Project Outline 2006

The Implementation of Agreements and Treaties with Indigenous and Local Peoples in Postcolonial States

Contents:

• Project Outline 2006

• Background to the Project

• Significance and Innovation

• Conceptual Framework

• Research Design

• Research Methods

• Industry Partner Commitment and Collaboration

• National Benefit

• References

The Implementation of Agreements and Treaties with Indigenous and Local Peoples in Postcolonial States Project is a comparative, interdisciplinary study of the implementation of agreements and treaties in selected Australian and international contexts. It draws on disciplines including law, anthropology and geography to examine the social, cultural and legal complexity of agreement implementation and outcomes in postcolonial scenarios (Blaser et al 2004; Howitt 2001). The Project builds on a previous ARC Linkage project, Agreements, Treaties and Negotiated Settlements with Indigenous Peoples in Settler States: their Role and Relevance for Indigenous and other Australians, by explicitly examining the implementation process and the wider factors that promote the long-term sustainability of agreement outcomes.

A wide range of agreements now exists between indigenous peoples and public and private sector institutions in Australia. Such agreements include those initiated under native title claims, together with resource, cultural heritage and local development initiatives (Tehan 1998, 2003). The key problem that arises for investigation is whether these agreements have a substance and significance beyond the fact of agreement, and whether they are actually meeting the objectives of the parties.

To date, there has been little research on the implementation and impacts of agreements, which are increasingly used by governments, industry and indigenous peoples themselves as the major policy and governance tool for the conduct of their relationships. Accordingly, this Project examines the special legal, governance, economic development, land heritage, and environmental management issues that arise in the interface between indigenous societies, governments and corporations in an agreement-making context.

As part of its focus on agreement outcomes, the Project is particularly concerned with the role of implementation in the creation of robust local and regional economies that benefit indigenous and local communities. Within this broad context, it builds on a need for legal and social research in two major areas:

• the social and cultural issues that arise during negotiation and impact on the implementation and sustainability of agreements; and

• the role of law and governance structures in the implementation and outcomes of these agreements.

Both of these areas are increasingly recognised as crucial for the long-term viability of agreements between indigenous groups and others.

The Project also builds on a critical need to develop models and frameworks to assist in the effective implementation of agreements, the analysis of their long-term viability and the integration of economic, environmental and social sustainability concerns in these processes. The Project's interdisciplinary team is uniquely placed to investigate this research gap and identify factors that promote the sustainability of outcomes. To achieve these goals, it will be necessary to formulate novel and innovative conceptual forms for examining the following factors and their capacity to enhance or detract from the cultural, economic and social benefits of agreement-making for local and indigenous people:

• the features of agreements;

• the innovative implementation approaches that might accelerate beneficial outcomes;

• the social and legal contexts of implementation, including pertinent social and legal issues and governmental arrangements at the national, provincial and local level; and

• the planning and resourcing of agreement implementation.

The Project also involves the application of legal models such as contract, property and trusts, together with an examination of fundamental legal and institutional aspects of the role of governments, public institutions and public policy development in agreement sustainability (Dorsett & Godden 2002; Strelein et al 2002). While a 'triple bottom-line' policy of economic, environment and social sustainability has already been formulated (Jonas 2003), the latter (sustainability) element has received far less empirical and theoretical attention than the former two (Howitt 2001). Thus there is an urgent need for specific interdisciplinary research that can integrate legal models with considerations of social and cultural sustainability.

In undertaking this research, the Project will augment the online Agreements, Treaties and Negotiated Settlements (ATNS) database as an innovative research and communicative tool that can effectively integrate information on agreements across disciplinary areas.

Moreover, it will focus on selected case study agreements in Australia, Canada, New Zealand, southern Africa and southeast Asia to provide instructive empirical examples of diverse forms of agreement-making. These examples will provide opportunities for comparative analysis, concentrating research on factors that influence the effective implementation of agreements to better inform and direct the delivery of outcomes in Australia's indigenous communities.

