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Private Climate Governance in Australia: Indigenous Land Use Agreements and the Majority Default Rule

journal contribution
posted on 2022-10-10, 00:56 authored by Samantha HepburnSamantha Hepburn
This article examines the majority default rule as a consent mechanism for area Indigenous land use agreements (ILUAs) in Australia.
The area ILUA is a well-established long-term land use transaction entered into between Indigenous claimants and third parties. This agreement is highly amenable to the inclusion of focused climate governance that addresses escalating climate risks facing indigenous communities.
Developing the area ILUA as a form of private climate governance (PCG) will improve climate justice concerns as it may address some of the inadequacies and omissions of the public governance framework. This
Article argues that the majority default rule impedes the ability of claimants to utilize these agreements as a form of PCG by reducing the negotiating power of minority claimants and binding them to the terms of an agreement they did not approve. This undermines the relative bargaining power of all claimants because it diminishes their ability to hold out for climate governance. This Article proposes removing the majority default rule from the Native Title Act 1999 (Cth) and reverting to consensus approval. This will ensure all impacted claimants retain full participatory and approval rights. It will give all Aboriginal and Torres Straight Islanders a transactional voice over contracts that provide permission for projects that dramatically impact their land, resources, and climate. Removing the majority default rule will allow future ILUAs to become more amenable to climate governance which may include: adaptation and mitigation duties, transparency and accountability obligations, and disaster and resilience management planning. Providing
all impacted Indigenous claimants with rights of approval means everyone has the capacity to contribute to the negotiation and approval of a contract that will bind their land and resources into the future. This will better equip
Indigenous Australians to address the impacts of an accelerating climate emergency.



Wisconsin International Law Journal





Article number



431 - 457


United States





Publication classification

C1 Refereed article in a scholarly journal

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