Agreements, Treaties and Negotiated Settlements Project

Details of the ATNS Project 2002

Project Outline 2002: Agreements, Treaties and Negotiated Settlements with Indigenous Peoples in Settler States: their role and relevance for Indigenous and other Australians

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Project Outline 2002

The aim of this ARC Linkage project (LP0211472) was to examine treaty and agreement-making with Indigenous Australians and the nature of the cultural, social and legal rights encompassed by past, present and potential agreements and treaties. It includes an examination of the legal history and foundations of agreements and treaties, an audit of current agreements, their purposes, status and outcomes, and international comparative research on treaty and agreement-making. While many of the agreements we examine relate to land, our research also examines non-land based agreements such as those agreements made in the areas of health, education and research.

The project began in March 2002 and was conducted over three years.

This project involved researchers from both The University of Melbourne (Professor Marcia Langton, Chair of Indigenous Studies, and Ms Maureen Tehan of the Faculty of Law, and Dr Lisa Palmer, Postdoctoral Research Fellow) and The University of Technology Sydney (Professor Larissa Behrendt of the Faculty of Law and Jumbunna Indigenous House of Learning).

Background to the Project

The fundamental aim of this ARC Linkage project is to examine treaty and agreement making with Indigenous Australians and the nature of the cultural, social and legal rights encompassed by past, present and potential agreements and treaties. This includes an examination of the legal history and foundations of agreements and treaties, an audit of current agreements, their purposes, status and outcomes. The project will contribute to the efforts of Indigenous organisations to secure political and economic rights through agreements with governments, industry and the broader Australian community.

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 a proliferation of agreements between Australian Indigenous people and other parties concerning, major infrastructure projects and, local, state and federal government projects, and a wide range of other matters (Tehan 1994, 1997; Edmunds 1998; Kaufmann 1998; Langton 2000, National Native Title Tribunal 2001).

The High Court decision in Mabo No 2, the subsequent native title decisions of the courts, and the Native Title Act 1993 (Cth) have placed all parties under an obligation to negotiate and mediate particular proposals for land and sea use. The National Native Title Tribunal and various provisions of the Native Title Act 1993 (Cth) have the purposes of enabling the negotiation of native title and non-claimant applications with respect to dealings in land through the future act provisions, Indigenous Land Use Agreements and general contract based negotiations (see Crough 1995:3; Sheehan 1998; Lane 2000; Neate 2001). In addition, various statutes have established regimes that accommodated both Aboriginal and non-Aboriginal interests in lands and waters in some State jurisdictions.

An important aspect of the Project would be a survey of the statutory developments that have informed the development of policy, planning, and various initiatives in relation to agreements with Indigenous people. There is a growing confidence in the process of agreement-making with Indigenous people, (Neate 2001) and, at the same time, there is an increasing understanding of the lack of formal processes for entrenching agreements so that they run with titles and bind both government and non-government parties, ensuring good faith negotiations and timely outcomes. The range of agreements concluded with Indigenous groups now include Indigenous Land Use Agreements under the provisions of the Native Title Act, determinations by the National Native Title Tribunal, Agreements between Land Councils on behalf of traditional owners and development proposals under the provisions of the Aboriginal Land Rights (Northern Territory) Act, an Indigenous Protected Area Agreement based on IUCN principles, intergovernmental tripartite service delivery agreements, and agreements between Aboriginal communities and local governments. These number in the hundreds, and little or no research of a comparative nature has been conducted on the benefits of agreement-making.

The Aboriginal and Torres Strait Islander Social Justice Commissioner’s Submission to the Commonwealth Government on Social Justice makes strong recommendations on the role of the federal government in facilitating the negotiations between Indigenous peoples and governments for local and regional agreements to provide for an enduring economic base for Indigenous peoples. The Commissioner details the benefits of these agreements and notes in particular that they would ‘provide better management and more fine-grained knowledge of territory and environment through Indigenous control or co-operative management (or co-management) by Indigenous peoples and governments’ (Dodson 1995).

