Accommodating Interests in Resource Extraction: Indigenous Peoples, Local Communities and the Role of Law in Economic and Social Sustainability

Abstract

This introductory article to a special issue of the 'Journal of Energy & Natural Resources Law' describes how Australia and other parts of the globe are experiencing an unprecedented boom in the resource extraction sector. In Australia, the sites of resource extraction often coincide with, or are adjacent to, traditional lands of indigenous people or indigenous communities. A similar pattern of co-location occurs in other countries from which case studies in this journal issue are drawn, due to historic patterns of colonial land appropriation and resource extraction. This coincidence presents unprecedented opportunities for indigenous and local peoples to build wealth and promote sustainable social and economic development. Of course 'development' is a highly contested term and the construct has various manifestations at both a global and a local level, with an enhanced emphasis of late on economic empowerment and sustainability. Broadly speaking, across the countries and situations included in this journal issue, there are two parallel legal frameworks that are relevant: first the legal and institutional structures for allocation of mining rights and their associated regimes, and secondly indigenous land and resources regulation and management. Each of these is affected by other regimes and frameworks. Typically it is at the points of intersection between the two major frameworks that recognition and engagement with indigenous interests and local communities are progressively delineated and reworked, particularly in light of the progressive expansion of legal protection for indigenous and local community interests in land and resources over the last decades. These processes of expanding access to land and resources operate in conjunction with the pressures and opportunities introduced by a resource extraction boom, placing a premium on any such access or 'licence to operate'. The discussion of the two parallel frameworks operative in Australia demonstrates this pincer movement. A similar overview of other sites provides further evidence that indigenous and local peoples were disengaged from the resources sector until relatively recently. This examination provides both the contextual and historical background to situate specific articles but also illustrates the potential opportunities and difficulties that current frameworks present for 'accommodating' the participation of indigenous peoples and local communities in the resource extraction process.