Native Title, Resources and Renewable Energy Team Newsletter | December 2024

The 2024 year in review…

Welcome to the December edition of the Native Title, Resources, and Renewable Energy Team Newsletter for 2024.

Following our February Newsletter, we are delighted to provide an update on the latest developments in key legal matters, industry insights and trends which are shaping the intersecting areas of native title, resources, and renewable energy.

As the energy transition continues, considerable changes in land access are occurring across Australia. Staying attuned to the latest developments in the relevant law, complementary practice areas, and technology is essential. Norman Waterhouse remains committed to delivering high-level support to its clients who are navigating this complex area by providing specialist advice on all matters concerning native title, heritage, resources, energy and the renewable economy. We are pleased to conclude this year having significantly progressed or completed a number of matters where robust negotiations and informed strategic decision-making have resulted in market-defining renewable energy and infrastructure agreements in Australia.

In this edition, we highlight a diverse range of topics from renewable energy agreements for energy generation, critical minerals-desalination, hydrogen and green steel to our recent contributions in the tertiary education sector and the upcoming review of the Native Title Future Acts regime.

Regards
Norman Waterhouse
Native Title, Resources, and Renewable Energy Team

1. Hydrogen Jobs Plan

We continue to support the renewable energy transition in South Australia by providing expert advice on a significant number of large renewable energy projects, which have State-wide economic significance. In an effort to become a net 100% renewable energy generator as part of its clean energy transition and decarbonisation, the State Government is seeking to build a 200MW hydrogen power plant in Whyalla in order to achieve this energy target.

Hydrogen Jobs Plan is one such project where the successful negotiation of an Agreement for Lease and Project Co-operation (AFLPC) allows the Barngarla Determination Aboriginal Corporation, the native title holders of the project area, to provide a lease for the land in the Cultana Industrial Estate to the Minister for Energy and Mining. Significant work has been undertaken on the AFPLC and associated agreements this year to finalise their terms, which are pivotal to the State’s hydrogen project lead by the Office of Hydrogen Power South Australia. With the AFPLC in place, the agreement ensures that the next phase for the hydrogen power plant can commence. Once constructed, this new power plant will see large-scale hydrogen production and generation to support the State’s grid security, as well potentially co-ordinate with other renewable energy projects on the Eyre Peninsula and Upper Spencer Gulf Region.

In addition to allowing the Hydrogen Power Plant to proceed to the next stage of development, the native title holders are provided with various benefits including a significant ‘land handback’ allowing them to own close to one thousand hectares in commercially valuable freehold land. This transfer enables the native title holder party to be the landlord for part of the Hydrogen project as well as other significant commercial renewable energy projects in the Eyre Peninsula region.

Norman Waterhouse has been privileged to assist in the negotiations for the market leading AFLPC and looks forward to progressing the upcoming legal work required for the Hydrogen Jobs Plan project.

2. Green Steel Indigenous Land Use Agreement

As an emerging industry, green steel production in Australia is another major market that benefits from Australia’s renewable energy transition. The hydrogen required in the green steel process is produced using renewable energy sources such as wind and solar power, to create ‘green hydrogen’ which can be used as an energy source to convert ore into iron and ultimately avoid large amounts of carbon emissions associated with the traditional steel-making process.

Relevant to this developing industry, the Middleback Indigenous Land Use Agreement (ILUA) covers the existing SIMEC/OneSteel operations as well as their planned magnetite expansion in South Australia, which is critical to the development of Green Steel. In 2023 and 2024, Norman Waterhouse undertook a comprehensive review of the original Middleback ILUA established in 2013. Following this review, amendments to the agreement have resulted in a revised ILUA containing robust provisions which will see long term benefits being provided to native title holders under the agreement and an ongoing strong relationship with industry for the life of the project. We are proud to announce that the Middleback ILUA was successfully renegotiated to the satisfaction of all parties and registered with the National Native Title Tribunal on 29 October 2024.

