Local Environment

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Rent and reparation: how the law shapes

Indigenous opportunities from large renewable
energy projects

Sangeetha Chandrashekeran

To cite this article: Sangeetha Chandrashekeran (2021) Rent and reparation: how the law shapes
Indigenous opportunities from large renewable energy projects, Local Environment, 26:3, 379-396,
DOI: 10.1080/13549839.2020.1861590

To link to this article: https://doi.org/10.1080/13549839.2020.1861590

Published online: 22 Jan 2021.

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LOCAL ENVIRONMENT
2021, VOL. 26, NO. 3, 379–396
https://doi.org/10.1080/13549839.2020.1861590

Rent and reparation: how the law shapes Indigenous

opportunities from large renewable energy projects
Sangeetha Chandrashekeran
School of Geography, University of Melbourne, Melbourne, Australia

ABSTRACT ARTICLE HISTORY

This paper examines the potential for benefit-sharing from large-scale Received 2 March 2020
renewable energy projects in Australia on land held under customary Accepted 29 November 2020
ownership. I argue that the growing body of scholarship on
KEYWORDS
accumulation by energy dispossessions needs to be balanced by Energy justice; Indigenous
attention to the opportunities for benefit-sharing by Indigenous ownership; renewable
landholding interests. I remain open to the possibility that rent-seeking energy; dispossession;
can create value for historically marginalised and formerly dispossessed accumulation; benefit-
Indigenous communities. Following a recent sustained period of sharing; rent
Aboriginal repossession of land, benefits can flow to Aboriginal
landholders and managers based on the strength and durability of
traditional and novel property rights, and their capacity to negotiate
benefits. Drawing on the extensive literature on mining negotiations in
Australia, I focus on the significant role that the law plays in shaping
benefit-sharing opportunities particularly through a procedural right of
veto for Indigenous interests. Overall the legal procedural protections for
Indigenous landholders are weaker for large scale renewable energy
developments than for minerals extraction, and stronger under one
legislative regime (Land Rights) than another (Native Title). This analysis
shows how the law is both a site of struggle over benefit-sharing and can
shape socio-spatially differentiated outcomes. I call for greater analysis of
the relationship between rent-seeking, reparation and energy justice,
with an emphasis on the distribution of benefits not just burdens.

1. Preface
I would like to firstly acknowledge my positionality as an academic of Indian migrant origin located in
an academic institution in Australia, researching and writing about settler-colonial power relations in
an Australian context. I acknowledge my position of privilege within an elite university. This article
does not seek to represent the views of Aboriginal peoples, rather it is an attempt to discuss ongoing
colonial practices and conditions that Aboriginal people contend with in exercising self-
determination.

2. Introduction
A new vision is emerging of Australia’s fossil-fuel dependent economy-society transforming into
a “renewable energy superpower” (Garnaut 2019). This vision is set against the backdrop of a
decade of fitful climate mitigation strategies, the active unwinding of ambitious efforts, and

CONTACT Sangeetha Chandrashekeran Sangeetha.chandra@unimelb.edu.au Room 305, Melbourne School of Design,

Masson Road The University of Melbourne, Victoria 3010 Australia
This article has been republished with minor changes. These changes do not impact the academic content of the article.
© 2021 Informa UK Limited, trading as Taylor & Francis Group
380 S. CHANDRASHEKERAN

chronic national policy paralysis in the fields of energy and climate change. The leading prota-
gonist of this narrative, Prof Ross Garnaut, writes “The fog of Australian politics on climate
change has obscured a fateful reality: Australia has the potential to be an economic superpower
of the future post-carbon world” (Garnaut 2019, 1). He argues that the combination of ideal bio-
physical conditions with proximity to Asian markets, techno-scientific capability and regulatory
stability make Australia the “natural home for an increasing proportion of global industry”
(Garnaut 2019, 1).
This rhetoric is being realised in recently proposed utility-scale renewable energy projects in
Northern and Western Australia. The Northern Territory Suncable project is designed to supply
one-third of Singapore’s electricity needs from 10 gigawatts of solar electricity transmitted via a
3800 kilometres overland and submarine cable. The Asian Renewable Energy Hub in the Pilbara
region of Western Australia is a proposed wind and solar facility forecast to generate 15 gigawatts
of electricity: the majority for export to Indonesia and Singapore and the rest for use within the
Pilbara. Both of these projects are proposed in very remote areas of Australia, far from the existing
centres of economic production and the existing electricity grid. At the time of writing, both of these
projects are proposed on land held under some form of Aboriginal title.
In much of the media coverage of these projects discussion of land tenure and property regimes
are noticeable absences, regarded more as logistical hurdles to be overcome rather than fundamen-
tal barriers to development or economic opportunities for Aboriginal landholders. The sheer remo-
teness of the land in question from the existing centres of economic production, and the
presumption that the land is marginal, unproductive and un(der)populated, “empty of people, his-
tories, and claims”, renders it at once full of potential for improvement and profit and a site of least
resistance (Li 2014, 4).
This view is contested by Aboriginal peoples. Land has deep primacy and significance for First
Nations Australians. It is a source of life both materially and symbolically, and economic connec-
tion based on communal and sacred forms of connection and ownership (Langton, Mazel, and
Palmer 2006). Colonisation and settlement involved the often violent imposition of Western
systems of property rights based on a productivist use-value for land. However, since the
1960s there has been a phase of repossession (Langton 2006; Altman and Markham 2015). As
a result, approximately 50% of terrestrial Australia is under some form of Indigenous title, and
this is even higher in the Northern Territory (NNTC 2020). Energy investors will have to
engage in negotiated outcomes for land access and acquisition and grapple with weighty politi-
cal questions of distributive justice.
Large-scale renewable energy developments are in the early planning and finance phase now.
Negotiations with landholders are underway but are shrouded in commercial confidentiality. In
this paper, I draw on the extensive knowledge arising from legal agreements between Aboriginal
peoples and extractive industries (mining and petroleum) to shed light on questions of energy
justice from renewable energy developments. I will argue that this involves understanding pro-
cesses of accumulation by dispossession but also opportunities for benefit-sharing that arise
from land repossession and rent relations. Renewable energy-led development is “touching
down” in Australia where land is the site of ongoing anti-colonial struggle, differential ontologies
and customary rights (Weir, Stacey, and Youngetob 2011). It is important that we do not accept
unchallenged universalising discourses of environmental amelioration that permeate the renew-
ables sector’s own publicity, and instead ground our analysis of energy justice in the material
possibilities afforded by the existing systems of governance and legal administrative regimes.
In this paper, I will show how the law has played a critical role in determining the nature and
scope of repossession for Aboriginal people, and will continue to shape the possibilities for
benefit-sharing for new forms of energy development. The law is a key site of struggle for the
redistribution of economic and non-economic values to Aboriginal peoples based on customary
land tenure and rentier relations.
 LOCAL ENVIRONMENT 381

