Dialogues Between, Within
and Across Cultures:
Creating cultures of communication and processes
for understanding
Parry
Agius(1,2), Richie Howitt(2), Sandy Jarvis(1),
Lesley Johns(1) and Rhiân Williams(2)
(1) Aboriginal Legal Rights Movement of
(2) Department of Human Geography,
Paper
for presentation to Dialogues Across Cultures Conference, Centre for Australian
Indigenous Studies,
November 2004-
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How a group determines and communicates its
identity and how it understands the identity of other groups, with whom it
interconnects, can be a rich point for either conflict or understanding. Who determines the basis of points for comparison,
similarity or differentiation? Is it to
be determined by experts such as anthropologists or cultural theorists,
advocates such as lawyers or human rights activists, or is it the right of the
groups most directly affected to be actively involved in the dialogue of
engagement? These decisions hold
enormous consequences for those involved.
Concepts of culture and cultural identity are not merely academic
considerations. The political positions
they lend support to shape the role and relationships allowed to groups that
are determined to be “the other”. Yet
concepts often remain abstracted and allow identity to be mediated by others
rather than directly communicated and explored by those who are the subject of
debate. Creating both the space and the
time for dialogue within and across groups poses both theoretical and practical
challenges.
Drawing on the work of the South Australian
Aboriginal Legal Rights Movement, during native title negotiations, this paper
explores the dimensions of creating relationships and dialogue across diverse
groups. In particular, the paper will
explore the importance of creating spaces within which communication across
cultures can take place, and the necessary conditions to support such
communication. The paper will highlight
the importance of “process” and argue that often the processes by which
communication takes place are narrowly defined and focussed in such a way as to
suit the needs of the dominant group.
The paper will argue that groups, particularly
marginalised groups such as Indigenous peoples, engaged in negotiation
processes, need the opportunity to first create the arena in which they will
negotiate and that fundamental to this is the opportunity to distil and
communicate their own understandings of their identity and its meaning for
negotiation process. Too often the focus
is on quickly achieving agreements or on brokering solutions that often break
down because they do not reflect or include the range of cultural realities and
needs at the negotiating table. This is
often because the needs have been determined by someone other than the actual
group and so do not accurately reflect the dimensions of the group’s actual
experience and needs.
The paper will explore the practical processes
adopted in
INTRODUCTION
Acceptance that the property
rights of Indigenous Australians have legal standing has been slow and limited.
Historically, Australian governments have created rather than recognised
‘rights’ for Indigenous citizens through specific legislation granting ‘land
rights’ and provisions for extension of ‘citizenship rights’ to Aboriginal and
Torres Strait Islander people. The proposition that Indigenous Australians
might have inherent rights that pre-date the establishment of the Crown as the
pre-eminent institution of governance in Australia was previously dismissed by
referring to the legal principle of terra nullius, which stated as fact
that Australia, unlike other colonies, was acquired by Britain not by conquest
or surrender but by ‘settlement’, as it was, in legal terms, empty of prior
owners, law and interests. The opportunity for Aboriginal and Torres Strait
Islander people to exercise self-determination and self-government in such
circumstances was virtually non-existent.
In 1992, however, the High Court
decision in Mabo overturned this legal fiction that Indigenous
Australians’ systems of governance had been so undeveloped as to be
unrecognisable by British common law. In recognising the persistence of native
title, the court established the need for governments and existing systems of
governance and administration to deal with pre-existing rights of Indigenous
peoples. Despite its significant limitations, the Mabo decision opened a
new discursive space in which discussion of Indigenous rights was no longer
burdened by the legal fact of non-existence. In a period characterized by
complex and divisive debates about national identity, national values and the
nature of our colonial legacy, Australia’s native title debate overlapped with
a national conversation about reconciliation, stolen generations and
contemporary policies on Indigenous affairs, and also discussion of refugees
and asylum seekers, race and ethnicity, the republic and social and economic
restructuring produced by globalisation.
By the mid-1990s, initial
optimism that the Mabo decision, and the subsequent Wik decision,
established a foundation for Indigenous self-determination as the foundation
for cross-cultural relationships in Australia gave way to the difficult
co-existence of conservative belligerence towards ‘special treatment’ for
Indigenous Australians and progressive resentment at the failure of symbolic
recognition to secure practical improvements on the ground. The steadfast
refusal of the national government, and most states and territories, to accept
the principle of self-determination as an inherent right belonging to Aboriginal
and Torres Strait Islander peoples has meant that most of the political and
administrative responses to judicial recognition of native title have sought to
extinguish, limit or control the spatial and social extension of this
recognition. Consequently, the administrative systems developed to deal with
native title are characterised by adversarial relations, tight administrative
controls and legal complexity. There has been virtually no acknowledgement that
one of the corollaries of recognition of native title is that the systems of
Indigenous law and governance that give rise to those rights that the national
legal system recognises as native title should also be recognised, and that
these systems imply a right of self-determination and self-government however
inconvenient that might be for national systems that have evolved on the basis
of their erasure.
