Farley, Rick --- "Practical Considerations in Negotiating Regional Agreements" [1999] IndigLawB 43; (1999) 4(21) Indigenous Law Bulletin 16

Practical Considerations in Negotiating Regional Agreements

by Rick Farley

There has been a great deal of focus on the legal processes for reaching binding agreements between Indigenous interests and others, particularly in relation to native title issues. However, legal processes are only one component of negotiations, for they provide a framework inside which a range of other factors come into play.

This paper presents a practitioner's approach to important practical aspects of negotiating with Indigenous peoples which need to be considered in conjunction with the legal options.

Fundamentals

In my experience, Indigenous peoples are not opposed in principle to development. Most communities recognise that development offers the best opportunity to reduce their dependence on government welfare and to build an independent economic base. The central questions are likely to be the conditions under which development proceeds and how benefits are shared.

Industry and governments need to understand that they must negotiate with Indigenous interests in a variety of different areas if development is to proceed. Developers must obtain cultural heritage clearances and environmental approval, not just native title clearances. It is sensible to build good long-term relationships with local Indigenous communities. If negotiations on native title turn sour, then there is the danger of an unhealthy carry-over into negotiations on cultural heritage protection and environmental impact.

Many companies are now deciding that it is best to 'front-end load' their risk and devote initial resources to generating a constructive relationship with Indigenous interests, rather than battling a hostile local community throughout the life of the project.^[1] Companies are also recognising that this task requires specialised skills and is not something which engineers and geologists are usually capable of achieving.

The creation of Indigenous Land Use Agreements (ILUAs) through the amended Native Title Act 1993 (Cth) ('the NTA) now allows scope for a range of issues to be resolved in a single negotiation process, and for the outcomes to be binding on future native title holders. This is an added incentive for developers to consider an agreement-based approach.

Understanding the Cultural Context

Once industry accepts that it is in its own commercial interests to develop a good relationship with Indigenous communities, it then becomes essential to engage with the issues which motivate Indigenous negotiators. Until there is some understanding of Indigenous culture and history, dialogue will be stilted and negotiations will be slow. These are some of the factors which need to be taken into account:

1. Relationships with and custodial responsibilities for land are the basis of Indigenous law and culture. As a result, there will always be an Indigenous land agenda. In many ways, attempting to put a monetary value on cultural attachment to country misses the point and could be counterproductive if put forward as the first option. Access to country will always be a key component of negotiation.



2. To Indigenous people, land is the source of all life. Part of the custodial responsibilities for country is to ensure its health. Indigenous negotiators will always take great interest in environmental impact and environmental safeguards.



3. The history of Indigenous Australians since settlement/invasion is a history of dispossession. Indigenous communities have been pushed back continually and separated from their traditional lands. The 'Stolen Generations' are another layer of this dispossession. Traditional boundaries have become blurred through dispossession, particularly where white settlement has been concentrated. Different tribal and clan groups have also been lumped together on missions and reserves. All these factors cause difficulties in identifying the right Indigenous group with which to negotiate.



4. Australian public administration is geared around peak council consultations and negotiations. Peak councils are easier for government to deal with. But under Indigenous law, no-one is authorised to talk for some-one else's country, and customary law operates at a regional or localised level. The concept of a peak council is quite alien. White-fella public administration is centralised, but a regional/local approach is essential to deal successfully with Indigenous land issues. Indigenous peoples have a different way of reaching decisions which must be understood if negotiations are to be effective. In a practical sense, the negotiation timetable must allow sufficient time for decisions to be made according to customary law.



5. Indigenous communities may be reluctant to specifically identify sites of significance to them. In the first place, knowledge of the site may be restricted to senior people. Some sites may be associated with women's or men's business, and should not be revealed to members of the opposite gender. Secondly, once sites are identified, they are open to vandalism and abuse-there have been many examples of this in the past.



6. Recognition of identity, history and culture is tremendously important to Indigenous peoples. This is understandable given that until the 1967 referendum, Indigenous peoples were not recognised as peoples, and had the legal status of fauna and flora. Many Indigenous communities will want to tell their story as part of the negotiation process. Truth-telling and correction of flawed whitefella history are an integral part of developing a relationship through which negotiation can proceed and lasting agreements can be reached.

Cultural Mapping

The key practical issue in resolving land issues with Indigenous peoples is establishing which is the right group to negotiate with and who speaks for the country in question. The amended NTA extends the role of Native Title Representative Bodies (NTRBs) to certifying informed community consent in relation to a claim or ILUA. They are now required to identify all Indigenous interests in the land subject to claim or to an ILUA. In practice, this means mapping Indigenous cultural interests in country-the same role which evolved for Aboriginal land councils in the Northern Territory under the Aboriginal Land Rights (NT) Act 1976 (Cth).

This process will take time and resources. It requires the formation of regional reference groups of elders, detailed anthropological studies, and prolonged negotiations between family and clan groups.

Another component of this task is to deal with the relationship between traditional owners and those who now have rights arising from their historical association with country-as a result of being removed and relocated.

The task of mapping land ownership is also likely to identify country which is shared or neutral. In these circumstances, representatives of all the groups which share custodial responsibility need to be involved in negotiations.

Indigenous Body Corporate

Any agreements with Indigenous communities have to be signed off. Any native title rights and interests under the amended NTA must be held by a Prescribed Body Corporate (PBC). There are problems arising from inconsistencies between the form of body corporate required to hold communal native title rights and interests and the form required under the NTA. Hopefully, these can be sorted out relatively quickly.^[2]

Nonetheless, the fact remains that the construction of an appropriate Indigenous body corporate is absolutely critical to the agreement process. The body corporate defines the relationships between various Indigenous groups which may be party to the negotiations. The body corporate distributes any benefits which may flow from an agreement. The body corporate gives Indigenous approval to any future acts which arise from an agreement.. Unless the body corporate operates properly, an agreement will not be administered effectively and may become unworkable.

In many ways, the Indigenous body corporate is where Australian common law and Indigenous customary law intersect in practice. The body corporate must be culturally appropriate, but still meet the requirements of white-fella business dealings. It is therefore wise to devote time and resources to the construction of a body corporate early in the negotiations. It is also sensible to ensure that officers of the body corporate are given training in order to exercise their responsibilities properly and that the body corporate is resourced adequately.

Rick Farley is the Managing Director of the Farley Consulting Group, which specialises in land use agreements. He was previously Executive Director of the NationalFarmers'Federation, a member of theCouncilfor Aboriginal Reconciliation and a member of the National Native Title Tribunal He facilitated the Cape York Land Use Heads ofAgreement and was lead mediator for the NNTT in the Century Zinc mine negotiations.

^[1] Adelong Consolidated Gold Mines has developed an ILUA in NSW which is now in the notification stage with the NNTT; Hamersley Iron and Gumala Aboriginal Corporation have negotiated a regional land use agreement in the Pilbara; Anaconda Nickel has reached agreement with Aboriginal groups in the SE Goldfields of WA on the Murrin Murrin project; Striker Resources and Kimberley Aboriginal people have signed an agreement on diamond mining; Century Zinc Ltd has reached agreement with Aboriginal groups in north-west Queensland; and pastoralists in Cape York Peninsula have developed a Heads of Agreement on land use with the Cape York Land council.

^[2] Cf discussion papers produced through the ARC Collaborative Research project `Governance Structures for Native Title holders on and off Native Title Lands' currently being carried out at the Indigenous Law Centre at the University of New South Wales. (See 404) ILB (1998) 18). Now available at <www.austlii.edu.au/au/special/rsjproject/ rsjlibrary/arccrp/index.html/>