3. Energy dispossession, rent and benefit sharing

The social relations and processes of dispossession have been well-researched in critical geography,
anthropology and other social science literature. There are two distinct struggles that feature:
struggles over enclosure of “the commons” and struggles over who gets to capture the rent and
who pays. Both are relevant to Indigenous communities and energy developments, however, I
will argue that there has been a relative neglect of rent relationships in the literature. Addressing
this gap is important because the sustained focus on dispossession has eclipsed the phenomenon
of Indigenous repossession of land. Repossession opens up contingent opportunities to shift the
dynamics of marginalisation and the relations of production for Indigenous rentiers. New power
relations accompanying land repossession do not necessarily contradict theories of dispossession
and critical perspectives of rent but create more nuanced understanding of the “winners” and
“losers” from these processes and the enabling mechanisms for benefit-sharing.
Critical geographers have situated so-called “sustainable transitions” within a larger process of
capitalist socio-environmental change. The transition to renewable energy systems and dynamic,
demand-side systems of provision are embedded within larger processes of capital accumulation.
Renewable energy developments are seen as part of a “fix” to crises of capitalist accumulation, invol-
ving the appropriation and enclosure of previously free forms of nature, such as sunlight, bringing
these into circuits of capital and new forms of accumulation (McCarthy 2015). Energy has a central
role in the social production of space (Bridge et al. 2013; Huber 2015) and a key spatial dimension is
the displacement and dispossession of politically marginal populations through the spatially-exten-
sive territorialisation of renewable energy (Smil 2010).
The literature on accumulation by dispossession has drawn attention to practices of “land-grab-
bing” arising out of commercial land investments in agriculture, biofuels, mining and biodiversity
activities (Scoones 2009). Land acquisition for large scale renewable energy developments is a
growing phenomenon and focus of scholarship (see Avila-Calero 2017; Huber and McCarthy 2017;
Dunlap 2018). Enclosure involves both discursive and material processes. Land occupied by minority
and marginal groups is classified and continually reinforced as “wasteland” that is ripe for “improve-
ment” and accumulation opportunities. In India, an official government regime (see Gidwani and
Reddy 2011; Baka and Bailis 2014; Baka 2017) lays the foundations for a series of regulatory trans-
formations to “improve” sites through energy production. Rignall (2016), examining large scale
solar development in Morocco, also shows how land is constituted as both empty and unproductive
and therefore full of potential for value extraction via renewable energy generation. Old colonial nar-
ratives can be reinvigorated for contemporary developments (Davis 2007) to devalue local pastoral-
ist practices and collective tenure and promote the use of land to solve global environmental
challenges and drive foreign investment. These are new iterations of “green-grabbing”, that is
new modes of primitive accumulation legitimated under the banner of environmental amelioration
(Fairhead, Leach, and Scoones 2012).
Baka coins the term “energy dispossession” to emphasise the specific uneven socio-material
impacts that arise from energy development enclosures (Baka 2017). There is no singular totalising
phenomenon of “land-grabbing”, rather enclosure can produce unexpected winners and losers due
to the materiality of energy production and the local political economic and regulatory context.
Stock and Birkenholtz (2019) follow the consequences of dispossession and show how agrarian
labour and landholders lose wage-labour employment on farms for smallholders, whilst a small frac-
tion pick up menial jobs on solar parks. The gendered nature of solar park employment leads to
women seeking out agricultural employment on shrinking agrarian lands. Meanwhile, large land-
holders have found skilled employment and rentier opportunities from large-scale machinery.
The state looms large in shaping the actual acquisition of land for renewable energy projects and
the distribution of benefits. The Indian state has deployed colonial-era laws to acquire land for a
utility-scale solar park from marginal farmers and illiterate pastoralists and then transferred to
solar developers (Yenneti, Day, and Golubchikov 2016). McCarthy (2007; McCarthy, Vel, and Afiff
382 S. CHANDRASHEKERAN

2012) highlights the Indonesian state’s role in enabling land acquisition through instruments and
networks of power that give rise to new patterns of ownership whilst dispossessing farmers of
both land and livelihoods. Extra-economic state processes that facilitate dispossession include
subsidies (McCarthy 2007); public-private partnerships (Levien 2013); creation of Special Econ-
omic Zones (Levien 2015); and military techniques of counterinsurgency (Dunlap 2018). These
socio-spatially nuanced approaches to “green-grabbing” underline the exploitative nature of pol-
itical economies of land-based resource extraction based on processes of enclosure and
dispossession.
Enclosure involves struggles over “the commons”, not the rent relation itself (Andreucci et al.
2017). This can be struggles over land, the creation of intellectual property rights or privatisation
of state-owned land. A separate set of struggles take place over who gets to capture the rent and
who pays. These are specifically struggles over rent as opposed to struggles against accumulation
by dispossession, and occur at different moments in the workings of capital and produce
different class contradictions. Rent is extracted through the struggles over, imposition and regu-
lation of property rights and then payment for the rights of use (see Felli 2014). Natural resources
that were previously unenrolled in circuits of capital are being created as commodities, eg carbon
dioxide credits accrued through non-cultivation of land, where the beneficiary is the holder of the
land title (Kay 2017; Dempsey and Bigger 2019). Andreucci et al. (2017) describe these as “pseudo
commodities” because surplus value accrues by virtue of having exclusive property title rather
than creating value through production. “Profiting without producing” (Lapavitsas 2013, 793)
occurs through the form of rent and involves firstly, accumulation by dispossession to create
exclusive property rights and secondly, the transfer of economic value to the owner of the
resource. Rentier capitalism is regarded as a distortion of markets because a portion of the
surplus value is accrued by virtue of having an exclusive property title, rather than through pro-
duction, in such a way that forces a downward redistribution of surplus value and is seen as
“unearned” or “undeserved” (see for example Piketty 2014; Mazzucato 2018). Such negative
interpretations of rentier capitalism fail to entertain the possibility that rent can create value
for historically marginalised and formerly dispossessed Indigenous communities (Birch 2020).
Renewable energy developments and other carbon mitigation projects are co-constituted with
national tenure regimes and customary property rights. The capacity for state and non-state
actors to acquire land and dominate the spaces of energy production can be complicated by the
existence of Indigenous-owned land and Indigenous communities occupying land proximate to
developments, and the enforcement of these laws. The energy dispossession literature has
tended to focus on the inefficacy of legal protections for marginalised Indigenous interests, or
how legal instruments are strategically selected by state and corporate actors to enable disposses-
sion. There has been little attention given to how laws and procedures mediate benefit-sharing
based on Indigenous land interests. The nature and variety of Indigenous tenure and land rights
will have a significant bearing on how benefits accrue to Indigenous communities and the degree
to which they are included in the emergent carbon economy. By focusing not just on struggles
over enclosure but also struggles over benefit-sharing we remain open to the potential for Aborigi-
nal communities to “appropriate, repurpose, and benefit from mainstream decarbonisation”
(Jackson et al. 2017, 867).
Indigenous relations to land in Australia are complex and are best characterised as a form of rela-
tional restricted common property with rules and regulations about who has rights which varies
according to impacts of colonisation and patterns of dispossession. Large scale renewable energy
developments usher in new and complex struggles that are informed by the nature of the property
relation and the type of asset, the pressures on government and corporations to achieve a fair
outcome, and the organisational capacity of Indigenous communities to effectively negotiate equi-
table benefits. This opens up questions of spatial justice, in particular the distribution of both
benefits and burdens. These struggles for distributional justice presume an institutional context of
property ownership or control such that the affected community has the requisite allocation of
 LOCAL ENVIRONMENT 383