In
this, Australia stands apart from other postcolonial settler societies such as
Aotearoa/New Zealand, Canada, the USA and South Africa, where existent treaty
rights, constitutional recognition or post-apartheid democracy has required a
very different sort of national conversation about acknowledgement, recognition
and reconciliation. Although a ‘whispering in our hearts’ continues to suggest
that national policy frameworks of erasure, denial and control are
inappropriate, the national polity has continued to endorse a shift towards
exclusionary populism as a basis for Australia’s approach to dialogues across
cultures.
In these hostile national
circumstances, Aboriginal people in South Australia have been involved in
discussions since 1999 about the development of a framework for negotiated
settlement of native title claims in that state. With support from the
Aboriginal Legal Rights Movement, which is recognised as a Native Title
Representative Body (NTRB) under the Commonwealth Native Title Act 1993,
South Australian native title claimant groups have established a profound and
powerful conversation with the State Government and a variety of industry
groups (farming, mining, fishing and local government), with the intention of
‘redesigning the state of South Australia with recognition of Native Title
built in’. Although these negotiations are still in train, they provide an
important window on the question of self-determination and inter-cultural
engagement.
In this
paper we explore the range of practical techniques and approaches used in the
South Australian process to create and support dialogue amongst the diverse
groups involved and to build relationships as frameworks for the substantive
negotiations required.
BUILDING RELATIONSHIPS - PROCESSES and
APPROACHES
In 1997 there were growing forecasts of a
very severe El Nino drought for Pacific nations in the 1998/1999 summer. A number of countries including the Federated
State of Micronesia, the Republic of Palau and the Republic of the Marshalls
set up what they called El Nino task forces and insisted that their ministries
all worked together to prepare for the drought.
Whilst the resulting drop in rainfall was
one of the most significant El Ninos in the Pacific, the impacts were far
less. The preparation undertaken was
significant and one of the key things learnt was the need to build
relationships between the scientists who forecast El Nino and the people who
are going to use that information so that they trust one another. In one instance forecasters were describing
the coming drought whilst standing under a tin roof in pouring rain. The only reason people responded was that
they trusted the forecasters and the only reason they trusted them was because
relationships had been built up. As one
researcher involved put it it’s “… eyeball to eyeball contact: you can’t write
it in a paper and expect people to believe you; it’s got to be a human,
individual, person trust relationship.”[1]
The 1992
Mabo decision recognised the continuing rights of Aboriginal and Torres Strait
Islander people to their ancestral lands.
At the heart of the Mabo decision was the idea of relationships
relationships to land, relationships to history, relationships amongst
Aboriginal and
Native
title in
Overlaying
all these ‘experts’ are layers of lawyers, another group of primarily
non-Indigenous ‘experts’. They seek to
make representations on behalf of their clients that are often more in
accordance with their perceptions at what is required than the actual
requirements of their clients. Thus as
each party in the native title process acquires layers of representation they
become more distant from each other and further removed from the relationships
which will underpin the ‘practice’ of co-existence, once native title is
secured.
Groups,
both Indigenous and non-Indigenous participating in native title processes
often report feeling overwhelmed by the degree of ‘expert representation’ and
disenfranchised as their issues and concerns are translated into
‘legalese’. Stakeholders often perceive
that the processes would be more effective if only they could be left to get on
with ‘their own business’. Indeed in
recent media reports as to the historic agreement reached between the Wik
people and pastoralists this was a particular concern highlighted by one of the
pastoralists involved. The pastoralist,
in media interviews, talked of spending 11 years to reach agreement and how
very early on in the process he recalled a senior Wik man saying the matter
could probably be sorted in a few days if they all sat down by the river and
talked things through without the lawyers.
This paper is not arguing for the complete exclusion of lawyers but
rather the importance of those who will be living with and implementing any
agreement to be engaged with each other in meaningful and practical ways.
