Indigenous involvement in the renewables transition: the case of critical minerals

 

Make use of time, let not advantage slip.

Venus and Adonis, 129.

 

On 4 October 2023, Professor Ciaran O’Faircheallaigh (link here) gave an insightful and well-argued seminar at the Centre for Aboriginal Economic Policy Research (CAEPR) at the ANU on the implications of the transition to renewables and net zero on demand for critical minerals, and the concomitant implications for Indigenous peoples globally and in Australia.

Information on the seminar is available on the CAEPR website (link here) and a recording of the seminar may be available shortly.

O’Faircheallaigh’s core argument can be boiled down to a series of propositions:

• the transition to renewable energy/ net zero will involve an extraordinary increase in production of critical and energy transition minerals (including lithium, cobalt, copper, nickel and rare earths) in order to produce the technology required to avert a climate catastrophe;

 

• The world’s resources of transition minerals are heavily concentrated on or near Indigenous territories.

 

• The history of mineral extraction on or near Indigenous lands has had significant adverse impacts on Indigenous peoples and thus been fundamentally unjust.

 

• Increasingly, in circumstances where Indigenous landowners have not been engaged and their social, cultural and economic rights have not been respected, Indigenous peoples have found ways to successfully delay or stop resource developments on their lands using a range of tactics from protests and direct action to litigation.

 

• These conflicts impose commercial costs on mineral developers, and will increasingly pose a threat to the global transition to renewable development.

 

• Governments are increasingly allocating substantial financial incentives to corporations aimed at encouraging the acceleration of investments necessary for the transition to a renewable future.

 

• However, invariably, there is no support in these strategies for Indigenous interests who are key stakeholders in the lands that are directly affected by mining and other elements of the transition. O’Faircheallaigh cited the Australian Critical Minerals Strategy (link here) which provides over $3bn in financial incentives to developers, but zero to Indigenous landowners affected by developments.

O’Faircheallaigh characterized the likely outcome of the current global transition pathway as lose/lose: Indigenous interests would seek to inject themselves into the development processes for new mines and other developments, and likely achieve sub-optimal outcomes (both financially and in terms of their other objectives); but so too will the global climate (that is, you, me, and the global population) lose as the critical investments in land based resources necessary for the transition will be slowed and perhaps diverted elsewhere as a result of the Indigenous objections and lawfare.

The solution according to O’Faircheallaigh is to ensure that Indigenous landowners have a legal right to exercise free, prior and informed consent (FPIC) over developments on their land. In Australia in the context of land rights legislation, this is often also known as a veto. Such a right would ensure Indigenous interests are engaged in the development process, and have the capacity to negotiate the terms of any mining or resource development.

Commentary

I found O’Faircheallaigh’s argument broadly persuasive, and agree that the introduction of FPIC rights for Indigenous interests would ensure faster and more certain outcomes in relation to proposed resource developments, including critical minerals.

O’Faircheallaigh largely justified his position on ethical grounds, without specifying the precise set of arguments he uses to justify that approach. I too agree that such ethical grounds exist and should be more widely recognised. I would base my arguments on the injustice involved in dispossession by settler states, the concomitant absence of comprehensive compensation, and the intergenerational costs imposed by the violence used to dispossess Indigenous landowners. Yet such arguments are far from widely accepted in Australia and elsewhere, and gain very little electoral traction.

There are however also a set of economic efficiency arguments that also point to the benefits of more explicit specification of property rights as an enabler of economic development and a facilitator of more efficient negotiations over particular developments. While a focus on working towards ‘just outcomes’ based on the existence of UNDRIP or other human rights instruments is intuitively appealing, it is rarely sufficient to persuade policymakers (and electorates) to shift direction. I have a sense that arguing the case on economic efficiency grounds would have a better chance of success as it engages with policymakers in the language they use themselves.

