Australia's First Nations Offer Lessons for Developers in Stakeholder Engagement
Conservation estate in northern Australia under CAPAD (Collaborative Australian Protected Area Database 2016), Aboriginal land under Aboriginal Land Rights (Northern Territory) Act (1976), Native Titles determinations and Indigenous Land Use Agreements as on July 20, 2019, and distribution of discrete Indigenous communities. Source: ScienceDirect.com
Australia, the sunniest and windiest continent on earth, is a nation moving ever faster toward a decisive energy transition. Already having the highest concentration of rooftop solar in the world, “Oz” may seem like a renewable developer’s dream come true. But above and beyond permits and regulations and local energy politics, whether you know what you’re getting into in a particular historical context could absolutely make or break your electric dreams Down Under.
The nation is, as longtime Australian climate activist Miriam Lyons notes on a recent episode of the Volts podcast,
“...a colonized country without a national treaty. And all of this land is First Nations land, which obviously creates a clear moral obligation for anybody doing any of these developments to seek the free, prior and informed consent of the First Nations owners of the land where these projects are happening.”
Like the United States, Australia continues to grapple with its own legacy of centuries of European colonization and its accompanying violence toward and disenfranchisement of indigenous peoples. For Australia, this has meant a long series of legislation geared towards placing land stewardship and ownership either directly in First Nations hands or in trust via various land councils funded directly or indirectly by Australian government bodies.
Australian First Nations, composed of individuals of Aboriginal and Torres Strait Islander descent, hold a unique place in Australian politics and culture. They also either own outright or hold in trust large portions of land ideal for construction of renewable energy facilities across the country. So, for any would-be renewables developer – especially one from outside Australia – a thoughtful primer on best practices is in order.
The First Nations Clean Energy Network in particular has a number of recommended resources, do’s, and don’t’s for both Indigenous communities and developers, including:
The primary goal of any developers wanting to build projects on First Nations land should be acquiring free, prior, and informed consent (or FPIC) from affected communities.
Many of the processes and procedures below are governed explicitly by the Indigenous Land Acts and other legislation; developers should engage legal experts who are familiar with these laws.
The resources and wherewithal of Indigenous Land Councils (or Shire Councils) varies widely, but many often already have experience delivering infrastructure projects in their own communities. These are codified in Indigenous Land Use Agreements (ILUAs).
Any third party initiating dialogue regarding project proposals with a First Nations organization is required to fund independent legal counsel and any other necessary subject matter expertise as a part of the process.
Periods of public comment for First Nations communities on projects proposed on their land are customary.
Projects built on Indigenous land are provided for by leases. Leases may be obtained by negotiation with applicable trustees.
Three lease agreement types are available for projects on Indigenous land including:
Standard leases
Home ownership leases
Townsite leases
In the Australian state of Queensland, for example, there are both national and state-level laws and initiatives to take into consideration when pursuing renewable energy development, including:
Native Title Act 1993 (Commonwealth/national)
Land Act 1994 (Queensland)
Path to Treaty Fund – part of the 2021-22 Queensland Budget. Provides $300M AUD toward water management, workforce development, human services, housing support, child protection, and steps toward co-stewardship of land between the Commonwealth and First Nations.
Queensland Energy and Jobs Plan – outlines a statewide path through the energy transition.
Queensland Renewable Energy Zones
Energy (Renewable Transformation and Jobs) Bill 2023
And more as outlined in this document.
Above and beyond rules and regulations, there are key aspects of human welfare and economic justice at play when it comes to developing renewable projects on Indigenous land (a.k.a. “The Country”) in Queensland, including:
Housing insecurity, including an overwhelming number of Indigenous people who are cost-burdened renters in often overcrowded, poorly built or maintained housing.
Distance of communities on Indigenous land from resources and social services otherwise concentrated in coastal cities.
Microgrids, dozens of which are powered by diesel and not connected to the national grid at all.
Limited access to renewable power and advantageous energy tariffs in these sometimes rural communities.
So what does that mean for any developer who might want to build a new project in Queensland? Here are some key steps to take into consideration:
Engage local legal and subject matter expertise immediately. As evidenced above, there is already a mountain of intersecting laws and regulations in place governing Indigenous land use and proposed projects thereupon. An American project manager googling and sending emails from Denver would not suffice.
Look for opportunities in the various budgets, initiatives, and laws at the state and Commonwealth (national) level. There are likely regulatory and community engagement pathways which do not require developers to reinvent the proverbial wheel, and which may have already identified parcels of interest with communities prepared to engage you.
Identify development opportunities with an eye to Land/Shire Councils that have prior development experience. It may mean that some prime opportunities are already gone, but engaging with trustees and communities who have already been through land use negotiations with energy developers may also produce fewer barriers to getting projects built.
Communities want community development, not just energy development. Understanding what local communities will want and need in exchange for land use above and beyond cash or promises of profit-sharing is critical.
Approach all of the above with a healthy dose of humility. There are literally centuries of violence, resentment, and disenfranchisement which both First Nations individuals and organizations and Australian state and national authorities are continually trying to work through on their path to energy equity. You need to remember that you are an outsider, that they’ve already been at all of this for a long time, and that the only path to success for all parties is by operating transparently and in good faith.
In summary, as Lyons notes further in the same podcast episode,
“...if people are looking at Australia externally and going, ‘This is a massive opportunity,’ do make sure that you're doing your homework…”
If ever there were a time and place for developers to engage communities with a beginner’s mindset, Australia in 2023 is it.
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