rights to exercise influence over the proposed development (Cowell, Bristow, and Munday 2011).
The less control the less opportunity for distributive justice and benefit-sharing, as we see in the
energy dispossession literature where (state-enabled) acquisition of land leads to dispossession
and entirely forecloses opportunities for real benefit-sharing. There has been some research
focused particularly on non-Indigenous (mainly rural) communities on the importance of commu-
nity benefit sharing for renewable energy projects. This includes providing not just local compen-
sation but also wider development goals that meet socio-economic objectives (Bristow, Cowell,
and Munday 2012; Renn, Ulmer, and Deckert 2020); higher degrees of local participation in
decision-making and ownership (Fast et al. 2016); delivery of novel benefits such as lower elec-
tricity bills and tax rebates in affected communities (Walker and Baxter 2017); and avoiding
skewed financial distribution models that exacerbate pre-existing socio-economic disparity and
intensify community divisions (Fast et al. 2016).
Renewable energy projects in First Nations Canadian communities have shown the importance of
inclusive participation models including Indigenous-led planning (Krupa, Galbraith, and Burch 2015);
non-material benefits that contribute to community wellbeing and strengthen connection to land
(Fast et al. 2016; Zurba and Bullock 2020); and community capacity building, enhanced decision
making authority and co-ownership (Karanasios and Parker 2016). These empirically-rich insights
point to enabling conditions for equitable value distribution. There are a variety of motivations
for Indigenous peoples of Canada to develop renewable energy in their Territories that include
reaping both financial and non-financial benefits such as energy reliability (Karanasios and Parker
2018; Stefanelli et al. 2019).
Nonetheless, there remains a lack of attention to the ways in which property rights and related
forms of procedural justice shape struggles over rent. In Australia, the once dispossessed, now (par-
tially) repossessed Aboriginal traditional owners have the opportunity to extract rent and appropri-
ate value by virtue of their various property/land titles. This is set to occur in formerly commercially-
unattractive parts of remote Australia as a result of an emerging carbon economy and recent growth
in the spatial coverage of Indigenous titled lands. The potential for Aboriginal land holders to
capture the benefits of renewable energy projects and improve livelihoods is based on a foundation
of land ownership and control, including related rights to negotiate and veto. This paper focuses on
these enabling legal conditions and explores the role of the law in shaping socially-spatially uneven
outcomes for Indigenous landholders. I explore the emancipatory potential of rent capital under
different land regimes and political economic conditions, and also its limits. The complex political
ecologies of land access (involving land acquisition, rent, value capture, environmental markets
and cultural practices) resist totalising narratives of dispossession or rentierism as unearned privi-
lege. This inquiry keeps open the possibility that marginalised Indigenous groups can potentially
assume agency and power based on a foundation of property-related rights, procedural justice
and the capacity to negotiate.
This paper is based on desktop analysis of documents relating to recent utility-scale renew-
able energy projects in Australia, and a well-established body of literature on risks and benefits
from extractive industries in remote Australian Indigenous communities. Given that these pro-
jects have not commenced and negotiations with Indigenous Prescribed Body Corporates and
traditional owners are still underway at the time of writing, I raise for discussion a range of
potential (not actual) factors that are likely to shape the distribution of benefits to Indigenous
communities and potential struggles that could ensue. I use the empirical specificity of the Aus-
tralian context to reflect critically on the nature of energy dispossession and benefit-sharing in
the emerging carbon economy.
Section 4 describes the processes of dispossession of Aboriginal land and the more recent phase
of repossession. I show how rent from renewable energy projects are predicated on securing prop-
erty rights and discuss the struggles that have ensued for mining and petroleum developments.
Section 5 applies the analysis to emerging renewable energy projects.
384 S. CHANDRASHEKERAN

4. Australia’s property and land tenure regimes: impact on benefit-sharing

In this section, I briefly describe Australian First Nations’ struggles against the alienation of land by
the Crown and the related processes of accumulation by dispossession. I then move to the more
recent phase of legal recognition and repossession with a focus on two major land tenure regimes.

4.1. Dispossession
Colonisation of the Australian continent commenced in 1788 and involved the wholesale expropria-
tion of land and resources through practices of violent dispossession (Wolfe 1999). This was a struc-
tural and ongoing process secured through a legal fiction of terra nullius and founded on a racist
premise of primitiveness: that the land belonged to no one or everyone because there were no
recognised political/legal institutions for land holding. The strategic non-recognition of Aboriginal
land ownership, settlement and resource management laid the legal foundation for the acquisition
of all lands and waters by the Crown. The settler colonial economy-society first and foremost hinged
on dispossession and displacement of Aboriginal Australians as opposed to the extraction of surplus
value from their labour (Wolfe 1999). This structural process of dispossession was not a one-off event,
but a continuous process that reproduces relations of dominance in an ongoing fashion. In 1901
when the nation formed, Indigenous people were not granted citizenship, this only occurred in
1948 via legislation. Until 1966 there was no legal recognition of Aboriginal land ownership
across the country.