At a meeting convened by the Chairman of the Industry Partner, the Aboriginal and Torres Strait Islander Commission, Mr. Geoff Clarke, in Melbourne in April, 2000, a need was identified for research and publication on the subject of treaties with Indigenous peoples and their potential for advancing the process of agreement-making in Australia. At the same time, preliminary work by one of the Chief Investigators (Langton) provides the historical background the to the processes of treaty and agreement making in Australia (Langton 2000). The other Chief Investigators have also undertaken preliminary work. Behrendt is currently completing a research project on comparative Indigenous rights in Australia and Canada. (See Part D). Tehan has undertaken substantial work on agreement making in Australia and comparative 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) is a focal point for research into and discussion of important questions on Aboriginal Affairs for the academic, professional wider and community. The Jumbunna Indigenous House of Learning focuses on research areas that are perceived to be of interest to the Indigenous community and is known for its processes of consultation with the local Indigenous community. Collaboration between these research centres, with their respective research strengths and resources, and the Industry Partner offers a valuable opportunity to develop a research alliance that will inform future negotiations and settlement in the fields of Indigenous social and cultural rights, service delivery, land use management, economic development and community governance.

This Project will detail and analyse the negotiated outcomes of agreement making referred to above, and will survey the international literature of relevance to agreement making between Indigenous and non-Indigenous parties in Australia. In the United States of America and Canada and New Zealand, negotiated agreements have replaced treaties as the modern arrangement for engagement with Indigenous peoples with respect to resource use (Langton 2000). The study of such international developments to inform the Australian component of this Project would provide an invaluable body of knowledge to the potential beneficiaries of this research. This Project would provide resources and a broader framework for the negotiation of settlement of disputes over resource use, service delivery and other citizenship entitlements in the Australian context.

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Significance: Importance of the Problem

Agreement making with Indigenous people has been a feature of the Australian policy landscape for over twenty years. The outcomes of the reconciliation process pursued in the last ten years necessitate an audit of agreement making with Aboriginal people in recent times. There has been some work in the native title field (Edmunds 1998) and in the governance field (Meyers et al 1999; Ivison et all 2000). However, there is a notable absence of a well-developed body of literature in Australia on treaty and agreement making with Indigenous peoples, either in academic or popular forms, covering broader issues and thus a lack of information on models, processes of negotiation, and forms of entrenchment through statutory or constitutional means. Neither is there an adequate international survey that draws relevance for Australian circumstances, although there has been some work in this field (Meyers 1996; Stephenson 1997; Ivanitz 1997; Dorsett and Godden 1998). This project would address this problem in a systematic way by bringing together various experts as partners in the project, establishing an electronic and web-based network of participants, providing research service, publishing key materials, and compiling existing treaties and agreements and commentary on a website.

Advancing the Knowledge Base

Several key aspects underline the novel and innovative nature of the project:

It will provide the first comprehensive audit of the current state of treaty or agreement making in Australia and analyse the contexts, the structures of the agreements, and the outcomes (if possible). This audit would enable a thorough assessment of models of agreement and case studies on agreement making in the Indigenous world and be available to the public as a major reference work.
Its method will include an international comparative framework on treaty and agreement making.
It will be undertaken as an interdisciplinary study, involving collaboration between lawyers, anthropologists and key stakeholders in the area.
It will enhance the capacity of the researchers and the Industry Partner to provide accessible information on non-litigation pathways to recognition of rights and entitlements, especially in local and regional contexts, and accessible information on the entrenchment and protection of treaty and agreement rights in statutes and constitutions in various international jurisdictions and information on the disadvantages and vulnerabilities for Indigenous groups in these settlement processes.
It will advance reconciliation and settlement of outstanding issues by providing significant information to Indigenous bodies and others engaged in the process.

