Introduction
As Australia’s offshore wind sector shifts into high gear to accelerate the clean energy transition, project developers and investors will be required to consider the rights of Aboriginal and Torres Strait Islander people (First Nations People).
Balancing the rights and aspirations of First Nations People and the advancement of offshore wind farms presents significant hurdles for those in the development of offshore renewable energy projects.
Unique circumstances
First Nations People hold a holistic view that rejects the division between Sea Country and Land Country or the protection of practices and sites of historical or cultural significance in isolation. This arises from the profound, holistic connection that First Nations People have with space, time, and the environment compared to the extreme compartmentalisation prevalent throughout the country and most of the world1. It is useful to remember that for First Nations People, their culture and heritage is not something of the past but that it is an ongoing, living relationship with the planet and its people.
The fact that First Nations People’s socio-economic relationship with Country, and in this case, Sea Country, begins well before the current coastal ecosystems were established and that heritage sites include tangible and intangible aspects adds another layer of complexity to this situation. The Sea Country, where offshore wind zones and projects will be established and developed, have many areas of historical and cultural significance that still form an integral part of the socio-economic and legal system of First Nations People.
Another distinction unique to offshore wind project development compared with other development projects is the difference between Anglo-Australian legal traditions and the legal traditions of First Nations People. The legal tradition of First Nations People is strongly characterised by oral accounts of conduct and history and by restrictions on the transfer and possession of knowledge.2 For example, some information may be sacred, kept secret and only shared under strict preconditions set by customary laws that are often unique to each group.
These restrictions on public access to information, particularly in respect of sites of significant cultural or ritualistic value can result in the fragmentation of knowledge across communities. This also affects the success of laws and policies aimed at protecting the property rights of First Nations People.
Native Title
These differences become apparent and somewhat problematic within the framework of the Native Title Act 1993 (Cth) (NTA). The NTA acknowledges that First Nations People possess rights and interests in waters based on their traditional laws and customs. These water-related native title rights encompass fishing, hunting, resource extraction from water bodies, access to water and the use of water for cultural or spiritual purposes.
However, the limitation of restricted information sharing present in the socio-legal systems of First Nations People hinders the comprehensive recognition of coastal areas and water rights and usage practices.
This challenge could be exacerbated by the voluntary and involuntary displacement of coastal communities of First Nations People, who possess vital knowledge about significant locations and cultural practices. Consequently, there is a risk that the scope of traditional rights over coastal land or waters may exceed the recognition provided under the NTA framework.
While there have been a handful of cases where exclusive native title has been recognised, native title in tidal and sea areas can only be of a non-exclusive nature, as exclusive native title is considered inconsistent with other common law rights regarding marine access and navigation. This non-exclusivity makes it even more important to balance the interests of First Nations People and offshore wind project proponents.
Faced with these difficulties, how can proponents of offshore wind projects guarantee the preservation of First Nations People’s rights over Sea Country while meeting their commercial objectives?
Impact and Regulatory Response
As discussed above, strict compliance with the law may be insufficient to ensure conflict-free project operations. Many project proponents are often unaware of the application of the NTA to offshore areas or coastal lands. The NTA does indeed operate in the waters where projects may be implemented. Further, the Offshore Electricity Infrastructure Act 2021 (Cth), makes it an offence for a license holder to carry out activities in the Commonwealth offshore area that interfere with the exercise of native title rights and interests (within the meaning of the NTA), even if that purpose was in the exercise of licensed activities.
Even though the Offshore Electricity Infrastructure Act 2021 (Cth) links the recognition of the right of First Nations People to the coastal areas and waters to the NTA, this area of the law is a dynamic space as stakeholders become more aware of the nuances of sustainable social and economic development.
The Protecting the Spirit of Sea Country Bill 2023 (Bill) is currently before the Australian Senate and was introduced earlier this month to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGSA) and the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009.
The Bill is a consequence of the cases of Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2)3 and the subsequent appeal in Santos NA Barossa Pty Ltd v Tipakalippa.4 It is centered around the principle of Free, Prior and Informed Consent (FPIC). FPIC is a right recognised for Indigenous People, and in this case, First Nations People, and allows First Nations People to provide or withhold / withdraw consent, regarding projects impacting their territories and to engage to shape the design, implementation, monitoring, and evaluation of projects. The Bill seeks to address the following issues faced by First Nations People:
- the absence of standards of consultation;
- the absence of statutory requirements to consult with Traditional Owners and knowledge holders within First Nations communities; and
- the absence of a requirement to identify underwater cultural heritage that may be impacted by offshore projects.
While it is arguable that the impact of offshore wind projects is smaller than the impact of offshore petroleum and gas projects, the impact of offshore wind projects on the rights of First Nations People is not insignificant and will profoundly influence both the customary use of coastal regions and waterways and the rights of First Nations People.
Management
Offshore wind proponents should adopt a proactive approach by initiating engagement with First Nations People during the project’s design phases and ensuring that the participants representing the proponent’s interests understand the importance of adhering to FPIC so as to avoid the risk of engaging in practices that are exploitative or could be construed as unethical business practices.
Proponents should consider establishing Indigenous land use agreements or similar agreements that address the interests of First Nations People and which create community ownership in the offshore wind projects whilst also respecting and protecting the property rights and cultural rights of First Nations People.
These proactive measures align with enhanced ESG (Environmental, Social, and Governance) compliance for offshore wind projects, serving to reduce the likelihood of legal disputes and unfavourable publicity. This strategic alignment is crucial in safeguarding the broader clean energy transition’s trajectory and to establish a strong social license for the nascent industry.
Conclusion
Discussions that are sensitive to the unique proprietary and cultural customs of First Nations People are therefore essential to creating stakeholder value through the implementation of offshore wind projects and accelerating the clean energy transition.
For more information, please contact Matt Baumgurtel.
1Sea Country – an Indigenous perspective, The South-east Regional Marine Plan Assessment Reports, National Oceans Office, 2002
2Saying It Like It Is: Oral Traditions, Legal Systems and Records, P. R. A. Gray, Archives and Manuscripts, vol. 26, no. 2, pp. 248–269
4[2022] FCAFC 193