The
native title process undertaken in
The
native title negotiations have also taken place on the basis that the South
Australian Government will engage in dialogue with Aboriginal groups and their
representatives as if their native claims had been determined in a manner
favourable to the native title claimants. Thus an equal playing field for the
negotiation has been created. No one
party is required to “prove” to any other party their right to be at the
negotiating table. Following from this
has been the recognition that how all stakeholders constitute their interests
in regard to native title is different and the full range of these interests
(including past injustices, recognition, reconciliation etc) must form the
basis of the negotiation agenda. In
keeping with the key principle that future relationships have a higher priority
than immediate substantive gains, relationship-building exercises including the
development of cross-cultural understanding have been undertaken with all the
stakeholders to the South Australian process.
This is
in recognition of the fact that the different experiences, history and
understanding that each of the stakeholders to the native title process in
One of
the central strategies to support the negotiation process has been the use of
relationship building exercises. The
importance of building relationships between Indigenous and non-Indigenous
stakeholders was initially regarded with concern and suspicion, particularly by
non-Indigenous stakeholders and lawyers for many of the groups, both Indigenous
and non-Indigenous. As one lawyer
remarked prior to a relationship building workshop “my clients don’t need any of
that touchy-feely social worker rubbish”.
Upon the completion and evaluation of the process which saw all present
regard the process as invaluable to enhancing upcoming substantive
negotiations, the lawyer reported being quite surprised as to how much his
clients had reported that they had gained from the process.
To test
the value of relationship building three pilot workshops took place. Two at a ‘leadership level’ between the Board
of ALRM and the Boards of the South Australian Farmers Federation (SAFF) and
the South Australian Chamber of Mines and Energy (SACOME) respectively and one
‘community pilot’ between members of the minerals exploration industry and the
traditional owners of an area subject to considerable interest on the part of
minerals explorers and where there was the potential for a template agreement
as to low impact minerals exploration activities.
Each of
the workshops was facilitated by two facilitators one Indigenous and male and
the other non-Indigenous and female. The
facilitators undertook extensive and separate preparation with those
involved. This was to check the
understanding of those participating as to what the process would involve, to
identify areas of possible concern and to design a process that would balance
the various personal and cultural requirements of those involved.
As part
of the preparation for the first pilot workshop between the Boards of SAFF and
ALRM, the facilitators identified that those participating saw that they had a
responsibility to accurately represent the range of views as held by the
constituents of their organisations. The
facilitators identified that given the extreme range of views presented, it was
important to design the process in such a way as to avoid unnecessary
polarisation or ‘loss of face’ for any of those involved. To this end the process included an exercise
called ‘role-reversal’. ALRM’s Board
members were asked to imagine they were pastoralists and as such what would be
the issues they would want to put to the Aboriginal people. The SAFF Board members were asked to imagine
they were Aboriginal people and as such what would be their questions to the
pastoralists. Each of the groups
separated, considered their ‘positions’ and reconvened with ‘their’ issues and
questions. The full range of issues had
been identified indeed each group had comfortably mapped out all of the
‘extremes’. Critically; however, the
issues were ‘defused’ because they had not been directly articulated by the
group whose issues they were and there was no ‘loss of face’ either, for groups
in defending positions or, in hearing directly articulated
positions. Both groups were subsequently
able to move through discussion about the issues with each other and as they
did similarities, personal stories and the human dimensions began to emerge. Those who had participated in this process
subsequently became powerful advocates for the process and in particular how it
had helped them to better understand each other and move to more effective and
practical negotiations.
The next
pilot between the Board of ALRM and SACOME similarly contained a ‘role
reversal’ activity and much of what emerged overlapped issued from the first
pilot. A very significant difference
emerged in that when the ALRM Board members took on the role of miners and
mining industry representatives they used exclusively the pronoun ‘we’. SACOME Board members in their role as
Aboriginal people used exclusively the pronoun ‘I’. This generated an extended discussion as to
individual and collective responsibilities and each group identified how the
values underpinning much of their own thinking remains hidden to them. Each of the Boards recognised the potential
for difficulties to arise as a result of their assumptions, not so much about
others, but more so the underlying expectation that their ‘hidden’ values and
approaches would be shared by those with whom they are negotiating.
Each of
the first two pilots contained both formal and informal discussion
opportunities including meal breaks. The first two pilots included an overnight
stay and had two requirements: that those preparing to participate undertake
the preparation phase with facilitators and subsequently those attending attend
for the entire workshop.
