Project Outline 2002

Agreements, Treaties and Negotiated Settlements with Indigenous Peoples in Settler States: their Role and Relevance for Indigenous and other Australians

Contents:

• Project Outline 2002

• Background to the Project

• Significance: Importance of the Problem

• Advancing the Knowledge Base

• Research Design

• Method

• Training

• Industry Partner Commitment and Collaboration

• National Benefit

• Communication of Results

• References

This ARC Linkage Project sought to investigate the cultural, social and legal rights encompassed by past, present and potential agreements and treaties with indigenous peoples. It examined the legal history and foundations of these agreements, audited their purposes, statuses and outcomes, and undertook comparative research on an international level. While many of the agreements analysed by this Project related to land, the Project also looked at other agreements that centred on areas such as health, education and research.

This Project was launched in March 2002, and was conducted over three years. It involved researchers from The University of Melbourne (being Chair of Indigenous Studies and Professor Marcia Langton, Faculty of Law member Maureen Tehan and Postdoctoral Research Fellow Lisa Palmer) and from The University of Technology Sydney (being Faculty of Law Professor Larissa Behrendt and Jumbunna Indigenous House of Learning).

The Rise of Agreement-Making Between Indigenous People and Others

Since the first agreements were signed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) over twenty years ago, there has been a proliferation of agreement-making between Australian indigenous people and other parties on matters including local, state and federal government projects and infrastructure developments (Tehan 1994, 1997; Edmunds 1998; Kaufmann 1998; Langton 2000, National Native Title Tribunal 2001).

This rise in agreements has been furthered by the High Court's decision in Mabo No 2, as well as by court verdicts in subsequent native title cases. It has also been driven by the passing of the Native Title Act 1993 (Cth), which places all parties under an obligation to negotiate and mediate particular proposals for land and sea use. This obligation has been combined with other provisions that enable native title and non-claimant applications with respect to land to be resolved through negotiation rather than court proceedings (see Crough 1995:3; Sheehan 1998; Lane 2000; Neate 2001). 

Furthermore, the Aboriginal and Torres Strait Islander Social Justice Commissioner's Submission to the Commonwealth Government on Social Justice has made strong recommendations on the role of the federal government in facilitating negotiation between indigenous people and government parties. The Submission details the benefits of agreement-making, noting in particular that agreements 'provide better management and more fine-grained knowledge of territory and environment' by fostering 'indigenous control or co-operative management (or co-management)' (Dodson 1995).

Today, confidence in the overall potential of agreement-making as a process continues to grow (Neate 2001). The range of agreements concluded with indigenous groups now include:

• Indigenous Land Use Agreements under the Native Title Act 1993 (Cth);

• consent determinations by the National Native Title Tribunal;

• agreements between Land Councils on behalf of traditional owners;

• development proposals under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth);

• an Indigenous Protected Area Agreement based on IUCN principles;

• intergovernmental tripartite service delivery agreements; and

• agreements between Aboriginal communities and local governments.

These agreements number in the hundreds, but they have been the subject of little to no research. At the inception of the ATNS Project, there was a rising awareness of the lack of formal processes for entrenching such agreements and ensuring that they bound both government and non-government parties. This was combined with a perceived lack of inquiry into the requirements for good faith negotiation and satisfactory outcomes. This Project sought to address this research gap by surveying the statutory developments that informed the formulation of policy, planning and other initiatives on agreement-making with indigenous people.

The Project and its Research Background

At a meeting convened by Aboriginal and Torres Strait Islander Commission Chairman Geoff Clarke in April 2000, a need was identified for research and publications on the subject of treaties with indigenous peoples. At the same time, preliminary work by Chief Investigator Marcia Langton provided a historical background to the processes of treaty and agreement-making in Australia (Langton 2000).

The other Chief Investigators on the ATNS Project have also undertaken preliminary work both in this area and in related fields:

• Professor Behrendt is currently completing a research project on comparative indigenous rights in Australia and Canada.

• Ms Tehan has undertaken substantial work on agreement-making in Australia, as well as a comparative study of Australian and Canadian jurisprudence (Tehan B10.2 and 10.3).

• The Office of the Chair of Australian Indigenous Studies at The University of Melbourne (in the School of Anthropology, Geography and Environmental Studies) has come to serve as a focal point for research and discussion of important questions on Aboriginal affairs for the academic, professional and broader community.

