Many of the big wind and solar farms planned to help Australia achieve net zero emissions by 2050 will be built on the lands and waters of First Nations peoples. More than half of the projects that will extract critical minerals overlap with Indigenous-held lands.

First Nations people can and should benefit from the renewable energy revolution, including from small community-based projects to large scale export-focused initiatives, and also through the development of new supply chains and industries.

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

It is an exciting time in the energy sector with new technologies, ways to decarbonise, and innovations to make the day-to-day lives of many Australians easier – with abundant reliable, clean energy on the horizon. 

Leslie Schultz, a Ngadju elder from Western Australia's Goldfields and a First Nations Clean Energy Network Steering Group member, has just returned from New York. 

Increasing demand, innovations in technology, and extensions to electricity grid infrastructure are likely to lead to a growth in renewable energy development on native title land and water.

The likelihood that native title holders and claimants will benefit from this development will depend in part upon the legal regime that governs native title.

The prevailing legal regime governing renewable energy development on native title land and water involves two principal alternatives to permitting development: voluntary land use agreements and compulsory government acquisition of native title.

While the procedures associated with these alternatives afford native title holders and claimants more procedural protection than some commentators have suggested, they fail to attain the standard of ‘free, prior, and informed consent’ prescribed by international best practice and the philosophical and moral arguments that underpin that standard.

To remedy this failure, the Native Title Act 1993 (Cwlth) should be amended to place less weight on economic and similar considerations when authorising the compulsory acquisition of native title for renewable energy development, or prohibit the compulsory acquisition of native title generally, except for in certain exceptional circumstances.

While this paper focuses on renewable energy in particular, a number of its conclusions could apply to issues that attenuate native title generally.

Author: Maynard, G. (2022), Renewable energy development and the Native Title Act 1993 (Cwlth): The fairness of validating future acts associated with renewable energy projects (Working Paper No. 143/2022), Centre for Aboriginal Economic Policy Research, Australian National University

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Thanks for use of the photo by Angie Warren on Unsplash

The prospect of large-scale renewable energy projects being developed on lands over which Traditional Owners hold rights and interests is likely to present risks in the distribution of socio-economic and environmental impacts, as well as opportunities for Aboriginal benefit, through partnerships, equity and ownership, employment, training, sustainable income generation, and potentially through improved access to affordable energy.

Modular in design, renewable energy technologies have a diverse range of possible applications, and the opportunities for Aboriginal leadership, participation and benefit are undoubtedly greater, more varied and across a wider number of scales than the limited number of case studies examined here.

Projects may be developed unilaterally by Aboriginal communities and PBCs for discrete aims of community development, household energy security and enterprise development; others may be undertaken in alliance with private sector developers or the state and progressed through agreement making processes.

This paper proposes that while the benefits and risks of specific projects are likely best assessed on a case-by case basis, a number of common themes- such as the efficacy of genuine FPIC processes- are of utility across scales of development, from small to large.

The extent to which Aboriginal decision-making is at the centre, rather than periphery, of renewable energy policy and project development remains the key to socially sustainable project development, as well as to any estimate of the success of the renewable energy transition currently underway in the North-West.

Author: Brad Riley in Nulungu Research Papers, The University of Notre Dame Australia (2021)

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Free prior informed consent (FPIC) is frequently cited as a legal standard for the development of extractives projects which impact Indigenous groups. The basic concept is that mining impacts should not occur without the group’s FPIC, but that simplicity hides domestic complexity.

This paper outlines the current state of FPIC at the international level, examines some common difficulties, and then describes Australian domestic law regarding these issues.

Author: John Southalan, “The FPIC Fixation: Indigenous - Mining Law, Internationally and Australia”, International Mining and Oil & Gas Law, Development, and Investment 22A-1 (Rocky Mountain Mineral Law Foundation, 2019)

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The front page image used in the report is from here.

Australian law recognises that First Nations people have rights and interests in the land and sea under their traditional laws and customs - that they are Traditional Owners. As highlighted in this factsheet by AIATSIS, any engagement processes needs to be based on the principles of Free, Prior and Informed Consent (FPIC) that recognise the critical decision making role of Traditional Owners. 

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Free Prior and Informed Consent is a specific right that pertains to Indigenous Peoples and is recognised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

This excellent FPIC manual was developed by the UN Food and Agriculture Organisation for people, organisations, companies and institutions wanting to incorporate FPIC into project design and implementation.

Read the FPIC manual