Contemporary issue: legal rights of Indigenous peoples to natural resources: HSC Legal Studies

What this dot point is asking

Legal rights to natural resources is the third contemporary issue that must be studied in the Indigenous Peoples option. You must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses.

Natural resources include wildlife, fish and marine resources, plants, water, forests, minerals, oil and gas, and increasingly the land and wind needed for renewable energy. The legal questions are: can Indigenous peoples use resources on their traditional lands and waters, can they use them commercially, do they own them, and can they consent to or refuse development that affects them? This issue sits closely with land rights, and 2023 HSC Question 29(a) combined the two.

The answer

Identifying the issue

Indigenous peoples have used and managed the resources of their lands and waters for millennia. Colonisation separated them from those resources in three ways:

1. State ownership. Most states vest minerals, petroleum and often water and wildlife in the Crown, so traditional owners do not own what lies under or flows through their land.
2. Regulation. Licensing laws for fishing, hunting and water use were applied to Indigenous peoples as if they were any other user.
3. Development. Mining, dams, logging, oil and gas projects, and now renewable energy and critical minerals projects, are often located on Indigenous lands, bringing damage to country and culture, sometimes with few benefits.

The central legal concept is free, prior and informed consent (FPIC): consent given freely, before a project is approved, on full information, with the option to say no.

International standards

• Common article 1(2) of the ICCPR and ICESCR: all peoples may freely dispose of their natural wealth and resources, and "in no case may a people be deprived of its own means of subsistence".
• UNDRIP: rights to the resources Indigenous peoples have traditionally owned or used (art 26); protection of the environment and productive capacity of their lands (art 29); and art 32, requiring states to consult in good faith "to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources".
• ILO Convention 169, art 15: rights to natural resources must be safeguarded, including participation in their use, management and conservation; where the state owns minerals, it must consult before exploration, and Indigenous peoples should share in benefits.
• Convention on Biological Diversity, art 8(j): respect for Indigenous knowledge and practices relevant to biodiversity.

Australia: rights to use resources

Traditional use

Section 211 of the Native Title Act 1993 allows native title holders to hunt, fish, gather and carry out cultural activities for personal, domestic or non-commercial communal needs without a licence. In Yanner v Eaton (1999), the High Court held that Murrandoo Yanner, a Gangalidda man who caught two juvenile crocodiles with a traditional harpoon, did not need a licence under Queensland fauna law: the law had not extinguished his native title right to hunt, and s 211 protected it. In Karpany v Dietman (2013), native title fishing rights were held not to have been extinguished by South Australian fisheries law.

The sea

In Commonwealth v Yarmirr (2001), the High Court recognised native title over the sea around Croker Island in the Northern Territory, but only as non-exclusive rights, because exclusive rights would conflict with public rights to fish and navigate. In Northern Territory v Arnhem Land Aboriginal Land Trust (2008) (Blue Mud Bay), statutory land rights under the NT Act were held to extend to the intertidal zone, so commercial and recreational fishers need traditional owners' permission to fish there.

Commercial use

In Akiba v Commonwealth (2013), the High Court held that Torres Strait Islanders' native title right to take resources from the sea includes the right to take fish for commercial purposes, and that fisheries licensing laws had not extinguished it, an important step towards economic self-determination.

Water

Native title rights to water are usually non-exclusive and non-commercial, and water entitlements in the Murray-Darling Basin and elsewhere are largely held by others. Governments have begun to fund Aboriginal water entitlements, but Indigenous holdings remain a very small share of the total.

Australia: resource development and consent

• Minerals and petroleum. In Western Australia v Ward (2002) the High Court held there is no native title right to minerals or petroleum where the Crown has vested their ownership in itself.
• Right to negotiate, not a veto. Under the Native Title Act, registered native title claimants and holders have a right to negotiate before mining leases are granted, and can reach Indigenous Land Use Agreements with benefits; if agreement is not reached, the National Native Title Tribunal can determine that the project proceeds. This falls short of FPIC.
• NT land rights. On Aboriginal land under the ALRA (NT) 1976, traditional owners can refuse consent to exploration, the strongest control over resources in Australian law, subject to a national interest override.
• Consultation on offshore projects. In Tipakalippa v NOPSEMA (2022) the Full Federal Court upheld a decision setting aside the regulator's approval of Santos's Barossa gas drilling plan near the Tiwi Islands because Santos had not consulted Tiwi traditional owners. But in Munkara v Santos NA Barossa (January 2024) the Federal Court dismissed a claim that the pipeline threatened underwater cultural heritage, finding the claimed songlines had not been established and criticising how some evidence had been prepared. Consultation can be enforced; a veto cannot.
• Cultural heritage and resources. The lawful destruction of Juukan Gorge by Rio Tinto (2020) showed that resource approvals could override traditional owners' objections. In 2025 the North West Shelf gas extension was approved, with effect until the end of 2070, subject to 48 conditions to protect Murujuga rock art, which was inscribed on the World Heritage List in July 2025. Friends of Australian Rock Art and the Australian Conservation Foundation challenged the approval in the Federal Court; check whether judgment has been delivered before your exam.

