Exclusive: directors were paid cash for invalidated cultural assessments of Abbot Point
A north Queensland Indigenous organisation kept secret more than $2m in payments by the Adani mining company, federal court documents show.
Guardian Australia has obtained court documents that show the Kyburra Munda Yalga Aboriginal Corporation did not account for payments by Adani, then paid its own directors up to $1,000 a day cash-in-hand to conduct now-invalidated cultural heritage assessments for the Indian mining company.
The federal court last month delivered a ruling that may void the assessments, which are required to protect sacred sites from development.
It ruled that another Indigenous business, Juru Enterprises Limited, was the proper “nominated body” to represent traditional owners on a land-use agreement with Adani.
The impact of the decision could be wide-ranging. Traditional owners from near Bowen say they are “hugely worried” Adani has conducted work at its Abbot Point port based on improper or conflicted advice from the cultural assessment surveys.
Juru Enterprises could now demand Adani “redesign or reconfigure” any plans or works near sacred sites.ad more
The court case has also exposed how Adani funding was central to alleged rorts conducted by Kyburra board members. Guardian Australia has seen letters, minutes of meetings, police reports, auditors reports and sworn affidavits that detail how Kyburra kept money paid by Adani off the books and then funnelled it to directors through “fees” and “loans”.
Kyburra declared only $50,000 total income in consecutive years: 2014/2015 and 2015/16. About $2m was paid to the organisation by Adani in 2014 and 2015, including an estimated $800,000 for cultural assessments. But none of it showed up in Kyburra’s annual financial statements.
Traditional owners said in a 2016 complaint letter they were suspicious about “secret payments by Adani”.
The issue before the federal court was whether Kyburra validly appointed itself as the Juru nominated body to represent traditional owners on a land-use agreement with Adani. The Indian company filed a notice submitting to any order the court might make, except as to costs.
Adani has rejected suggestions it should have been aware of mismanagement at Kyburra and alleged rorts by directors, and there is no suggestion the payments themselves were improper. The company said it was only made aware of “financial matters” through the court proceedings.
Guardian Australia can reveal that both the Office of the Registrar of Indigenous Corporations (Oric) and the Australian federal police were aware of concerns about Kyburra in 2015 and 2016.
Guardian Australia has obtained court documents that show the Kyburra Munda Yalga Aboriginal Corporation did not account for payments by Adani, then paid its own directors up to $1,000 a day cash-in-hand to conduct now-invalidated cultural heritage assessments for the Indian mining company.
The federal court last month delivered a ruling that may void the assessments, which are required to protect sacred sites from development.
It ruled that another Indigenous business, Juru Enterprises Limited, was the proper “nominated body” to represent traditional owners on a land-use agreement with Adani.
The impact of the decision could be wide-ranging. Traditional owners from near Bowen say they are “hugely worried” Adani has conducted work at its Abbot Point port based on improper or conflicted advice from the cultural assessment surveys.
Juru Enterprises could now demand Adani “redesign or reconfigure” any plans or works near sacred sites.ad more
The court case has also exposed how Adani funding was central to alleged rorts conducted by Kyburra board members. Guardian Australia has seen letters, minutes of meetings, police reports, auditors reports and sworn affidavits that detail how Kyburra kept money paid by Adani off the books and then funnelled it to directors through “fees” and “loans”.
Kyburra declared only $50,000 total income in consecutive years: 2014/2015 and 2015/16. About $2m was paid to the organisation by Adani in 2014 and 2015, including an estimated $800,000 for cultural assessments. But none of it showed up in Kyburra’s annual financial statements.
Traditional owners said in a 2016 complaint letter they were suspicious about “secret payments by Adani”.
The issue before the federal court was whether Kyburra validly appointed itself as the Juru nominated body to represent traditional owners on a land-use agreement with Adani. The Indian company filed a notice submitting to any order the court might make, except as to costs.
Adani has rejected suggestions it should have been aware of mismanagement at Kyburra and alleged rorts by directors, and there is no suggestion the payments themselves were improper. The company said it was only made aware of “financial matters” through the court proceedings.
