considering putting the Kyburra Munda Yalga Aboriginal Corporation RNTBC (ICN 7581) (the corporation) under special administration under Division 487 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).

An Aboriginal corporation charged with negotiating an ILUA with Adani over a rail corridor that is widely reported to be the rail corridor earmarked for a I billion loan from the Northern Australia Infrastructure Facility (NAIF) is alleged to have received upwards of 2 million dollars from Adani in 2014/15 without disclosing those funds in published financial statements. This Aboriginal corporation has failed to cooperate with two examiners, the first a solo operator, and the second a large firm with offices in Townsville.

Carol Prior has carried her message of voting irregularities and mismanagement of negotiating processes over a crucial ILUA from her Oct 2014 interview to her Oct 2016 ORIC complaint. In the intervening period she has been involved in media and events associated with various conservation organisations and environmental NGOs. They’ve mentioned her name and spoken of how they want to protect her country, they asked her to sign their open letters and attend their events, they call her “Aunty” but they’ve never share any of what you just read. No spokesperson, journalist, activist, or blogger has ever published anything outside of the two largely ignored stories I just shared with you.

 

 

 

The Climate Movement: Australia’s Patrons of Climate Change Activism

"Then there’s the revolving door. Some who opposed the CPRS when they worked for environmental groups now work in parliament for the Greens, where cheering for the CEF is expected. Meanwhile, like the carbon lobby, big-brand environmental groups recruit former political staffers and senior bureaucrats. Radicals have been replaced by ‘realists’ who know that if they collaborate with the powers that be – often former colleagues – they can secure incremental wins without threatening the system." …

The Nation Reviewed

By Guy Pearse

September 2011

With Tony Abbott up in the polls, both sides saying they’ll stand or fall on climate policy, and some believing effective ‘climate action’ and the fate of ‘progressive politics’ this decade are at stake, much of the environmental movement has decided it must cheer for Prime Minister Julia Gillard’s Clean Energy Future (CEF) carbon-pricing package. As Abbott and an emboldened carbon lobby paint Gillard’s plan as economic Armageddon, environmentalists are cheering as if the clean energy revolution has begun.

Image Caption: Aided by Purves Environmental Fund, sculptor Mark Coreth rides his life-sized ice polar bear in Sydney, 3 June 2011. © Reuters/Daniel Munoz

Image Caption: Illustration by Jeff Fisher.

It’s a far cry from 2009 when the environmental movement split over the so-called Carbon Pollution Reduction Scheme (CPRS). The Australian Conservation Foundation (ACF), World Wildlife Fund (WWF) and the Climate Institute went one way – backing the CPRS in exchange for Labor adopting a highly conditional 25% emission-reduction target for 2020. The Greens, Greenpeace, Friends of the Earth, Wilderness Society, Australian Youth Climate Coalition (AYCC) and GetUp!, among others, went another way, knowing the conditions attached to the 25% target meant it wouldn’t happen. Now environmentalists are cheering almost as one, not just for ‘climate action’ but for Gillard’s plan.

The Greens, as co-authors, declare “the old, polluting ways will have to change and a new, exciting era is set to begin”; the ACF calls the plan an “important step to start Australia’s transition to a low carbon economy”; the Climate Institute calls it a “vital step towards lower pollution and clean energy in Australia”; the WWF says it “will finally create a financial incentive to change old habits and old technologies”. Even Greenpeace calls it “the fundamental first step in our journey towards a clean energy future”.

Everyone is emphasising that ‘first step’ bit, as if using the same talking points. Under the “Say Yes” banner, the message that ticking the carbon price box equals a clean energy future is being amplified. At one “Say Yes” rally, GetUp! boss Simon Sheikh declared: “Now is a moment of celebration” and “We’re ready to power our economy with 100% renewable energy. We say yes!” The banners proclaim: “Say yes to cutting carbon pollution” and “Unlock clean energy”. One GetUp! video affirms: “get rid of our reliance on fossil fuel”. It’s implied that the government’s plan will achieve these things.

