O'Faircheallaigh, Ciaran --- "Native Title and Mining Negotiations: A Seat at the Table, But No Guarantee of Success" [2007] IndigLawB 21; (2007) 6(26) Indigenous Law Bulletin 18
Native Title and Mining Negotiations: A Seat at the Table, But No Guarantee of Success
by Ciaran O’Faircheallaigh
Scores of agreements have now been negotiated between native title groups and mining companies pursuant to the Right to Negotiate provisions[1] of the Native Title Act 1993 (Cth) (‘NTA’). A minority of these agreements deliver substantial economic benefits, provide for protection of Indigenous cultural heritage beyond what is required by law, and facilitate Indigenous participation in environmental management of mining projects. However, a substantial majority contain few economic benefits, and offer native title groups little by way of additional protection for their cultural heritage or opportunities to be involved in managing the environmental impact of mining.[2]
What explains this situation and what can native title groups do to secure more positive outcomes?
Explaining Poor Outcomes
The NTA and the way in which its arbitration provisions are implemented by the National Native Tribunal (‘NNTT’ or ‘the Tribunal’), provide an important part of the explanation for poor agreement outcomes. The NTA, unlike the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), does not allow native title groups to halt mineral development if they are unhappy with the proposals put forward by mining company negotiators. If agreement has not been reached by the end of the six-month Right to Negotiate period, either party can refer the matter to the NNTT for arbitration.[3] Whereas native title groups can negotiate compensation payments related to the value of minerals or to profits won from mining, the Tribunal is prohibited from making a determination that includes such payments.[4] This places substantial pressure on native title groups to reach negotiated agreements.
Where matters are referred to the NNTT for arbitration, it determines either that the relevant mining interest must not be granted; that it may be granted; or that it may be granted subject to conditions. In the 17 cases that the Tribunal arbitrated in relation to the granting of mining leases between 1996 and 2006, it determined that the lease might be granted in all cases. In only seven cases did it attach any conditions to the grant, and in most instances these conditions were procedural rather than substantive in nature.[5] As a result, mining companies know they can go to the NNTT and obtain the interests they require and so face little pressure to negotiate agreements acceptable to native title groups. In contrast, native title groups know that if they fail to reach agreement and accept the limited benefits on offer, they may end up with no benefits at all. This fundamental inequality in bargaining power helps explain the limited benefits achieved from mining agreements by many native title groups.
Other factors also militate against positive outcomes. There is a profound inequality in the financial and other resources available to Indigenous groups and the mining companies and governments that sit across the table. Even smaller companies have access to financial, informational and human resources that Indigenous communities and Native Title Representatives Bodies (‘NTRBs’) find difficult, if not impossible, to match. The situation has worsened in recent years, given that Commonwealth funding of NTRBs has fallen in real terms, while the number of mining-related future acts has grown rapidly. In most cases, native title groups have to rely on mining companies to fund negotiations. This creates its own vulnerability in that, at key points in negotiations, companies may threaten to withdraw funding unless agreement is reached.[6]
Strategies for Improving Outcomes
A minority of native title agreements do deliver very substantial benefits. What explains the success of these native title groups? The policies and practices of individual mining companies provide part of the answer. Some companies are committed to developing long-term relationships with native title groups and communities affected by their operations. They may take the view that resorting to arbitration or using negotiation funding as a bargaining tool is not consistent with this objective, subsequently providing a more equal playing field and a firmer basis for negotiating equitable outcomes.
However the most important factor in explaining positive outcomes from negotiations is the ability of some native title groups to develop a range of broader legal, organisational and political strategies that enhance their bargaining positions and allow them to overcome the weaknesses inherent in native title laws.[7]
One key area involves the use of legal and regulatory avenues outside the native title arena. These can involve environmental impact assessment legislation, administrative law, and mining legislation and regulation. For example, Indigenous groups may seek to intervene in environmental impact procedures in order to directly achieve certain goals, such as more stringent conditions on waste emission from a project. At a more strategic level, they may have the capacity to either facilitate or to delay the smooth progression of a project through the environmental assessment process. This ability can represent a useful negotiating tool in dealings with the developer and government.
