Native Title Rights to Take Resources

Abstract

Native title rights to take resources for unconstrained or commercial purposes were first recognised almost a decade ago, but the significance and uptake of such rights in Australia is now heightened. Resource ownership and management are critical components of global sustainable development and Indigenous interest holders play a key role in that space. The gradual acceptance of resource use by traditional owners in a modern economy reflects more developed trends overseas such as in Canada. Reluctance to concede the commercial exercise of native title rights may be due not only to evidential thresholds (required by state governments to enter consensual determinations), but also concerns about the possible consequential legal impacts for those governments and other interest holders. This article considers potential consequences of recognising native title rights to take resources for any purpose in several developing areas of native title jurisprudence including: quantum of native title compensation, the regulation of native title under resource management legislation enacted since the Native Title Act 1993 (Cth), competing claims to resource ownership and use, and the risks for government where prior assumptions of resource ownership are displaced by determined native title.