Rights to natural resources around the world

• Canada. Haida Nation v British Columbia (2004) established the Crown's duty to consult and, where appropriate, accommodate Indigenous peoples before decisions affecting asserted rights, such as logging licences. In Clyde River v Petroleum Geo-Services (2017), the Supreme Court quashed approval of offshore seismic testing because consultation with the Inuit was inadequate. But the duty to consult does not usually require consent.
• Inter-American Court. In Saramaka People v Suriname (2007), logging and mining concessions on Saramaka land violated their rights; for large projects the state must obtain free, prior and informed consent, share benefits and conduct impact assessments. In Sarayaku v Ecuador (2012), Ecuador violated the right to prior consultation by allowing oil exploration on Sarayaku territory.
• Norway. In the Fosen case (11 October 2021), the Supreme Court held that wind farm licences violated Sámi herders' right to culture under ICCPR art 27. The turbines continued to operate, and settlements were reached with the herders by March 2024, showing that green energy projects can also conflict with Indigenous rights.
• Greenland. The Self-Government Act (2009) gave Greenland's government control of its mineral resources, one of the strongest forms of resource self-determination.
• Ecuador. In an August 2023 referendum, voters chose to stop oil drilling in part of Yasuní National Park, home to Indigenous peoples in voluntary isolation.

Non-legal responses

• Agreements and benefit-sharing. Many mining companies negotiate agreements with traditional owners that provide employment, royalties and heritage protections; after Juukan Gorge, the mining industry revised its heritage practices.
• Indigenous ranger programs and Indigenous Protected Areas manage land, sea and fire, combining traditional knowledge and employment.
• Advocacy. Organisations such as land councils and the First Nations Heritage Protection Alliance, and NGOs such as Amnesty International, campaign for FPIC; investor pressure on companies to respect Indigenous rights has grown since 2020.
• Media. Coverage of Juukan Gorge, Fosen and Standing Rock (the 2016 protests against the Dakota Access Pipeline in the United States) raised global awareness.

Evaluating the responses

Judgement. The law recognises Indigenous peoples' legal rights to natural resources to a limited extent. Rights to use resources for traditional purposes are well protected in Australia and many other countries, and courts have extended them to commercial fishing (Akiba) and enforced consultation duties (Tipakalippa, Clyde River, Sarayaku). But the rights that matter most for self-determination, ownership and the right to consent or refuse, are rarely recognised: minerals, petroleum and water largely belong to the state, and resource projects usually go ahead after consultation. Until free, prior and informed consent is given legal force, as it partly is in the NT land rights regime and in Inter-American case law, control of resources will remain the weakest part of Indigenous land and resource rights.

In one sentence

The law protects Indigenous peoples' rights to use natural resources for traditional and sometimes commercial purposes (s 211, Yanner, Akiba) and increasingly enforces consultation (Tipakalippa, Haida, Sarayaku), but it rarely gives them ownership of minerals or a right to refuse development, so free, prior and informed consent remains a standard rather than a legal reality.

Try this

Q1. Define free, prior and informed consent. (2 marks)

• What the marker wants. Each element and its source (UNDRIP art 32).

Q2. Explain how native title law protects Indigenous rights to natural resources. (6 marks)

• What the marker wants. Section 211, Yanner, Yarmirr and Akiba, with a limitation (Ward; no veto).

Q3. Evaluate the effectiveness of legal responses to Indigenous peoples' rights to natural resources, with reference to Australia and at least ONE other country. (15 marks)

• What the marker wants. Use rights, commercial rights, consultation and consent, with cases from both jurisdictions and a judgement.