New research confirms First Nations people in Australia have the legal ability to veto clean energy projects on Country.

The Australian Law Reform Commission has been asked to review the operation of the future acts regime under the Native Title Act 1993 (Cth).

Western Australia has very strong solar resources and nationally competitive wind resources that are largely untapped. There is clearly much potential for the development of clean energy projects on land where First Nations communities hold an interest.

South Australia is a global leader in renewable energy. Driven by high quality wind resources and rooftop solar in a smaller electricity market, renewable energy supplies around 70% of SA's electricity consumption. SA has one of the highest market shares for renewable energy in the world and has a target for 100% renewable energy by 2030. 

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Thanks to Neoen for the image of the 150 MW Hornsdale Power Reserve

Queensland has very strong solar resources, and also high quality and nationally competitive wind resources and there is clearly much potential for the development of clean energy projects on First Nations-titled lands. 

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This policy overview was drafted with assistance from Elizabeth McDonald, Director at Chalk & Behrendt  and Taryn Lane, consultant and Manager of Hepburn Community Wind Farm. 

Thanks to Hoshi Moshi for the image!

Lawyer Emily Gerrard offers some practical suggestions around negotiation of agreements and related arrangements and opportunities when it comes to large-scale renewable energy projects. Emily is a climate change and environmental lawyer with a focus on resources, native title and development.

This paper was prepared to support conversations at the Mparntwe (Alice Springs) roundtable for the First Nations Clean Energy Strategy. The Northern Territory has some of the strongest solar radiation in the world and there is clearly much potential to develop clean energy projects on First Nations titled lands. 

Read the paper here

Special thanks to Christian Bass for use of the photo.

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

Rio Tinto’s destruction of Juukan Gorge sent shock waves around the world. In the rush to develop clean energy projects we must not repeat similar mistakes, where the expansion of renewables becomes another action done “to” First Nations people rather than “with” them.

Renewable energy developments on Aboriginal land in Australia’s Pilbara and Kimberley regions in the north-west of Australia have very high rates of Indigenous land tenure, and are attractive for both solar and wind power generation, particularly as developing technology makes it economically feasible to transport power over large distances.

They are also remote from Australia’s electricity networks and often rely on expensive fossil fuels for electricity generation. Resident Aboriginal communities are among the most income-poor in Australia yet live in regions rich in renewable energy.

Their ability to benefit from the opportunities offered by a transition to renewable sources of energy varies according to a number of factors.

This paper examines the conditions under which Indigenous capabilities may be enhanced or inhibited, through examining three scales of energy generation: large-scale developments for export; remote utility-owned networks; and small-scale standalone off-grid applications.

This paper will ask what capabilities can Indigenous people achieve from a just approach to a renewable energy transition in northern Australia, and what capabilities are required in order to gain maximum benefit from this current rapid energy transition?

Authors: Hunt, J., Riley, B., O’Neill, L., & Maynard, G. (2021). Transition to Renewable Energy and Indigenous People in Northern Australia: Enhancing or Inhibiting Capabilities? Journal of Human Development and Capabilities, 22(2), 360–378. https://doi.org/10.1080/19452829.2021.1901670

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Photo by Chris Stenger on Unsplash