But will it? The Greens say the CEF package is superior to the CPRS: the official 2050 emissions reduction target was 60% – now it’s 80%; the CPRS allowed unlimited use of imported carbon credits, allowing Australia to outsource almost all its obligations – now imported credits aren’t allowed until 2015 and then only for 50% of polluter liabilities; there’s a new Clean Energy Finance Corporation with $10 billion to spend and a Carbon Farming Initiative to encourage farmers to store more carbon in vegetation and soils. The Greens have sought to make backsliding harder by institutionalising what they can. So, for instance, governments will have to publicly explain if they choose not to accept emission cap recommendations from the proposed Climate Change Authority.

It’s better than the CPRS, but here’s the curious thing – most of the flaws of the CPRS remain in the CEF. Big polluters are again excused from paying for 66–94.5% of their emissions, notwithstanding Gillard’s claim that “big polluters will pay for every tonne of carbon pollution they put into our atmosphere”. There’s the same inadequate 5% unconditional emissions reduction target for 2020; same hypothetical 25% target; still no carbon price at the bowser; billions of dollars going to emission-intensive power generators; $1.3 billion to coal producers whose exports are Australia’s largest contribution to climate change; and handouts to householders still mean most Australians won’t notice a carbon price. It’s another huge money-go-round that intercepts the price signal a carbon tax is intended to send industry and consumers to drive a shift to lower-emission behaviour. The pledge to pay owners of 2 gigawatts of the most emission-intensive coal-fired generation to exit the industry is an admission pricing carbon this way won’t achieve even that.

Perhaps not surprisingly, the emission projections are familiar. Treasurer Wayne Swan and Climate Change Minister Greg Combet say the agreed package would “closely match” Treasury projections released earlier this year. They envisage Australia’s domestic emissions (excluding carbon credit imports) to “increase around 10% from 2010 to the late 2020s”. With the 50% limit on credit imports ending in 2020, we’d rely mainly on outsourcing emission cuts to meet our targets well into the 2030s. Even by 2050, domestic emissions are barely below 2000 levels! Meanwhile, even with the carbon price, and well before 2050, coal-industry output doubles.

For all Gillard’s hype that a carbon price will “turbo-charge” clean energy, projections show almost no increase in renewable energy deployment prior to 2020 beyond what’s required to achieve the existing 20% renewable electricity target. With coal exports doubling and coal seam gas exports growing faster, renewables would by 2020 still account for less than 2% of energy produced in Australia.

In truth, there’s much less difference between the two major parties than either side makes out: both have a 5% target; both price carbon – Labor through a carbon tax and emissions trading, the Coalition by effectively running a national tender process for emission reduction; both cosset fossil-fuel addiction – the Coalition mainly by paying farmers to increase carbon storage in soils, Labor by importing carbon credits.

Ask people in the movement why everyone’s cheering for a plan you’d expect them to stomach under sufferance and the responses all begin the same way: “This is strictly off the record.” Most cite partisan bias, driven more by Pavlovian habit than ideology. While relations with the Coalition have usually been acrimonious, Labor has delivered various groups their biggest wins and political influence. A former insider of the Climate Institute tells me its unofficial mission when established was to “get rid of John Howard”. Post-Howard the CEO is said to have defined its new role as being Labor’s “mine-sweeper”. A “Say Yes” campaign insider recently told me: “People are so desperate to get something rather than nothing that we’re all running cover for Labor; so, rather than getting a better scheme from them or the other side, it’s all about helping Gillard sell the scheme.”

Another reason cited for the cheering is the increasing tendency of environmental groups to focus on incremental wins. Rather than asking ‘What needs to be done?’, they’re asking ‘What’s possible soon, given the lie of the land?’ Rapid transitions to renewables and away from fossil-fuel exports are considered unthinkable, given the grip that coal companies and unions have on both major parties. Settling for much less ambitious goals and overstating their significance is easier.

Then there’s the revolving door. Some who opposed the CPRS when they worked for environmental groups now work in parliament for the Greens, where cheering for the CEF is expected. Meanwhile, like the carbon lobby, big-brand environmental groups recruit former political staffers and senior bureaucrats. Radicals have been replaced by ‘realists’ who know that if they collaborate with the powers that be – often former colleagues – they can secure incremental wins without threatening the system.

