Smith, Diane --- "Finding a Way to Just and Durable Agreements" [1999] IndigLawB 39; (1999) 4(21) Indigenous Law Bulletin 4

ILB 4(21) Introduction:

Finding a Way to Just and Durable Agreements

By Diane Smith

This volume of the ILB focuses on agreement-making in the context of native title negotiations and specifically on Indigenous Land Use Agreements (‘ILUAs’). The papers present various perspectives on current experience in negotiating agreements within the ILUA framework, provide information on the statutory framework for developing ILUAs and related administrative compliance procedures and canvass the potential challenges and opportunities.

The combined papers suggest there are important benefits to be gained from pursuing the enhanced statutory pathway to agreement-making provided for under recent amendments to the Native Title Act 1993 (Cth) ('the Act'). They also highlight critical issues influencing the development and registration of ILUAs which, if ignored by prospective parties, have the capacity to undermine their viability.

ILUAs: Potential Benefits and Opportunities

The new statutory provisions for ILUAs offer a significant opportunity to address the diverse land-use concerns of indigenous Australians, resource developers, governments and other stakeholders.^[1] ILUAs are customised, voluntary agreements whose content and implementation are entirely at the discretion of the parties involved.

In some cases, the participation of a party or class is mandatory, in others it is not (see Byrne, Neate). Table 1 sets out the range of key parties who may or must participate in each of the three types of ILUA (Body Corporate, Area, and Alternative Procedure Agreements).

ILUAs have the potential to cover a wide range of circumstances and subject matter, and could be developed to operate as:

• 'side' or ancillary agreements to the claim mediation process (see McLaughlin);
• fuller negotiated native title settlements, including a framework for the determination of native title or compensation applications (see Dolman, McLaughlin, Yu);
• alternative future act agreements (seeYu);
• land access, use and management agreements (see Davies)
• wildlife and other natural resources agreements (see Davies);
• co-management or partnership agreements (see Davies, McLaughlin);
• regionally-based agreements specifying relationships with key private or public sector parties (Yu); and
• frameworks and alternative procedures for making other agreements (see McLaughlin, Yu).

The papers in this volume demonstrate that stakeholders are developing these agreements in a great variety of circumstances and with different objectives. ILUAs can be local or regional in their geographic coverage; they can operate as stand-alone or linked agreements; they can cover specific or multiple matters.

ILUAs provide a pathway to regional approaches whose cumulative effect could be a 'regional agreement'. A sequence of local agreements could, for example, be used strategically as building blocks to develop a consistent regional framework for dealing with recurring and related matters like the use and management of national parks, coastal or wildlife resources, inland waterways, mineral exploration, and heritage and site protection procedures. As Yu also argues, ILUAs afford a mechanism for developing a 'comprehensive-agreement' approach to native title. In this respect, ILUAs could provide for a fuller consideration of indigenous concerns and views about 'country', as opposed to a reductionist 'bundle of rights' approach. For example, components of an agreement could specify the use of indigenous organisational structures, mechanisms for decision-making and representation, and land-use and management practices.

The ILUA provisions afford parties greater flexibility in the negotiation process; suggesting they could be cost-efficient, sustainable and productive of outcomes based on practical co-existence. These are clearly important advantages, but they will not come about automatically. The realisation of these opportunities depends heavily on the willingness and informed participation of the parties.

ILUAs: Critical Issues for Success or Failure

In spite of various publications discussing the challenges and compliance factors involved in developing an ILUA, many prospective parties continue to ignore essential statutory requirements which legitimate/validate the outcome of negotiations (see Byrne and Neate). At the heart of most non-compliance with these requirements are issues to do with identifying and negotiating with the native title group (see Byrne and Farley).

Native Title

ILUAs are not a way of ignoring or ‘buying out of' native title. An ILUA does not require that native title be bartered or exchanged for other benefits, nor should pressure be placed upon indigenous parties to do so. Under recent amendments to the Act, the Registrar must remove the details of an ILUA from the Register (thereby removing its force of contract) when the Federal Court, on application by a party or the relevant Native Title Representative Body, orders its removal on the grounds that a party was induced to enter the agreement by reason of fraud, undue influence or duress by another person.^[2] Extinguishment by surrender of native title, or surrender of the right to negotiate, can only occur when an agreed statement to that effect by the parties is included within an application for registration of the agreement.

On the other hand, in circumstances where parties do not want to give away legal rights of currently uncertain status (eg usufructurary rights to land), they might nevertheless want to agree upon other, immediately actionable matters and secure legal certainty through an ILUA (eg access to land). Such agreement does not need to derogate native title rights and interests. Rather, finally concluded legal positions between the parties about the existence of native title could be reserved and the agreement could expressly state that it does not intend to permanently impair or extinguish native title.

Native Title Parties

Prospective parties should remember that native title rights and interests do not have to be registered or determined, nor does an application for native title have to be lodged with the Federal Court, in order for indigenous groups to enter into an ILUA. The 'native title group' required to participate in an ILUA is dependent upon the type of agreement and on the possible mixed categories of native title parties. For example, the ‘native title group’ for an Area Agreement may include:

• native title holders who have had their native title determined and are represented by a Body Corporate;
• registered native title claimants;
• native title claimants who have not gone through the registration test but have lodged a claim;
• native title claimants who have failed the registration test; and
• Indigenous persons without any claim application lodged, but who nevertheless assert they hold native title under common law.

