Agreement Making in Australia
Agreement making with Indigenous peoples in Australia is becoming increasingly important in areas relating to land, resources, health, education and research.
The emerging culture of agreement making is not uniform. It covers a range of fields and jurisdictions, arises under a range of regimes, and reflects a variety of contexts and circumstances. It includes agreements made between Australian Indigenous peoples and a wide range of parties, institutions and agencies, including:
resource extraction companies
railway, pipeline and other major infrastructure project proponents
local, state and federal governments
farming and grazing representative bodies
universities
publishers
arts organisations.
Types of agreements
Agreements arise in a range of contexts and circumstances:
Some have statutory status, eg those under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
Some have resulted in determinations of the Federal Court of Australia.
Some are registered under the terms of the Native Title Act 1993 (Cth).
Some set out joint management and conservation activities.
Some are simple contractual agreements that set out the terms of 'licences to operate' and future developments.
Some set out agreed social, cultural, economic, health and infrastructure activities.
Some are memoranda of understanding or statements of 'commitment' or ‘intent'.
As Professor Marcia Langton has said (2020):
‘My research with Maureen Tehan and Lisa Palmer has shown that, since the first agreements signed under the provisions of the Aboriginal Land Rights Act in the Northern Territory more than twenty years ago, there has been an astonishing proliferation of agreements between Australian Indigenous people and various corporations and branches of government aimed at achieving sustainable relationships and outcomes, whether the matter concerns the social licence to operate a mining company or government service delivery. While the many attempts at treating with Aborigines in colonial times and in the early twentieth century were not translated into enduring outcomes, it is clear that the agreements negotiated since the 1970s are evidence of a willingness to do what the colonial settlers were unable to countenance: that is, to acknowledge that another group of people were the owners and custodians of the lands and waters of Australia; that their descendants have a right to possess, use and enjoy those lands and waters; to govern, within the limits of Australian law, their use and access by others, and to reap any benefits arising from that use and access by others, as would any other group of people in rightful possession of a place.
These practical agreements settled between Indigenous and non Indigenous parties, mostly for land use reasons, number in the hundreds – there are possibly two thousand now – and they demonstrate that co-existence can be achieved by formal means, such as Indigenous Land Use Agreements.’
Partnership agreements
The Buthera Agreement (South Australia)
In South Australia, the Buthera Agreement (2018) is significantly the first of its kind between an Australian State and an Aboriginal group.
Formalising a ten-year relationship of partnership between the State and the Narungga People, the Buthera Agreement involves the Narungga in decision-making for strategies concerning Narungga business enterprise, service delivery, youth justice, housing, health, education and native title. It also expresses an intention of the State to work with the Narungga to promote a legislative structure for a Statewide treaty.
Land and water-related agreements
Agreement making with Indigenous people in relation to land has been particularly influenced by various statutory land rights acts, heritage legislation and the Native Title Act 1993 (Cth) and its amendments.
Statutory context +
The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)(ALRA) was the first major land rights legislation in Australia, and provided for statutory titles granted on the basis of Aboriginal customary land tenure systems, as well as procedures relating to use and access of Aboriginal land. The ALRA sets out the processes for negotiation of exploration and mining agreements as well as other activities that might occur on Aboriginal land by governments or developers.
State land rights legislation in South Australia (Pitjantjatjara Land Rights Act 1981 (SA)), Maralinga Tjarutja Land Rights Act 1984 (SA)), New South Wales (Aboriginal Land Rights Act 1983 (NSW)), Queensland (Aboriginal Land Act 1991 (Qld)), Torres Strait Islander Land Act 1991 (Qld)), and Tasmania (Aboriginal Lands Act 1995 (Tas)) similarly provided for grants of land and procedures relating to access to and use of land.
For more information on these Acts, see our summary of land rights legislation.
Mabo v Queensland (No 2) and the Native Title Act 1993 +
In 1992, the High Court of Australia in Mabo v Queensland (No 2) recognised native title as a form of customary title arising from traditional laws and customs that pre-existed and, under certain conditions, survived British sovereignty. In response to this decision, the Commonwealth Parliament enacted the Native Title Act 1993 (Cth) (the NTA), with the stated aim of recognising and protecting native title rights while ensuring a workable, secure and effective system of dealing with land.
The government also worked to resolve the retrospective effects of native title, which had the potential to invalidate certain land titles, including pastoral leases. In response to the High Court's decision in Wik, which held that Indigenous rights to land could co-exist with certain property rights, controversial amendments to the NTA were passed in 1998. While the amendments generally worked to limit the scope of native title, other amendments emphasised agreement making over litigation as the preferred method of resolving a wide range of native title issues. Especially important in this context are the sections of the NTA that provide for provisions relating to consent determinations, Indigenous Land Use Agreements and Future Act agreements.
Comprehensive settlements
Since the mid-2000s, a number of landmark agreements have been reached between Traditional Owners and state governments which pave the way for comprehensive settlement of claims. A number of these began with litigation under the NTA. Some have been agreed under state land rights legislation.
See our summary of some of these comprehensive settlements.