An overview: The legal industry and developing the critical minerals industry in Australia

Decarbonisation is a metal-intensive process, requiring large amounts of metals such as copper and iron, as well as rarer and more expensive minerals known as critical minerals. For example, the International Energy Agency notes cobalt and lithium are integral to producing batteries, such as those used in electric vehicles. However, it also says that today’s supply and investment plans for many critical minerals fall short of what is needed to support large-scale deployment of decarbonisation technologies such as solar panels, wind turbines, and electric vehicles.

Australia, as a primary global exporter of minerals and considering our stable fiscal and regulatory regime, is well placed to provide responsible and sustainable critical minerals to drive decarbonisation. The federal government recently announced a $2 billion expansion in critical minerals financing, increasing its value-adding investments in Australian resources to $6 billion.

Developing this industry requires acting in partnership with the legal industry to create a policy environment and incentivise growth. Australia recently released the Critical Mineral Strategy 2023–2030, a framework that is targeted at guiding future government policy decisions and helping ensure that Australia is a globally significant producer of raw and processed critical minerals. These future policies should:

• Consider available levers that can improve productivity and economic sustainability while ensuring that projects are attractive and competitive to investors. For example, the Junior Minerals Exploration Incentive is a program operated by the Australian Commonwealth government that provides tax incentives to eligible companies conducting greenfield mineral exploration in Australia.
• Create incentives for sustainable and reliable practices and promote transparency in markets, like certification schemes in development for hydrogen and alternative powerfuels.
• Foster international collaboration and attract international funding through trade alliances and legislation.
• Unite Australian states and territories on critical minerals strategies.
• Streamline and expedite suitable critical minerals projects.
• Support research and development in the critical minerals sector.

The role of legislature in driving decarbonisation

The legal industry contributes in notable, meaningful ways to the target of net zero emissions, including:

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• Guidance and advisory: The legal sector provides expert advice and guidance to governments, corporations, and individuals. Lawyers and legal professionals are instrumental in interpreting and navigating complex environmental regulations and policies. They assist various clients in understanding their legal obligations and rights in relation to climate action, ensuring environmental compliance, and mitigating risks. Further, the legal industry plays a pivotal role in structuring and negotiating contracts for renewable energy projects, carbon capture initiatives, and other sustainable ventures. By facilitating these transactions, lawyers are directly contributing to the increase in clean energy production and emissions reduction.
• Enforcing accountability and litigation: The legal sector is crucial in holding entities accountable for their environmental impact. Environmental law, a growing field within the legal profession, focuses on regulating and enforcing laws related to air and water quality, waste management, and conservation. Lawyers specialising in this field ensure that corporations and governments adhere to environmental standards and regulations. In recent years, there has been a surge in climate litigation cases, where individuals, communities, and non-governmental organisations are taking legal action against governments and corporations for failing to adequately address climate change. These cases not only serve as a means of accountability but also raise public awareness and push for policy changes.
• Promoting policy and regulatory changes: The legal industry has a significant role in advocating for and influencing climate policies, regulations, and legislative changes. Lawyers and legal professionals engage in lobbying efforts, draft legislation, and provide expert testimony to policymakers. By doing so, they help shape the legal and regulatory framework that governs climate action. The sector also plays a critical role in ensuring that climate policies are just and equitable. Environmental justice, a movement and legal field that focuses on addressing the disproportionate environmental burdens borne by marginalised communities, is gaining traction. Lawyers in this field strive to ensure that climate policies and actions do not exacerbate existing inequalities and that the benefits of climate action are shared equitably.
• Driving innovation and investment: In addition to its traditional roles, the legal industry is also driving innovation in the field of climate action. Legal professionals are exploring and developing new legal tools and mechanisms to address the unique challenges posed by climate change. One such innovation is climate finance law, which focuses on the legal aspects of funding climate mitigation and adaptation projects. Lawyers specialising in this field help structure financial instruments and investments that channel capital towards sustainable initiatives. Other examples include legal frameworks that promote sustainability, such as legal mechanisms for carbon pricing. The legal sector is at the forefront of efforts to improve the transparency and accuracy of climate-related financial disclosures. By doing so, they are helping investors make more informed decisions and driving capital towards sustainable practices.

Developing policy and regulatory settings is essential to enabling investment, providing downstream opportunities, and building secure and diverse global supply chains. There is a key gap in this area, and thus there is an opportunity for the legal sector to continue to play a significant role in fast-tracking the critical minerals and clean energy industry in Australia – which is critical to decarbonisation efforts both nationally and internationally.

Dr Rahman Daiyan (pictured) is a renewable energy and powerfuel specialist with a track record in technology development, techno-economic feasibility studies and technical design for government(s) and industry. He is a senior lecturer and Scientia Fellow at the School of Minerals and Energy Resources Engineering at the University of New South Wales and an Australian Research Council (ARC) Discovery Early Career Researcher Award (DECRA) Fellow.

Dr Josh Leverett recently completed his PhD under the supervision of Dr Daiyan, where he focused on the design, development, and testing of nanomaterials for a range of clean energy conversion reactions, including the electrochemical conversion of CO2 and NOx to value-added products.

Muhammad Haider Ali Khan recently completed his PhD under the supervision of Dr Daiyan, where he focused on hydrogen value chain economics. He has significant experience in open-source development for hydrogen/derivative projects and hydrogen road mapping for industry and government.