Even so, I am skeptical that policymakers in Australia (or elsewhere ) are about to shift direction and grant Indigenous landowners FPIC rights. In Australia, there has been no jurisdiction prepared to grant Indigenous interests FPIC in land related legislation since the enactment of the 1976 NT Land Rights Act. Under the Commonwealth’s 1993 Native Title Act, there are only procedural rights available to native title owners and claimants. Governments have not even been prepared to provide core funding to all Prescribed Bodies Corporate notwithstanding their statutory basis and their role in dealing with third party applications to access native title land.

The reason for this policy conservatism boils down to the fact that public policy outcomes in Australia are ultimately not a matter of what is most effective, or efficient, or what is in the public interest, but is determined by a complex interplay of implicit interest group negotiations seeking to influence government decisions. In those implicit negotiations, the onus is on those proposing change to overcome the significant inertial power of those interests benefiting from the status quo. Moreover, the very structures of government have been shaped and influenced over time by the most powerful interest groups which ensure that policy decision processes are weighted against those interests seeking to shift the status quo.  

I had one caveat regarding O’Faircheallaigh’s argument. I too have noted that Indigenous interests both globally and in Australia appear to have gained greater traction in slowing or preventing resource developments that they consider culturally threatening. In Australia, this is largely a result of the procedural rights embedded within the Native Title Act, environmental legislation,  and cultural heritage legislation. Yet while media reports of Indigenous successes are relatively common, I have yet to see any comprehensive data that either supports or refutes this proposition. Intuitively, one element in support of the O’Faircheallaigh proposition is the rise of ESG (link here) as a driver of corporate policies, a shift that is largely being driven from outside of the Indigenous policy domain. This suggests to me that there is an implicit potential for stronger alliances between Indigenous and environmental interests. Yet there is a long (and ongoing ) structural tension between these two sets of interests.

Given this context, the introduction of FPIC for Indigenous landowners in the near future might be characterised as a ‘first best’ solution, but one that is unlikely to eventuate anytime soon. The challenge then for Indigenous interests, academic commentators, and even policymakers (given the fact that lose/lose outcomes are a distinct possibility) is to find ‘second best’ solutions while keeping open the possibility of eventually moving to the ‘first best’ solution.

I don’t have a developed view on what the optimal second best solution matrix looks like, but it does strike me that an ongoing focus on achieving ‘just outcomes’, while important, needs to be supplemented by a stronger dose of pragmatically seeking merely better solutions. If Professor O’Faircheallaigh is correct, and we are looking down the barrel of lose/lose outcomes in the nation’s access to critical minerals and where Indigenous interests who seek to protect their cultural and socio-economic interests will be blamed for delaying the transition to renewables and net zero, there are even stronger grounds for Indigenous interests to proactively position themselves as pragmatic and constructive interlocutors.

My own approach to a ‘second best’ policy matrix would place a stronger focus on:  

• building the capability and intellectual capital (link here) of key Indigenous advocacy organisations so as to both protect existing rights and expand their institutional influence over future public policy decisons;

 

• building the independence of key Indigenous advocacy groups by exploring opportunities for reducing their reliance and use of funding and other mechanisms used by governments to leverage and shape Indigenous policy advocacy;

 

• building alliances and partnerships with like-minded interests (such as environmental interests, public interest advocacy interests, and philanthropies); and

 

• committing to supporting transparency reforms generally so as to place greater pressure on the existing interests who shape and protect the status quo.

Of course, the shape and detail of any second best strategy aimed at greater influence over the coming scale up in resource development is for Indigenous interests to determine and implement. As climate change worsens, the determination of governments to respond will ramp up, and this will inevitably shift the balance of power towards those interests arguing for removing ostensible impediments to rapid mining development. The time for Indigenous interests to devise their own strategic responses to the coming changes is now.

 08 October 2023

 

 Addendum: Here is the link to Professor O'Faircheallaigh's seminar (link here).

12 October 2023

 

Joint management and the carbon economy

 

In nature’s infinite book of secrecy,

A little I can read.

Antony and Cleopatra, Act One, scene two.