4.2. Repossession
The period post-1965 has been described as one of repossession (Altman 2012). This involved two
major developments which I will explore in detail: Land Rights and Native Title legislation. These
are the legal mechanisms through which historically marginalised Aboriginal people have gained
leverage over land use, access and commercial negotiations. Aboriginal landholders can derive
benefits from commercial projects on their land in a few ways: compensation for social disruption;
a negotiated payment for loss of rights and interests; and sharing rent based on profits and royalties.
The nature of property rights and the processes of land use agreement making have a significant
bearing on the struggles over benefit distribution. In this section I will discuss these in relation to
resource extractive industries (mining and petroleum), where the vast bulk of Australian experience
lies. In section 5 I will discuss these in relation to the burgeoning large-scale renewable energy pro-
jects that are in the planning phase. Figure 1 maps the different types of land title (Native Title and
Land Rights) and Table 1 compares the different features of these land titles.

4.3. The Northern Territory Land Rights Act 1976

Legislative and judicial reform followed from continuous land struggles initiated by Indigenous
peoples across Australia (see Foley, Schaap, and Howell 2014; Ward 2016; Irish 2017). In the 1960s
and 1970s these struggles were focused increasingly on powerful state and corporate interests
driving mineral extraction in remote parts of Australia. From the 1960s Australia began to shift
from primarily a rural commodity (wool and beef) export-oriented economy to minerals and later
fuel exports. Today, Australia is the world’s largest exporter of iron ore and metallurgical coal
(DFAT 2015). Mining interests, in cooperation with governments, regularly overrode the limited pro-
tections for Indigenous communities established under colonial law. In 1968 the Commonwealth
reached an agreement with Nabalco corporation for bauxite mining on an Aboriginal reserve in
the northern tip of Australia where miners were specifically excluded. The Yolngu peoples’ legal
case was unsuccessful on the grounds that the land was terra nullius, and they had no proprietary
rights in the region (Milirrpum v Nabalco Pty Ltd 1971). The injustice of this case, and the

Figure 1. Main areas of Indigenous-titled lands, May 2020. Source: Altman (2020, 3).
Table 1. Key Features of Legislative Regimes: Land Rights and Native Title Acts.
Legislation
Geographical coverage
Extent of current grants/
determinations (As of
May 2020)
Nature of property right
Right to prevent
development on land
Benefit-sharing
Land Rights Northern Territory
Aboriginal Land Rights (Northern Territory) Act
1976 (Commonwealth)
Northern Territory only
638,176 sq kms of land (approx. 50% of Northern
Territory)
Private property owned communally under
special freehold title (a registered Torrens
title). Inalienable – it cannot be bought,
acquired or forfeited. Granted by statute.
Unfettered right to prevent unwanted
development – Free Prior and Informed
Consent required
Mining royalties paid to the Crown as the
asserted owner of sub-surface minerals.
Aboriginal interests are guaranteed the
equivalents of mining royalties and can
negotiate for more (30% to directly affected
landowners; 30% to Aboriginal people of NT;
40% to Land Councils)
Non-mining royalties and benefits are
negotiated payments (section 19)
LOCAL ENVIRONMENT 385
Native Title
Native Title Act 1993 (Commonwealth)
Common law origins: (Mabo (No 2) (1992)
175 CLR 1)
Australia
1,012,648 sq kms exclusive possession
(approx. 13% of Australia)
2,091,654 sq kms non-exclusive possession
(approx. 25% of Australia)
Total 3,950,777 sq kms
Recognition under common law of title that
pre-existed British sovereignty. Inalienable;
non-tradeable.
For future government acts, including mining
and compulsory acquisition:
Exclusive Possession – 6 month right to
negotiate
Non-exclusive possession - Right to
consultation or notification
For future acts like renewable energy
development: Right to consultation
A negotiated payment for loss of native title
rights and interests, compensation for social
disruption, and rent sharing
386 S. CHANDRASHEKERAN

McMahon government’s weak offer of 50-year land leases where Aboriginal groups could demon-
strate capacity to make economic use of the land, inspired further Aboriginal activism. Most
notably, the Aboriginal Tent Embassy was pitched outside Parliament House (where it still exists
today), and made demands for social justice, compensation and the return of land (Newfong
2014). Following an election, in 1972 a reformist Labor national government initiated the Woodward
Land Rights Commission which laid the framework for what became the Aboriginal Land Rights
(Northern Territory) Act 1976 (Cth). The government of Gough Whitlam tasked Edward Woodward,
who was the lawyer for the plaintiffs in the Nabalco case, to vest land title and sovereign rights in
minerals and timber in the hands of Aboriginal inhabitants. Woodward devised a mechanism that
enabled Aboriginal peoples with primary spiritual responsibility for land and sacred sites to make
claims over unalienated crown land. This led to the creation of Aboriginal freehold title which is
held by land trusts and managed by Aboriginal Land Councils. Land Councils were established to
assist traditional owners to exercise their rights under the Act (there are four in existence today).
However, in the face of intense lobbying from the mineral industry, Woodward did not extend
these rights to sub-surface minerals which resided with the Crown (Altman 2019). Instead, Wood-
ward created a defacto property right through a right to veto mineral exploration and production.
This veto right gives traditional owners the right to exercise free prior and informed consent (FPIC) to
prevent any commercial development on their land. This prescient initiative is consistent with the
United Nations’ 2007 Declaration on the Rights of Indigenous Peoples.
Woodward also developed on a 1952 precedent which earmarked statutory royalties from sub-
surface minerals as a resource (not as compensation) for Aboriginal benefit (Altman and Pollack
1998). He recommended that Aboriginal people in Northern Territory be vested with a full royalty
right which meant that royalties that flowed to governments (the recognised sovereign owners of
minerals) would be directed to Aboriginal people. The distribution of royalties was based on the fol-
lowing formula: 40% would flow to meet the costs of running the Land Councils who act indepen-
dent of government to mediate between mining corporations and traditional owners; 30% would
compensate landowners and those directly affected by mining; and 30% would be used for the
benefit of the Aboriginal people of the Northern Territory. The combined effect of the FPIC right
and the resourcing of Land Councils via the royalty right has been to create a strong preventative
instrument that empowers Indigenous landowners to oppose commercial developments, and
where they agree to mining developments to receive compensation for the negative impacts. The
Aboriginal Land Rights Act Northern Territory 1976 (ALRA) has resulted in approximately 50% of
land being returned to traditional owners and approximately $2 billion dollars in mining royalties
paid between 1979 and 2015 (Altman 2019). A similar regime was enacted in South Australia in
the early 1980s (Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and the Maralinga Tjar-
utja Land Rights Act 1984). I will talk more about the application of both the consent and royalty
rights in terms of benefit sharing for renewable energy in section 5.
Almost 50 years since its creation, the ALRA reflects the political priorities of recognition and self-
determination for Aboriginal people. The passage of the Act was an important part of the return to
homelands movement, whereby Aboriginal people who had been earlier forced or given little choice
but to move to centralised missions and settlements by the state returned to their traditional lands.
The ALRA was partly about undoing the past injustices that deprived people of their land without
consent and providing the economic means to live with dignity on their land. Whilst not perfect,
ALRA represents a high watermark in both addressing dispossession and creating the architecture
and opportunities for benefit-sharing in commercial developments.