The recent increase in native title and other related agreements (Edmunds 1999; Langton et al 2004) has seen a concomitant rise in the financial and human resources directed into agreement negotiation and conclusion. While the value of 'non-litigated' outcomes for indigenous people is increasingly being recognised (Langton & Palmer 2003a), the emphasis to date has primarily been on reaching agreement as an end in itself, with little attention directed at the factors that promote or inhibit the long-term sustainability of agreement outcomes (O'Faircheallaigh 2002, 2004). Sustainability is defined here as the capacity of agreements to endure over time while continuing to meet the economic, environmental and social objectives of the parties.

The literature suggests that effective implementation remains the central factor in ensuring the sustainability of negotiated settlements (Ivanitz 1997). Consequently, in Canada, the implementation process is now a central part of all major agreements negotiated with indigenous peoples, whether by government or by industry (de Costa 2004). Through prior project experience, the research team taking part in this Project is well-placed to meet Australia's urgent need to obtain and analyse comparative data on agreement implementation.

Furthermore, while much has been written about the general legal principles of agreement-making (Morse 2004; Tehan 2003), few studies explicitly engage with these questions from the perspective of achieving sustainable indigenous and local social and economic forms (Altman 2002a; Senior 1998). This reflects the predominant focus on a legalistic, formalised, and 'top-down' agreement structure - a structure that does not effectively integrate the many indigenous customary polities that continue to shape cultural and economic relationships (Langton & Palmer 2004). Even more rare is legal research that interrogates questions such as the impact of initial negotiation processes on the eventual effectiveness of agreements (Riley 2002; Senior 1998; Tehan 1998). The research team involved in this Project, with its combination of disciplinary perspectives, brings an innovative, integrative approach to bear on these questions of agreement structure, effectiveness and outcomes.

The Project's significance lies in its potential to contribute to the social and economic fabric of remote and rural communities by enhancing the planning and management of agreement implementation between indigenous and local peoples and their government and industry partners. The Project centres on the investigation of four key areas - legal, economic, governance and social/cultural sustainability - that have been identified as central research issues in the achievement of positive outcomes through agreement-making.

The Project will investigate novel conceptual and practical issues in the following areas: 

i. Identification of Parties to an Agreement

The manner in which the parties to an agreement are identified, described and included in the decision-making process can have long-term implications for the sustainability of the agreement itself. The identification of the parties is integral to establishing their coherent cultural identity and their 'ownership' of agreement outcomes (Langton & Palmer 2003a). 

ii. Effective Legal Models for Implementation

Agreements are structured through the use of legal forms that can either inhibit or enhance the benefits that flow to indigenous communities. The use of joint ventures and trusts for the distribution of funds and the promotion of economic development are examples of this. For this reason, the Project incorporates a comparative study of trust, taxation and other administrative and financial arrangements for the management and disbursement of funds from agreements with mining or other project partners (Altman & Levitus 1999; O'Faircheallaigh 2002, 2003).

iii. Economic Development

Economic development is a key objective of agreement-making between indigenous groups and others. As Pearson and Kostakidis-Lianos (2004: 8-9) note, 'the creation of economically efficient structures reduces, over the long term, the amount of funding that needs to be poured into indigenous infrastructure by creating the conditions for independently viable indigenous communities'. However, structures within and surrounding agreements can obstruct capital accumulation by indigenous and local peoples, thus undermining their economic development (Pearson & Kostakidis-Lianis 2004). Considering the effort and resources that go into securing indigenous rights in relation to land and infrastructure, the need for economically efficient structures and arrangements for the development of the necessary finance and securities assume critical importance. Recognising this, our partners at Rio Tinto have negotiated agreements with indigenous peoples where economic development has been a crucial part of the negotiated settlement (Harvey 2004). The current research will build on this progress by providing an important avenue for further developing principles for the community governance of individual enterprises.