 

The Northern Territory Department of Environment, Parks And Water Security has recently released two useful reports on future plans for the parks estate in the NT. The first is a thirty year Parks Masterplan (link here) along with a ten year Parks Activation Plan (link here) which lists proposed investment priorities and upgrades.

 

I was pleased to see the publication of these reports as they provide an accessible source of information on the Government’s priorities in relation to its parks estate. The NT parks estate is clearly a core element in the NT’s overarching strategy directed to increasing tourism across the Territory. This provides the underlying impetus to ensure investment levels in parks’ infrastructure are sustained and progressively expanded. It is complemented, and some may argue, overshadowed in the public imagination, by the Commonwealth managed national parks in the NT, notably the Kakadu and Uluṟu-Kata Tjuṯa National Parks (link here and link here). These two parks have faced challenges in terms of infrastructure investment over the past decade or so as the Commonwealth has a less direct incentive to ensure facilities are world class.

 

From an Indigenous policy perspective, a crucial element in the management of NT parks is the adoption of governance models based on joint management between government agencies and traditional owners. The joint management of the two Commonwealth parks arose from negotiations linked to the government decisions in the 1970s and 80s to grant underlying Aboriginal ownership to the land. In the case of Kakadu, these decisions were entwined in the decision making around uranium mining at Ranger. My impression, admittedly from afar, is that joint management in the Commonwealth managed parks is working reasonably well, albeit with a range of challenges and frustrations on both sides of the partnership (link here).

 

Joint management in many but not all of the NT managed parks emerged from legal issues related to native title in the NT arising from the High Court decision in Ward (link here) which raised the prospect that some 48 parks in the NT may have been invalidly declared, and thus threatened to undermine the legality of the tenure of NT parks. This led in turn led to negotiations between the then Government and Aboriginal interests, and ultimately to the establishment of an agreed framework involving resolution of land title issues and agreement to lease back parks to the NT Government for 99 years based on joint management. Neil Westbury and I wrote about this issue in detail in our 2007 book Beyond Humbug (link here). Almost twenty years on, it is unclear how significant joint management has been in expanding Indigenous agency over park management. Where are the evaluations of this major policy shift?

 

The second pleasing aspect of the NT strategic planning documents is the focus on Indigenous economic and commercial development opportunities related to the management of the parks estate. The documents refer to a range of targets and strategies which appear to be well structured and directed. Again, it is unclear to what extent the opportunities that were always identified have been grasped and made tangible.

 

A third element of the conservation estate in the NT are the Indigenous Protected Areas (IPAs), which according to the NIAA website (link here) are:

areas of land and sea Country managed by First Nations groups in accordance with Traditional Owners’ objectives. IPAs deliver biodiversity conservation outcomes for the benefit of all Australians, through voluntary agreements with the Australian Government.

 

IPAs are jointly managed by NIAA and  the Department of Climate Change, Energy, the Environment and Water (DCCEEW). THE DCEEW website (link here) provides slightly more information regarding IPAs, including proposed investment levels:

The Australian Government is providing $231.5 million over 5 years from 1 July 2023 to continue and improve the IPA program. The funding will support First Nations peoples to continue to manage the 82 dedicated IPAs and the 28 existing consultation projects. The funding will also be used to establish 10 new IPAs and hold a national conference every two years. In addition, the funding will support and improve the monitoring and evaluation of the IPA program…

 

What is clear from the above outline (which is itself a simplified description) is that the footprint of the conservation estate in the NT is both geographically complex, but also organisationally and institutionally complex. While there are regular snapshots published by various agencies it is fair to say that these are partial rather than comprehensive, provide minimal data and financial information, generally glossy in nature and designed to promote government policy rather than provide for a deeper understanding of what is going on. There is no comprehensive benchmark from which to assess progress over time in relation to the conservation estate in the NT, and I strongly suspect that the same applies in other Australian jurisdictions.

