Native Title v Net Zero

…Unsplash

I Introduction

In June 2026, a small Aboriginal rock shelter near Mudgee, New South Wales, was bulldozed beyond repair during construction of the Central West Orana Renewable Energy Zone transmission project, infrastructure built expressly to decarbonise the National Electricity Market. This was in spite of an agreed heritage management plan meant to protect it. The contractor apologised, and the New South Wales Government's delivery agency issued a formal notice of contractual breach.[i] The irony is not subtle. Six years earlier, the destruction of the 46,000-year-old Juukan Gorge rock shelters by Rio Tinto triggered a parliamentary inquiry and promises that Australia's heritage laws would never again allow a proponent to lawfully bulldoze a sacred site.[ii] The 2026 incident suggests those promises remain unkept and that a shift to renewables does not, by itself, guarantee a shift toward genuine consent or progression. This article examines how far Australian law currently requires renewable energy developers to obtain the consent of Traditional Owners before building wind farms, transmission lines and offshore infrastructure. It also demonstrates how wide the gap between policy rhetoric and binding legal obligation is.

II The Consent Standard on Paper

The benchmark most frequently invoked is 'free, prior and informed consent' (FPIC), drawn from articles 19 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP].[iii] FPIC requires that Indigenous peoples be consulted in good faith before measures affecting their lands are adopted, and that their consent be sought. Australia has embraced FPIC rhetorically. The Commonwealth's First Nations Clean Energy Strategy 2024–2030 adopts it as a foundational principle.[iv] At the 2024 Garma Festival, however, the Prime Minister observed that more than 60 per cent of the land needed for Australia's renewable energy build-out sits on Country where First Nations people hold legal rights and interests.[v] What the Strategy does not do is legislate FPIC. The Responsible Investment Association Australasia has itself called on government to 'legislate the [UNDRIP] principles without delay, including a clear definition of consent '.[vi] Whether a developer must obtain consent, or merely consult, still depends on which statute governs the approval sought, and that answer differs sharply between offshore and onshore projects.

III Offshore: How Litigation Forced the Law to Catch Up

The clearest example of consent law hardening comes from offshore petroleum, not renewables. In Santos NA Barossa Pty Ltd v Tipakalippa, the Full Federal Court upheld a decision setting aside NOPSEMA's acceptance of Santos's environment plan for its Barossa gas project, because Santos had failed to consult Dennis Tipakalippa, a Munupi elder with a spiritual connection to the affected 'sea country'.[vii] The Court held that the duty to consult extended both to registered native title holders and to unregistered cultural and spiritual interests.[viii] Subsequent cases held that consultation must be complete before submission and clarified what new risk information would trigger fresh consultation.[ix] This hardening has now spread to offshore renewables. Offshore wind is licensed under the Offshore Electricity Infrastructure Act 2021 (Cth), which, until December 2024, contained no express duty to consult First Nations people at all, despite a wind licence itself being a 'future act' under the Native Title Act 1993 (Cth).[x] Amendments commencing that month closed the gap, requiring 'reasonable efforts' to consult First Nations groups with interests in a licence area.[xi] In substance, the offshore wind regime imported the Tipakalippa standard by regulation, rather than waiting for a case of its own.

IV Onshore: A Weaker Regime

The equivalent of the above has not occurred onshore. The Native Title Act's most protective mechanism, the right to negotiate, was built primarily around mining tenements and rarely applies to wind, solar or transmission projects.[xii] Proponents instead typically rely on voluntary Indigenous Land Use Agreements (ILUAs) or state compulsory acquisition of the native title interest, neither of which meets the FPIC standard. An ILUA is only as strong as a Traditional Owner group's bargaining position, and compulsory acquisition requires no agreement at all, only 'just terms' compensation.[xiii] Consent quality therefore depends heavily on individual proponent conduct. At its best, this looks like the Indigenous Land Use Agreement Windlab negotiated with the Gugu Badhun people for the 600MW Upper Burdekin Wind Farm in Queensland.[xiv] At its worst, it looks like the Central West Orana project, where an agreed Cultural Heritage Management Plan was simply not followed on the ground.[xv] New South Wales remains the only state without stand-alone Aboriginal heritage legislation; heritage is instead protected under Part 6 of the National Parks and Wildlife Act 1974 (NSW), a permit regime that does not even apply to State Significant Infrastructure projects. An example would be the  Central West Orana transmission line, where protection depends entirely on contractual heritage management plans.[xvi]

V Heritage Law's Fragility: The Western Australian Retreat

Even legislated protections have proven fragile. The Juukan Gorge incident was authorised under section 18 of the Aboriginal Heritage Act 1972 (WA), a process the Juukan Gorge inquiry condemned as denying Traditional Owners any real ability to object.[xvii] Western Australia subsequently enacted the Aboriginal Cultural Heritage Act 2021 (WA), which commenced  1 July 2023, and placed knowledge holders at the centre of a new approvals process.[xviii] It lasted 39 days. Facing pressure from pastoralists and industry, the WA Government repealed it, reverting to an amended version of the 1972 Act. It was patched only with a duty to report new information, a right of tribunal review, and a ban on 'gag clauses'.[xix] Five years on from Juukan Gorge, Western Australia's substantive heritage regime remains closer to 1972 than to best practice.