4.4. Native Title

A strong and effective campaign by mining interests (particularly in Western Australia) stemmed the
legislative land rights momentum in the early 1980s, and it was not until the landmark High Court
decision in Mabo v Queensland (1992) that this shifted. The High Court in Mabo established native
 LOCAL ENVIRONMENT 387

title, which is not a grant, like land-rights titles, but recognition of an Aboriginal title that preceded
British sovereignty and continued to exist to the present time. This unique sui generis form of prop-
erty provides legal recognition to Indigenous groups who were in occupation of land at the time
sovereignty was claimed by the British and have, as a group, continued to acknowledge and
observe traditional laws and customs until the present day (Mabo (No 2) at 59 per Brennan J).
This threshold test of continuing connection typecasts Indigenous Australians through a legal
definition of authenticity that they must perform and prove in courts to access their traditional
lands (Wolfe 1999; Altman 2012). Those Aboriginal Australians who suffered the earliest and most
severe acts of dispossession in early frontier confrontations are least likely to be recognised as
native title holders.
The Mabo decision was codified subsequently through the Native Title Act 1993. The Act
addressed recognition but was a negotiated compromise between advocates for Indigenous land-
based justice and the economic interests of commercial entities, particularly mining, and State gov-
ernments who were the recipients of mining royalties.
The legislative process became the focus of opposition by the extractive industry and this
impacted the drafting process significantly (Langton and Webster 2012). The legislation recognised
native title and sought to provide a mechanism for determining native title claims; validated a range
of past acts and land titles that extinguished native title; created a mechanism to validate future acts
that are on land under native title claim or determination – this was specifically focused on enabling
access by the resource extraction industry to native title land. The Act did not confer free prior and
informed consent rights but instead provided a right to negotiate (RTN) with developers seeking to
build, mine or access native title land. This is weaker than the veto right in ALRA, but arguably pro-
vides a seat at the table and an opportunity for economic participation and negotiated agreements
between claimants and resource companies (Langton 2006; Langton and Webster 2012).
The RTN was a hotly-contested issue in the original Native Title legislation and became even more
politicised following a 1996 High Court decision that extended the potential geographical range of
the RTN by ruling that pastoral leases, that make up approximately 40% of land, did not extinguish
native title (Wik Peoples v Queensland 1996). In 1998, following significant opposition by farmers and
miners, the Conservative government initiated reforms to “return the pendulum to the centre, [the
Wik decision] having swung too much in favour of the Aboriginal people” (Howard 1997). Native title
holders who have exclusive possession (a right to exclude others from the land) had their RTN scaled
back to a six month period. Those with weaker non-exclusive native title rights (that is where title co-
exists with the rights of government and third parties in the same land) were given a right to con-
sultation or notification for mining exploration. Where agreement fails to be reached in a timely
manner, there is the option to face an arbitral body but the chances of halting resource companies
are miniscule: as of October 2018 the Tribunal has prevented a future act from preceding without
agreement in just 3 of 114 cases (O’Neill, Thorburn, and Hunt 2019). Claimants are sometimes
coerced into accepting unsatisfactory terms because the project is likely to go ahead with or
without an agreement (Scambary 2013). Where the development occurs without agreement,
native title holders can seek compensation based mainly on market values with limited opportunity
for a “pain and suffering” payment that monetises spiritual and other forms of non-economic losses
(Northern Territory v Griffith, 2019).
A feature of the Native Title Act was the creation of agreement mechanisms, most notably “Indi-
genous Land Use Agreements” (ILUAs) which are voluntary agreements between native title holders
or claimants, and those seeking an interest in the land. There was a political consensus that agree-
ment making rather than litigation or political interventions was the best way to resolve conflicts
over land use and access (Dodson 1996; French 1996). A vibrant “culture of agreement making”
over land access and resource use has developed (Langton, Mazel, and Palmer 2006; Tehan and
Godden 2012). This is partly in response to the lack of beneficial outcomes arising from litigation
and procedural delays involved with the native title determination process resulting from the
onerous burden of proof and adversarial framework. Major mining companies are negotiating
388 S. CHANDRASHEKERAN

