Australia’s first Indigenous silk, Tony McAvoy, says the native title system “embeds racism” and puts traditional owners under “duress” to approve mining developments or risk losing their land without compensation.

McAvoy, speaking at a forum in Brisbane on Monday night, said Indigenous people must “resist, in whatever fashion we can” to protect their land and culture.

His comments come as two legal disputes between traditional owner groups and the mining giant Adani reach a critical point.

McAvoy, a Wangan and Jagalingou traditional owner and a senior barrister with experience in native title law, said the system was stacked against Indigenous people.

If traditional owners cannot come to an agreement with a mining company about a proposal, it goes before the national native title tribunal. Traditional owners can demand compensation or royalties during negotiations, but these cannot be awarded by the tribunal. McAvoy said the tribunal, which must apply the native title act, only rarely rejects applications for mining leases.

“What this means is if we object to a mine under the native title process, it’s very likely to go ahead and the normal benefits we might be able to negotiate, which include royalties, which include substantial compensation, well we can’t get those if we don’t agree,” he said.

“Therefore the system, the native tile system ... coerces Aboriginal people into an agreement. It’s going to happen anyway. If we don’t agree, the native title tribunal will let it go through, and we will lose our land and won’t be compensated either. That’s the position we’re in.”



McAvoy said the system “embeds racism” and is inconsistent with the United Nations declaration on the rights of indigenous peoples, which demands land not be dispossessed with “free, prior and informed consent”.

McAvoy said the Racial Discrimination Act was suspended in 1998 to pass amendments to native title laws that in turn allowed mining developments to proceed without consent from traditional owners.

“The government knows that the system is racially discriminatory. There is nowhere for us to go. There is no court we can go to, because the Native Title Act has an exclusion for racial discrimination.

“So what we must do is say no anyway, and resist in whatever fashion we can.”

Battles with Adani reach critical point

Both Indigenous groups embroiled in native title disputes with Adani say their concerns are about culture, not the environment.



A group representing Juru people from near Bowen in north Queensland has applied for a stop order that could force Adani to cease work in the vicinity of its Abbot Point coal terminal, amid a disagreement about measures to protect Indigenous sacred sites.

The Queensland Department of Aboriginal and Torres Strait Islander Partnerships will on Thursday make a recommendation to the deputy premier, Jackie Trad.

Guardian Australia understands Adani has engaged multinational “silver circle” firm Ashurst to make submissions to the department opposing the order.

Adani would not comment on its legal representation and Ashurst did not respond to questions. Clayton Utz, which has represented Adani on the Carmichael mine project for more than five years, including leading native title negotiations with various traditional owner groups, also would not comment.

A group of native title claimants from the Wangan and Jagalingou people, whose country covers the Galilee basin where the Carmichael mine is proposed, are waiting on the federal court to rule on the validity of a land-use agreement with Adani. The hearing took place in March and a decision is expected soon.

Adrian Burragubba, the spokesman for the W&J family council, told the forum on Monday traditional owners were “virtually fighting on our feet”.

Burragubba is one of the main spokespeople for five minority native title claimants. A group of seven W&J people signed a land-use agreement with Adani, although one has since walked away from that agreement, splitting the claim group down the middle. Those who did negotiate with Adani said they could have lost their native title rights if they walked away.



“We are not green people. We are not environmentalists. And we’re not just trying to stop a coalmine. Everything that we’re doing is fighting for our rights, so the best way to express that is through our culture,” Burragubba said.

“We’re taking a stand against not only the Carmichael mine but the opening up of the Galilee basin, potentially devastating, destroying and annihilating the total existence of our ancestors’ homelands, so that we would then essentially become the last of the people from that area.

“I don’t want that to happen, that’s not a legacy that I want to hand on to future generations. It’s our responsibility, because the task is left to us by our ancestors, to continue to speak up and protect the land.”

McAvoy said the W&J people “are in a pitch battle in which we have taken a stand and said ‘no’.”