• The Jumbunna Indigenous House of Learning has focused on research areas perceived to be of interest to the indigenous community, and has become known for its processes of consultation with communities at a local level.

Collaboration between these research centres, with their respective strengths and resources, was identified as offering a valuable opportunity to develop an alliance that would inform future negotiations and settlements in the fields of indigenous social and cultural rights, service delivery, land use management, economic development and community governance.

This Project drew on these varied research fields to detail and analyse the negotiated outcomes of agreements between indigenous people and others. It made reference to the relevant international literature, focusing on jurisdictions such as the United States of America, Canada and New Zealand, where negotiated agreements have replaced treaties as the prevalent arrangements for engagement with indigenous peoples on matters such as resource use (Langton 2000). Studies of these international developments were used to inform the Australian component of the Project, providing an invaluable body of knowledge to its potential beneficiaries. The outcomes of this Project thus include the provision of resources and a broader framework for the negotiation of settlements in disputes over resource use, service delivery and other citizenship entitlements in the Australian context.

As outlined above, agreement-making with indigenous people has been a feature of the Australian policy landscape for over twenty years, gaining prominence through the reconciliation process pursued during the last decade. Some research on this trend has already been conducted in the native title field (Edmunds 1998), and also in the area of governance (Meyers et al 1999; Ivison et all 2000), but this has not prevented a notable absence of a well-developed body of literature on the subject in Australia, either in academic or in popular forums. The result has been a lack of information on the models and processes used in negotiation, and also on the entrenchment of agreements through statutory or constitutional means. Nor has there been, despite the undertaking of some studies in this area, an adequate international survey of all these issues (Meyers 1996; Stephenson 1997; Ivanitz 1997; Dorsett and Godden 1998).

This Project was intended to address these problems in a systematic manner by:

• bringing together experts from diverse fields;

• establishing an electronic and web-based network of agreement participants;

• providing research services;

• publishing key materials; and

• compiling existing treaties, agreements and commentary on the ATNS database.

This Project had several key aspects that underlined its novel and innovative nature:

• It provided the first comprehensive audit of treaty and agreement-making in Australia, seeking to analyse the contexts, structures and outcomes of agreements. This audit has enabled a thorough assessment of agreement-making models and case studies in the indigenous world, providing the public with a major reference resource.

• It incorporated an international comparative framework on treaty and agreement-making, as well as an interdisciplinary study involving collaboration between lawyers, anthropologists and key stakeholders in the area.

• It has enhanced the capacity of the researchers and the Industry Partner (the Aboriginal and Torres Strait Islander Commission) to provide accessible information on non-litigation pathways to the recognition of inidgenous rights and entitlements, especially in local and regional contexts.

• It has also increased the range of accessible information on the entrenchment and protection of treaty and agreement rights in statutes and constitutions in various international jurisdictions, as well as information on the disadvantages and vulnerabilities experienced by indigenous groups in these settlement processes.

• It has sought to advance reconciliation and the settlement of outstanding issues by providing significant information to indigenous bodies and others.

The key challenge for this Project was the diverse range of agreements in existence, which are differentiated by varying social, historical and legal settings, a wide variety of parties and significantly different objectives. In order to gather and synthesise information on these agreements, the ATNS Project was constructed around a series of phases (outlined in the headings below). Each phase used broad sets of research questions to guide an inquiry that centred on the needs of indigenous participants in the agreement-making process. These research questions have also been outlined in the following paragraphs.

i. Current Australian Agreements Between Indigenous Parties and Others

This phase of the Project sought to compile a complete database of all current or recently completed agreements, identifying the kinds of agreements that existed and the reasons why they were concluded in particular forms.

It incorporated the following kinds of research questions:

• What agreements currently exist?

• What are the main drivers of agreement-making?

• Is it possible to develop a taxonomy of the aims, statuses and outcomes of agreements?

• What was the political framework within which these agreements were completed?

• Who were the parties to these agreements?

• Are there patterns in the types of agreements reached (for example, in terms of the number or status of the parties, the involvement of mediators or the actual subject matter of agreements themselves)?

ii. The Legal Foundations of Agreements Concluded with Reference to Indigenous Matters

Given the broad range of historical and contemporary agreements in existence, another key issue for the ATNS Project was the legal basis of these agreements, and the extent to which they could be either fostered or undermined by particular legal frameworks.

This issue made up another research phase that incorporated the following questions:

• What were the legal frameworks in which various historical and contemporary agreements were made?