iv. Governance

The settlement of conflicts over resource use is a crucial basis for capacity-building, especially in Canada, New Zealand and the USA, where indigenous peoples enjoy various forms of sovereignty. The existence of formal relationships with governments in these jurisdictions raises questions about evolving forms of representation, governance and federalism that may bring insights into the role of agreements in resolving conflicts between indigenous peoples and national and other interests (Brennan et al 2004).

v. Communication Structures

The formulation of practical policies and procedures to guide corporate engagements with indigenous and local peoples creates substantial challenges in terms of communication and management strategies (Blowes & Trigger 1999). Of equal importance is the development of a pervasive culture of social and economic competency among communities, governments and the private sector to ensure effective agreement implementation (Crooke et al 2004). There is a need for the detailed examination of governance, social and legal responsibilities in the specific cultural context in which local agreement-making proceeds. These issues, in jurisdictions where indigenous and local peoples have developed self-governing institutions, present opportunities for comparative analysis whenever governmental institutions are poorly conceived or developed (Cornell 1993).

vi. Community Governance and Social Sustainability

Current literature on indigenous governance (Dodson & Smith 2003) and social sustainability models (Barron & Gauntlett 2002) informs the Project framework for measuring social sustainability, which is achieved 'when the formal and informal processes, systems, structures and relationships actively support the capacity of current and future generations to create healthy and liveable communities. Socially sustainable communities are equitable, diverse, connected and democratic and provide a good quality of life' (Barron & Gauntlett 2002: 11).

vii. Biodiversity and Cultural Rights

Central to sustainability for many indigenous and local peoples is the issue of environmental viability. Thus the Project identifies the key factors supporting or mitigating against indigenous and local participation in conservation and biodiversity management in several jurisdictions (Akimichi 1995; Jaireth & Smyth 2003; Langton & MaRhea 2003; Nettheim et al 2002). Many indigenous and local peoples have been marginalised by new supranational formations such as trade, intellectual property and environmental institutions (Posey & Dutfield 1998; Escobar 1998). The Project will investigate how innovative environmental and resource agreements may allow them to overcome marginalisation and become robust participants in the economy at a regional, national and global level (Howitt 2001; Langton 2003).

The Project centres on a comparative analysis of how modern agreements and treaties in postcolonial states can provide avenues for indigenous and local peoples to have standing in national and international regulatory regimes over land, resource and cultural rights. Several major projects in Canada, New Zealand, the USA (Godden & Dorsett 1999) and southeast Asia will be investigated as part of this analysis. These projects include mines, (Banks 2003; Howitt et al 1996), water, aid agreements and major infrastructure construction agreements. Our Industry Partners will provide considerable assistance in liaising with these projects and facilitating access to project sites.

The Project will also have a focus on South Africa and East Timor - two postcolonial locations that are currently engaging in nation-building in a context where resource development plays a significant role (Hunt 2004; McWilliam 2003). Both countries have extensive areas of customary land holdings, and are therefore devising models of land and resource use that give greater recognition to customary and local ownership structures (for South Africa see Mostert 2002).

As can be seen from the broad comparative scope taken up by this Project, issues of inclusion and economic opportunities for indigenous and local peoples remain pertinent both in the indigenous and the developing worlds (Cornell & Kalt 1992; Howitt et al 1996). This Project will investigate these issues by extending the Chief Investigators' previous work, which included an audit of agreements and the development of the ATNS database, as well as significant analytical work on the incidence, nature and scope of agreement-making with indigenous peoples (Langton, Tehan, Palmer & Shain 2004; Tehan 2003; Langton & Palmer 2003b, 2004a, 2004b; Langton, MaRhea & Palmer under review, Langton, Mazel & Palmer, under review).

