Towards Native Title Agreements: issues of negotiation or organization

This paper was prepared for students in CMGT170 Aboriginal Issues in Resource Development. It is based on training materials and ideas developed in work with the Native Title Unit, Aboriginal Legal Rights Movement of South Australia. I would like to acknowledge the contributions of Jo Fox and Parry Agius to this paper.

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Alternative approaches to consultation and negotiation

In native title matters, there is a lot of talk about litigation, mediation, negotiation and questions about whitefeller law. It is easy to lose sight of native title as Aboriginal rights. Native title rights are property rights that make Aboriginal people real stakeholders in Australian law. Negotiating a big agreement about native title sounds exciting and promising. But negotiating is only worth doing if you think it will produce outcomes that you want. To be worthwhile, native title claimants have to see native title negotiations as a way to achieve not just better conditions than exist now, but better conditions than will come from litigation in the courts or other actions.

Native title claimants should not start negotiating just because experts tell them it is a good thing. And even if they decide to negotiate, there are a lot of different ways to do it.

This paper discusses reasons for native title claimants to negotiate and alternative approaches that could be used. It argues that these negotiations should happen when they will probably produce a better outcome on the ground quicker than court cases and fighting, and the money involved will be put to better use than paying lawyers and other experts to fight for native title claimants. It also says that the negotiations should be run by native title claimants not outside experts, and that people whose native title claims are the basis of the negotiations need to be involved in every stage of the process.

Why should native title claimants negotiate?

Most native title claims will cost governments about $5million to run through the courts. That is a lot of money. The legal costs for native title claimants will have to be paid either through reduced services to Aboriginal communities or from compensation payments received because native title is recognized. Most state budgets really cannot afford this much money. And even after native title determinations are finalized by court determinations, there will need to be negotiations to decide what native title means in different claim areas, and how development proposals can proceed.

So, for governments there are good reasons to negotiate rather than litigate.

But why should native title claimants negotiate? Why not just leave things up to the courts and the Native Title Tribunal? And what happens if you don't negotiate or negotiations fail to produce an agreement? These are important questions that you have to answer before deciding to enter into negotiations.

What's in it for native title claimant communities?

• Because a negotiation can save the government and developers a lot of money compared to going through the courts, more funds will be available to put into programs and projects that bring lasting benefits to claimant groups.
• Many of the changes that will make a difference will not cost a lot of money, but will only work if the government cooperates. One of the outcomes we can target from these negotiations is changing a lot of the government arrangements that leave Aboriginal people out (the authorities and boards and laws that affect Aboriginal people but were set up on the assumption that the state was terra nullius).
• Getting the government talking about the issues that matter to Aboriginal people (land, resources, recognition, services, justice and so on) will help bring better understanding and responses from government even to issues that don't get included in an agreement.
• A lot of issues that are not just about native title to land (delivering good services in education, health, communications, access, housing and so on) can be included in the negotiations and form part of a service delivery commitment as part of this agreement.
• Governments might agree to recognize native title and native title claimant groups more quickly than through the courts. They might even agree to recognize native title once a claim is properly registered rather than insisting on full determination by the courts. This might get recognition of native title in some places where the legal argument is a bit weak.
• If governments agree to change legislation and management authorities for land and resources management, new arrangements could more effectively and fairly include Aboriginal participation, and this will produce lasting benefits for Aboriginal people and other people. This will ensure that Aboriginal kids will have better choices about their futures, and opportunities that never existed while Aboriginal rights were not properly recognized.

What if we don't negotiate?

No-one can force native title claimants to negotiate with the government. Obviously, there are some good reasons for agreeing to negotiate, but some people might not want to negotiate because they don't trust governments, they don't trust representative bodies, they just want their 'day in court', or they judge that negotiations won't get as good a result as they can get from other ways.

If you decide not to negotiate, what will happen?

• Economically - most of the money committed by governments to native title will be used to fight against native title claims in the courts. If there are poor economic conditions and development projects that get held up in court Aboriginal people will get blamed by business, by politicians and by racists for slowing down development.

• Politically - Aboriginal issues will get raised as a barrier to development in regional areas in elections and a 'problem' requiring decisive action. It would be likely that legislative solutions that emphasize the worst parts of the Howard-Minchin Ten Point Plan would be election issues.