In the political arena, at least four options are available to Indigenous peoples. The first involves the creation of alliances with environmental, trade union or community groups that may have common interests in relation to resource projects. This strategy is long-term, time consuming, and must be carefully managed given that in few cases will the interests of Indigenous and other groups exactly coincide. In seeking to establish long-term political alliances, it is essential for Indigenous groups to be honest and transparent regarding their goals. Potential allies will often still be prepared to work with Indigenous groups even if their goals do not exactly coincide; but a failure to be frank about the existence of political differences will quickly undermine the potential for cooperation.
A second approach involves lobbying government agencies that play key roles in project appraisal and approval processes. In this area long-term strategies are also required. It is not usually effective to approach an agency on a ‘one-off’ basis late in the project approval process and seek to influence its decisions. It is essential to build links with both bureaucratic and political decision-makers over time, providing them with information on Indigenous positions; raising issues or problems in relation to a project; and suggesting responses or solutions that allow government goals to be achieved; while also addressing Indigenous concerns and aspirations.
Thirdly, native title groups can engage at a political level with key corporate decision-makers. Senior NTRB personnel and senior members of the native title group play a critical role in this area. The individuals who run mining companies tend to take the view that they should engage with their ‘equals’ on the Indigenous side, which means that engagement must usually be by senior Indigenous people rather than by professional non-Indigenous staff employed by native title groups or NTRBs to engage with them. It is part of the art of negotiation to efficiently and sparingly employ the ‘resource’ represented by Indigenous leaders to engage with senior executives at key points, and thus move engagement away from legal frameworks that can be highly limiting and into an arena where agreements can be reached on the basis of underlying commercial and policy considerations.
Finally, native title groups can seek to use the media to promote their perspectives and to place pressure on government and company decision-makers. In this area, time is also required to build relationships with journalists, to familiarise them with Indigenous interests and concerns, and to develop a coherent media strategy. This last point is critical. The media may respond to an issue or a ‘story’ in ways that do not reflect native title interests and may indeed be damaging to them. While it is never possible to exclude this possibility, implementation of a coherent media strategy can minimise the risk of it occurring.
Maintaining ‘Good Faith’ Negotiations
There can be real tensions between the pursuit of legal and political strategies of the sort outlined above and maintaining ‘good faith’ negotiations with mining companies. Inappropriate and untimely recourse to litigation or to the media may poison the relationship between Indigenous groups and project developers and seriously undermine progress in negotiations. On the other hand, and as mentioned above, simply accepting the negotiation structures laid down by the NTA is unlikely to yield positive outcomes. In managing this tension, the following points are important:
• It is critical to fully investigate the various legal and political avenues that may be available and to plan to exploit them as and when this is required. If negotiations proceed smoothly, there may be no need to do so. However if negotiations run into difficulties, it may be necessary to quickly mobilise alternative strategies, and it will be very difficult to do so unless preparatory work has been undertaken to identify these and prepare for their use.
• It is often possible to build relationships with potential political allies, government agencies and the media without cutting across what is occurring in specific negotiations. Provision of information regarding a particular negotiation that is not subject to confidentiality restrictions, and exchanges of more general information about a native title group’s goals and initiatives, can provide an important foundation for developing such relationships.
• It is very important for native title groups to structure negotiation processes so that they maintain as much flexibility as possible in developing and pursuing broader strategies to support the negotiation effort. A case in point involves confidentiality provisions. Some companies seek to impose confidentiality provisions in relation to negotiations that would deny the ability of native title groups to communicate with potential political allies, with government or the media. All parties to a negotiation are likely to wish to nominate certain categories of information as confidential, for instance, information on Indigenous cultural heritage or commercially-sensitive financial data. This does not, however, provide a justification for ‘blanket’ confidentiality provisions, which effectively make it impossible for Indigenous groups to engage with third parties to bolster negotiating positions.