An Alternative Procedure Agreement may include the above parties, but must also include as a party the Representative Body. As Byrne points out, it behoves parties to keep abreast of the changing statutory nature of native title for the area subject to a proposed ILUA.

Identifying the 'Right' Native Title Group for Negotiations

A critical factor in the development and registration of an ILUA - one that cannot be stressed enough - is the need for parties to comprehensively identify and negotiate with the ‘right’ native title group. The amended Act seeks to incorporate the widest range of persons with actual and potential native title rights and interests in an ILUA. In other words, parties must negotiate not only with the 'right' native title group, but with the most inclusive one. The identification process should be the first step taken by parties interested in developing an ILUA (see Farley). Certainly, it should not be left until certification or authorisation statements are required for the registration process (see Byrne).^[3]

More often than not, however, the identity of persons holding native title will not be immediately apparent and the negotiations for an ILUA may be the first time they have had to collectively articulate their rights, interests and objectives. The 'native title group' that must participate in an agreement will not be homogeneous or able to be reduced to a simplistic and amorphous 'community'. Furthermore, authorisation of representatives to 'speak for' country and owners is a dynamic process; in some instances, authority may be readily given and easily sustained; in other cases, it may be gradually or abruptly withdrawn. Long experience with agreement-making under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) has proven that the critical process of identifying traditional owners and their authorised representatives in the context of important negotiations takes time and resources, and cannot be fast-tracked without jeopardising agreement.^[4]

Nothing exacerbates conflict more within indigenous groups than when the ‘wrong’ people are invited to attend meetings, nominate themselves as the ‘owners’ of country or as their representatives, when those people are widely regarded within the indigenous domain as having dubious or non-existent rights and authority under traditional law. Mismanaged identification of indigenous land owners or conflict over who has authority to represent them lead to mismanaged meetings and negotiations. Both can derail registration and lead objectors to seek judicial review of administrative decisions or court action, adding substantially to costs and delays.

Prospective parties to an ILUA would be well advised to undertake negotiations with the 'native title group' by:

• actively facilitating the early identification of all persons with native title rights and interests;
• confirming the authorisation process to be used and monitoring its outcomes;
• ascertaining the decision-making processes likely to be used during negotiations and for signing-off agreements;
• conducting wide-ranging consultations;
• obtaining ongoing instructions from, and the informed consent of, the group;
• facilitating equitable access to resources and expertise for negotiations within the group; and
• incorporating equitable distribution of benefits to the group into the terms of the agreement.

Many of these negotiation benchmarks are directly related to compliance matters for registration of an ILUA (see Byrne and Neate).

Conclusion

The ILUA provisions afford significant advantages and opportunities, especially compared with previous statutory mechanisms, but they are not cost-free short-cuts for avoiding the issue of native title. To maximise certainty, and minimise compliance risks, delay and escalating costs, parties firstly need to identify:

• which type of ILUA best 'fits' their specific circumstances and the proposed geographic coverage;
• which classes of persons constitute the mandatory 'native title group' for that agreement; and
• the objectives and negotiating capacity of each party.

To proceed into productive negotiations, the parties will then need to consider the following negotiation checklist:^[5]

• timeframe for the project or application;
• tenures of land involved and other approvals required for the project;
• timeframe and resources required for the comprehensive identification of all native title rights and interests;
• negotiating capacity and preferred role of the Native Title Representative Body and possible involvement of other parties;
• capacity and preferred role of government;
• resources needed by oarties for negotiations and possible cost-sharing arrangements;
• range of beneficial considerations that might be required for agreement, including compensation; and
• possible assistance by the National Native Title Tribunal or other state agencies

The long-term viability of an agreement will be greatly enhanced by inclusion of terms and conditions that address the need for future dispute-resolution mechanisms, and possible future assignment of beneficial terms and mortgagee possession of relevant leases.^[6] Similarly, an agreement should canvas agreed options for dealing with possible future determinations of native title and the establishment of Bodies Corporate for the area. Parties should also make specific provisions for the ongoing costs of monitoring compliance obligations and liabilities, and of implementing an agreement’s terms and conditions.

The systematic consideration and negotiation of the above matters will increase the likelihood that an agreement will be both durable and just.

Diane Smith is a Research Fellow (Anthropology) at the Centre for Aboriginal Economic Policy Research, The Australian National University, Canberra. Between 1996-98 she was a part-time Member of the National Native Title Tribunal conducting native title claim and compensation mediations and future act arbitrations.

^[2] Native Title Act 1993 (Cth) s 199C(3).

^[3] Smith, above n 1, for a detailed discussion of these two related procedures.

^[4] The Northern Land Council estimates that for a major resource development agreement, this research process takes upwards of 100 days. See John Finlayson and Diane Smith (eds), Fighting Over Country: Anthropological Perspectives, CAEPR Research Monograph No. 12 (1997).

^[5] This checklist benefited from suggestions made by Pat Lane.

^[6] Sumner, Smith and McDaniel 1998. ‘Future Act Arbitration. Koara Stage 2’, Inquiry into applications for determination pursuant to section 35 of the Native Title Act 1993, upon remittal from the Federal Court, Application WF96/1, WF95/5, WF96/11, National Native Title Tribunal, Perth