• How are rights entrenched and protected under these frameworks?

• What has been the fate of enforcement proceedings?

• What is the role of subject-specific laws in agreement-making?

• In what constitutional contexts have agreements been made?

• What is the relationship between international and domestic legal foundations?

ii. Non-Litigation Pathways to the Recognition of Rights and Entitlements

While the resolution of disputes through mediation and agreement-making is often seen as a recent development, there have for a long time been indications that this may not necessarily be the case. To demonstrate this possibility, the ATNS Project sought to examine historical and contemporary agreements with a view to identifying the kinds of circumstances in which such agreements tended to be completed. This task was intended to enable the Project to serve as a kind of guide for those seeking to reach agreement.

This phase involved the consideration of the following kinds of questions:

• What agreements currently exist?

• Who are the parties to these agreements?

• Why did the parties take this pathway?

• What was the political and legal framework in which these agreements were made?

• Is it possible to develop a taxonomy of the aims, statuses and outcomes of these agreements?

iv. International Comparisons

Other former British colonies in the common law system with similar contact histories to that of Australia - for example, Canada and New Zealand - provide the most fertile ground for a comparative study of agreement-making. The Treaty Process in British Columbia also provides some pertinent points of comparison for the Australian context. Some work has already been done in making these kinds of comparisons, but it is not extensive and has largely been limited to particular subject matters (Stephenson 1997; Dorsett and Godden 1998; Edmunds 1998).

Chief Investigators Professor Behrendt and Ms Tehan have existing links with organisations and universities in these areas of comparative study, particularly in Canada. However, this Project has also sought to examine other locations in which innovative and lasting agreements have been made, including the circumpolar region.

This took place in its international comparative phase, which incorporated the following research questions:

• What are some examples of different types of agreement?

• What are some of the different modes of Indigenous organisation/mobilisation?

• What is the role of constitutional and/or legal contexts in these processes?

• How have issues of social rights and economic development been addressed?

• What patterns, themes, parties, emerge in these agreements?

• What is the historical and internationally comparative relevance for Australian circumstances?

The Project objectives and the research questions outlined above have required discovery, investigation and analysis on different levels. They have also necessitated the development of a number of complementary research methods. These include the following:

• the collection of wide-ranging data (including some quantitative analysis, but primarily qualitative analysis);

• the development of a large database of agreements between indigenous people and others;

• the undertaking of case studies of particular agreements in Australia and, to a lesser extent, overseas; and

• the formulation and dissemination of key conclusions.

These methods have been incorporated into the following stages of the Project:

i. Agreement-Making Audit and Database (Primarily 2002 - Mid-2003)

The first stage of the Project consisted of the development and construction of the Agreements, Treaties and Negotiated Settlements (ATNS) database - a task that went beyond 2003 to encompass the entire life of the Project. The data for this database has been collected from all possible sources of agreements, including governments and other bodies such as:

• the National Native Title Tribunal;

• indigenous organisations;

• peak bodies for industry and local government; and

• targeted private corporations, especially in the resource and tourism sectors.

The information collated on the database includes:

• examples of agreements (if possible);

• date;

• parties;

• subject matter;

• jurisdiction;

• regulatory context;

• time taken to reach agreement;

• currency;

• workability;

• identity of any professional parties engaged in negotiations;

• identity of the appropriate parties to speak to about the agreement; and

• unusual issues or characteristics that came up in the process of reaching agreement.

This material has allowed for the establishment of the database, as well as the identification of key elements related to the broader aims of the Project. Similar but less extensive material has also been compiled on comparative international jurisdictions such as Canada and New Zealand.

ii. Legal and Historical Research (Primarily 2002- Mid-2003)

The next stage of the Project consisted of legal and historical research that provided the foundations or underpinnings for an analysis of past and current agreements, as well as proposals for future negotiation processes. This research has primarily been undertaken by Professor Behrendt and Ms Tehan. Its primary goal was to supplement existing research findings, and ultimately to provide a well-documented and accessible legal resource for future negotiations.

iii. Domestic Case Studies (Late 2002 - Mid-2004)

As a key basis for generating new insights on the research questions, this part of the Project involved the identification of case studies on the basis of their representative qualities and unique characteristics. Analysis of these case studies in light of the research questions has involved interviews with participants on issues such as:

• the process of agreement-making;

• the workability of agreements reached;

• their endurance; and

• their outcomes.

iv. International Case Studies (Mid-2003 - Mid-2004)

The Project has also included the use of international case studies, which were undertaken as a point of comparison with cases in the Australian context. While these case studies have largely focused on the same research questions, their number has not been as extensive.

v. Final Report (2004)

The making of conclusions and the completion of the final report for this Project was to be undertaken by the Chief Investigators, each of whom was to take responsibility for a section of the report.

