Renewable energy development and the Native Title Act 1993 (Cwlth): The fairness of validating future acts associated with renewable energy projects

Abstract

Increasing demand, innovations in technology, and extensions to electricity grid infrastructure are likely to lead to a growth in renewable energy development on native title land and water. The likelihood that native title holders and claimants will benefit from this development will depend in part upon the legal regime that governs native title. The prevailing legal regime governing renewable energy development on native title land and water involves two principal alternatives to permitting development: voluntary land use agreements and compulsory government acquisition of native title. While the procedures associated with these alternatives afford native title holders and claimants more procedural protection than some commentators have suggested, they fail to attain the standard of ‘free, prior, and informed consent’ prescribed by international best practice and the philosophical and moral arguments that underpin that standard. To remedy this failure, the Native Title Act 1993 (Cwlth) should be amended to place less weight on economic and similar considerations when authorising the compulsory acquisition of native title for renewable energy development, or prohibit the compulsory acquisition of native title generally, except for in certain exceptional circumstances. While this paper focuses on renewable energy in particular, a number of its conclusions could apply to issues that attenuate native title generally.