An important aspect of this Project is its 'ground up' approach, which uses an empirically-based case study analysis to build an understanding of agreement implementation and outcomes. Its emphasis on case studies will enable the development of innovative, interdisciplinary and grounded theoretical frameworks through place-oriented research. The scale of the Project is such that these case studies will allow the research questions to be investigated in a manageable way.

The multi-faceted design of this Project comprises the following methodological stages:

• innovative upgrade and extension of the ATNS database;

• primary social, anthropological and legal research and the conduct of an initial workshop to further analyse the implementation of a range of agreements in different legal frameworks (with these agreements embracing disparate subject matter, diverse scale and different jurisdictions);

• the conduct of an in-depth empirical research program comprising qualitative interviews and surveys of selected agreements in various Australian and international locations; and

• a critical assessment of the effectiveness of various implementation strategies and long-term outcomes for indigenous and local peoples through the conduct of a final workshop and the dissemination of results.

Each methodological stage will be centred around the following research questions which engage the social, economic cultural and legal parameters of agreement making:

Social and Cultural Contexts of Agreement Implementation

This topic incorporates:

• the role of implementation in achieving sustainable agreements through relationship-building and the development of mutual understandings of the social complexities surrounding agreements;

• the importance of local social mandate and capacity (Crooke et al 2004);

• local processes which guide decision making, dispute resolution, distribution of financial and other benefits and succession issues (Bauman & Williams 2004); and

• structural limitations and capacity issues for affected communities (Altman 2002b).

Impacts of Legal Frameworks, Governance and Administrative Structures

This topic incorporates:

• the interface between law and relationship-building from both empirical and theoretical perspectives (Borrows 2002; Morse 2004);

• the role of legal and negotiation structures in establishing frameworks for the implementation, enforceability, flexibility and sustainability of agreements;

• the resources provided for implementation (Riley 2002; Allbrook & Jebb 2004);

• the management of practical implementation, including monitoring, liaison, compliance and breaches;

• institutional and structural arrangements for the implementation and sustainability of agreements (including indigenous governance arrangements); and

• the manner in which international and domestic institutions and legal instruments enhance indigenous control over land, heritage and resources (for example, the Convention on Biological Diversity and Environmental Governance; Langton & MaRhea 2003).

The diverse nature of the abovementioned research questions requires discovery, investigation and analysis at different levels. In particular, it necessitates further work on the ATNS database, primary legal, historical and social research, and the identification and analysis of case study targets in Australia and overseas.

i. Database Upgrade and Research Capacity

The ATNS database will be upgraded to encompass the creation and inclusion of new data at an interactive geospatial level. Quantitative statistical methods will be used to produce initial descriptive data on agreements and correlations for the later qualitative analysis of specific case studies. A review and upgrade of the database infrastructure will incorporate the functionality necessary for collecting and assessing information on agreement implementation in varied Australian and international contexts.

ii. Primary Legal and Social Research

Primary legal and social research will be foundational in identifying case study targets and shaping their substantive analysis. It will involve a general investigation of the research questions to inform the conceptual and theoretical bases of proposed frameworks for implementation and best practice. Such research will also guide the reconstruction of the ATNS database.

iii. Domestic Case Studies

This Project will identify a sample of domestic case studies on the basis of their representative qualities when measured against the research questions. The number of studies will depend upon the size and scope of the agreements identified. This will be followed by empirical investigation, involving interviews with participants on the workability, endurance and outcomes of an agreement, and the process and impact of negotiation. Research papers from expert associate investigators on economic development, capital accumulation, and taxation will be used in this phase of the Project. Further inquiry will include an analysis of the normative impact of agreements in strengthening indigenous and local communities.

iv. International Case Studies

A selection of international case studies will also be used on the basis of their relevance for comparison with Australian contexts. An initial stage comprising primary legal, historical and social research on potential international case study sites will be undertaken prior to the commencement of extensive empirical investigation.

v. Analysis and Writing

The Project's identification and in-depth analysis of key diverse agreements will enable the emergence of a picture of the legal, economic, social and cultural imperatives that drive successful implementation across different legal regimes, institutional settings and socio-cultural environments. This in turn will enable the undertaking of final analysis and report writing. Using the research outlined above (including interviews, surveys and database material), this final phase of the Project will integrate the various elements of our inquiry into a series of public events and publications.