with traditional owners even in the absence of legal requirements to do so, and a similar trend may
apply to renewable energy companies. This is in response to the slow process of native title and the
desire to avoid the delays associated with disputation. It is also a response by companies to avoid the
risk of reputation damage (Trebeck 2007).
Compared with treaty-based processes for determining restitution of land, seen in places like
Canada and New Zealand, the NTA lacks a consistent approach to benefit-distribution. There are
now 1343 ILUAs registered (and 500 determinations and 136 claims registered), but full transparency
to assess the benefits of these is hampered by confidentiality clauses (NNTC 2020). There is broad
evidence that despite the growth in these agreements resulting in substantial economic and non-
economic benefits, Indigenous poverty and socio-economic disadvantage continues to lag well
behind non-Indigenous Australia (Australian Government 2020). This has prompted leading Indigen-
ous scholars to apply the “resource curse” thesis to mining on Indigenous land within Australia,
based on the characteristic of resource abundance but the phenomena of declining economic
growth and welfare for the resident Aboriginal population (Langton and Mazel 2012). In particu-
lar, the tremendous economic benefits from the Australian mining boom of the early twenty-first
century have not translated into widespread improvements in socio-economic outcomes for
Aboriginal communities, with evidence of declines in health and education outcomes in
mining regions, and an overall failure to address Indigenous disadvantage through economic
opportunity creation (Scambary 2013). Reasons for this include lack of investment back into com-
munities using State government royalties to provide infrastructure and facilities that ameliorate
disadvantage (Langton and Mazel 2012); lack of economic diversification leading to excessive
dependence on mines which are time-limited; inadequate focus on building Aboriginal capability
through education and training (Taylor and Scambary 2005); and poorly resourced and structured
representative Indigenous organisations to manage the financial flows for future generations
(Altman 2009b).
A closer case-by-case study of resource development agreements that examines a range of com-
ponents (rights and interests; environmental management; cultural heritage protection; financial
benefits; employment and training; business development; and Indigenous consent and support)
has found significant variation in outcomes (O’Fairchealleaigh 2004). In the early 2000s, financial out-
comes from agreements under Right To Negotiate provisions were more modest than those deliv-
ered by Land Rights legislation (O’Fairchealleaigh 2004). More recently, policy-based agreements
made with no requirement to negotiate have achieved outcomes that are on par with land rights.
The agreements with the greatest financial and non-financial benefits have been found in Northern
Australia where Aboriginal organisations are strongest politically, revealing that the political capacity
and strength of Indigenous negotiating bodies is a critical variable in companies’ willingness to pay
(O’Faircheallaigh 2016). The role of state (sub-national) governments in facilitating agreement and
promoting equitable benefit-sharing is now recognised both in positive and negative ways
(Trebeck 2007; Howlett 2007; O’Neill 2015). Despite the intention of the Native Title Act 1993 for
state governments to “facilitate negotiation on a regional basis between the parties” (see preamble),
many state governments have in fact facilitated mining interests over Aboriginal interests (Howlett
2007). O’Neill’s case study of the Browse Basin LNG project provides a counter-example of the
Western Australian state government “bolstering the negotiating power of traditional owners”
beyond the limited native title rights by funding negotiations which enabled TOs from vast distances
to come together and engage costly LNG industry consultants and lawyers. The political strength of
the Indigenous Kimberley Land Council and the commitment by the corporation, Woodside, to
“sharing the rewards of [the] gas development” were also critical in what was regarded by many
as an empowering agreement for the Aboriginal parties (O’Neill 2015, 34). Importantly, there was
a significant division within the Indigenous community, including subgroups of native title
holders and the Land Council. This opposition was strengthened by combining forces with environ-
mental NGOs, ultimately leading to the proponents withdrawing plans for the onshore facility (see
Mills 2019).
 LOCAL ENVIRONMENT 389

Aboriginal landowners and claimants are operating in a legal, policy and institutional environ-
ment that remains hostile to Aboriginal interests (O’Faircheallaigh 2016). In this context, a legal fra-
mework that mandates consultation and consent from Indigenous landholders executed by trusted
advisors (Land Councils) provides greater protection and a more systematic approach to benefit-
sharing than case-by-case agreements made with a weak right to negotiate. Under the ALRA 30%
of royalties flow to the Aboriginal Benefit Account (ABA) for the benefit of NT Aboriginal peoples
and now over $800 m exists in reserve which has the potential to be invested to deliver enduring
inter-generational returns (Altman 2019). The ALRA provides the institutional supports and author-
ising agency, via the right to FPIC, for landowners to determine outcomes on their land (and waters).
For native title holders and claimants, benefit-sharing is negotiated on a case-by-case basis rather
than via a formalised statutory scheme, and it distributes only to affected parties not to Aboriginal
people more generally. The lack of a power of veto limits native title parties’ bargaining power in
what is already an asymmetric power relationship. This is compounded by a lack of funding and
resourcing for native title representatives to engage externally with highly sophisticated corporate
proponents and internally with complex political, cultural and social needs of communities, some-
times leading to accession to agreements which would otherwise be contested (O’Fairchealleaigh
2006, 2016; NNTC 2019).
The above section shows that integral to any assessment of benefit-sharing is the nature and
degree to which land and resource rights are recognised and formalised by the state. The existence
of variations in the legal and institutional environment, and uneven outcomes in benefit sharing
shows the significance of legal mechanisms in mediating outcomes in land use and benefit-sharing.
The focus thus far has been on these rights in relation to sub-surface minerals because, since the
1970s, mining has been the main extractive activity on Aboriginal lands and provided the context for
the emergence of both the Land Rights Act and the native title determination processes. An under-
standing of this emergence is important because the principles and processes that have developed
around mining will shape the potential for Aboriginal economic opportunities from large-scale
renewable energy projects on country. There are some important differences in the law (both sub-
stantive and procedural) as it will apply to these projects and these will be explored in the next
section.

5. Weaker protections for native title Indigenous parties for renewable energy
projects
Unlike proposals for minerals exploration and development, renewable energy projects on native
title land will not be governed by the right to negotiate. Under the future acts regime proposals,
like renewable energy, that are deemed to have a lesser impact on land than extractive mining activi-
ties, are only subject to a right to consultation (section 24KA). Because renewable energy projects are
generally less destructive of a sentient landscape than mining there may be less likelihood of extin-
guishment of native title and social disruption therefore lower levels of compensation offered.
Through planning there is greater capacity to protect sacred sites by mapping exclusion zones
and creating buffer zones around physical features. This may make renewable energy projects
more attractive to Aboriginal parties, but less financially rewarding.
When negotiating with renewable energy proponents, native title parties and claimants will find
themselves in a weaker bargaining position compared with Northern Territory traditional owners
due to weaker procedural requirements for consent. In Northern Territory, where the Suncable
project is proposed, the right of veto from ALRA applies. However, mining equivalent royalties
(that are distributed according to the formula discussed in Section 4) do not apply for renewable
sources diminishing the financial flows for Aboriginal landholders and Aboriginal people more
generally.
In the literature, we see examples of compulsory acquisition being wielded as a “stick” by the state
to override Indigenous agency and affect energy dispossession (Baka 2017). Under both the legal
390 S. CHANDRASHEKERAN

regimes in the Australian case, compulsory acquisition is arguably technically possible but subject to
a number of legal challenges and political obstacles and rarely occurs. For acquisition, just terms
compensation must be paid under the Constitution, and the Racial Discrimination Act 1975
applies requiring governments to prove that the acquisition is not discriminatory to Aboriginal
peoples on the grounds of race. Acquisition was threatened by the Western Australian government
in the case of the Browse basin petroleum development, but the application was deemed illegal by
the Courts. The use of the acquisition “stick” fractured consensus amongst the environmental NGOs
and the Land Council, resulting in an intensified “no gas” campaign by environmentalists and oppos-
ing native title sub-groups, and the eventual withdrawal of the major corporation Woodside and
demise of the project (Mills 2019).
Another factor that could influence benefit-sharing outcomes is that renewable resource avail-
ability is more distributed than mining, setting up the prospect of developers playing off different
landholding groups in a “competitive” marketplace to achieve the best commercial outcome. This
may present as an added pressure for landowners to accept terms for fear of losing out to a neigh-
bouring group (O’Neill, Thorburn, and Hunt 2019).

