First Nations rights, interests and priorities, including Free Prior and Informed Consent, must be incorporated as core components of the government’s Guarantee of Origin Scheme framework. 

The First Nations Clean Energy Network has made a submission on the exposure drafts of the legislative instruments that will support the Guarantee of Origin (GO) Scheme. 

The Guarantee of Origin will show where a product has come from, how it was made, and the emissions throughout its lifecycle, states the Clean Energy Regulator, with a focus on hydrogen, low carbon liquid fuels, biomethane and biogas, and renewable electricity made in Australia.

We note however that the government’s current draft rules refer exclusively to native title, omitting any reference to statutory land rights schemes and comparable statutory land rights frameworks across Australia. This omission risks failing to recognise the full extent of First Nations legal interests in land, and should be correct to ensure the GO Scheme properly reflects the diversity of First Nations rights and interests. 

Our recommendations 

Require evidence of Free, Prior and Informed Consent (FPIC)

The GO legislative instruments should be amended to require that: 

• Registration of facility, production or delivery profiles include documented evidence that the project has obtained FPIC (as defined in accordance with the United Nations Declaration on the Rights of Indigenous Peoples, to which Australia is a signatory) from Traditional Owners or their representative bodies. 
• Self-declaration or minimal disclosure (as currently required in the draft legislative instruments) is not sufficient. 

Expand the Guarantee of Origin Certificate to include First Nations Attributes 

Certificates issued under the GO Scheme should reflect more than emissions and energy source. They should also certify: 

• Whether the project has obtained FPIC 
• Whether the project is subject to an Indigenous Land Use Agreement (ILUA) or other agreement under a statutory land rights regime. 
• That cultural heritage protections are in place. 
• That First Nations ownership, benefit-sharing, or participation arrangements are in place. 
• The provenance of products, including whether production occurred on land or waters where Traditional Owners hold rights and whether those Traditional Owners have consented. 

These points would ensure the GO Scheme is a tool to ensure and verify First Nations outcomes and FPIC, and reflects the importance of product origin as a marker of ethical and lawful production. 

Public Transparency and Notification 

The GO Register should include details of whether a project is on native title land or land held pursuant to a statutory land rights scheme, and whether it is subject to an ILUA or other agreement with the Traditional Owners. 

Traditional Owners, Prescribed Bodies Corporation, Native Title Representative Bodies or statutory land rights bodies (as the case may be) should be notified when an application for a GO certificate is lodged. 

Cultural Heritage Protections 

Applicants should be required to demonstrate how they have identified, assessed, and planned to protect First Nations cultural heritage. This should be a mandatory element of profile registration and should be auditable. The Regulator should be empowered to consider the adequacy of cultural heritage protection measures, not just legal contraventions. 

Resourcing to enable First Nations Engagement 

The GO Scheme should include mechanisms to fund Prescribed Bodies Corporate and Traditional Owner groups to engage with project proponents and regulators. Without proper resourcing, meaningful consultation and participation cannot occur, and legal, reputational and social licence risks will remain high. 

Recognition of First Nations Verification Tools 

The GO Rules should recognise First Nations-developed tools like the Dhawura Ngilan Business and Investor Guides as valid frameworks for assessing cultural heritage protection and FPIC. 

Projects aligned with these tools should be prioritised or granted preferred status. 

Strengthened Suitability and Eligibility Criteria 

The GO Scheme should align with other emerging aligned policy schemes, such as that in the Capacity Investment Scheme (CIS), and include: 

• Pass/Fail Eligibility: Applicants must warrant they have not breached relevant First Nations protection laws, such as the Racial Description Act 1975 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and others. 
• First Nations Merit-Based Assessment Criteria: Applicants should have to provide clear evidence of early and culturally respectful engagement with Traditional Owners and First Nations communities. 

You can read our submission here

Thanks for the front cover image by Mediamodifier on Unsplash