• Socially - the divisions caused by native title arguments within the Aboriginal communities and between Aborigines and the rest of the population would continue and get worse. This would be fertile ground for growing anti-Aboriginal racism in Australia.

• Legally - every native title claim would run on its legal merits, and would face increased opposition from not just governments but probably industry groups like Farmers Federation and the mining industry. This would not change the legal merits of the claims, but would make the struggle for recognition and acceptance harder. It would also mean that just about every ILUA negotiation would have to start from a base of conflict rather than cooperation.

What are the risks of negotiating a statewide framework agreement?

All this makes it sound like people should always negotiate. Well, there are also some risks people need to recognize. If a government insists on 'suspending' native title rights as part of this agreement, then when the agreement finishes (that might be in fifty years or even longer), then a lot of the legal rights that whitefeller law recognizes as native title, will have changed and won't be recognizable any more. If they insist on converting native title 'property rights' to specified 'use rights', then a lot of the evidence to support native title claims if the agreement finishes will be lost over time. We need to be sure that the agreement doesn't give with one hand, but take away future rights and opportunities with the other one.

Another risk is disagreement about the terms of any negotiated agreement between claimant groups or within those groups. What if one mob wants to 'hold out' when everyone wants to sign? What if the agreement sets up a way of doing things (a framework) that one mob just will not stick to when other people want to set up an ILUA? We all know whitefellers are good at blaming Aboriginal people when things get tough. There's no reason for us to think this will be any different! So, we need to be realistic. If people want to negotiate, we need to think about these sorts of problems early and work on them.

Self-determination and negotiation: key principles as a starting point

In Australia it has been rare for governments to negotiate directly with Aboriginal people. When Australia was invaded, the British government never negotiated treaties with Aboriginal people like the treaties that recognized First Nations of North America as independent nations with proper law and government. In 1840, when the British negotiated the Treaty of Waitangi with the Maori chiefs in New Zealand, colonial governments in Australia were finalizing the doctrine of terra nullius that denied Aboriginal peoples' existence let alone their rights! Since that time, governments have worried that negotiating with Aborigines might suggest that Aboriginal nations really are 'nations' with collective rights that need to be recognized formally.

Governments have tried all sorts of policies to avoid acknowledging that Aboriginal peoples have Aboriginal rights. Integration, assimilation, self-management, community government and other arrangements have been tried. But in the end, Aboriginal self-determination is about people working together to make decisions for yourselves on the basis of your own laws and customs (mutual recognition of and respect for each other), and deciding for yourselves how you fit into Australia.

We can see this principle of self-determination as a principle that should drive the Aboriginal side of any native title negotiations. What other principles are important starting points?

• Fairness - the negotiations should be fair to the Aboriginal participants. All claimant groups should be better of from this agreement, and none should be worse off because of it.

• Intergenerational equity - these negotiations will set the stage for Aboriginal people for several generations. We must make sure that decisions are fair to the grandchildren of our grandchildren. We don't want Aboriginal people in 50 or 60 years to look back and see this time as a time when negotiators sold out the future!

• Sustainability - in whitefellers' ways of looking at things it is easy to get sucked into deals that promise a quick fix - a lot of money now but nothing in the future. We have to make sure that solutions and outcomes from the agreement will last for a long time. We cannot let the negotiations trade off country (and environmental conditions and resources) for money that will be quickly used up trying to meet the backlog of needs in Aboriginal communities.

• Meaningful benefits - native title is a property right that is equivalent to freehold until it is legally reduced or extinguished. It should carry meaningful benefits to its owners. The common law tells us that much, but the case law that will consider the nature of the benefits native title brings to Aboriginal and Torres Strait Islander peoples is still developing. In the USA, Indian nations have rights to water, fish and minerals; in New Zealand, Maori people have rights to control water and many other resources in their country; in Papua New Guinea, landowners under customary law are partners with mining, logging and tourism companies; in Canada, First Nations have achieved self-government within the Canadian federation in places. We do not yet know how far recognition of native title in Australia will go, but there is no doubt that there is a strong basis in law for native title rights delivering real benefits (not just money, but perhaps we could talk about a real place at the table when talking about economics, government and society in Australia). This agreement, therefore, must deliver benefits that native title claimant groups recognise as benefits and that mean something in their lives, and their futures.

What is negotiation? How do we get ready?