Research Design

The problem here is the diverse range of agreements, developed within different social, historical and legal settings, involving a wide variety of parties and seeking to address very different issues. In order to gather and synthesise this material the project will be constructed around a series of phases involving broad sets of research questions to guide the inquiry. A key factor in all research undertaken will be addressing the need to meet the needs of Indigenous participants in the agreement process.

(i) Current Australian agreements between Indigenous parties and others;
The main focus of this phase is to gather as far as possible a complete data base of all current or recently completed agreements and to identify key factors in each as indicators of what agreements exist and why they have been concluded in particular forms.

What agreements currently exist?
What have been the main drivers of agreement making?
Is it possible to develop a taxonomy re their aims, status, outcomes of these agreements?
What was the political framework within which the agreements were completed?
Who were the parties to the agreements?
Are there patterns in the types of agreements reached including in relation to the numbers/status of the parties, the involvement of mediators, the subject matter of the agreements?

(ii)The legal foundations of agreements concluded with reference to Indigenous matters;
Given the range of agreements, both historical and contemporary, there is a key issue about the legal basis of the agreements and the extent to which this has operated to produce agreements and the extent to which it a key issue for future agreements.

What was the legal framework in which historical and contemporary agreements were made?
How are rights entrenched and protected?
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?

(iii) Non-litigation pathways to recognition of rights and entitlements, especially in local and regional contexts;
Mediation of disputes and the consequential making of agreements is often seen as a recent development. This may not necessarily be so. The project will seek to examine historical and contemporary agreements with a view to identifying which and in what circumstances agreements emerging in these contexts have been completed. This work will enable the project to develop some key factors to guide those seeking this pathway to agreement.

What agreements currently exist?
Who are 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 re their aims, status, outcomes of these agreements?

(iv) International comparisons
Other former British colonies in the common law system with similar contact histories such as Canada and New Zealand provide the most fertile ground for comparative study. The Treaty Process in British Columbia provides some very apposite points of comparison. Some work has been done in this field but it is not extensive and has been limited to particular subject matters. (Stephenson 1997; Dorsett and Godden 1998; Edmunds 1998) Both Behrendt and Tehan have existing links with organisations and Universities and have undertaken comparative work particularly in Canada. However, it would be a key aim of this project to examine other locations in which innovative and lasting agreements have been made including in the circumpolar region.

What are some examples of different types of agreements
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?

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Method

The nature of the research questions and the aims of the project require discovery, investigation and analysis to be conducted at different levels. There will be a number of complementary research methods. Specifically there will be the development of a large data base, the undertaking of case studies of particular agreements in Australia and to a lesser extent overseas, the development of key conclusions and the dissemination of these as indicated elsewhere. The database and case studies require the collection of wide ranging data involving some quantitative analysis primarily qualitative analysis.

(i) Agreement Audit and database
The first part of the project will consist of the development and construction of the agreements database. The aim will be to identify those issues set out in the E4.1. The data will be collected from all possible sources of agreements including Governments, bodies involved in agreement making such as the National Native Title Tribunal, Indigenous organisations, peak bodies for industry and local government, targeted private corporations especially in the resource and tourism sectors. The data collected will include examples of agreements (if possible) but otherwise the date, parties, subject matter, jurisdiction, regulatory context, time taken to reach agreement, currency, workability, professional parties engaged in negotiations, identity of appropriate parties to speak about the agreement, unusual issues or characteristics in reaching the agreement. This material will allow establishment of the data base as well as the identification of the key elements relevant to the broader aims of the project. Similar but less extensive material will be obtained from elsewhere including Canada and New Zealand. TIMING: for the life of the project but primarily: 2002 to mid-2003

(ii) Legal and historical research
This research is foundational in that it will provide the underpinning for a large part of the analysis of both past and current agreements as well as proposals for future processes. This will be primarily undertaken by Behrendt and Tehan and will involve a general legal research and analysis in relation to the research questions. The primary goal will be to supplement existing research and ultimately provide a well documented and accessible legal resource as a basis for future negotiations. TIMING on-going but primarily 2002 to mid-2003

