Diversification Leases

Posted: December 1st, 2022

Diversification leases

Western Australia’s State Government has introduced the Land and Public Works Legislation Amendment Bill 2022 into Parliament, which aims to amend the Land Administration Act 1997 (WA) (LAA). Yamatji Marlpa Aboriginal Corporation (YMAC) has made two submissions to the Department of Planning, Lands and Heritage in relation to the bill, raising several concerns.

YMAC notes the turnaround on these consultations were quite short, particularly with respect to the draft bill. It should also be noted that YMAC has received no response from the State Government in relation to its detailed submissions, which included pertinent suggestions on improvements that could be made to the legislation.

The proposed diversification leases outlined in bill will be a new form of land tenure designed to allow more flexible use of Crown land that, among other activities, will be applicable to the renewable energy and carbon farming sector.

While YMAC acknowledges the need for alternative tenure under the LAA and generally accepts the purpose of diversification leases, the amendments proposed are significant and will have a large impact on First Nations entities (including native title parties) and Traditional Owners.

While some consultation has occurred in relation to the broad concept of diversification leases, none of it has:

  • allowed any opportunities for partnership or shared decision-making with First Nations peoples or entities.
  • featured genuine engagement with First Nations entities where feedback was reflected on and adopted.
  • included discussions on amendments to the Public Works Act or amendments to the pastoral lease provisions in the LAA.

YMAC believes this is out of step with the State Government’s own Aboriginal Empowerment Strategy 2021-2029 which states:

“A core principle of the strategy is that policy decisions about Aboriginal people cannot be made without Aboriginal people. For decisions with high potential impact or opportunity for Aboriginal people, this means partnership and/or shared decision-making. For other decisions, it means genuine engagement with affected Aboriginal people at a level proportional to the potential impact of opportunity.”

Any amendments to the LAA must establish a policy position that, when an Indigenous Land Use Agreement is sought by a diversification lease proponent, it must be matched with the principle of Free, Prior and Informed Consent (FPIC) to ensure the rights and interests of native title holders are respected and adequately protected.

It is foreseeable that, in the rush to meet net zero emissions targets and address global climate change concerns, the State Government will be under pressure from proponents and its own goals, in relation to renewable energy. While this may be well-intentioned, it is critical the rights of native title holders are not compromised in the process.

With renewable energy projects having potential impacts to Country of up to 70 years, it is vital this is done right from the outset so Traditional Owners can also benefit from this process.

You can read YMAC’s submissions on diversification leases in the links below:

Consultation Draft – Land and Public Works Bill 2022 (WA) – 21 October 2022

YMAC submission – LAA amendments diversification leases on Crown land – 9 September 2022