The
third pilot involved members of the minerals exploration industry, the South
Australia Government negotiating team and members of the Antakirinja Land Management Aboriginal
Corporation (ALMAC) Native Title Management Committee (NTMC) whose traditional
country includes Coober Pedy and surrounding areas. Preparation was undertaken with all those
involved and given that there would be an extensive requirement for the use of
interpreters it was agreed the workshop would be 2½ days with the two nights
spent camping together. A critical element
of this workshop was a ‘role play role reversal’ activity. The NTMC members were given the role of
explorers and provided with resources and a set of tasks to ‘explore’ and find
mineral samples. The exploration
industry and government representatives were given roles within an Aboriginal
family and they had to work out how they were related and connected to one
another and subsequently plan a ‘celebration’ for an ‘Elder’ of their
family. Initially the activities were
separate however as the ‘explorers’ got underway their activities took them
into the space of the ‘Aboriginal family’.
Upon
completion of the activity the groups identified the issues that had emerged
and reflected on how they reflected realities on the ground. One of the key outcomes from the workshop was
articulated by the lead government negotiator.
This person explained how he had been astonished at the emotional impact
of what they thought was a ‘play activity’ and the realisation of how difficult
it must be for Indigenous people when dealing with the real thing. Secondly he
reported recognising that whilst the ‘family’ had structures for dealing with
their connections to one another and how to plan a celebration, they did not
have a ‘structure’ automatically in place for dealing with the ‘explorers’. This recognition of the need for Indigenous
groups to establish, clarify and agree their negotiating and decision making
structures prior to starting negotiations was seen as fundamental by all
involved.
This
workshop experienced considerably more challenges and difficulties than the
first two pilots. There were delays both
in starting and completing activities.
Those involved however, and most particularly the non-Indigenous
participants, did not demand strict adherence to the timelines and activities
as agreed in the preparation. As the pressure was not on to reach ‘outcomes’
those involved were able to identify and explore how the issues and challenges impacting
the relationship building process might affect any substantive negotiation
process. They were able to identify
strategies that would assist in streamlining and supporting the negotiation
process for all involved. Rather than delays and changes being seen as ‘bad
faith’ or disorganisation there was recognition of the practical realities for
those involved. Non-Indigenous participants
gained many valuable insights that they saw
would assist in ensuring that any subsequent negotiations were not
derailed by similar difficulties.
The
ALMAC NTMC members reported feeling very positive about opportunities to meet
‘on country’ with those with whom they would be negotiating. They extended ceremonial opportunities both,
for all involved and in separate, men’s and women’s ceremonies. These opportunities to include ceremony
extended the workshop beyond dialogue to a more culturally inclusive and
appropriate response. They also reported a strong sense of feeling recognised
and respected due to the time the other groups were prepared to spend in the
relationship building exercise. This was
particularly important given the history of poor dealings between ALMAC and
many local non-Indigenous opal miners.
A key
component of each pilot activity was an evaluation component. Each evaluation found the workshops to be
extremely useful and beneficial and upon conclusion of the three pilots further
workshops with other groups were undertaken and the South Australian Government
has allocated ongoing funding to these relationship building activities.
Too
often negotiation processes, particularly those between Indigenous and non-Indigenous
Australians, focus on the substantive matters being negotiated and hope that
the ‘cultural’ and relational dimensions can simply be ignored. Too often this suits the needs of
non-Indigenous Australians and is at the expense of inclusive and appropriate
processes for Indigenous Australians. In
designing the relationship building processes used in
INTERDEPENDENT
NEEDS IN A NEGOTIATION
SUBSTANTIVE The things people are negotiating or making decisions about
Procedural
Needs are about:
• the
opportunity to have a "fair go"
• the
opportunity to put forward own point of view
• the
opportunity to both listen and be listened to
• having
confidence in information, protocols and meetings.
Emotional Needs are about:
• personal
and emotional aspects people bring to the negotiating table
• how
people feel about what is being negotiated for
• how people feel about
themselves during and after the negotiations.
Substantive Needs:
• the
material things and issues people are negotiating about
• can be both tangible, e.g. money,
time, rights, possessions; or intangible, e.g. respect, consideration.
People
are very often just focused on what
they need to negotiate and the how
of how to negotiate isn’t seen as really that important. People may often say things like “We’ve got
to get some runs on the board”, “We’ve got to deliver some outcomes”, “We need
to be seen to be doing something”. This
places an immense amount of pressure on people to get down to business and
reach agreements. Yet if people’s
emotional and procedural needs aren’t also considered and dealt with,
agreements will break down, or in many instances won’t be achieved. Taking time to get the process right and to
consider the emotional impact is a sensible use of time and resources.