(iii) Domestic case studies
As the key basis for generating new insights in relation to the questions posed this part will involve the identification of case studies on the basis of their representative qualities or their unique characteristics when measured against the research questions. These cases will then be analysed in relation to the research questions. This analysis will involve interviews with participants as to the process of agreement making, its workability, endurance and outcomes, a deep analysis of the legal foundations and conclusions to be drawn from this analysis. TIMING late 2002 to mid-2004

(iv) International case studies
These case studies will be undertaken as a point of comparison with the Australian case studies. They will focus on the same questions. The numbers will not be as extensive. TIMING mid-2003 - mid 2004

(v) Final Report
The development of the conclusions and the completion of the final report will be undertaken by each of the chief Investigators taking responsibility for a part of the report. TIMING 2004

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Training

The APAI will has a central role in the development of the methodology for the data collection and data analysis and will also be engaged in the design and conduct of the case studies and will be involved in publishing.

Undergraduate and Postgraduate students from both the University of Melbourne and the University of Technology Sydney across disciplines would be invited to participate in the project as research assistants and facilitators in workshops, seminars, conferences and other events. They would also be supervised in various publishing projects, including proceedings of workshops, discussion papers, collections and conference proceedings and trained in editing and publishing.

The Chief Investigators will develop and undertake training of ATSIC staff during each phase of the project and on completion. The aim of the training will be to increase levels of understanding of both policy makers and advisors and those working in the field about the legal, cultural and economic aspects of agreement making. There will be an emphasis on Indigenous perspectives in this process.

Industry Partner Commitment and Collaboration

The Aboriginal and Torres Strait Islander Commission (ATSIC) is the industry partner in partnership proposal and has made a significant commitment to this research grant application in offering both substantial financial and in-kind assistance through research and coordination assistance. The ATSIC Commissioners and Policy Officers responsible for this project have regularly attended meetings at which this proposal was developed. Many of the suggestions made during these discussions have already been implemented by ATSIC, including a website which makes available basic reference materials (see http://www.treatynow.org).

The ATSIC Board has established a Section 13 Committee under the terms of the ATSIC statute and in addition established and funded a ThinkTank on Treaty issues in order to progress treaty and agreement-making. Chief Investigators Professors Langton and Behrendt have been invited by ATSIC to serve as members of the Thinktank providing research and other advice.

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, the main policy focus by ATSIC and other major Indigenous bodies has been the development of agreement or treaty processes to advance reconciliation and settlement of outstanding issues (Final Report 2000).

ATSIC's stated purpose in the establishment of a Section 13 Committee and the Treaty Think Tank is to conduct research and investigations into the benefits and disadvantages of treaties and agreements and to promote informed public debate on the advantages of achieving settlement with the Aboriginal and Torres Strait Islander peoples.

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

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National Benefit

The project will encourage and develop long term strategic alliances between the parties. Addressing the problems associated with the concept of a treaty will lead to opportunities to obtain national economic or social benefits. The development of a body of literature and research in Australia on agreement making has the potential to inform future negotiations and settlement and management of Indigenous service delivery and outstanding rights and entitlements. These relate to economic development, social rights, native title settlements, land use, resource management and community governance. Potential benefits would flow from the identification of the role and responsibility of federal state and local governments on the one hand, and Aboriginal communities on the other. This research would also contribute to the body of knowledge concerning mediation and dispute settlement, particularly in relation to a range of matters amenable to negotiated settlement, such as land, marine and water use, native title rights, heritage protection, co-existing rights in pastoral leases, access rights, and related matters. This will advance the process of treaty and agreement making in Australia. The further refinement of agreement making processes between Indigenous communities and other stakeholders has the potential to enhance both economic development and social cohesion.

Further the project would examine fundamental issues such as property rights, the survival and recognition of both statutory and pre-existing customary rights and entitlements, and forms of governance that have been recognised formally in various jurisdictions. While some research on these topics exists, there are many gaps, specifically in relation to Australia.