Most ‘suit-wearing’ greenies also sport a neo-liberal faith in markets, with many building careers promoting the idea that emissions trading is the solution to climate change. Thus, campaigners at groups such as the WWF, the ACF and the Climate Institute turn ‘think global, act local’ on its head, believing a global carbon trade is paramount, not local action. To a worldview that cares not where emissions are cut but that cuts are made globally, at least cost, importing carbon credits en masse and ignoring coal exports fits perfectly. Never mind that a lower carbon price makes renewables deployment here less viable. Ross Garnaut’s starring role on the national stage as a carbon-price Pied Piper from the neo-liberal establishment encapsulates the dominant mindset.

Lastly, there’s the widespread desire to fill the tent. Many said ‘never again’ after the suspension of the CPRS in 2009. The Mittagong Forum, which was founded a decade earlier in the Southern Highlands, NSW, and intended to keep the environment movement singing from a similar song sheet, was torn apart. The acrimony within the ACF was intense – irate members resigned. I’m told that the Climate Institute’s board ordered an internal review of strategy. Since then, the groups that did a backroom deal with then Prime Minister Rudd have been on a charm offensive – encouraging a much broader group to come on board. Frustrated campaigners explain that the more groups involved, the faster the race to the bottom. One tells me: “If you’ve got ACF, WWF and the Climate Institute in the tent, you can’t talk about export coal; can’t talk down ‘clean coal’ or importing carbon credits or carbon farming.” As the carbon price becomes the issue upon which Labor stands or falls and the Greens’ forward momentum depends, the tent is filling up with unions, celebrities and GetUp!, among others.

This partly explains the cheering, but it’s hard not to wonder if something else is also going on here. Money explains the behaviour of many campaigning against Gillard, as those in her corner are quick to highlight; the proudly sceptical and coal-friendly Institute of Public Affairs, for example, has admitted they rarely take a position different from the “dozen energy firms” who contribute funds to them, because “otherwise they’d stop funding us”. Should we expect different from those funding big-brand green groups? It might seem like a diverse range of groups are all concluding independently that Gillard’s carbon price equals clean energy future, but they’re largely funded through two wealthy farmers: Robert Purves and Mark Wootton.

Robert Purves is the former chair and major shareholder of health group DCA; Mark Wootton is married to Eve Kantor, Rupert Murdoch’s niece. Through the Purves Environmental Fund (PEF) and the Poola Foundation respectively, they bankroll most of Australia’s best known environment groups, including many of those behind the “Say Yes” show.

The Poola Foundation, established in 1995, has for years been the ACF’s principal donor. The ACF’s building was gifted by a Poola-linked company in 2009, providing a permanent rental income stream. A donation of $10 million from the estate of Eve Kantor’s late brother (administered by Wootton and Eve Kantor) established the Climate Institute in 2005, with another $4 million invested since. Climate change “couldn’t be left to the environment movement”, says Wootton. Through the Climate Institute, the Poola Foundation provides office space to support the AYCC, and it is the largest contributor to the Australia Institute think tank. It originally funded the Mittagong Forum and provided resources and personnel to establish the Australian Environmental Grantmakers Network to co-ordinate environmental philanthropy.

Robert Purves is more prolific, particularly since establishing the PEF in 2004. He has given millions of dollars to the WWF, is the primary sponsor of the Wentworth Group of Concerned Scientists and supports the core global team running Earth Hour. A polar bear made of ice that paraded through Sydney streets in June was also Purves-funded. Few people realise that Purves substantially funded the writing and extensive promotion of Tim Flannery’s book The Weather Makers. The AYCC credits core funding provided by Purves, their only ‘gold supporter’, for their exponential growth in 2010. Purves has also funded Sustainable Business Australia, The Climate Group, the Climate Action Network Australia, the Copenhagen Climate Council and Clean Up Australia. He funds the Total Environment Centre and its Green Capital program, which hosted one of Julia Gillard’s first speeches after the release of the CEF package. Purves funds Terrestrial Carbon Group and the Bio-CCS Group, which push all manner of cheap carbon-credit generating alternatives to switching away from fossil fuels to help Australia meet emissions targets: carbon farming, forest protection abroad, growing algae with CO2 from coal-fired power stations. Through Sustainable Business Australia (SBA) he also co-hosts Carbon Expos for those keen to profit from trading such credits.

