Why most Aboriginal people have little say over clean energy projects planned for their land



Pexels, Author provided

Lily O’Neill, Australian National University; Brad Riley, Australian National University; Ganur Maynard, Australian National University, and Janet Hunt, Australian National University

Huge clean energy projects, such as the Asian Renewable Energy Hub in the Pilbara, Western Australia, are set to produce gigawatts of electricity over vast expanses of land in the near future.

The Asian Renewable Energy Hub is planning to erect wind turbines and solar arrays across 6,500 square kilometres of land. But, like with other renewable energy mega projects, this land is subject to Aboriginal rights and interests — known as the Indigenous Estate.

While renewable energy projects are essential for transitioning Australia to a zero-carbon economy, they come with a caveat: most traditional owners in Australia have little legal say over them.

A red-dirt road through the WA desert, with a tree either side.
Wind turbines will be built across 6,500 square kilometres in the Pilbara.
Shutterstock

Projects on the Indigenous Estate

How much say Aboriginal people have over mining and renewable energy projects depends on the legal regime their land is under.

In the Northern Territory, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) allows traditional owners to say no to developments proposed for their land. While the commonwealth can override this veto, they never have as far as we know.

In comparison, the dominant Aboriginal land tenure in Western Australia (and nationwide) is native title.

Native title — as recognised in the 1992 Mabo decision and later codified in the Native Title Act 1993 — recognises that Aboriginal peoples’ rights to land and waters still exist under certain circumstances despite British colonisation.




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But unlike the ALRA, the Native Title Act does not allow traditional owners to veto developments proposed for their land.

Both the Native Title Act and the the ALRA are federal laws, but the ALRA only applies in the NT. The Native Title Act applies nationwide, including in some parts of the NT.

Shortcomings in the Native Title Act

Native title holders can enter into a voluntary agreement with a company, known as an Indigenous Land Use Agreement, when a development is proposed for their land. This allows both parties to negotiate how the land and waters would be used, among other things.

If this is not negotiated, then native title holders have only certain, limited safeguards.

The strongest of these safeguards is known as the “right to negotiate”. This says resource companies must negotiate in good faith for at least six months with native title holders, and aim to reach an agreement.

But it is not a veto right. The company can fail to get the agreement of native title holders and still be granted access to the land by government.

For example, Fortescue Metals Group controversially built their Solomon iron ore mine in the Pilbara, despite not getting the agreement of the Yindjibarndi people who hold native title to the area.

In fact, the National Native Title Tribunal — which rules on disputes between native title holders and companies — has sided with native title holders only three times, and with companies 126 times (of which 55 had conditions attached).

There are also lesser safeguards in the act, which stipulate that native title holders should be consulted, or notified, about proposed developments, and may have certain objection rights.

Negotiating fair agreements

So how does the Native Title Act treat large-scale renewable energy developments?

The answer is complicated because a renewable energy development likely contains different aspects (for example: wind turbines, roads and HVDC cables), and the act may treat each differently.

Broadly speaking, these huge developments don’t fall under the right to negotiate, but under lesser safeguards.

Does this matter? Yes, it does. We know from experience in the mining industry that while some companies negotiate fair agreements with Aboriginal landowners, some do not.




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For example, two very similar LNG projects — one in Western Australia and the other in Queensland — resulted in land access and benefit sharing agreements that were poles apart. The WA project’s agreements with traditional owners were worth A$1.5 billion, while the Queensland project’s agreements were worth just A$10 million.

Likewise, Rio Tinto’s agreement for the area including Juukan Gorge reportedly “gagged” traditional owners from objecting to any activities by the company, which then destroyed the 46,000-year-old rock shelters.

A matter of leverage

We also know the likelihood of a new development having positive impacts for Aboriginal communities depends in part on the leverage they have to negotiate a strong agreement.




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And the best leverage is political power. This comes from the ability to wage community campaigns against companies to force politicians to listen, or galvanise nation-wide protests that prevent work on a development continuing.

Legal rights are also very effective: the stronger your legal rights are, the better your negotiation position. And the strongest legal position to be in is if you can say no to the development.

For land under the Aboriginal Land Rights (Northern Territory) Act 1976, this ability to say no means traditional owners are in a good position to negotiate strong environmental, cultural heritage and economic benefits.

For land under the Native Title Act, traditional owners are in a weaker legal position. It is not a level playing field.

A just transition

To remedy this imbalance, the federal government must give native title holders the same rights for renewable energy projects as traditional owners have under the Aboriginal Land Rights Act in the NT.




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Or, at the very least, extend the right to negotiate to cover the types of large-scale renewable energy projects likely to be proposed for native title land in coming decades.

We must ensure the transition to a zero-carbon economy is a just transition for First Nations.The Conversation

Lily O’Neill, Research Fellow, Australian National University; Brad Riley, Research Fellow, Australian National University; Ganur Maynard, Visiting Indigenous Fellow, Australian National University, and Janet Hunt, Associate Professor, CAEPR, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Remote Indigenous Australia’s ecological economies give us something to build on


Jon Altman, Australian National University

Land titling in Australia has undergone a revolutionary shift over the past four decades. The return of diverse forms of title to Indigenous Australians has produced some semblance of land justice. About half the continent is now held under some form of Indigenous title.

