Engagement with Traditional Owners and the Future of Energy

The nine recommendations of Australian Energy Infrastructure Commissioner Andrew Dyer were accepted in principle by the Australian Government earlier this year. The recommendations related to engagement with local community groups, local governments, local members of parliaments, First Nations peoples and other local stakeholders.

A key recommendation was that the government should create a scheme that rates proponents of renewable energy projects on the basis of their consultation and engagement performance. This scheme would, at least initially, be implemented on a voluntary opt-in basis.

Never has consultation with Traditional Owners been such an scrutinised issue for proponents of energy projects more broadly.

Protecting Sea Country

At the federal level, recent litigation in the Federal Court has led to the proclamation that under the regulatory framework for offshore oil and gas production, Traditional Owner’s must be consulted as a result of their spiritual and cultural connection to sea Country. Tipakalippa provided guidance on the type of consultation required from proponents of offshore oil and gas projects. Such guidance highlighted the importance of ‘genuine’ consultation that not only involves a proponent providing sufficient information to allow for an informed assessment of the possible consequences of its proposal, but also which has the underlying purpose of ensuring the proponent takes concerns raised through the process and incorporates appropriate measures in response.

This decision has led to Australian Government’s drafting of the Protection the Spirit of Sea Country Bill (2023) (the Bill) to legislate the principles expressed in Tipakalippa. The Bill has been referred by the Senate to the Environment and Communications Legislation Committee for report by 28 June 2024. Submissions to date have highlighted concerns as to the lack of protection for aspects of intangible cultural heritage, particularly songlines (or dreaming tracks), stories, sea kin and practices, and have pushed for a more specific provision of the minimum standard for consultation taking into account the principles from Tipakalippa.

ACH Act

In Western Australia, the failed Aboriginal Cultural Heritage Act 2021, repealed in November last year, serves as a state-based example of the challenges in providing for effective and meaningful consultation requirements for projects in WA. The act took an approach that was too technical, with a tiered assessment process and accompanying Regulations that were insufficiently clear for proponents and Traditional Owners alike. What is clear is that in order for Traditional Owners to be afforded satisfactory and impactful consultation, a holistic approach on both a State and Commonwealth level is required.

A Different Approach

In Canada, responsibility lies on the Crown alone to consult with First Nations, and the role of proponents is seen as facilitating the exchange of information and engaging with First Nations to gain an understanding of the potential impacts of a project and build relationships. The Crown’s legal responsibility to consult and accommodate First Nations’ interests is met through the relevant Statutory Decision Maker (dependant on the piece of legislation in question) (SDM), more specifically the ‘First Nations consultation coordinator’ of the

relevant SDM. The action (or inaction) of proponents in proactively engaging with traditional owners will contribute to the decision-making process.

It appears that this approach is largely dependent on the views and priorities of the province involved in making a decision on a project. British Columbia, for example, states that the Province has made a “clear commitment to meaningfully involve First Nations in the review of all CEP [clean energy project] proposals” and that “First Nations typically have a critical role in the review and success” of any proposal. However, recent criticism of the province of Ontario’s approach to consultation with First Nations regarding the opening up of the Ring of Fire region for mining highlights that the government-focused approach to consultation adopted in Canada by no means necessarily provides First Nations with the opportunity to provide the free, prior, informed consent which is widely sought by Traditional Owners.

While it appears that proponents should not alone be responsible for conducting sufficient consultation with Traditional Owners, the Canadian approach demonstrates that a government-focused model for consultation likely requires a multi-faceted solution containing legally enforceable requirements for proponents.