Chapter 5Free, prior and informed consent
Overview
5.1The importance of First Nations engagement, and adherence to the principles of free, prior and informed consent (FPIC) within Australian Government consultation for potential offshore wind industry development was raised throughout the inquiry by First Nations submitters and other groups.
5.2This chapter outlines:
First Nations interests in sea country;
background information relating to FPIC;
the Department of Climate Change, Energy, the Environment and Water's (DCCEEW) recognition of FPIC within the offshore wind industry development process; and
views of First Nations and other submitters on whether FPIC has been adhered to during Stage 1 of the offshore wind development process—initial consultation and regional zoning.
5.3The following chapter contains the committee's view and recommendations.
Traditional Owner interests in sea country
5.4The Sea Country Alliance stated that the potential impacts of an offshore wind industry on sea country are broad and relate both to tangible and intangible cultural heritage. The Sea Country Alliance stated that:
Injudiciously managed, the [offshore wind industry] and the [offshore electricity infrastructure framework] generally poses a significant threat to Traditional Owner rights to live their cultural connections to this Country. Potential impacts are far more diverse than damage to submerged physical sites, they also include the visual interference on the cultural landscape, the impact on social, economic and cultural activities and effect on cultural species.
5.5Jurisprudence which recognises the existence and legal relevance of Traditional Owners' interests in offshore areas was raised by the Sea Country Alliance, which noted that these arise in the context of the broader offshore electricity infrastructure framework and Native Title, rather than the more limited context of the offshore wind industry. The alliance considered that the offshore wind industry is 'to date relatively unmitigated'.
5.6The Federation of Victorian Traditional Owner Corporations supported the Sea Country Alliance submission, and put forward that Traditional Owners' interests in the lands and waters impacted by an offshore wind industry are unceded, with 'millennia deep connections as part of the cultural heritage of the Country'.
5.7The Gunditj Mirring Traditional Owners Aboriginal Corporation (GMTOAC), based in Breakaway Creek, Victoria, explained the significance of Gunditjmara Nyamat Mirring Sea Country in the Southern Ocean proposed offshore wind area:
Our sea Country holds profound significance for Gunditjmara, representing not only a vital source of sustenance and livelihood, but also serving as a sacred cultural landscape intertwined with our cultural identity, stories, and ancestral connections. With more than 2,000 generations of connection with our Country, sea levels have changed and some of our Country is now covered by the Southern Ocean—this does not make it less significant to us or impact upon our connection with it.
Free, prior and informed consent
5.8FPIC is recognised in the Charter of the United Nations, and the framework for FPIC consists of a series of international legal instruments including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to which Australia is a signatory.
5.9WWF Australia highlighted that FPIC 'extends beyond any state-based policy or legislation' and is 'an inalienable right of Indigenous peoples globally'.
5.10The Australian Centre for Offshore Wind Energy highlighted that the UNDRIP has not been implemented in Australian law, policy and practice, and stated that 'this allows the government to claim it is supporting UNDRIP, while leaving Aboriginal people without recourse to fairness and equity'. The centre stated that:
At present, however, without the clear pathways that Aboriginal people can determine the extent of adherence to FPIC, as outlined under UNDRIP, this leaves developers with the rights to override basic principles of self-determination and leaves Aboriginal people without redress.
5.11Several submitters highlighted the work of the First Nations Clean Energy Network, including its publication of best practice principles of clean energy projects. These principles include: engaging respectfully; prioritising clear, accessible and accurate information; ensuring economic benefits are shared; ensuring cultural competency; and regular reporting back on commitments made.
Recognition of FPIC principles in the offshore wind industry development process
5.12DCCEEW stated that, 'as Australia transitions to renewable energy, many renewable energy projects will need to access First Nations lands and waters for development'.
5.13DCCEEW also stated that the processes for offshore renewable energy development 'recognise and reflect FPIC principles and are designed to implement these to the greatest extent possible within the [Offshore Electricity Infrastructure Act 2021 (OEI Act)]and associated regulations'.
