The Consent Gap in Australia’s Critical Minerals Pitch

David Zhang | Climate & Environment Fellow

Image sourced from René Riegal via Unsplash

Over recent years, Australia has pitched itself to the world as a key source of the critical minerals needed for the energy transition. As the United States (US) and its allies look to reduce their reliance on China, which processes 90 per cent of the world’s rare earths and has shown a willingness to restrict their export, that pitch has already gained ground, most visibly in the US–Australia framework. Reserves alone do not set Australia apart, since plenty of countries have them. Its offer rests instead on being a ‘dependable’ partner, which turns the pitch on governance rather than geology alone.

That promise of being a responsible supplier sits uneasily with how the minerals are extracted. Globally, more than half of transition mineral reserves lie on or near Indigenous lands. In Australia, close to eight in ten critical minerals projects sit on land where First Nations people hold land rights or native title, including native title claims still being decided. These communities will therefore bear much of the cost of supplying the transition, while holding the least say over whether it happens at all.

No right to refuse

The main law governing mining on First Nations land is the Native Title Act 1993, passed after the High Court’s decision in Mabo. It offers native title holders the right to negotiate, requiring miners and the state to negotiate with them in good faith for at least six months. If no agreement is reached, the National Native Title Tribunal decides, and of 200 contested acts since 1994, it has stopped only six. Traditional Owners can therefore shape the terms of the project but cannot stop it, which falls short of a right to consent.

The standard should be that of free, prior and informed consent (FPIC), set out in the UN Declaration on the Rights of Indigenous Peoples, under which communities decide freely, in advance, with full information, and can ultimately say no. Australia endorsed it in 2009 but has not written FPIC into any legislation. The harmful and irreversible effect of that gap has been visible since then. In 2020, Rio Tinto lawfully destroyed 46,000-year-old rock shelters at Juukan Gorge under a state government approval that the Puutu Kunti Kurrama and Pinikura people had no legal means of challenging.

The cost nobody counts

The Critical Minerals Strategy commits billions of dollars to secure supply and allied access, yet it has not earmarked resources to support First Nations participation, even though these communities whose land supplies the minerals already do not share equitably in the wealth mining has generated.

That uncounted cost is increasingly showing up as risk, since mining projects are assessed for every threat to their timeline and value, yet consent is rarely treated with the same rigour. The destruction of Juukan Gorge cost Rio Tinto’s chief executive their job, and in May 2026 the Federal Court awarded the Yindjibarndi people around AUD$150 million in compensation, mostly for cultural loss, over Fortescue’s Solomon Hub mine. Buyers are beginning to price the same risk. The European Union’s Battery Regulation will require due diligence on human rights risks in mineral supply chains, and the Initiative for Responsible Mining Assurance’s standard requires FPIC where mines affect Indigenous groups. A project without consent may struggle to find buyers in the markets Australia most wants, whereas consent sought from the outset, with First Nations people shaping project design and sharing in its returns through employment and equity, instead makes them part of a project’s value rather than a cost to be paid out at the end.

Consent already works

There are two serious objections to a right of refusal: that negotiated agreements already deliver revenue and jobs for host communities, and that a veto would stall projects Australia now treats as strategic. Yet research shows those agreements have not lifted host communities out of disadvantage, and Australia’s own experience does not bear out the fear of a veto. First Nations people in the Northern Territory have held the power to refuse exploration on their land since 1976, and the Territory remains a significant mining jurisdiction. The model proposed by Australian Law Reform Commission (ALRC) also keeps a narrow national interest exception, so consent need not become an absolute veto.

Australia also already requires consent in another market. A land-based carbon project on determined native title land cannot earn credits without the consent of the native title holders, and a bill now before Parliament would extend that to registered claimants (those with claims yet to be determined) and require consent before a project is registered rather than afterwards, bringing the scheme closer to the ‘prior’ in FPIC. Australia is strengthening consent in a largely domestic carbon market, while declining to introduce it in the export industry its allies care about most, where the stakes for Country are far higher.

Reform already on the table

The ALRC’s June 2026 report proposes requiring agreement before a project proceeds wherever its harm to native title cannot be remedied, and the government has yet to respond. Meanwhile, the Mabo Centre and National Native Title Council, which are developing a First Nations Critical Minerals Strategy with Aboriginal Enterprises in Mining, Energy and Exploration, have told a parliamentary inquiry that FPIC should be embedded in law, with government funding conditional on it. The government should adopt both sets of recommendations, making FPIC the legal standard for the critical minerals projects that carry Australia’s responsible-supplier pitch.

Getting this right would matter beyond Australia’s borders. Indonesia, Papua New Guinea, and Pacific states are being asked to supply the transition on terms largely set elsewhere, often by Australian financiers and miners. A standard that holds at home would give Australia the credibility to expect it of the projects it funds abroad and would turn the trust it already sells to its partners into something its own law can stand behind.

David is a final-year Bachelor of Laws student at the University of Sydney, where he has also completed a Bachelor of Economics. He is interested in how economics, law, and international cooperation can be harnessed to confront climate change and drive the energy transition. This is driven by a conviction that a stable climate is not a policy choice but a precondition for basic human rights, aligning with his broader work on First Nations advocacy, refugee support, and gender equality.

He spent three years as an Associate in Commodities and Environmental Markets at the Commonwealth Bank of Australia, helping build carbon markets as a nascent asset class alongside fast-evolving policy. A semester exchange at the University of Copenhagen studying sustainable development and economic policy offered a working contrast to Australia, showing him an economy centred on environmental sustainability. 

Disclaimer: The views and opinions expressed in this article are those of the author, and do not necessarily reflect the views and opinions of Young Australians in International Affairs. AI tools were used by this author for grammar checks and idea refinement, but all content is original, and no plagiarism has been used in the preparation of this article.