Guardian Australia can reveal that both the Office of the Registrar of Indigenous Corporations (Oric) and the Australian federal police were aware of concerns about Kyburra in 2015 and 2016.
“By abandoning this decision-making process (Kyburra) are effectually not acting in the best interests of the Juru common law holders as by holding meetings in multiple places over multiple days, how can the traditional decision-making processes be upheld, seeing as the first step in the process is to call a meeting for all families [claim group] to attend,” Morrell wrote.
Other traditional owners complained that Kyburra did not provide adequate notice for meetings.
In 2016, a lawyer representing disgruntled members of Kyburra wrote to Oric asking for an investigation into the organisation. The letter was also submitted to the court in the proceedings but not tendered at hearing.
It outlined what Oric later confirmed in an audit – that Kyburra failed to declare significant income each year from land-use agreements, including the lucrative deal with Adani. By declaring only $50,000 annual income, the organisation was exempted from having to provide audited financial statements. Money from Adani, notionally “for the benefit and use of the Juru people”, was not accounted for.
“In our submission Kyburra actually received monies from Adani Mining Pty Ltd ... in the amount of $1,225,000. In addition ... Adani transferred $825,000 to Kyburra for cultural heritage survey activities,” the letter says.
“Further, our clients advise that the surveys are conducted by directors alone – about six directors would be present at any survey – with a daily rate of approximately $1,000 paid individually to them.
“Our clients are suspicious of similar secret payments by Adani on behalf of Kyburra.”
About the same time, the AFP started to investigate Kyburra. An agent from the AFP’s organised crime and cyber division wrote to Oric in April 2016 recommending further action and outlining how significant “payments from Adani mining” had not been declared by Kyburra.
“It is ... alleged that Kyburra chairperson Angelina Akee, and (others) are diverting Kyburra funds for their personal gain. It is suspected that the remaining directors are complicit in these activities and may also be deriving personal benefits”.
Akee spoke briefly to Guardian Australia and was invited to comment on the case, but did not call back. Attempts have been made to seek comment from other directors, but they have been uncontactable.
Oric placed Kyburra in special administration in October last year. It is expected the corporation will be wound up.
Morrell told Guardian Australia on Monday he could not explain why Kyburra moved in 2015 to replace Juru Enterprises as the “nominated body” representing the Juru people on a land use agreement with Adani. He also questioned why Adani had simply accepted the switch.
“I really could not tell you that one. That one really has me baffled.”
He said the court ruling meant any work carried out by Kyburra for Adani had “not been carried out under the agreements” and was voided.
“We’re happy to do the work again. Kyburra and Adani have never forwarded or allowed anyone to see any of the work being carried out, any of the reports on the work being carried out. That’s left all the Juru people wondering what was going on.
“We’ll work with them, but everything that has been done will need to be revised and reviewed and we haven’t had the opportunity to do that yet.
“We’re hugely worried. Throughout the state development area at Abbot Point alone there’s numerous places where we have burial sites, rock art, rock carvings, sacred sites. If any of those areas are being impacted they need to have that impact removed from that area.
“As an example, if the rail line goes through or too close to significant rock art. During the review if we say ‘no that’s too close’ or ‘no you can’t go there’ Adani then has to redesign or reconfigure.”
Guardian Australia asked a lengthy series of questions to Adani, raising the allegations contained in the documents regarding “secret” payments. Adani said it fully accepted and supported the court’s ruling.
“Adani Australia had no oversight, and no authority for oversight, of Kyburra Munda Yalga [Aboriginal] Corporation’s financial matters. Along with the public we were made aware of details of those financial matters through the recent legal proceedings.
“The Australian Securities and Investment Commission is the relevant authority to investigate appropriateness of accounting or other practices.
“Adani Australia is required under the registered Indigenous land use agreements to make payments to the Kyburra Munda Yalga Corporation.
“We will continue to work collaboratively with all Juru traditional owners, including under guidance of the Indigenous land use agreements and the cultural heritage management plans which are currently in place, as we have since 2014.”
The company did not respond to specific questions about whether it took steps to ensure the cultural assessments were carried out by appropriate Juru traditional owners, or whether it would support a Juru-led review of those assessments in light of the court ruling.
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