 

In particular, there appears to be no way for either governments or interested citizens to assess the performance of the institutional structures across the conservation estate including for example the successes or otherwise of the current policies on joint management and economic development. It is virtually impossible to contextualise the current levels of investment in the conservation estate, and to make comparisons vis a vis other policy priorities. While the glossy publications have their place, and look good, it is also important that policymakers and engaged citizens are able to understand whether the policies put in in place are working and delivering the benefits that were intended. This is particularly the case where institutional structures are convoluted and complex (as they undoubtedly are at the Commonwealth level, and may well be in the NT).

 

The importance of establishing a coherent policy benchmark for the conservation estate in the NT (and in all other jurisdictions) is reinforced by the steady growth in Indigenous ranger groups over the past two decades, themselves funded by two agencies in the Commonwealth and by the NTG. Not only do ranger groups provide essential conservation and environmental services, but they are a potentially crucial employment opportunity for a cohort of the Australian community which faces extraordinarily high levels of unemployment. Ranger Groups operate on both the conservation estate and the Indigenous estate (which overlap, but are not isomorphic). Again, obvious policy questions include whether the footprint of these groups is appropriately targeted, are they adequately resourced, are there any obvious gaps in their coverage, and how do their operations relate to the particular needs and priorities of the conservation estate versus the very real needs for Aboriginal owners to manage their own lands. All of these issues have a bearing on the appropriate policy design and levels or required funding support for the effective operation of ranger groups across the conservation and Indigenous estates.

 

I have outlined the confusion that permeates the policy architecture related to the conservation estate for a reason. Climate change threatens the global order, and certainly presents extraordinary challenges for our nation’s political and policy structures. The best hope of surviving this slow ongoing crisis is to constrain global emissions to net zero by 2050, and ideally to move beyond that target. This process, which appears to be gaining political acceptance and momentum, is bound to gradually and inexorably reshape the nation’s political and policy architecture, albeit in ways that no-one today can safely predict.

 

In these circumstances Indigenous interests, and in particular Indigenous landowners, face twin risks. Namely, that high levels of disadvantage will operate to ensure that they bear a larger share of the impacts of climate change than mainstream interests; and second, that their longstanding exclusion from core policymaking processes, and indeed, from the larger ‘political settlement’ that exists in Australia, will operate to sustain their exclusion from the economic opportunities that will flow from the new climate economy (link here) as the net zero transition takes hold and accelerates.

 

As the nation prepares to accelerate the push towards net zero emissions by 2050, it is imperative that Indigenous interests, who have property interests in over 50 percent of the continental landmass, are in a position to contribute to the expansion of existing and emerging technologies that abate or sequester carbon and other greenhouse gasses, or which replace existing carbon emitting technologies with renewables. A first step in moving forward on such an agenda must be to both establish a coherent policy benchmark from which to measure progress, and more importantly to identify potential reform opportunities and innovations.

 

For all the reasons outlined above, it is beyond time that the Commonwealth Government, in conjunction with the states and territories and relevant peak Indigenous bodies, did two things:

first, to initiate a review process aimed at identifying the strengths and weaknesses in the current policy architecture governing the interaction between Indigenous interests and the conservation estate across the nation, and recommending the necessary reforms to ensure that interaction is working optimally; and

second, to establish a dedicated and high powered organisation within the Commonwealth to drive the creation of opportunities for greater engagement by Indigenous interests, and particularly Indigenous landowners, in the transition to net zero.

 

The institutional underpinnings of the transition to net zero will be the major priority for governments over the coming decades, and it is imperative that Indigenous interests are central to the structural innovation and economic and social growth opportunities that will emerge. These shifts in the very architecture of society will involve both risks and opportunities, and they will ultimately change the shape of our economy and our social and economic opportunities.

 

The economic, social and political changes arising from climate change and our efforts to constrain it over the next fifty years will be enormous. Indigenous interests must be involved. The concept of joint management on Indigenous lands and waters provides a template for this future. Joint management has yet to reach its full potential.