1. Introduction

For climate conscious lawyers to be part of any effective responses to the challenges posed by climate change, they must be aware and centre the knowledge and wisdom of First Nations peoples.^[1] The Australian settler-colonial legal system was founded on the doctrine of terra nullius and the discriminatory belief that First Peoples were barbaric peoples without laws.^[2] Consequently, the settler-colonial legal system has not been traditionally effective at listening to First Nations voices, especially on matters concerning Country. This chapter will foreground the issue of First Nations rights, sovereignties and laws. It will highlight how the violence of settler-colonial law has played a key role in causing the climate crisis. Through the use of a case study on Gomeroi peoples’ fight against coal seam gas (‘CSG’), this chapter concludes that any transformative response to the current climate crisis must also engage with questions of First Nations laws, rights, justice and decolonisation, as these can positively influence our ability to respond to climate change.

Embracing First Nations ways of knowing are consistent with the goal of the Australian legal system to provide recognition justice for historical exclusion as well as procedural justice through inclusivity of First Nations peoples.^[3] These goals were introduced in the first chapter of this book.

The term ‘Country’ has been deliberately capitalised in this chapter, to emphasise its fundamental place in First Nations laws and cultures. It denotes more than the land, encompassing water, sea, air, animals and plants^[4] — that is, the entire ecosystem in its widest sense. This approach is consistent with First Peoples’ ontologies which although diverse emphasise the interconnectedness and interrelatedness of all living things.^[5]

1.1 The Historical Setting

Colonisation was driven by the perceived need to provide the ‘necessities of life’ from a European world view.^[6] The British colonisation of Australia coincided with the first industrial revolution and the emergence of new technologies, a shift to fossil fuels to generate energy, and large-scale land clearing for mining, pastoralism and agriculture.^{[7] [8]} Since 1788, these activities have continued largely unchecked, with First Peoples’ ancient laws and knowledges effectively silenced under the settler-colonial myth of terra nullius.

First Nations have consistently asserted the right to care for Country and opposed mining where it has posed a threat to the environment and sacred cultural sites.^[9] Historically the settler-colonial legal system denied First Peoples citizenship and legal personality, with virtually no formal avenues to challenge activities which were harmful to Country.^[10] It was not until the 1970s that First Peoples used the Australian legal system to attempt to stop mining and extractive industries on Country.^[11] The introduction of Aboriginal land rights legislation, cultural heritage laws^[12] and later the Native Title Act 1993 (Cth) (‘NTA’) created mechanisms to enable the return of lands and to raise objections about proposed land uses.^[13] These processes have however been limited in their capacity to address First Peoples’ obligations to Country and in many ways have maintained colonial dominance over First Peoples.^[14]

In this context, First Peoples’ caring for Country needs to be understood as an expression of our enduring laws and sovereignties, which continue irrespective of whether the settler-colonial legal system decides to recognise them or not.^[15] As Ngalia man Kado Muir has stated, native title recognition inevitably raises the question of ‘to what extent this dominant group is prepared to tolerate the operation of Indigenous laws in parallel to its own laws’.^[16] This lies at the heart of First Peoples’ attempts to use the settler-colonial legal system to protect Country and mitigate the impacts of climate change. We do this not because we acquiesce to the settler-colonial state’s assumed jurisdiction over us but because our laws mandate that we must protect Country for future generations.^[17] We simply must use whatever avenues are available to protect Country, kin and culture by asserting our custodial responsibilities and speaking back to colonial power.

1.2 First Peoples Knowledges and Climate Change

Calls for increased prioritisation of First Nations knowledges in current issues facing our society are not new.^[18] Tanganekald, Meintangk, Bunganditj and Potaruwutj scholar Irene Watson has written extensively on the enduring existence of First Nations peoples and their laws. More recently, there have been calls for a more holistic approach to climate change and the reform of legal education by re-centring First Nations knowledges and embracing a human rights informed engagement with First Nations peoples.^[19] This chapter reiterates those calls and argues that First Peoples knowledges and laws are essential to addressing climate change.

The need to re-centre and engage with First Nations knowledges continues to be urgent, as there is a critical need for different perspectives on proposed climate change solutions such as the rise and expansion of green energy. While initially attractive, green energy projects such as large scale solar and wind farms carry implications for Country and its flora and fauna. If these projects are designated on Country for which First Nations peoples have custodianship, First Peoples’ laws and the obligations to care for Country must be prioritised.^[20] The extraction of rare earth minerals — vital to the renewable energy transition — carries significant consequences for First Peoples, while also posing serious threats to the environment and biodiversity.^[21] With over 50% of rare earth minerals deposits on lands held by First Nations, there is an urgent need to work in partnership with First Peoples to ensure that Country and our rights are respected.^[22]

First Nations peoples’ obligations to Country are part of our culture of relationality, as reflected in Indigenous notions of sovereignty which encompass an obligation to maintain Country for the benefit of future generations.^[23] Kombumerri and Waka Waka philosopher Mary Graham explains relationality as ‘the goodness of our relationship with nature, rather than nature itself … when we can speak to the nurturing of a relationship, we are in a better position to articulate our shared responsibility’.^[24] The culture and insights of First Nations views on Country have been practised for at least 60,000 years in Australia. First Peoples in Australia have also survived climate change in the past, including two ice ages and rising sea levels.^[25] Climate conscious lawyers have much to gain from respecting this knowledge and wisdom and championing the wider perspectives it can bring on responses to climate change.

Knowledge of international human rights law must also inform climate conscious lawyers of the future, and particularly international law which is centred on First Nations rights. The pre-eminent example of this is the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).^[26] Article 25 of UNDRIP states:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

UNDRIP also confirms First Peoples’ right to self-determination, and the need for free prior and informed consent (‘FPIC’) with respect to activities that may impact First Nations lands.^[27] The authors agree with Irene Watson that First Nations rights to self-determination must be more than a simple right to be consulted in a process where the final approval is granted by another.^[28] The question of what constitutes FPIC under UNDRIP is one that looms large for climate conscious lawyers.^[29] We argue that settler-colonial laws are currently silent on FPIC, especially the NTA, where there is no right for First Peoples to veto proposals which are detrimental to Country.^[30] The evolving native title system in Australia must be considered in the context of First Nations knowledges and climate change. In the case study in this chapter, the impact of native title with its vision of traditional owners advocating for Country is central. However, the native title system is not without its limitations, as the following case study shows.