Wootton and Purves are hardly the only philanthropists assisting green causes. Wotif.com founder Graeme Wood’s record-breaking $1.6 million contribution to the Greens prior to the 2010 federal election drew plenty of attention. What sets Wootton and Purves apart is their ubiquity – especially on the issue of climate change – and their hands-on approach: Purves is a former president and current board member of WWF (Australia), a former board member of WWF (International), the chair of SBA, a governor of AYCC and the only non-scientist member of the Wentworth Group. Similarly, Mark Wootton chairs the Climate Institute board and, until recently, sat on the boards of both the ACF and the Australia Institute.

Moreover, both men appear to advocate the ‘carbon price as panacea’ approach championed by Rudd and now Gillard. “It’s all about putting a price on carbon,” says Purves; it’s a “conservative, market-based solution”, says Wootton. As far as I can tell, neither has publicly opposed continued coal export expansion, cast doubt over ‘clean coal’ or opposed the large-scale use of imported carbon credits. While both back renewable energy, they’re also strong advocates of bio-sequestration options that help avoid a switch away from fossil fuels. The organisations they fund take similar views; a coterie of corporations deeply enmeshed in vast new coal- and gas-mining projects, or simply poised to gain from the carbon credit opportunities promoted by Wootton and Purves, now co-fund the same organisations.

This is not to parallel the friendly takeover of environmentalism in the past decade with the self-interested clout exerted by those funding Australia’s carbon lobby. Wootton and Purves might gain from generating carbon credits on their farms, but by all reports their philanthropy is driven by genuine altruism rather than vested interest. However, they embody much of what movement insiders cite as problematic – neo-liberal minded corporate greenies chasing incremental results based on ‘what’s possible’. So perhaps it’s inevitable that, as more groups come to rely heavily on the same patronage, the environment movement’s centre of gravity has shifted.

If more people knew to what they were saying ‘yes’, and to whom, it’s hard not to wonder whether there’d be a lot less cheering. Now, as in 2009, the Poola Foundation and Purves-backed entities are teaming up with Labor to establish a minimalist carbon price deal that allows Australia’s contribution to climate change to keep increasing during the most crucial of decades and beyond. Naturally, Labor and its unions are geeing up the “Say Yes” crowd. The ACTU is again in the thick of the action and, having received a

$1.12 million donation from Australia’s largest coal union in 2010, GetUp! is cheering too. There’s been a cumulative cost of up to $5 million for the omnipresent ‘independent’ commentary produced by the Garnaut Climate Change Review from 2007–11. A $12 million advertising campaign is up and running and soon the government will distribute grants of “up to $250,000 for organisations to engage with the public on the opportunities of a clean energy future”. It’s a new strategy, but the same people and money taming environmentalists into backing yet another ineffective policy.

After a decade of false starts, Gillard’s plan shows beyond doubt that the only carbon price Australia will adopt is one that largely defeats the purpose of a carbon price. The Turnbull-backed CPRS was probably the best deal negotiable between the two major parties, just as the Gillard plan is probably the best the Greens could expect from a partnership with Labor. Pricing carbon this way does not equal a clean energy future, but that will take years to dawn on many in the cheer squad. Meanwhile, perhaps the best that can be said of the Gillard package is that passing it makes room for issues that the current debate has kept off the table. With the carbon price box finally ticked, the massive expansion in Australia’s fossil-fuel emission exports will become harder to ignore. When we finally confront that issue we’ll be getting serious as a nation about a Clean Energy Future.

http://www.themonthly.com.au/australia-s-patrons-climate-change-activism-climate-movement-guy-pearse-3786