VI The Unfinished Business of 'Nature Positive'

The Commonwealth's overhaul of national environmental law offers the clearest current opportunity to close these gaps. The Environment Protection Reform Act 2025 (Cth), which received Royal Assent on 1 December 2025, establishes a National Environmental Protection Agency and empowers the Minister to make binding National Environmental Standards.[xx] Six standards are planned, including one for First Nations engagement; but while standards on environmental significance and offsets have already been through public consultation, the First Nations Engagement standard remains undrafted, with the Department stating only that it will open consultation 'when it's ready.'[xxi] The single standard most relevant to this article is, for now, the one furthest behind.

VII Conclusion

Australian law's treatment of Indigenous consent in the renewable energy transition is a patchwork under active but uneven repair. Offshore, litigation forced reform: Tipakalippa and its progeny compelled NOPSEMA to take sea country consultation seriously, and the Commonwealth extended an equivalent duty to offshore wind by regulation before a comparable case could be brought. Onshore, no such catalyst has yet produced a comparable legal floor, and the outcome for Traditional Owners still turns heavily on individual proponent conduct. The Wiradjuri rock shelter destroyed near Mudgee in June 2026, on a project meant to symbolise Australia's clean energy future, was not the result of a legal gap so much as it was a failure to enforce protections that already existed on paper. Until free, prior and informed consent is a legislated precondition rather than a policy aspiration, the energy transition will remain capable of repeating the very failure of consultation that produced Juukan Gorge in the first place.

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References

[i] Dan Butler, ‘Outrage as Wiradjuri Cultural Heritage Destroyed Beyond Repair During Powerlines Construction’, NITV (online, 10 June 2026).

[ii] Joint Standing Committee on Northern Australia, Parliament of Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge (Report, October 2021).

[iii] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, UN Doc A/RES/61/295 (13 September 2007) arts 19, 32.

[iv] Department of Climate Change, Energy, the Environment and Water (Cth), First Nations Clean Energy Strategy 2024–2030 (Strategy, December 2024).

[v] Anthony Albanese, Prime Minister of Australia (Speech, Garma Festival, 3 August 2024), quoted in ‘Indigenous Experts Say Free, Prior and Informed Consent Is Key to PM’s Wealth Creation Plan’, National Indigenous Times (online, 5 August 2024).

[vi] Responsible Investment Association Australasia, Submission to Department of Climate Change, Energy, the Environment and Water, First Nations Clean Energy Strategy (2024).

[vii] Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193 (‘Tipakalippa’).

[viii] Ibid; Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121.

[ix] Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158; Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9.

[x] Offshore Electricity Infrastructure Act 2021 (Cth); Offshore Electricity Infrastructure Regulations 2022 (Cth); Native Title Act 1993 (Cth) pt 2 div 3.

[xi] Offshore Electricity Infrastructure Regulations 2022 (Cth) (as amended, commencing December 2024); Offshore Infrastructure Regulator, Guidance Note: Consultation and Engagement for OEI Management Plans (Guidance Note, 2025).

[xii] Native Title Act 1993 (Cth) pt 2 div 3 ss 26–44.

[xiii] Land Acquisition (Just Terms Compensation) Act 1991 (NSW); G Maynard, ‘Renewable Energy Development and the Native Title Act 1993 (Cwlth): The Fairness of Validating Future Acts Associated with Renewable Energy Projects’ (Working Paper No 143, Centre for Aboriginal Economic Policy Research, Australian National University, 2022).

[xiv] Giles Parkinson, ‘Massive Queensland Wind Farm Strikes Land Use Deal with Traditional Owners’, RenewEconomy (online, 13 July 2022).

[xv] Butler (n 1).

[xvi] National Parks and Wildlife Act 1974 (NSW) pt 6, ss 89J, 115ZJ.

[xvii] Aboriginal Heritage Act 1972 (WA) s 18; Joint Standing Committee on Northern Australia (n 2).

[xviii] Aboriginal Cultural Heritage Act 2021 (WA).

[xix] Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA); Aboriginal Heritage Act 1972 (WA) (as amended).

[xx] Environment Protection Reform Act 2025 (Cth); National Environmental Protection Agency Act 2025 (Cth).

[xxi] Department of Climate Change, Energy, the Environment and Water (Cth), National Environmental Standards (Web Page, 2026).