5.14DCCEEW further stated that it has taken actions to build strong, respectful and genuine partnerships with Aboriginal and Torres Strait Islander peoples, which are reflected in its Statement of Commitment to First Nations people. The statement outlines DCCEEW’s commitment to meaningfully engage and partner with First Nations people, create a culturally supportive environment for First Nations employees and increase understanding, knowledge and appreciation of First Nations cultures within DCCEEW. Other departmental actions include:
the establishment of a First Nations branch in the department in June 2023;
investment in the cultural competency of departmental staff;
development of a long-term First Nations Strategy;
development of a First Nations Clean Energy Strategy; and
the establishment of an FPIC working group, which concluded at the end of 2024.
5.15DCCEEW acknowledged that possible changes to the coastal and marine environment associated with a potential offshore wind industry 'can bring uncertainty for some First Nations people with cultural connections and values associated with the area'.
5.16DCCEEW stated that the OEI Act and associated regulations (including proposed regulations) 'have been designed so that thorough consultation will occur prior to and throughout the life of projects from declaration to decommissioning to achieve best possible outcomes for the community'. The framework prescribes early engagement with First Nations people to allow participation 'in an informed way' and to gather views on proposed developments.
5.17The broader processes have been designed to facilitate early and ongoing engagement with First Nations groups, and to facilitate and encourage agreement-making between First Nations groups and project developers. DCCEEW stated that it 'considers that, at a minimum, FPIC requires that consultations not be a mere formality, but, rather, should be conducted in good faith and with the objective of finding common agreement'.
5.18DCCEEW’s engagement, or attempts to initiate engagement, with First Nations communities and Traditional Owners for Stage 1 of the development process in each of the six identified priority areas is set out in Chapter 2. During the respective consultation periods, DCCEEW engaged with multiple First Nations representative bodies in each of the six identified priority areas.
5.19However, the Australian Centre for Culture, Environment, Society and Space (ACCESS) identified that there is no express requirement in the OEI Act that the Minister for Climate Change and Energy (the minister) consult with Traditional Owners before declaring an area as suitable for offshore wind developments. ACCESS also stated that the OEI Act foresees co-existing and non-exclusive rights between developers and Native Title holders. ACCESS further stated that sections of the OEI Act override Native Title, with the caveat that the interference must not be greater than is necessary.
Concerns raised over adherence to FPIC principles
5.20DCCEEW noted that concerns had been raised by several First Nations groups during consultations, relating to the limits of applying FPIC in the context of offshore renewables.
5.21Concerns raised by First Nations groups related to having insufficient time and resources to properly engage in the declaration consultation process; and the absence of First Nations consent as a provision of the OEI Act framework.
Resourcing required to enable full engagement within the timeframes provided
5.22The GMTOAC stated that, although supportive of environmental protection and action on climate change, the announcement of an offshore renewable energy region 'was met with disappointment…due to the complete lack of appropriate consultation between the Commonwealth government and the Gunditjmara community'.
5.23The GMTOAC considered that the timeframes for responding during public consultation were not sufficient for Gunditjmara Traditional Owners to formalise a position statement, which resulted in the GMTOAC stating their position as being against offshore renewable energy infrastructure being placed within Nyamat Mirring Sea Country.
5.24The GMTOAC stated that:
…this decision [by the minister to designate an offshore renewable energy zone within Nyamat Mirring Sea Country] undermines our sovereignty as land rights holders and defies the United Nations Declaration on the Rights of Indigenous People of Free, Prior and Informed Consent.
5.25ACCESS highlighted impacts for Traditional Owners around decisions on transmission lines coming into coastal waters and onto land. ACCESS stated that while the OEI Act contemplates that consultations with Traditional Owners will be conducted by developers on a project-by-project basis, the Act does not make provision to resource Traditional Owners to undertake potentially overlapping consultations with different developers.
Lack of discussion opportunities and tangible outcomes from consultation
5.26Worimi Local Aboriginal Land Council, based in Williamtown, New South Wales, stated that there had not been discussions on the potential impacts of offshore wind projects on:
marine life, the marine environment and migratory birds;
future Native Title claims, the Worimi Conservation Lands and private freehold lands, and lands under claim;
the cultural significance, connections and impact to Worimi waterways. These include (but are not limited to) Broughton Island and Cabbage Tree Islands, Yacaaba and the Tomaree Headlands and Dark Point; and
cultural significance and spiritual connections, including celestial sites.
5.27The GMTOAC set out its experience engaging with the minister and stated that it had sent two letters to the minister to highlight the need for independent research to assess the cultural and environmental impacts of an offshore wind industry in the area, and to invite the minister to meet with the GMTOAC. In November 2023, representatives met with the minister online to discuss a meaningful engagement strategy with 'FPIC as a minimum standard', but considered that 'no tangible nor satisfactory outcomes occurred from this isolated meeting'.