The Australian Postgraduate Award Industry had a central role in the development of the methodology for data collection and analysis under this Project, and was also engaged in the design and conduct of the case studies, as well as in the publishing process.

Undergraduate and Postgraduate students across different disciplines from the University of Melbourne and the University of Technology Sydney were also invited to participate in this Project as research assistants and facilitators in workshops, seminars, conferences and other events. They had a supervised role in various publishing projects, including the publication of proceedings of workshops, discussion papers, collections and conference proceedings, and training in editing and publishing.

The Chief Investigators were also to develop and undertake training programs for Aboriginal and Torres Strait Islander Commission staff during each Project phase, as well as upon completion. The aim of the training was to increase levels of understanding among policy makers, advisors and those working in the field about the legal, cultural and economic aspects of agreement-making. These training programs placed an emphasis on indigenous perspectives in the agreement-making process.

Our Industry Partner, the Aboriginal and Torres Strait Islander Commission (ATSIC), has made a significant commitment to this Project by offering substantial financial assistance, as well as in-kind assistance in the form of research and coordination. The ATSIC Commissioners and Policy Officers responsible for this Project have attended meetings and made recommendations on the research objectives identified above.

The Council for Aboriginal Reconciliation recommended in its Final Report to the Federal Parliament that a treaty or agreement be concluded as the basis of reconciliation between indigenous and non-indigenous Australians. It submitted draft legislation to this effect (Final Report 2000). After delivering this Report, the Council finished its work at the end of 2000. As a result of its recommendations, the main policy focus adopted by ATSIC and other major indigenous bodies has been on the development of agreement or treaty processes to advance reconciliation and the settlement of outstanding issues (Final Report 2000).

Consequently, the ATSIC Board has established a Section 13 Committee under the terms of the ATSIC statute, as well as a ThinkTank on treaty issues, to conduct research into the benefits and disadvantages of agreements and treaties, and to promote public debate on the advantages of achieving settlement with Aboriginal and Torres Strait Islander peoples. Chief Investigators Professor Langton and Professor Behrendt have been invited by ATSIC to serve as members of this ThinkTank by providing research and other advice.

ATSIC has also made a stated commitment to conducting wide-ranging consultations with the Australian community, including a national forum of Aboriginal and Torres Strait Islander People, to ensure that the views of indigenous and non-indigenous people on these issues are canvassed and documented.

This Project was founded on the premise that improving agreement-making processes would present indigenous parties with the opportunity to obtain economic and social benefits, and also to form long-term strategic alliances. However, the development of a body of literature and research on agreement-making in Australia also has potential to inform future negotiations and settlements, as well as the management of indigenous service delivery, rights and entitlements. These entitlements relate to economic development, social rights, native title settlements, land use, resource management and community governance. The Project has potential to generate benefits in these areas by identifying the roles and responsibilities of federal, state and local governments on the one hand, and those of Aboriginal communities on the other.

The work conducted as part of the Project is also expected to contribute to the body of knowledge on mediation and dispute settlement, particularly in relation to matters such as land, marine and water use, native title, heritage protection, co-existing rights in pastoral leases and access rights. In doing so, it will advance the processes of treaty and agreement-making in Australia, and will thus have potential to further both economic development and social cohesion in indigenous communities.

Furthermore, in examining fundamental issues such as property rights, the survival and recognition of statutory and pre-existing customary rights and entitlements, and forms of governance formally recognised in various jurisdictions, the Project is expected to fill a significant research gap, particularly in Australia.

The specific benefits of the Project - both to indigenous groups in regional areas, and to our Industry Partner - would include:

• a comprehensive, annotated list of agreements between indigenous parties and others;

• a review of the legal foundations of agreements concluded with reference to indigenous matters;

• accessible information on non-litigation pathways to the recognition of rights and entitlements, especially in local and regional contexts;

• accessible case study materials of historical and internationally comparative relevance for Australian circumstances;

• accessible information on the entrenchment and protection of treaty and agreement rights in statutes and constitutions in various international jurisdictions;

• information on the disadvantages and vulnerabilities faced by indigenous groups in these settlement processes; and

• a resource base for the conduct of broader framework agreements and settlement negotiations.

