There is a massive global and domestic energy transition underway that is driving generational shifts in energy systems. As we transition away from fossil fuels and the environmental and climatic impacts caused by their extraction, combustion and use, the shift to renewable energy technologies presents new risks, opportunities and challenges for First Nations’ rights, interests, and responsibilities. Many First Nations communities are at the forefront of these impacts and are simultaneously struggling with unreliable and expensive power. Across Australia, First Nations hold substantial rights, interests and responsibilities to land and waters and resources — through both traditional systems of law, justice and culture, and also through the rights and interests recognised by Australia’s legal system (eg native title, statutory land rights, cultural heritage). Australia’s transition to electricity generation from renewable sources will require access to large areas of land and waters and seas, including for thousands of kilometres of new transmission infrastructure. Interaction between the renewable energy sector and First Nations rights, interests and responsibilities — whether legally recognised or not — is inevitable. Enabling and empowering First Nations to play a key and central role in Australia’s renewable energy transition goes beyond just social licence issues. By including and embedding First Nations as partners in the energy system transition, and the right to free, prior and informed consent (FPIC) in policy, legislative, project approval and financing systems and processes, we can ensure the transition is fair and just for First Nations, can occur at the pace necessary, will avoid unnecessary legal contestation, and will deliver ongoing mutual cultural, social, economic and environmental benefits to people and country. With a focus on the access to the property rights that renewable energy infrastructure will require, this article presents a perspective on some of the emerging points of tension between a sector that outwardly appears progressive in its intent to ensure First Nations involvement and partnerships, and the new regulatory and policy schemes being established by governments that create pathways for how projects will access land and waters for renewable energy infrastructure. This article highlights that when it comes to land and waters and the tenure required to support renewable energy infrastructure, challenges abound to establish a policy and regulatory framework that doesn’t perpetuate the legal fiction of terra nullius (“land belonging to no one”). If governments continue to perpetuate the fiction of terra nullius, Australia will miss opportunities for the development of a renewable energy sector that best ensures First Nations as active participants and supporters.

First Nations, risks and opportunities, and Australia’s energy transition

Resource Key: IRLCUWG7

Document Type: Report

Creator:

Author:

  • Jonathan Kneebone

Creators Name: {mb_resource_zotero_creatorsname}

Place:

Institution: First Nations Clean Energy Network

Date: 2023

Language:

There is a massive global and domestic energy transition underway that is driving generational shifts in energy systems. As we transition away from fossil fuels and the environmental and climatic impacts caused by their extraction, combustion and use, the shift to renewable energy technologies presents new risks, opportunities and challenges for First Nations’ rights, interests, and responsibilities. Many First Nations communities are at the forefront of these impacts and are simultaneously struggling with unreliable and expensive power. Across Australia, First Nations hold substantial rights, interests and responsibilities to land and waters and resources — through both traditional systems of law, justice and culture, and also through the rights and interests recognised by Australia’s legal system (eg native title, statutory land rights, cultural heritage). Australia’s transition to electricity generation from renewable sources will require access to large areas of land and waters and seas, including for thousands of kilometres of new transmission infrastructure. Interaction between the renewable energy sector and First Nations rights, interests and responsibilities — whether legally recognised or not — is inevitable. Enabling and empowering First Nations to play a key and central role in Australia’s renewable energy transition goes beyond just social licence issues. By including and embedding First Nations as partners in the energy system transition, and the right to free, prior and informed consent (FPIC) in policy, legislative, project approval and financing systems and processes, we can ensure the transition is fair and just for First Nations, can occur at the pace necessary, will avoid unnecessary legal contestation, and will deliver ongoing mutual cultural, social, economic and environmental benefits to people and country. With a focus on the access to the property rights that renewable energy infrastructure will require, this article presents a perspective on some of the emerging points of tension between a sector that outwardly appears progressive in its intent to ensure First Nations involvement and partnerships, and the new regulatory and policy schemes being established by governments that create pathways for how projects will access land and waters for renewable energy infrastructure. This article highlights that when it comes to land and waters and the tenure required to support renewable energy infrastructure, challenges abound to establish a policy and regulatory framework that doesn’t perpetuate the legal fiction of terra nullius (“land belonging to no one”). If governments continue to perpetuate the fiction of terra nullius, Australia will miss opportunities for the development of a renewable energy sector that best ensures First Nations as active participants and supporters.

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