5.1. Rent derived from intangible assets: property rights in carbon

With a solar farm or indeed other renewable energy projects, rent can also be extracted through the
enclosure of previously uncommodified resources, such as carbon dioxide, which become tradeable
commodities in environment-resource markets. In Northern Australia a carbon economy is emerging
slowly. The most significant initiative is the national government’s Carbon Farming Initiative (CFI)
which is a land-sector offsets scheme that rewards participants with carbon credits for projects
based on reducing emissions from savanna fires and farming, or increasing the amount of carbon
that is stored in vegetation and soils (see Dore et al. 2014). The cost of savanna burning projects
hardly meets the returns from the established fund and is only viable if linked to conservation
and ranger projects that are funded in large part by the state. The CFI is nonetheless important
for this argument because it lays the groundwork for a carbon right, that is the creation of a separate
property in carbon as a resource which is an independent legal entity that can be “severed” and
registered separate to the land property title. Electricity generated by solar power is currently not
an eligible activity under the CFI, but could in the future be integrated with the tradeable carbon
credit system via credits emanating from the national government’s Renewable Energy Target
(RET). A landholder could negotiate benefit sharing on the basis that land ownership is fundamental
to the creation of property rights in carbon. Depending on how carbon and energy markets are
designed and develop it is possible that the value of carbon credits could be as, if not more signifi-
cant, than the value of the actual electricity dispatched.
These novel socio-ecological assets present new complexities for landowners seeking to extract
rent. First, there are questions regarding whether or not the form of land tenure creates property in
carbon or renewable energy credits, or at least a right to benefit from these. The regulatory state is a
key player in this, and Indigenous interests need to be well represented in both the design and
implementation of such systems. Second, once established, Indigenous interests need to develop
or have access to sophisticated technical expertise in trading in these markets. This introduces a
new layer of intermediaries such as carbon fund managers, who can advise on how best to
capture value. Unlike Land Councils, these emerging intermediaries do not have a legislative
mandate to consult with, translate and protect the best interests of Indigenous landowners.

5.2. Strengthening capacity to negotiate partnerships and equity stakes

Enhancing the political capacity of Indigenous parties to negotiate effectively can help to overcome
legislative weaknesses (O’Faircheallaigh 2016; AIATSIS 2018). A First Nations-led framework, under-
pinned by principles and standards and focused on fair and equitable benefit-sharing, is currently
 LOCAL ENVIRONMENT 391

being discussed for use by communities and stakeholders in negotiating agreements for renewable
energy development (Original Power 2020). This will include models to access capital and gain an
equity stake in projects by leveraging land and other assets held in perpetuity by virtue of land
title. There are models of Indigenous equity stakes in mining projects that could be applied to renew-
able energy projects. For example a 100 per cent Indigenous-owned training centre and mining
(bauxite) operation in Arnhem land that is a joint venture between the Indigenous Gumatj corpor-
ation and Rio Tinto (DFAT 2020). The agreement for a gold mine on Jawoyn freehold title in Northern
Territory stipulated the offer of a joint venture, and involves a 10% participating interest by the
Jawoyn landholders (Mt Todd 2020). There is also a recently established company, Pilbara Solar,
that is 50% owned by the native title holders’ corporation. Canada also provides inspiration.
Remote Canadian Indigenous communities have sought active participation in electricity develop-
ments that furthers goals of economic development and self-governance (Karanasios and Parker
2018). Underpinned by Indigenous rights and treaties including norms of FPIC, there is increasing
evidence of Indigenous ownership of clean energy projects (ranging from partnerships to 100%
ownership); community-scale energy planning; and significant Indigenous employment and con-
tracting income in both construction and operations (see Stefanelli et al. 2019; ICE 2020).

6. Discussion – repossession, rent and diversified economic opportunities on

Aboriginal land
The energy justice literature has rightfully focused attention on accumulation by dispossession from
renewable energy developments. Low carbon energy investments can produce spatial injustices
through green-grabbing practices that dispossess Indigenous peoples of their lands and livelihoods.
This literature does address benefit-sharing, rather the findings are overwhelmingly focused on
burdens and disbenefits. In this paper, I have not denied the asymmetric power relations that charac-
terise the social relations of renewable energy investment and production on Indigenous lands.
However, I have sought to understand a range of legal factors that shape benefit-sharing outcomes
that are analytically distinct from processes of dispossession, in particular distinguishing between
enclosure struggles and rent struggles arising from the repossession of Indigenous land.
I have shown how the potential distribution of benefits to First Nations Australians from renew-
able energy projects will be shaped by the complex interplay between property rights and Indigen-
ous land legislation. I have explored the continuity between past localised mining practices, legal
frameworks for land use and access, and the distribution of benefits to Aboriginal communities pre-
dicated on customary land ownership. Consistent with much of the energy justice literature, I have
shown that a “thin veneer of legal rights”, weak state support and privileging of mining over Indi-
genous interests has left limited opportunities for Indigenous economic autonomy (Altman 2009a,
46). The Western legal system tends to structure and determine benefit-sharing arrangements in
ways that do not accord with more holistic, integrative, more-than-economic Indigenous approaches
to land and resources (Langton 2003). Nonetheless, this does not equate with a totalising narrative of
continuing dispossession. I leave open the possibility that the market, state, and customary sectors
(the so-called “hybrid economy”) can combine in creative ways to promote Indigenous aspirations in
all their diversity (Altman 2009a, 46). Obtaining economic rent and non-economic benefits from
renewable energy developments can address one part of the complex needs and desires of Indigen-
ous peoples seeking to live well on their ancestral homelands.
The two main legal frameworks that emerged out of the recent history of repossession – land
rights and native title – can be distinguished by the nature of the land title, the procedures surround-
ing agreement-making and extinguishment of title. The critical protections of a right of veto and the
right to negotiate emerged in the context of fierce struggles between Indigenous and non-Indigen-
ous (mainly mining) interests. These struggles led to opportunities for reform by harnessing the
winds of socio-political change, the creative application of legal precedent and the emerging
trend for a corporate social licence to operate. The two legal frameworks emerged as a result of
392 S. CHANDRASHEKERAN