The first and second phases of the Project have involved the ongoing publication of findings and analysis, which were made accessible to policy-makers, parliaments and the general public throughout Australia. Workshop and seminar proceedings have been published electronically, in various media forms that ensured their accessibility. Electronic databases have also been used to assist researchers in providing services to indigenous organisations, governments, industry and community groups.

Furthermore, a series of workshops and seminars involving the representatives of indigenous communities and groups, governments and private enterprises have been held to enable the discussion of research results. It was also envisaged that an International Conference funded by ATSIC would be held to allow the public to comment on the final report of the Project.

Our findings and research outcomes have also been communicated through the publication of refereed journal articles, discussion papers, collections and a final report in 2004. The Chief Investigators have sought to work with Aboriginal and Torres Strait Islander organisations to disseminate the findings of the Project research and ensure that the material produced by this Project was meaningful and relevant to the indigenous community.

Specific strategies for communicating results have included:

• development of a website, including a web-based communication and chat page for participating members in Australia and overseas, as well as a web-based database on treaties and relevant agreements of various kinds;

• a critical seminar series with high-profile participants that offer papers on subjects deemed relevant to the Project objectives;

• publication of a series of commissioned discussion papers;

• publication of a refereed book consisting of a collection of lectures and edited discussion papers by a large publishing house as a report on the work of the project;

• publication of an annotated bibliography of historical sources relevant to treaty and agreement-making in Australia;

• production of handbooks which offer briefing notes and guidelines for communities and groups engaged in treaty and agreement development;

• organisation of an international conference at the University of Melbourne in 2002 on the theme of Indigenous Peoples and Treaties and Agreements, and the publication of these proceedings.

Council for Aboriginal Reconciliation, Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament (December 2000)

Crough, G, 'Towards a Regional Agreement in the Kimberley Region of Western Australia' (Unpublished Manuscript, North Australia Research Unit, Australian National University, 1995)

Dodson, M, Indigenous Social Justice: a Submission to the Parliament of the Commonwealth of Australia on the Social Justice Package (Aboriginal and Torres Strait Islander Special Justice Commissioner, 1995)

Dorsett, Shaunagh and Lee Godden, A Guide to Overseas Precendents of Relevance to Native Title (Australian Institute of Aboriginal and Torres Strait Islander Studies, 1998)

Edmunds, Mary (ed), Regional Agreements: Key Issues in Australia (Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1998)

Ivanitz, Michelle, 'The Emperor has No Clothes: Canadian Comprehensive Claims and their Relevance to Australia' (Native Title Research Unit, Discussion Paper on Regional Agreements No 4, 1997)

Ivison, Duncan, Paul Patton and Sanders Will (eds), On the Plurality of Interests: Aboriginal Self-Government and Land Rights (Melbourne, 2000)

Kaufmann, Paul Wik, Mining and Aborigines (National Native Title Tribunal Workshop, 1998) 

Langton, Marcia, A Treaty Between Our Nations (Inaugural Professorial Lecture by the Chair of Australian Indigenous Studies, University of Melbourne, October 2000)

Meyers, Gary and Simone Muller (eds), The Way Forward: An Overview of Indigenous Land (and Resource) Use Agreements (1996)

Meyers, Gary, G Garth Nettheim and Donna Craig, Australian Research Council Collaborative Research Project: Governance Structures for Indigenous Australians On and Off Native Title Lands (Discussion Papers 1-9, 1999)

Neate, Graeme, 'Native Title and Mining Industries in Australia' Australian Mining Seminar (2001)

Sheehan, Anne and Sharon Mascher, 'Indigenous Land Use Agreements: A Pathway for Negotiating the Future' (1998) Australian Mining and Petroleum Law Journal 300

Stephenson, Margaret, 'Negotiating Resource Development Agreements with Indigenous People: Comparative International Lessons' in Brian Horrigan and Simon Young, Commercial Implications of Native Title (1997)

Tehan, Maureen, 'Practising Land Rights: The Pitjantjatjara in the Northern Territory, South Australia and Western Australia' (1993-4) 65(4) Australian Quarterly 34

Tehan, Maureen, 'Indigenous Peoples and Negotiated Agreements: Experiences and Post-Mabo Possibilities for Environmental Management' (1997) 14 Environmental and Planning Law Journal 114