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Hot topics affecting the clean energy transition

Lauren Shave, Special Counsel, Gilbert + Tobin and President, ER Law Western Australia Branch

In the past year, there have been a couple of issues that I think will continue to have an impact on the clean energy transition in coming years. It’s hard to separate the clean energy transition from the technological change that’s happening at the moment - the two have a lot to do with each other. The other is native title and cultural heritage where the change I’ve seen has been really positive in terms of engagement with Traditional Owners.

The advent of artificial intelligence (AI) has come on pretty quickly and become an issue that people need to be aware of. One aspect of AI is technology like ChatGPT which I think shocked a lot of people by how incredibly fast it is at producing highly detailed answers. 

AI is also linked to things like autonomous technology on mine sites. If you think of an autonomous vehicle or drones going into dangerous places instead of human beings or being able to monitor people’s vital statistics remotely, these all have a huge impact on work health and safety for mining operators. When technology becomes available employers need to determine when their obligation to use it kicks in and there is also an ethical component, for example, when that obligation intersects with the privacy rights of employees.   

Over the past 12 months we’ve also started to see a shift in how energy corporations work with Traditional Owners. I think there’s a feeling amongst Traditional Owners that I’ve spoken to that mining hasn’t historically engaged with Traditional Owners in a way that allows full participation in a project, but there’s a hope that the clean energy wave can address this more inclusively. In many cases, Aboriginal Corporations are now well-equipped to take the best advantage of the opportunities that clean energy projects present, and I think best practice  now sees Traditional Owners embedded in the project structure from inception. 

I think this is partly due to the growing importance of ESG, and the willingness of shareholders to hold companies to account and scrutinise directors and management for the decisions they take regarding the environment and traditional owners. As a result, there is a much greater emphasis on social responsibility and maintaining a social licence to operate. Community expectations around these issues have similarly evolved and become an important consideration for project proponents. Clean energy projects are also being initiated at a time when native title is relatively settled, so it is largely clear who has native title rights and how any native title consents need to be obtained.  

I think a major challenge for project proponents (and their lawyers) now is certainty. Governments desire control when it comes to climate, cultural heritage and resource allocation which means increasing complexity and regulatory frameworks. 

It can be tricky to operate amidst this uncertainty, but energy and resources companies are already good at this. Managing internal and external expectations by incorporating the major uncertainties within your plans is key. As lawyers, we can help by providing clear guidance on likely timeframes and sticking points so that proponents can plan appropriately  and communicate well with  their stakeholders and the community. 

The ER Law Conference is a good way to get up to speed with what’s happening as well and speak to others who are facing similar challenges. I’m really looking forward to the sessions on emerging technologies, as this has massive implications for the work health and safety space. I’m also looking forward to the cultural heritage reform session which is very topical in Western Australia at the moment, given the state government intends to  repeal of the new cultural heritage legislation (as announced just 5 weeks after the new law came into effect). It will be interesting to compare and contrast approaches to cultural heritage across jurisdictions. 

If you’d like to attend the ER Law Annual Conference you can register here

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