Commercial exploitation of Native Title Rights - a possible tool in the quest for substantive equality for Indigenous Australians?

Abstract

Native title has the potential to be an important tool in achieving substantive equality for Indigenous peoples in Australia. However, as currently formulated, it is an extremely restricted and fragile right, which has often been extinguished by inconsistent use and (where it can be established) only permits holders limited privileges in relation to traditional lands. This article considers the current scope for commercial exploitation of native title rights in Australia. It proposes expanding the circumstances in which commercial exploitation of native title rights by Indigenous peoples is possible. This could be achieved by a combination of removing the limitation on native title to pre-sovereignty rights recognised by the common law, reconsidering the requirement of exclusive possession, and by the adoption of a more generous position regarding evidence of traditional commercial exploitation. The article will then consider the possibilities for regulating commercial exploitation of resources by native title holders.