'Unreasonable and Extraordinary Restraints': Native Title, Markets and Australia's Resources Boom

Abstract

Historically Aboriginal people have had limited capacity to derive economic benefits from mineral development in Australia, reflecting their general economic marginalization and in particular their inability to participate in markets for factors of production (land, labour, minerals) required by the mining industry. The legal recognition of native title and the introduction of cultural heritage legislation could potentially confer on Aboriginal people significant commercial leverage and so allow them to share in the benefits generated by the exploitation of Australia's mineral resources. This paper argues that the nature of native title and cultural heritage legislation, federal government policies, the operation of the National Native Title Tribunal, and recent Federal and High Court decisions on native title, together undermine the ability of Aboriginal people to achieve in practice the commercial leverage potentially available to them. Some Aboriginal organizations are successfully employing political strategies to shore up the economic power of the people they represent, but many are not in a position to do so. I argue that these outcomes are profoundly inequitable in a society where markets play an increasingly dominant role in allocating resources, and run contrary to the thrust of federal indigenous policy which rests heavily on achieving greater Aboriginal participation in the 'real economy'.