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. 

Download here

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. 

Download the paper here

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

Read the paper

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.

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)

Read the report

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