The Future Acts regime must clarify that development of renewable energy generation and storage projects on native title land, regardless of what approvals are required (e.g. change to a pastoral lease purpose, etc.), requires an Indigenous Land Use Agreement (ILUA).
We note the following as additional key issues relating to the Future Acts regime with regard to clean energy projects:
- The Network considers that there is no principled reason why the onshore and offshore should be treated differently, particularly as the distinction doesn’t make sense where embayments are treated as ‘onshore’, while areas below the low water mark in ocean-facing coasts are treated as offshore. Native title holders are excluded from any input where is no right to negotiate in the offshore (which doesn’t serve the interests of proponents, governments or native title holders). Recommendation: Abolish Subdivision N
- Extinguishment under Subdivision J relies on ‘operational inconsistency’, whereas court authority has consistently been that extinguishment of native title must be assessed based on inconsistency of rights. If public works are constructed in a reserve that was granted prior to 23 December 1996 and the reserve itself didn’t extinguish native tile, it is contrary to the usual principle of inconsistency of rights if works constructed on the reserve now would extinguish native title. Recommendation: Abolish extinguishment of public works under Subdivision J
- Section 24KA was only ever intended to apply to essential public works and infrastructure that only restrict/interfere with native title rights while the infrastructure was being built. Developments like large scale transmission lines were never intended to fall under s.24KA, as their large footprint means there are areas where native title rights cannot be exercised while the infrastructure is in place. Large scale infrastructure should require either the right to negotiate or an ILUA. The Network has previously published a discussion paper which included this recommendation (see First Nations and the Clean Energy Transition: Emerging Issues in New Transmission Infrastructure). Recommendation: Section 24KA requires clarification
- In Tjiwarl, the Full Court held that non-compliance with future act procedural requirements (other than the right to negotiate) would not mean the future act is done invalidly. Where notice and opportunity to comment are such meagre rights already, holding that affording these rights to native title parties by proponents/States is effectively optional seems unfair and unreasonable. Recommendation: Reverse the effect of the Full Federal Court's decision in Tjiwarl
Read our submission here