Everybody is a negotiator because we have to negotiate about things all the time. Whenever people come at things in different ways and have to work out how to deal with those different ways, there is negotiation going on.

So, negotiation is not something mysterious that you need a University degree to do. BUT, succeeding in negotiations with governments is hard work.

Governments are used to telling Aboriginal people what to do, and setting up the rules that everybody else has to play by.

Making a native title agreement is about setting the rules that will affect how native title rights will work on the ground for a long time. If we get this negotiation wrong, the problems we make will be around for a very long time. A good way to think about this is to imagine how your grandchildren's grandchildren will be affected by the rules built up in these agreements. You have to make sure your grandchildren's grandchildren will be really proud you were involved in this, not shamed by what you did!

Three ways of negotiating - 'soft', 'hard' and 'fair'

A lot of people see only two choices in how to negotiate - being soft and giving in, or being strong and getting your own way. Both of those approaches to negotiating see power as being something that is pushed onto someone else ('power over others').

In Aboriginal politics and culture, self-determination has always been important and that means keeping power over yourself and resisting other people's efforts to impose their power over you. Being an effective negotiator is an important part of Aboriginal self-determination. One way of looking at this is called 'principled negotiation.

In principled negotiation, the aim is always to make a good agreement that is fair to everyone and consistent with agreed principles. The aim is not to 'win' and make the other side 'lose'. At the end of this negotiation, Aboriginal and non-Aboriginal people will still have to live together, so it is important for the terms of agreement to be fair to everyone.

A problem for Aboriginal negotiators who want to be fair is that in a lot of whitefeller business and politics, negotiations are almost like a war. A mining company man once said to me that we shouldn't talk about 'negotiating' to his company because a lot of the 'company warriors' thought a negotiation was something that you went into to win. He said that they liked to start negotiations standing over their enemy lying on the ground with their foot in their throat! Most government negotiating teams will be trying hard not to be seen as 'soft' negotiators by the miners, the farmers and their political bosses. So, native title claimants need to be careful not to be soft just so you can get an agreement. An agreement that moves away from the principles of self-determination, fairness, intergenerational equity, sustainability and meaningful benefits will not be a good agreement.

Let's look at how the three approaches to negotiations are different and begin to think about how we might organize an Aboriginal negotiation and community consultation process that will produce a good, well-understood and well-supported statewide native title framework agreement. This will help to decide whether or not native title claimant groups want to proceed with negotiations, and what steps need to be taken to get started.

This table sets out the differences between the approaches:

Power-over-you SOFT NEGOTIATION (Positional bargaining)	Power-over-others HARD NEGOTIATION (Positional bargaining)	Self-determination (power-over-self) FAIR NEGOTIATION (Principled negotiating)
participants are friends	participants are enemies	participants are problem-solvers
agreement is the goal	victory is the goal	a wise outcome achieved efficiently and fairly is the goal
back down to keep friends	demand back-down to stay friends	separate the relationship between people from the problem(s) to be solved
be soft on the people and the problem	be hard on the people and the problem	be soft on the people and hard on the problem
trust others in the negotiations	distrust others in the negotiations	don't rely on trust but on evidence and action
change position easily	dig in to your position	focus on interests, needs and priorities rather than taking positions
make offers	make threats	explore options realistically and carefully
tell the other side what your bottom line is	mislead the other side about what you really need to get out of the process	avoid having a simple bottom line that you have to reach, but be clear about non-negotiable issues
accept unfair losses to achieve agreement	demand the other side gives up things as the price of agreement	work together to invent options that give mutual gains (win-win solutions)
search for the single answer the other side will accept	search for the single answer that you will accept	develop multiple options to choose from, decide later
insist on agreement	insist on your position	insist on using agreed criteria for assessing proposals and outcomes
try to avoid a contest of wills	try to win a contest of wills	try to reach a result that is independent of either side's will
yield to pressure	apply pressure	reason and be open to reasons; yield to principle and information, not pressure or deadlines
accept their documentation	insist on your version of documents and records	work together on a single version of important documents

based on: R Fisher, W Ury and B Patton1991, Getting to yes. Century Books, London, page 13

Organizing to negotiate: principles and alternatives

It should be obvious from this table that good and effective negotiation does not happen by accident. It takes a lot of planning and preparation. There are probably quite a few ways to organize any particular negotiations. If people decide to negotiate, they also need to think about how to organize themselves to achieve good outcomes.