struggles for recognition of Indigenous land ownership and were underpinned by the principle of
self-determination which included economic opportunities and livelihoods.
The legal frameworks were the product of different spatial contexts (Commonwealth adminis-
tered territory vs national coverage) and legal-administrative origins (common law vs statutory).
The emphasis on political self-determination during the 1970s Land Rights era was somewhat over-
shadowed in the 1990s by a pragmatic approach to balancing Indigenous and non-Indigenous inter-
ests. ALRA was passed as a social justice measure in the Northern Territory (where the
Commonwealth could make law under s122 of constitution) as a response to the injustice of the
terra nullius decision. By contrast the Native Title Act delivered neither veto nor royalty rights,
largely because the Labour Keating government in 1992–1993 was lobbied by the States to retain
their land management and royalty rights (Altman and Markham 2015). This also reflected the
growing political and economic strength of mining interests. The Native Title Act at once recognised
native title but also provided for its extinguishment, and the common law and legislative validation
of past acts created differential forms of possession (exclusive and non-exclusive). Based on this
patchwork of repossession, opportunity was created for benefit-sharing through agreement-
making between Indigenous landholders and claimants and proponents of future developments.
The history of agreement-making demonstrates that the capacity for benefit-sharing is shaped sig-
nificantly (but not exclusively) by the legal treatment of consent and a right of veto. Traditional
owners under the ALRA are in a stronger bargaining position vis-à-vis renewable energy proponents
than native title parties because of FPIC provisions. Other factors shaping benefit-sharing include the
political capacity of Indigenous parties and the corporate social responsibility pressures on develo-
pers to share the benefits of the project.
This paper should not be interpreted as a case of Australian exceptionalism to the larger pattern
of accumulation by dispossession. Dispossession of First Nations’ Australians is an historical and
ongoing practice and has led to deep power imbalances and injustices that cannot be easily cor-
rected through legal and political reform. However, efforts to address dispossession through recog-
nition are real and are intertwined materially with processes of agreement-making, compensation
for loss of rights, and benefit-sharing from land use and access. This paper calls for greater analysis
of the relationship between the concepts of accumulation by dispossession, rent and spatial justice,
in particular the distribution of benefits and burdens. I have argued that the struggles over enclosure
of the commons and benefit-sharing are analytically distinct, producing different types of contradic-
tions, but they also have a dependent relationship in practice. Both land rights and native title legis-
lation bring the concepts of recognition and benefit-sharing into conversation through laws and
procedures surrounding agreement-making. The capacity to address asymmetric power relations
between negotiating parties, to reject unwanted proposals and derive benefits from rent relations
is shaped by the existence of a right to fair and prior informed consent. When applying the law
to new energy developments on Aboriginal land it becomes evident that accumulation by
“energy dispossession” will only partly explain socio-spatially variable outcomes. The capacity to
negotiate with developers about future acts is based on legal and non-legal factors, and I have
drawn attention to the former in this paper.
This paper has looked specifically at the legal frameworks that inform mining and renewable
energy developments on Aboriginal land. There is much to be said about the non-legal factors
that could shape benefit-sharing outcomes in renewable energy projects, such as divisions
amongst Indigenous title holding groups (see Mills 2019), and competitive pressures between geo-
graphically distinct Indigenous groups. The latter is particularly relevant because renewable resource
availability is more distributed than mining. Energy developers could play off different landholding
groups to strike an agreement that achieves the best commercial outcome (see O’Neill, Thorburn,
and Hunt 2019). The distribution of benefits beyond the immediately affected community, as the
ALRA mining royalties does, could help to reduce rivalries between Indigenous communities and
support a broader notion of development that goes beyond compensation. I have not addressed
small-scale renewable energy projects, but instead have focused on large-scale developments for
 LOCAL ENVIRONMENT 393

export not primarily domestic use. Future research could usefully examine the nature of benefits or
disbenefits flowing from large-scale renewable energy projects to local Aboriginal communities in
terms of addressing energy poverty and energy insecurity. This paper has focused on the generation
(not transmission or distribution) of large-scale renewable energy projects. Grid investments can
create the enabling conditions for energy-intensive industries that were previously unimaginable
or economically marginal, and also bring much more reliable electricity to remote communities.
Research on the development of the grid would raise a range of variables, and apply a different cal-
culus of benefits to what I have discussed.
The utility-scale renewable energy industry in remote Australia is in its early stages and its emer-
gence presents opportunities to ground rent theory in an empirical context where reparation, eman-
cipation and pragmatism can rub shoulders in productive and problematic ways. There is a
potentially subversive and counter-hegemonic agenda premised on the repossession of land by
Aboriginal communities that needs to be kept open rather than prematurely foreclosed by an
abstract theorisation of rent as exploitation or a singular focus on accumulation by dispossession.

7. Conclusion
This paper has called for greater attention to struggles over rent in terms of energy justice. I have
argued that the literature focused on energy dispossession leaves us with few tools to think
about the potentially emancipatory potential arising from struggles over rent. Drawing on the Aus-
tralian context of land repossession by Aboriginal traditional owners, I have shown how the law has
become a vehicle for enabling and limiting repossession and benefit-sharing, and have explored the
ways in which this has played out in relation to mining developments. Utility-scale renewable energy
projects are now in development, and I draw on insights from negotiated outcomes for mining to
understand how Aboriginal landholders are placed in relation to proposed renewable energy devel-
opments. This is an avowedly speculative undertaking given the nascent stages of major renewable
energy projects, however, the fast pace of change and the serious implications for Aboriginal land-
holders warrants early analysis. The existing literature on mining agreements in Australia presents a
useful case study for refocusing debates on energy justice towards questions of rent, reparation and
benefit-sharing.

Acknowledgements
An earlier version of this article was presented to the “Energy infrastructure transitions and environmental governance”
Workshop funded by the University of Bergen, 2–5 February 2020. The author acknowledges the useful feedback of the
workshop participants. The author would also like to acknowledge the assistance of Professor Jon Altman, Australian
National University, and Professor Lisa Palmer, University of Melbourne, for their insightful comments on earlier
drafts. All errors are the author’s responsibility alone.

Disclosure statement
No potential conflict of interest was reported by the author(s).

ORCID
Sangeetha Chandrashekeran http://orcid.org/0000-0002-3792-654X

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Cases
Milirrpum v Nabalco Pty Ltd (1971) 17FLR 141 (the Nabalco case) Mabo v Queensland (No 2) [1992] High Court of Australia
23; (1992) 175 CLR 1.
Native Title Amendment (Cth)1998.
Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019]
High Court of Australia.
The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] HCA 40.