Getting
agreements or outcomes is reasonably easy getting them to last and to work is
the real trick. And getting them to last
and work depends on addressing people’s substantive and emotional and
procedural needs.
Procedural Issues
The procedures and protocols for a negotiation or decision making
process will affect how those involved feel about the process and how they see
the issues being considered.
The types of concerns about process and procedure that might people
have, include:
• Is
there adequate preparation time?
• Who
determines the time frames?
• Who
sets the agenda?
• Is
all the information available to everyone at the same time?
• Are
all groups resourced to participate?
• Are
appropriate people at the table? - your
group and other groups?
• Where are the meetings
to be held, e.g. on country or at the company’s offices what impacts might
this have?
• If representatives are
used is there enough time to allow them to consult with those they represent?
All these questions and more will be considered by people. They all lead to a sense of whether the
process is fair or not. Reliable
protocols and rules amongst all the parties are necessary for people to feel
confident that things are really fair and that they will be treated fairly and
that they can be confident in the results of the negotiation or decision-making
process.
Procedural issues produce EMOTIONAL issues
Emotional Issues
Everything
that happens in a negotiation or a decision making process communicates messages to everyone involved. It may also communicate unintended messages
and this will have consequences for the substantive negotiations.
People’s emotional concerns and personal feelings about the things being
discussed in negotiations will affect how they see issues of procedural
fairness and accountability, and how they approach the issues being negotiated.
The range of emotional concerns that people may bring includes:
• Are the discussions
honest and in good faith?
• Are people being
recognised and respected
• Are other stakeholders
trying to understand how each group or individual sees things
• Feelings about previous relationships
and interactions.
Emotional
issues are not useless baggage that hinders agreement making. They are a vital part of the substantive
concerns being brought to the negotiating table. How they are dealt with communicates the
level of respect and recognition accorded to the people involved.
Emotional issues produce PROCEDURAL issues
For
negotiation and decision making processes to be successful it is important to
keep asking the following questions:
• What are the procedural
needs?
• What are the emotional
needs?
• How are these needs
impacting on the substantive discussions?
• How can these needs
best be dealt with and addressed?
• How well do the ways in
which these needs are being dealt with and addressed, meet the needs of the
people involved?
• What
more would be helpful?
The Satisfaction Triangle is a on-going
cycle
It is
important to recognise that emotional, procedural and substantive issues
continue to impact on and affect each other throughout the negotiation and
decision-making process. Emotional
issues will produce procedural concerns, how those procedural concerns are
dealt with may alleviate or exacerbate people’s initial emotional concerns, all
of which will affect how they see the substantive negotiations. Likewise, procedural issues will continue to
have ramifications throughout the process, particularly if people feel the process
is lacking in transparency or fairness.
If they feel this way then they are unlikely to feel that any
substantive outcomes produced are fair.
The implications of this for those involved in managing negotiation or
decision-making processes is that there needs to be an opportunity to continually
review and reflect upon the procedural and emotional issues that are raised by
or affecting stakeholders. To get
agreements that last all aspects of the Triangle, or rather all the needs that
people bring to the table, must be managed and addressed.
and so on …
Differences do
exist amongst the groups negotiating native title. If the processes used to manage negotiations
focus almost exclusively on the substantive issues groups will often not
understand each other and any agreements reached will be shallow and likely to
break down. It can be difficult to
convince parties in negotiation of the importance of such relationship building
exercises. Parties may be very focussed on the need to get to practical outcomes
and may see relationship building activities as unnecessary. In some instances, parties may feel that they
know all the needs to be known about the other groups involved, because they
already have a history of relationships and dealings with one other. In these instances, this history can itself
be very problematic and underpinned by many unhelpful perceptions,
misunderstandings and assumptions.
However, these groups may be the most reluctant to meet for what they
perceive as unnecessarily time-consuming processes.
The processes in
The
design of process can become another example of the continual and ongoing
colonisation by non-Indigenous people of the frameworks and spaces that should
be negotiated and shared fairly and equally with Indigenous peoples. There is
no one theory or model that will enable the perfect understanding of cultural
differences. There has been rejection of
dualistic and simplistic ways of seeing cultures and cultural difference. Yet this ignores, that in adversarial
climates, such as those surrounding native title, the individuals and groups
involved hold many negative and stereotypical views about each other. They also
often take for granted their assumptions about themselves and their own
motivations. Processes need to be robust
enough to include the range of cultural needs and should enable people to move
from abstracted understandings to meaningful relationships and connections. By enabling groups to jointly explore their
own issues and histories ‘unmediated’ by experts. The processes in