The specific outcomes of benefit to Indigenous groups in regional areas and to the Industry Partner would include:

A comprehensive list of agreements between Indigenous parties and others with annotations;
A review of the legal foundations of agreements concluded with reference to Indigenous matters;
Accessible information on non-litigation pathways to recognition of rights and entitlements, especially in local and regional contexts;
Accessible case study material 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 for Indigenous groups in these settlement processes.
Resource base for the conduct of broader framework agreement and settlement negotiations.

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Communication of Results

The first and second phase of the project would involve on-going publication of findings and analysis, which would be accessible to the public, policy-makers and parliaments throughout Australia. Workshop and seminar proceedings would be published electronically, and in various media forms accessible to members of the public. Electronic databases will assist researchers providing services to Indigenous organisations, governments, industry and community groups.

Further, a series of workshops and seminars involving representatives of Indigenous communities and groups, government, community and private enterprise will be held to enable discussion of research results. It is envisaged that an International Conference funded by ATSIC will enable public comment on the final report of the project.

Our findings and research outcomes will be communicated through the publication of refereed journal articles, discussion papers, collections, and a final report in 2004. The Investigators will seek to work with Aboriginal and Torres Strait Islander organisations to disseminate the findings of the research to ensure that the material produced by this project would be meaningful and relevant to the Indigenous community.

Specific strategies for communicating results would include:

Development of a website, including a web-based communication and chat page for participating members in Australia and internationally, a web-based database on treaties and relevant agreements of various kinds in Australia and internationally;
Convening of a critical seminar series with high profile participants offering papers on subjects requested by the advisory body of the project and relevant to the objectives of the project;
Publication of a series of commissioned and submitted discussion papers refereed by the advisory body, the publication of a refereed book consisting of a collection of the lectures and edited discussion papers by a large publishing house as a report to the public on the work of the project;
Publication of an annotated bibliography of historical sources relevant to treaty and agreement making in Australia;
The development of handbooks which offer briefing notes and guidelines for communities and groups engaged in treaty and agreement development;
The organisation of an international conference in 2002 at the University of Melbourne on the theme of Indigenous Peoples and Treaties and Agreements and publication of the proceedings.

References

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, Darwin, 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, Sydney, 1995.

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

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

Ivanitz, Michelle ‘The Emporer has No Clothes: Canadian Comprehensive Claims and their Relevance to Australia’ Native Title Research Unit Discussion Papers Regional Agreements No 4 Canberra 1997.

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

Kaufmann, Paul Wik, Mining and Aborigines (Sydney 1998) National Native Title Tribunal Workshop Melbourne, September 2000.

Langton, Marcia A Treaty Between Our Nations. Inaugural Professorial Lecture By Professor Marcia Langton Chair of Australian Indigenous Studies University of Melbourne, Australia, October, 2000.

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

Meyers Gary, Nettheim G Garth, and Craig Donna, Australian Research Council Collaborative Research Project: Governance Structures for Indigenous Australian on and off Native Title Lands. Discussion Papers 1-9 Sydney 1999.

NNTT Agreements database (searched 2 April 2001; NOTE: this website experiences problems with earlier versions of Netscape - upgrade to a later version or use Internet Explorer 5.5).

Neate, Graeme ‘Native Title and Mining Industries in Australia’ Australian Mining Seminar, London, 2001.

Sheehan, Anne and Mascher, Sharon ‘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 Horrigan, Brian and Young, Siomn Commercial Implications of Native Title Sydney 1997.

Tehan, Maureen ‘Practising Land Rights: The Pitjantjatjara in the Northern Territory, South Australia and Western Australia’ (1993/4) 65(4) Australian Quarterly 34-54.

Tehan, Maureen ‘Indigenous Peoples and Negotiated Agreements: Experiences and Post Mabo Possibilities for Environmental Management’(1997) 14 Environmental and Planning Law Journal 114-134.

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