Office of Indigenous Policy Coordination (OIPC)

OIPC began its operations on 1 July 2004 as a unit of the Department of Immigration and Multicultural and Indigenous Affairs, and is now part of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA). OIPC is the federal Minister's primary source of advice on indigenous issues, and is responsible for coordinating and driving innovative whole-of-government approaches to indigenous policy development and service delivery.

The Australian government's new approach to the delivery of services to indigenous people is based on 'shared responsibility' partnerships between governments and indigenous communities, families and individuals. Agreement-making is the primary mechanism for capturing these partnerships and directing government investment. Through Shared Responsibility Agreements and Regional Partnership Agreements, the Australian government will work with indigenous communities to design and deliver services in a coordinated way that reflects both 'bottom-up' and 'top-down' priorities. The effective implementation and sustainability of agreements will be the key to achieving improved outcomes for indigenous Australians under these new arrangements.

This Project will help elucidate the critical success factors in agreement implementation, thus delivering tangible benefits to OIPC. In particular, OIPC supports the expansion of the ATNS database, as this will assist in tracking the development of agreements and will also provide a mechanism for making agreement-related information publicly available. The proposed research also has the capacity to enhance the practicability and endurance of agreements - which has significance for OIPC's whole-of-government policy development role, particularly in relation to capacity-building and economic development.

Rio Tinto Pty Ltd

Rio Tinto endorses and supports a number of international accords encompassing principles of social responsibility, sustainable development, concern for indigenous and tribal peoples in independent countries, rights at work and human rights (The Way We Work 2003). Rio Tinto is committed to working in partnership with others to enhance its policies and procedures, to the ultimate advantage of indigenous people in those countries in which it operates. The research conducted as part of this Project will benefit both parties in such partnerships by informing and enhancing Rio Tinto's community engagement and sustainability policies.

Agreement-making with indigenous peoples has had a significant influence on the development of public policy and private sector activity in Australia, Canada, New Zealand and southeast Asia (Howitt et al 1996; Langton et al 2004). In Australia, the emergence of agreement-making within and beyond the native title process has had significant impacts on the socio-economic status of indigenous Australians. This has also led to a number of operational changes among private sector and government parties who conduct business and deliver services in indigenous communities, accelerating positive outcomes in terms of employment, skills training, income levels, education standards, health and other social and economic indicators (Harvey 2004).

The levels of disadvantage encountered among rural populations have, however, been under-estimated, and remain little understood (O'Faircheallaigh 2003). The extent of indigenous disadvantage has been comprehensively surveyed in two Reports from the Steering Committee for the Review of Government Service Provision (2003, 2004). This Commission, as well as many other research and monitoring bodies (for example, Jonas 2003; Taylor & Hunter 1998), have recommended various means for improving indigenous participation in the economy at local, regional and national levels. This Project draws on these and other findings, and would therefore be of great benefit to indigenous peoples for whom economic development is a major priority.

This Project is also expected to benefit private sector corporations who seek a 'licence to operate' in concluding agreements with indigenous peoples, as well as governments whose responsibilities include interventions aimed at economic and social development and service delivery. It will assist them by:

• fostering effective agreement planning by identifying innovative solutions and best practice with respect to the productivity and sustainability of agreement;

• formulating new approaches to capital accumulation and commercial and legal capacity to negotiate economic arrangements;

• furthering legal and administrative innovation in land transfers and resource use, especially in the native title context; and

• improving whole-of-government efforts to achieve the better coordination of service delivery to indigenous communities through the input of important research insights.

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