Journal of Energy and Natural Resources Law


Vol 26 No 1 2008

Co-Editors: Lee Carol Godden, Marcia Langton, Odette Mazel and Maureen Frances Tehan

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, such as in the Pilbara and Kimberly regions of Western Australia, in Queensland and in the Northern Territory. A similar pattern of co-location occurs in the other countries from which case studies in this volume 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 local level, with an enhanced emphasis of late on economic empowerment and sustainability.

This special edition of JERL contains ongoing interdisciplinary research examining the management, participation in and impact of resource extraction on indigenous and local peoples. Many factors are at play in determining whether potential benefits from resource extraction will be unlocked and flow to indigenous populations and local communities. The central question explored by the articles in this edition of JERL is: how can benefits from resource 'booms' be successfully translated into long-term benefits for indigenous peoples and local communities?

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

By Lee Godden, Marcia Langton, Odette Mazel and Maureen Tehan

Poverty in the Midst of Plenty: Aboriginal People, the 'Resource Curse' and Australia's Mining Boom

Marcia Langton and Odette Mazel*

The lessons of the resource curse case studies for the institution and policy environment in Australia are explored in this article, drawing on research conducted on the negotiation and implementation of agreements with indigenous Australians. We show how the resource curse theories are partially applicable in areas in which Australian indigenous communities neighbour mining operations and outline the legal frameworks in Australia that apply especially in native title matters. Also, we include in our analysis the application of the concept of the 'social licence to operate' that informs the mining industry relationship with these communities. We also discuss the way that these practices form the basis of the industry's approach to 'corporate social responsibility', which, along with legal compliance with the statutory framework, are intended to ameliorate the disadvantages faced by those communities. Despite these reforms, however, little socio-economic improvement has been made in these communities and we look to the inequitable distribution of impacts on local peoples, issues of rent seeking and substitution, and the potential impacts of low levels of economic diversification, as explanations. Finally, we consider what institutional and other reforms might be effective in these circumstances.

Indigenous Employment in the Australian Mining Industry

By David Brereton and Joni Parmenter *

In the last decade or so Australian mining companies have begun to take a more proactive approach to increasing indigenous participation in the mining workforce. This article provides an overview of key trends and reviews recent research on the outcomes for indigenous people of increased participation in the mining workforce. The article concludes that the industry's performance in providing employment opportunities for indigenous people has been highly variable and there is still much to be achieved. However, research data from two large mines with substantial indigenous workforces shows that there is potential for positive outcomes to be delivered for indigenous people who do obtain work in the sector

Corporate Social Responsibility, Legislative Reforms and Mining in South Africa

By Henk Kloppers and Willemien du Plessis *

The South African mining industry is currently one of the largest contributing sectors to the country's economy. In the years preceeding the new constitutional era, the sole aim of the mining sector was the exploitation of South Africa's rich mineral resources while the majority of South Africans only benefitted indirectly from the infrastructure and economy established by the mining sector. Mines' social responsibility were to a large extent neglected and only received attention after the introduction of the Constitution of the Republic of South Africa, 1996 and the promulgation of legislation such as the Mineral and Petroleum Resources Development Act 28 of 2002. Although the concept of CSR has been developing since the 1970s, there is still no single universally accepted definition. South African legislation does not place an obligation on companies to fulfil their CSR. However, CSR language is used to bring about measures to achieve some of the CSR objectives. Since the abolition of the apartheid system several pieces of legislation were passed in parliament dealing with skills development and the redress of past discrimination, as well as to ensure that everyone in South Africa has an opportunity to share in the country's wealth. The purpose of the paper is to indicate how South African legislation indirectly introduced CSR and how this legislation impacts on the mining industry. In this article a brief interpretation of the definition of CSR in the South African context is given, after which legislation that indirectly introduces CSR is discussed. Voluntary mechanisms are then discussed with reference to CSR practice in order to come to a conclusion and to make recommendations.

Development Forum in Papua New Guinea: Upsides and Downsides

By Colin Filer *

This article will review the circumstances in which the Development Forum was first established, and then show how the institution has been modified in response to political pressures emanating from inside and outside the extractive industry sector of the national economy. Specific attention will be paid to negotiations over the development of the Lihir gold mine between 1993 and 1995, to the ramifications of the Organic Law on Provincial Governments and Local-level Governments that was gazetted in 1995, to the provisions of the Oil and Gas Act that was gazetted in 1998 and to the unfinished business of creating a new regulatory framework for the mining industry.

Five Principles for the Management of Natural Resource Revenue: the Case of Timor-Leste's Petroleum Revenue

By Jennifer Drysdale

Natural resource revenue management is a challenge for poor countries dependent on the exploitation of their natural resources to achieve sustainable development. A review of the literature reveals that five principles for the management of natural resource revenue recur in the discussion: responsibility for petroleum revenue management is defined; all natural resource revenue is received by the state; natural resource revenue is invested wisely; natural resource revenue is managed transparently; and some natural resource revenue benefits future generations. Countries that manage their natural resource revenue based on these five principles are more likely to avoid the problems associated with an influx of natural resource wealth and achieve sustainable development. Timor-Leste is used as a case to explore these five principles. Timor-Leste is dependent on its petroleum revenue, and established a Petroleum Fund Law with the aim of managing its wealth wisely, and for the benefit of future generations. But Timor-Leste has all the hallmarks of a country that would be unable to manage its natural resource revenue wisely. Timor-Leste's troubled history has rendered its state institutions weak, and conflict, corruption and financial mismanagement exist. This article explores whether the Government of Timor-Leste's plans to manage its petroleum revenue fulfil the five principles of natural resource revenue management.

Click here for full text of the Special Issue: Indigenous and Local Peoples and Resource Development: International Comparisons of Law, Policy and Practice

'Reproduced with the kind permission of the International Bar Association'.

The Journal is published by the International Bar Association. For further information, see the International Bar Association website .

Journal of Energy and Natural Resources Law

Click here for full text of the Special Issue: Indigenous and Local Peoples and Resource Development: International Comparisons of Law, Policy and Practice

'Reproduced with the kind permission of the International Bar Association'.