• Another important issue involves funding. It is impossible to pursue wider legal and political strategies in the absence of appropriate financial and human resources, including the ability to secure relevant technical advice and to maintain communication both within the native title group (see next section) and with third parties. Nearly all future act negotiations are largely funded by project developers, who not surprisingly tend to restrict funding to direct engagement between themselves and the native title group. Thus in structuring negotiations native title groups need to give careful and continued attention to securing alternative sources of funds that can be used to support their broader legal and political strategies.
Internal Organisation and Unity
It is impossible for native title groups to pursue coherent legal and political strategies unless they can maintain a high degree of coherence and unity in their dealings with mining companies, government agencies, potential political allies and the media. If internal conflicts are revealed to the outside world, companies and governments will exploit them for their own purposes; the media is likely to focus on these conflicts rather than on the group’s goals in relation to a project; and potential political allies are likely to keep their distance. It is also critical that individual native title groups do not undermine each other, and are able to work closely with regional organisations, particularly NTRBs, which are usually better able to mobilise the required technical, financial and organisational resources.
This does not mean that native title groups must or should deny the reality that, like every social group, they will experience internal differences in values and priorities. Not every member of a group will attach the same importance to issues such as the protection of cultural heritage or the generation of employment opportunities. Neither is it to deny the reality of historical or other differences between adjoining native title groups affected by a project, or of the tensions that can characterise relationships between native title groups and regional bodies. Rather it is to highlight the consequences for native title groups if they allow internal or intra-group differences to intrude into the negotiation arena. Those consequences can be catastrophic, as has become apparent from a number of recent negotiations in Australia where divisions on the Indigenous side have resulted in very poor outcomes for native title groups. Groups that negotiate successfully experience exactly the same tensions and conflicts as other groups, but find ways of managing and controlling conflict so that it is not allowed to undermine their negotiation efforts.
A Seat at the Table
Native title has delivered many Indigenous groups in Australia ‘a seat at the negotiation table’. However this of itself is no guarantee that their members will achieve substantial benefits – or will not incur substantial costs – from resource development on their ancestral lands, because the system of native title in Australia places Indigenous negotiators in a weak bargaining position. Native title groups need to develop broadly-based legal and political strategies to counteract this weakness. In doing so, they must mobilise substantial organisational and other resources and maintain internal coherence in dealing with companies, government, political groups and the media. It is by no means simple or easy to achieve such an approach in practice, but it is essential if the ‘seat at the table’ is to be translated into substantial benefits from development on native title land.
Professor Ciaran O’Faircheallaigh is based at the Department of Politics and Public Policy, Griffith Business School at Griffith University, Queensland.
[1] Native Title Act 1993 (Cth), Subdivision P generally.
[2] Ciaran O’Faircheallaigh, ‘Aborigines, Mining Companies and the State in Contemporary Australia: A New Political Economy or “Business as Usual”?’ (2006) 41(1) Australian Journal of Political Science 1-22; Ciaran O’Faircheallaigh and Tony Corbett, ‘Indigenous Participation in Environmental Management of Mining Projects: The Role of Negotiated Agreements’ (2005) 14 (5) Environmental Politics, 629-47.
[3] Native Title Act 1993 (Cth), s 35.
[4] Native Title Act 1993 (Cth), s 38(2).
[5] Tony Corbett and Ciaran O’Faircheallaigh, ‘Unmasking Native Title: The National Native Title Tribunal’s Application of the NTA’s Arbitration Provisions’ [2006] UWALawRw 7; (2006) 33(1) University of Western Australia Law Review, 153-177.
[6] Ciaran O’Faircheallaigh, above n 1.
[7] Ciaran O’Faircheallaigh, above n 1; Ciaran O’Faircheallaigh and Tony Corbett above n 1.