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First Nations, risks and opportunities, and Australia’s energy transition

Enabling and empowering First Nations to play a key and central role in Australia’s renewable energy transition goes beyond just social licence issues.

With new regulatory and policy systems being designed by governments across Australia to facilitate a rapid transition to renewable energy, access to and engagement with First Nations Country and Sea Country for renewable energy infrastructure will be essential and inevitable. The Jukaan Gorge tragedy has demonstrated to us all that these sorts of standards — whereby the law passively permits destruction, or leaves protection of cultural heritage and native title rights and interests to corporate social responsibility policies — as ineffective and wholly inappropriate.

Across the globe, First Nations are moving beyond minimal corporate social responsibility and tokenistic approaches to demand a new realism. In this new reality, First Nations are no longer just the passive hosts of projects or mere regulatory hurdles to clear. The finance sector too is increasingly engaging with this new realism, and the foundations on which the myth of terra nullius was established are rapidly eroding.

The two examples highlighted in this paper demonstrate recent Government failure to fully engage with this new reality. 

Stalled progress on projects attests to the growing urgency of including rights of free, prior and informed consent, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples in legislation, and to design processes to fully include First Nations in the early planning, design, execution and management of projects. 

Despite the increasing recognition of the need for FPIC in an international context, our current legislative and policy systems that set the rules for engagement with First Nations do not contain this principle or standard — formed as they were either in an atmosphere of concocted hysteria following Mabo and Wik and the 10-point plan, or in a bygone era when First Nations’ proud culture and accompanying, rights, interests and responsibilities were conveniently made invisible and so rendered silent by the myth of terra nullius

If we perpetuate historical approaches to the development of projects that require access to land based on a dispossession that has always been unjust we will invite legal contestation and delay. Alternatively, by engaging with First Nations as partners in the design of systems, laws and policies, we will decrease uncertainty and project risk, resulting in a range of additional cultural, economic, environmental, social and political benefits to all parties. 

By including and embedding First Nations as partners in the energy system transition, and the right to free, prior and informed consent (FPIC) in policy, legislative, project approval and financing systems and processes, we can ensure the transition is fair and just for First Nations, can occur at the pace necessary, will avoid unnecessary legal contestation, and will deliver ongoing mutual cultural, social, economic and environmental benefits to people and country.

If governments continue to perpetuate the fiction of terra nullius, Australia will miss opportunities for the development of a renewable energy sector that best ensures First Nations as active participants and supporters.


By Jonathan Kneebone, First Nations Clean Energy Network


This is an excerpt from the paper, which can be found in the Australian Environment Review.





Thanks to Izzy Gibson for the image!