Renewable Energy Company Guide to Agreement Making on First Nations Land: What Do Strong Agreements Contain?

Renewable Energy Company Guide to Agreement Making on First Nations Land: What Do Strong Agreements Contain?
Thursday 9 September 2021

Available for download HERE

Australia’s First Nations people own some of the best land in the world for industrial-scale wind and solar farms. First Nations land currently encompasses 49% of the Australian continent, and over 60% of northern Australia where the majority of these developments are being proposed.

Many renewable energy companies seeking to do business on First Nations land may not be familiar with how best to come to a land access agreement with the owners of that land. To fill this gap, the Centre for Aboriginal Economic Policy Research and the Zero-Carbon Energy for the Asia-Pacific Grand Challenge Project at the Australian National University has just published the ‘Renewable Energy Company Guide to Agreement Making on First Nations Land: What Do Strong Agreements Contain?’

The 2020 destruction by Rio Tinto of 46,000 rock shelters at Juukan Gorge, in the Pilbara, Western Australia, provides a sobering example to all companies of the difference between coming to a strong or weak land access agreement with First Nations landholders. While this destruction was legal, as well as allowed under the Indigenous Land Use Agreement with local First Nations traditional owners, it led to a Federal Parliamentary Inquiry, the resignation of Rio Tinto's CEO and other executives, and significant reputational damage to the company. The Indigenous Land Use Agreement for the area containing Juukan Gorge reportedly contained cultural heritage and implementation clauses that are listed as ‘weak’ in our Guide. Such clauses are routinely found in similar agreements because of the inability of First Nations people to veto certain developments, particularly mining.

Australian First Nations people are members of the world’s oldest living culture. ‘First Nations Australians’ refers to Aboriginal and Torres Strait Islander people who belong to a wide variety of nations, often with their own unique cultures, languages, practices and beliefs. First Nations Australians are thought to have arrived from south-east Asia over 60,000 years ago. From 1788, European colonisation resulted in First Nations people being dispossessed of their land, as well as experiencing severe impacts on all areas of community and cultural life. Today, many First Nations people and their culture are flourishing despite this history, although overall their health and economic well-being is still significantly lower than non-First Nations Australians.

The Australian legal system recognised First Nations legal rights to their traditionally owned land only relatively recently, through a combination of court decisions and legislation, including the Native Title Act 1993 (Cth) and land rights legislation. This has given First Nations people some power over what developments can occur on their land. The last twenty-five years has since the proliferation of ‘agreement making’, a negotiation process that sees private companies and First Nations groups come to legally binding agreements over the terms of access and use of First Nations’ land. Most of this agreement making to date has been with the mineral extraction industry. Best practices in agreement making have emerged, together with a very clear picture of what a good agreement between First Nations people and companies will contain, and what a bad agreement may look like.

We think that this experience from the mineral extraction industry is useful for renewable energy companies, particularly because this is the key experience of many First Nations communities with development of their land and will likely shape their expectations of corporate behaviour.

This Guide can help companies ensure that they are not only helping to create a rapid transition to a zero-carbon economy, but also a just one. We invite them to take up this challenge.

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Updated:  9 September 2021/Responsible Officer:  Head of School/Page Contact:  CASS Marketing & Communications