Letting experts do the job

In a lot of negotiations, people simply pay expert negotiators to do the work for them and to get the best possible deal they can. Experts such as lawyers, economists, planners and others could be drawn together to make a team and to sit down with the government's people and hammer out a deal. They could bring that back to native title claimant groups and say to you "This is the best we can do. You should sign this now".

If good people are employed, this might produce a good deal. But would the claimants really believe they got the best possible deal? Would they understand the achievement and failures? Would they learn skills and understandings necessary for other negotiations?

The real problem with an expert-led process is that it looks and feels a lot like the old-style paternalism that left Aboriginal people out of the picture for so long. It's as if a bunch of experts (usually whitefellers) sit around a table and decide what is best for Aborigines like the church or the government did in the old days. A clever deal that people who have to run the agreement and live with it for years isn't really worth much if those people don't understand it, can't enforce it and don't really 'own' it.

In the end, asking experts to do this job is not a good idea.

Getting everyone around the table

Another way you could try to negotiate would be to get every native title claimant together to work on everything. If we were talking about a large area with say 18 claims, and a management committee with 8-25 members for each claim area, we would be talking about 350 people just on the management committees. In the end, these committees, on behalf of all the native title claimants, will have to agree to any agreement before it gets signed. So, why not have everybody sitting around the negotiation table?

A very large negotiating team brings lots of problems. Most government teams would consist of about five people. Sitting behind that small team there will be some technical advisers on particular topics. The five people will be responsible to the Cabinet - the politicians in the Cabinet will have to agree to anything before it gets signed, and the government people will sign the agreement on behalf of the whole community.

You wouldn't expect the whole community, or even the whole Parliament or Cabinet to run a complex negotiation like this. The government side will rely on good communication, good instructions and careful consultation before signing any agreement.

It is important that everybody with a native title interest that will be affected by this agreement has a channel for communicating to and receiving information from the negotiations. But trying to fit everybody at the table is unlikely to work well or be acceptable to the government.

You can see that on both sides there will be similar sorts of jobs to be done and interests to be considered:

go to Figure 1

Delegation, consultation and instruction

A middle path between involving everybody in everything and handing over negotiations to experts is to set up a structure which delegates a smaller group of people to do the face-to-face negotiations, to commission and receive expert advice, to consult with the management committees and wider community, and to follow instructions given by the management committees.

This sort of system can be set up in several ways, but all of them will require good communication in both directions (from the negotiators to the communities; from the communities to the negotiators), skilled and respected community people as the negotiators, and time to make sure that communication works. It will also depend on experts who can follow community instructions and communicate well with Aboriginal people.

Organizing 'our' side of the table

In a situation where there are management committees that will become the PBCs (Prescribed Bodies Corporate) and hold native title under the Native Title Act, these committees can be central in negotiations. The management committees are representative of all native title claimants, and will take responsibility for exercising native title when it is recognized. It is these committees (on behalf of native title claimants in each claim area) that will have to approve of any agreement before it is signed. It is these committees that will decide whether or not to proceed or continue with negotiations at various times.

Because there might be a lot of people on these management committees there is a big problem in making this a practical way of negotiating. Claimants can't afford to constantly hold big meetings of all these committees, but all the committees need to know what is happening and they all need to bring information and ideas into the negotiations. There must be a way for these committees to participate in the process.

Organizing a practical way to do this will be crucial to effective and successful negotiations. Any effective organization will have to have:

• a good communication network that keeps information flowing in all directions (from the communities, to the communities, between the communities). This can be done in many ways including a regularly newsletter, using video tapes and radio programs, and telephone trees.
• a smaller group of management committee members who meet regularly, undergo detailed training, and act as the Aboriginal steering committee or reference group actually driving the process. This might include one or two members from each management committee, and it could meet every couple of months. Depending on the skills and interests of people who are on such a reference group, the work could be divided up in different ways.
• a small and reliable expert advisory group who are available to provide detailed guidance, support, advice and suggestions on various technical issues that are raised in the negotiations.
• a small, reliable, talented and respected Aboriginal negotiating team of Aboriginal people who will do the face-to-face negotiations with the government's team of five negotiators. This group will need to be available at relatively short notice and to be supported and resourced to carry a large workload. This group of about five people should be representative of native title interests from all the regions, and should represent men and women. Selecting this team will be difficult and controversial, but good choices will contribute strongly to good results.
• a full-time support team or secretariat to run the office work, meetings and communications for the negotiations.