Forms of title range from inalienable freehold title to non-exclusive (or shared) native title. Much of this estate is in northern Australia, as this recent map shows.

Status of Indigenous title across Australia.
K. Jordon, F. Markham and J. Altman, Linking Indigenous communities with regional development: Australia Overview, report to OECD (2019), Author provided

Another map from 2014 shows over 1,000 discrete Indigenous communities and the division between north and south.

What’s different about these lands?

These lands and their populations have some unusual features.

First, the lands are extremely remote and relatively undeveloped in a capitalist “extractive” sense. These are the largest relatively intact savannah landscapes in Australia — and possibly the world.

Much of this estate is included in the National Reserve System as Indigenous Protected Areas because of its high environmental and cultural values, according to International Union for Conservation of Nature (IUCN) criteria.

These areas still face threats from invasive animal and plant species, bushfires and increasingly extreme heat. These threats will lead to further species extinctions.

Indigenous Protected Area management plans address these threats to ensure biodiversity and cultural values are at best restored or maintained, at worst not eroded.




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Second, parts of these lands in the wet-dry tropics are valuable as sources of emissions avoidance and carbon storage.

Many groups are paid through offset markets and voluntary agreements to reduce overall emissions. There are emerging options for payment for long-term carbon storage – between 25 and 100 years.

These lands have some of the world’s highest solar irradiance. Multi-billion-dollar solar and wind/solar/green hydrogen facilities are being developed.

Third, the Indigenous owners and majority inhabitants are among the poorest Australians. Only 35% of Aboriginal adults in very remote Australia are formally employed. Over 50% of Indigenous people in these areas live below the poverty line.

Such poverty is explained partly by past colonisation and associated social exclusion and neglect, geographic isolation from market capitalism and labour markets, and different priorities.

Having legally proven continuity of customs, traditions and connection to reclaimed ancestral lands, landowners generally look to care for their country. They use its natural resources for domestic non-commercial purposes as allowed by law.

But Indigenous people continually struggle to inhabit these lands. Their dispersed small settlements range from townships to homelands. Government support is minimal and policy intentionally discouraging.




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Building in ways that meet the needs of Australia’s remote regions


The problem with official development models

Since federation, many government policy proposals to “develop the north” have sought to replicate the economic growth trajectory of the temperate south. Such plans are based on state-sanctioned, often environmentally damaging, market capitalism.

The latest version is the 2015 Our North, Our Future white paper, released after a parliamentary inquiry. In submission 136, Francis Markham and I asked, “developing whose north for whom and in what way?” We pointed out 48% of the north’s 3 million square kilometres was under Indigenous title at that time, and Indigenous ideas about the land are often very different from those of the government and corporate, mainly extractive, interests.




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Four years on, a Senate select inquiry is examining how the Our North, Our Future agenda is progressing. A specific reference to First Nations people has been added. In submission 13, we highlighted four fundamental changes over the past five years.

  1. the Indigenous land share of northern Australia has grown to 60%

  2. Indigenous people are living in deeper poverty partly due to punitive changes to income-support arrangements

  3. growing scientific consensus that global warming will have escalating negative impacts on northern Australia

  4. slowing population growth suggests the white paper’s goal of a population of 4–5 million by 2060 (from just over 1 million now) lacks realism.




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We are at a critical crossroads in policy thinking about northern Australia.

The dominant approach sees it as ripe for capitalist development, extraction and associated economic growth, irrespective of environmental consequences. Corporate pressure to undertake risky fracking for oil and gas and to develop industrial-scale agriculture and aquaculture projects epitomises such thinking.

The zero-emissions alternative

The holistic focus of ecological economics informs an alternative approach. It’s based on the tenet that everything connects to everything else: the economy is embedded in society and society is embedded in the environment, the natural order.

This line of reasoning resonates with the focus of many Indigenous landowners on the need to nurture kin, ancestral country and living, natural resources.

Ecological economics distinguishes between economic growth that depletes non-renewable resources irrespective of environmental harm, and forms of development that focus on human well-being, cultural and environmental values.




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Development in the north might take many transformational forms as we strive for a zero-emissions economy.

Economist Ross Garnaut discusses the potential of a zero-emissions economy in Australia.

Indigenous-titled and peopled lands are well positioned to drive this in three proven ways:

  1. by intensifying projects that reduce emissions and sequester carbon
  2. by increasing efforts to conserve biodiversity by managing and potentially reversing impacts of invasive species
  3. by becoming key players in the renewables sector through massive projects for domestic energy use and export.

The same landscapes can be used for sustainable wildlife harvesting for food and diverse forms of cultural production for income. These uses accord with Indigenous tradition and leave minimal environmental footprints.

Policy and practice must be informed by the environmental perspectives of Indigenous landowners, which are highly compatible with the core concepts of ecological economics.

In these ways, the North could emerge as a powerhouse region beyond current imaginaries. The climate crisis makes this transformation essential.

As ecological economies, remote Indigenous lands could deliver sustainable livelihoods to Indigenous people and contribute significantly to a zero-emissions economy of critical benefit to national and global communities.The Conversation

Jon Altman, Emeritus professor, School of Regulation and Global Governance, ANU, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.