3. The Role of Critical Minerals & Water in the Renewable Energy Race

Considerable mineral and rare earth resources are required as part of Australia’s renewable energy transition. Decarbonisation requires both critical minerals e.g. for electric vehicles and combustion alternatives such as green hydrogen. Given this transition, demand for minerals such as graphite in the energy sector are expected to significantly increase as renewable energy technology takes its place as a dominant player in the market.

Another key requirement for industry is water, which plays an essential role in the mining of critical minerals and production of hydrogen by electrolysis. Given the increased demand for water to support the growth in the renewable energy and resources sectors, the need for desalination of seawater will dramatically increase as renewable energy become a permanent feature in the energy landscape.

Norman Waterhouse has this year finalised the successful negotiation of an ILUA for the construction of a desalination plant critical to supporting a graphite mine where such minerals are used in the production of car batteries in electric vehicles. The ILUA is one of the first ever desalination ILUAs to provide a commercial rate on minerals extracted which is directly convertible to a per ML rate on the desalination water. Our team is proud to have advised on this leading agreement which has resulted in establishing an appropriate ML rate for a First Nations group in South Australia.

4. Flinders University Law School

After the creation of our Scholarship at Flinders University in 2023, the Native Title, Resources and Renewable Energy Team has this year updated components of the “Indigenous Peoples, Colonialism and the Law” course for the Flinders Law School. In furthering our contribution to the legal landscape, we recognise that practitioners can play a crucial role in shaping the next generation of legal professionals the practice areas of native title, resources, and renewable energy law. As such, we seek to support the development of students who will become future practitioners or those who will be indirectly involved in the sector but still require sound understanding of the legal complexities and myriad of compliance obligations which exist.

Norman Waterhouse is delighted to deliver course material and workshops for law students undertaking the core-topic “Indigenous Peoples, Colonialism and the Law” as well establishing a scholarship for Indigenous students undertaking a Bachelor of Business, Business Economics or Commerce at Flinders University. In particular, we are proud to have introduced an entirely new week of lectures focusing on the practical application of native title in commercial negotiations. We look forward to continuing our support of the tertiary education sector by providing our valuable insights into the jurisdiction and promoting a transfer of knowledge at this early stage to students in the Bachelor of Laws.

5. Australian Law Reform Commission – Native Title Future Acts Review

This year the Australian Law Reform Commission (ALRC) announced its inquiry into the review of the Future Acts Regime under the Native Title Act 1993 (Cth).

Having finalised close to twenty ILUAs and large commercial native title agreements in the past five years, and with our Team currently negotiating approximately ten new ILUAs for large -scale commercial projects, we have a considerable interest in the Future Acts review process as practitioners who are regularly engaged with Native Title.

Given our extensive experience in this practice area, Norman Waterhouse has been pleased to provide preliminary input to the ALRC as part of its early consultation for the Issues Paper released in November 2024. Our Team looks forward to providing detailed submissions on the Future Acts regime in the new year. These submissions will assist the ALRC in its understanding of a number of key issues which exist in the Future Act provisions under the Native Title Act 1993 (Cth). The final report of the ARLC will be released in December 2025.

6. Collaborating with First Nations Clean Energy Network

In April this year, Norman Waterhouse was invited to present at the First Nations Clean Energy Network’s National Symposium which was held in Adelaide. This event provided an excellent opportunity for our team to highlight the key issues which arise in the renewable energy sector and the importance of understanding valuation, market conditions for agreement-making.

As a result of the market-leading work that has been undertaken by our team in this area, Norman Waterhouse supports the work of the Network and will look forward to delivering a masterclass in 2025 to provide insight into the renewable energy sector in respect of effective agreement-making and legislative compliance.

We have also agreed to mentor First Nations leaders under the Network’s inaugural PowerMakers Mentorship Program, this capacity-building initiative is scheduled to commence in 2025.