These elements can be seen in the following diagram:

go to Figure 2

Communication and consultation

Most native title negotiations will be long, complex and difficult. Nobody should expect results straight away.

Negotiations can only succeed if a good agreement is produced that is acceptable to the people who have to approve signing off. People will only agree to sign off if they understand the proposal, agree with, and think they can't do better in the courts.

This means that the native title claimants have to have a way of getting their voices heard in the negotiations. They must also have a reliable way of getting accurate information about the negotiations as they proceed. What are the best ways of doing this? Meetings, telephone, newsletters, audio and video cassettes, radio shows and briefings for organizations are all important. These things take time and money, but they need to be done.

Aboriginal Reference Group

One of the goals of any negotiations should be to strengthen the skills and knowledge of people who will have to negotiate other ILUAs in the future, and as PBCs they will have complicated business to deal with.

It is also important to have a smaller core group that really understands the detail of the negotiations, provides a reliable connection directly into the communities, and drives the process. This group would be equivalent to the Cabinet Committee on the government side. That Committee will make sure that the government policies are being put into the process and that the agreement is acceptable to the government and the wider community. An Aboriginal Reference Group would make sure that information from the communities is being put into the process and that the agreement is acceptable to the native title claimants.

Aboriginal Negotiating Team

This is the team who will sit across the table from the government in negotiations, and who will work out the agreement with the government's team.

It is important that people selected for this important role have credibility with native title claimants and the government. They should have good skills and wide experience. This team would be expected to meet very regularly, and would need to be available at short notice, able to operate under pressure to tight deadlines, communicate very effectively, and be able to work in a team.

These people will also need detailed training and support to play this difficult and important role.

Technical Advisory Group

Native title negotiations will raise a lot of technical issues. The negotiators will need to be able to draw on technical experts in a range of fields, including politics, economics, land use planning, environmental management, law, drafting, and regional development.

Secretariat

In many negotiations, a small full-time support team will be needed offer a range of support and consultative functions throughout the negotiations.

Resources to make all this happen

These sorts of arrangements require resources. They will not happen just because they should. Without resources to run professional and effective negotiations, people will be left to struggle as best they can. When you are seeking resources from governments to support negotiations, it is worth remembering that not negotiating and staying in the court system will cost the governments about $5 million per claim and that negotiations about land use and compensation will still have to happen after native title determinations.

Producing a negotiating position: what do native title claimants want in an agreement?

It is important that native title claimants decide for themselves what they want to include in the proposed statewide framework agreement. Negotiators need to think about what the government and other stakeholders want to offer, but there is not much point in just accepting what they think is good for Aboriginal people. One of the things they have to remember is that native title is new to everybody, so it is up to the negotiations to shape an agenda and processes and ideas that suit Aboriginal and Torres Strait Island peoples rather than accepting that the government is boss for this too.

But, because the idea of negotiating a big agreement like this is new to Aboriginal people too, it will be hard for native title claimants to decide what they want to talk about in negotiations.

The last part of this paper is mostly about process -- how to decide what should be in the agreement. This is because the discussion of product -- the detail of what goes in the agreement and the words used to express Aboriginal ideas in the agreement -- needs to come from discussions with people and their communities.

What sorts of things need to be talked about?

What goes into an agreement?

There are four lists of things need to made up about what goes into an agreement:

• Wish List -- these are the things that you wish could be included in the agreement. These might be things you think the government won't accept, but you think are worth asking about or are important and should be discussed. Some of these things might not look like they are directly linked to native title (say something like health services or education), but the negotiations could look at how to fit them into a big agreement.

• Non-negotiables -- the things that must be in the agreement for you to sign-off on it.

• Priority issues -- things that you think should be included in an agreement, and that you will give high priority to achieving, but could be left out if the agreement is good enough in other areas.

• Deal-breakers -- things that the government or other stakeholders might try to include in an agreement that would make you refuse to sign or even make you walk away from the negotiating table.