5.28The GMTOAC recommended that independent research be commissioned to assess the cultural and environmental impacts of an offshore wind industry, including:
Marine Spatial Planning to determine cumulative interactions between industries
Research into the impacts of offshore energy infrastructure on the ecology of sea kin, including the Bonney upwelling, eel and shorebird migration and marine mammal habitats
Mapping of the paleo landscape and sea floor to identify ecosystem, habitats and cultural heritage sites
Consultation with Gunditjmara to determine and protect further tangible and intangible cultural heritage
The aesthetic impact on the land and sea by renewable energy infrastructure be adequately explored
Compounding and cumulative impact assessment of onshore and offshore—resulting in both land and sea country being surrounded by infrastructure without any considerations of how these will impact Gunditjmara community and Country.
Absence of consent
5.29Several First Nations groups submitted that they had not provided consent for offshore wind projects. Worimi Local Aboriginal Land Council, for example, stated that 'until there is appropriate communication and sufficient information provided, there cannot be free, prior and informed comment or consent from the Worimi community for this offshore wind industry'.
5.30Likewise, the GMTOAC stated clearly that the Traditional Owners had never ceded sovereignty of the land and waters, and stated that the 'sovereign rights of the Gunditjmara Traditional Owners have not been considered adequately throughout the consultation process'. Further, and as noted above, concerns about poor engagement by the Australian Government had led to the GMTOAC asserting a 'no' position on an offshore wind development in its Sea Country. However, due to the declaration of the area, GMTOAC felt compelled to engage:
Despite the default position of “No”, GMTOAC on behalf of Gunditjmara are now compelled, as the custodians of land and sea country, to participate in activities that assume a position of approval and with proponents who often attempt to negate GMTOAC internal governance structures, decision making processes and do not account for our timeframes.
5.31GMTOAC was of the view that the principles of FPIC were not being adhered to by the pace and intensity of consultation, and expressed that they felt compelled to engage in a consultation process without being heard:
The rapid pace the offshore wind energy sector is progressing at, in conjunction with the lack of prior, independent research and provision of resourcing to GMTOAC, results in GMTOAC continually being challenged by government and industry to respond and participate in a manner that prioritises their objectives and does not honour the principles of FPIC.
Non-First Nations views of the consultation process' adherence to FPIC
5.32Views of non-First Nations groups on the consultation process' adherence and recognition of FPIC varied.
5.33The South Gippsland Shire Council acknowledged that Sea Country of the Gunaikurnai would 'likely be affected by the offshore wind industry' and stated that engagement with the Bunurong Land Council and Gunaikurnai Land and Waters Aboriginal Council would be critical.
5.34Support for DCCEEW’s engagement with First Nations communities was put forward by some submitters, including the Clean Energy Council (CEC). In addition, the CEC suggested that consultation with Traditional Owners should consider whether there are suitable resources available to enable the engagement.
Proponents' engagement with First Nations communities
5.35Proponents are required to lead consultation during the second stage of the offshore wind development process, during the feasibility licences and approvals stage. Some proponents have conducted public engagement with communities, and with First Nations groups, prior to this stage of the development process.
5.36Southerly Ten, an offshore wind energy developer, described its approach to engagement in relation to potential offshore wind projects in the Gippsland area and stated that it has worked to engage meaningfully with First Nations communities:
In Gippsland, we have been working with the Gunaikurnai Land and Waters Aboriginal Corporation (GLaWAC). Since first meeting with them in 2017, we have built a strong and constructive relationship. This is the basis for current collaboration on economic development opportunities from delivering offshore wind in the region consistent with the Gunaikurnai Whole-of Country Plan.
Through GLaWAC and the Kinaway Victorian Chamber of Commerce we are engaging with Aboriginal-owned businesses and working to raise awareness and readiness to capitalise on supply opportunities in offshore wind.
5.37The Gippsland Climate Change Network considered that proponents of offshore wind projects had engaged with Traditional Owner groups, which showed a 'significant and positive shift on how these groups are engaged in the development process, leading to a new paradigm in their involvement'.
Next chapter
5.38The final chapter sets out the committee's views and recommendations.