Following recent elections at both Commonwealth and State level resulting in the return of the Albanese and Cook governments, the role of First Nations groups in the renewable energy transition is slowly but surely becoming an increasingly central policy position.
Key takeaways
Engage early. Understand that the decisions will take time, and that the proponent will already have an understanding of the project.
Adopt a co-design approach. Every negotiation is different. Early engagement should be coupled with a partnership approach and first building an understanding of the culture, customs, concerns and aspirations of the group. That will inform how consultation should then occur and merge into negotiation and generally lead to a better and enduring relationship.
Non-financial benefits should be meaningful.
Financial benefits should be agreed on the basis of having the same information and same access to expert advice. Level the playing field and it becomes a smoother journey for both parties.
In December 2024, the Commonwealth Government published the First Nations Clean Energy Strategy 2024-2030 (Federal Strategy), which has since been endorsed by the WA Government. At State level, the WA Government recently published a consultation paper titled Draft Guideline on Community Benefits for Renewable Energy Projects (Draft Guideline), which acknowledges First Nations groups as a distinct component of communities and community benefit-sharing. The Draft Guidelines are aimed at the broader community, and the issues and recommendations raised in it will already be familiar to many First Nations groups.
We explore the potential practical implications of the Commonwealth and State policy positions, key themes and regulatory approvals that arise in relation to First Nations participation in the renewable energy transition. We also discuss some practical steps to ensure that First Nations contributions to the clean energy transition are appropriately recognised.
Context: existing statutory approvals and processes
The focus on First Nations involvement in the Federal Strategy and the Draft Guidelines likely reflects a government expectation of future engagement at a level that exceeds existing statutory requirements and acknowledges the importance of social licence to operate. Many proponents may also adopt extra-statutory positions based on ESG commitments.
Before discussing those additional expectations, it is useful to cover the existing statutory processes.
Native title
The Native Title Act 1993 (Cth) (NTA) sets out various processes for engagement with Native Title parties in relation to ‘future acts’. The grant of tenure by the State to renewable project proponents is generally a future act and therefore subject to certain procedures under the NTA. Those procedures include time-limited consultation or negotiation to agreed terms on which the future act may proceed. There are also options to have a future act proceed via arbitration if there is no agreement reached in the prescribed timeframes.
Currently, as a result the WA government’s policy position, the grant of tenure necessary for renewable energy projects may be subject to first obtaining an Indigenous Land Use Agreement (ILUA) with the relevant Native Title party. Entry into an ILUA is voluntary, so in those instances there is no option for an arbitrated outcome.
Cultural heritage
Under the Aboriginal Heritage Act 1972 (WA) (AHA) it is an offence to interfere with places or objects of cultural significance. Ministerial approval is required where there is potential for any harm to an Aboriginal site. There is no requirement under the AHA for proponents to positively or voluntarily engage with First Nations groups prior to conducting activities. However, there is an expectation that due diligence will be undertaken, which is commonly done by engaging the relevant knowledge holders to survey the area of activities and assess the presence or risk of harm to cultural heritage.
It is worth noting that assessments and consultation under the Environmental Protection Act 1986 (WA) (EP Act), particularly in the context of ‘social surrounds’ and cultural heritage, will also give rise to a need to consult and engage with First Nations parties. The EP Act process requires an assessment of the impacts of a project on certain matters, one of which is Aboriginal cultural heritage.
At a Commonwealth level, the Aboriginal and Torres Strait Islander Cultural Heritage Protection Act 1984 (Cth) (ATSIHPA) will generally only be enlivened where the State regime is deemed to be insufficient to protect the cultural heritage values in question. An example is the protection of intangible heritage, which the AHA does not provide for.
Existing policy positions relating to the AHA and ATSIHPA place emphasis on consultation with First Nations parties, which is presently a pre-condition to an approval to interfere with heritage under the AHA. The relevant governmental policy positions discussed below reinforce this, so there will continue to be an expectation that proponents will engage with First Nations parties and conduct heritage surveys pursuant to agreements between the parties.
Summary of State and Federal policy positions
Commonwealth First Nations Clean Energy Strategy
The Strategy provides for six ‘key guiding principles’ and three broad goals which are summarised below.
# | Key guiding principles | # | Goals | |
1 | First Nations peoples of Australia must be enabled to determine how they lead, participate in, and benefit from the clean energy transition. | 1 | Power First Nations communities with clean energy | |
2 | First Nations peoples maintain their right to live on their land, with access to reliable and affordable clean energy. | |||
3 | First Nations peoples are stewards and custodians of Country, including the land, waters, skies and seas. This connection is ongoing and enduring. | 2 | Enable equitable partnerships | |
4 | Access to clean energy and a safe climate benefits all human and non-human life. | |||
5 | First Nations peoples’ cultural heritage must be recognised, protected and celebrated throughout the clean energy transition. | 3 | Achieve economic benefits with First Nations Peoples | |
6 | Building genuine partnerships and collaboration is a shared responsibility. Government has a special duty of care to lead these efforts and ensure they are underpinned by robust and transparent data collection, monitoring and reporting. |
WA draft guidelines
Key takeaways | |
Community benefit sharing is based on a desire to establish and maintain positive long-term connections to the area and to be a good neighbour. | |
It is expected that projects will follow best practice in how they are developed, including local training and employment, procurement of goods and services and development and use of local infrastructure. | |
Renewable energy projects are only a subset of electricity infrastructure – for instance, social performance for transmission infrastructure is also important and will be considered separately. | |
Early and continuous consultation with the community, local government and impacted groups is crucial to maintain social licence and social performance throughout the lifecycle of the project. | |
By prioritising transparent communication and proactive engagement, proponents can foster strong community relationships that support the success of their projects. | |
Community benefits principles
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Issues, themes and important considerations
A perhaps underappreciated consequence of a more central role for First Nations parties is that it adds time and financial burden to representative organisations such as Registered Native Title Prescribed Bodies Corporate (RNTBC). Some key issues which may arise include:
Resourcing for First Nations groups – RNTBCs have access to funding in accordance with s60AB of the NTA. However, the scope of s60AB is not always clear and is only triggered by certain functions. The recent ALRC Discussion Paper 88 on the Review of the Future Acts Regime has recommended an expansion of the scope of s60AB for that reason. In addition, there may not be any dedicated funding available to First Nations groups that represent areas where Native Title has been extinguished.
Benefit-sharing, expert technical advice and information disclosure – related to the need for adequate funding is the importance of First Nations groups having access to expert advisors in relation to renewable projects. Financial benefit-sharing mechanisms familiar in mining projects may not be transferrable to renewable projects. Accordingly, there is likely value in identifying or creating new benefits that are specific to the First Nations group. There are also risks to certain benefit mechanisms which arise from the uncertain nature of renewable projects, the supporting technology, and the lack of market information. It is critical to ensure that any such risks are identified to avoid an adverse outcome in the future.
Impact on country and culture – renewable projects will often require greater amounts of land than a ‘traditional’ mining project (for example, the generation capacity of solar and wind farms correlates to the technology available and, presently, the amount of land available to install turbines and/or solar panels). The Draft Guidelines acknowledge that impact at a general community level. Another key difference to mining projects is that renewable projects could theoretically have much longer project lifecycles. In some cases, the project may be permanent. The scale and impacts of renewable projects may sometimes require the destruction of Country and cultural heritage in a way that is not planned to be rehabilitated in one’s lifetime. It is important to understand the gravity of that decision, regardless of the broadly beneficial nature of renewable energy projects.
This article was authored with participation by Sophia Spadanuda, Grace Ffrench and Chantelle Firth.