Native title claimants also need to understand that governments will have their own version of these four lists, and so will industry lobby groups who influence the government's thinking. The more they understand about the other side's wish list, their lists of non-negotiables, priority issues, and list of deal-breakers, the better prepared native title groups will be to respond in ways that produce a good agreement.

Every native title claimant family will have things that they want to go on each of these lists. There will probably be very different ideas about each list among all the native title claimant groups. In most negotiations, governments will want to end up with one agreement for a large area, not a lot of different little agreements with each family. So the big challenge is how to bring people together to make an agreement that meets everybody's goals and expectations and requirements on the Aboriginal side. It will be important to have a process that everybody can understand and work with, otherwise we will make it easy for the government to break the Aboriginal people apart and make native title look like it is not worth much. This would make an agreement that would look weak very soon.

We want to make an agreement that is very strong and makes native title very valuable. We want an agreement that people will look at in twenty years and in fifty years and say that it was a good agreement for Aboriginal people.

We will only make a good agreement like that if we are well-prepared and well-supported.

Who needs to be involved?

This paper has already considered why every native title claimant cannot be directly involved in negotiating with governments. Although they won't all be sitting at the negotiation table, all native title claimant groups and their members need to be involved.

Clearly, the management committee for each claim area or the PBC will be important. The management committees act for (and on instruction from) the claimants. Each group of claimants involved will need to sign off on any agreement in some properly authorized way. The members of these committees might select a smaller group who will take a lead role in the process, and will help to select the actual negotiating team. But all members of the management committees should help report information to their members. They should all also channel information, questions, worries and arguments about the negotiations from their members to the negotiators and to any representative body involved. This will make sure people feel their voice is being listened to.

The negotiating team must have people who can talk up strong (in English or language) to government, and who can listen to people's worries and ideas from the communities. They must be able to work together with the other members of the team, and be diplomatic and patient with government people who don't understand things the first time they are told something. We also need to make sure that we not only have people who can communicate to the government's negotiating team, but also to the politicians, industry and wider public.

There are other community groups with certain roles and expertise who might be included, depending on how the process is finally organised and what the government wants to talk about, and how they respond to Aboriginal ideas. For example there might be individuals or organisations with particular expertise in education, employment, training, housing, health, justice, land management and so on who should be included in some way.

Who needs to be convinced?

We don't just have to convince native title claimants that this is a good idea. In the end we also have to convince people in the wider community that an agreement that is good for Aboriginal people is good for everyone. This is true in the short term because there will be elections in which such agreements will be an issue for debate. But it is true in the longer term too, because Aboriginal people and other Australians have to live together and live with the effects a native title agreement will have on the state, its society and its economy.

How long does it take?

It is impossible to say how quickly this agreement could be negotiated. In Canada, big agreements like Nunavut took nearly 20 years to negotiate. We know that even with the Native Title Act the court process will take a long time (the Mabo Case took ten years). But it is unlikely that any Australian government would be willing to take ten or twenty years to negotiate.

In most situations, there will not be just one chance to negotiate things. Most native title groups will be negotiating ILUAs with pastoralists, miners, local governments and other groups over the coming years. It's just that an agreement with governments could set up the terms for those other negotiations to happen.

How will we know when we are finished?

This is a very hard question to answer because the real answer is that these processes never really finish! There will always be more to talk about, and more to learn. But at some time, the management committees and native title claimants have to decide whether or not an agreement is good enough to sign.

In any negotiations where a draft agreement is produced, the negotiating team and expert advisory group will probably discuss when it might be time to do that. It will only be possible to think about that when all the claimant groups' non-negotiables are included in the agreement, and enough of the priority issues and wish list are also included to make it look like a good agreement. They also have to make sure the agreement at that time does not include any deal-breakers!

How to produce an negotiating position?

There are no short cuts to building up a strong and well-supported negotiating position. It will take hard work and good communication to get to a clear and powerful statement of what would look like a good agreement for Aboriginal people. Native title claimants could just take a draft agreement written by government people and see what they like about that, but governments will not include some things that Aboriginal people think are important. In the end, the process of sitting down, talking about what is important to the people involved and directing experts to put native title claimants' ideas into words for an agreement. In the end, we need to have lawyers to draft up an agreement that puts into proper legal words the ideas that Aboriginal and Torres Strait Islander people put forward. But it should be the claimants' ideas and not the experts' that count the most.

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