Details of the ATNS Project 2006
Project Outline 2006: The Implementation of Agreements and Treaties with Indigenous and Local Peoples in Postcolonial States
- Project Outline 2006
- Background to the Project
- Significance and Innovation
- Conceptual Framework
- Research Design
- Research Methods
- Industry Partner Commitment and Collaboration
- National Benefit
The project involves a comparative study by an established interdisciplinary team of the implementation of agreements and treaties with Indigenous and local peoples across selected Australian and international case studies. Accordingly, the research draws on the disciplines of law, anthropology and geography to examine the social, cultural and legal complexity of agreement implementation and outcomes in postcolonial contexts (Blaser et al 2004; Howitt 2001). The central aim of this project builds on the considerable research into agreement making and treaties that was conducted in a previous ARC 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 subsequent process of implementation and the wider factors that promote 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 agreements have a substance and significance beyond the fact of agreement: are they meeting the objectives of the parties and producing positive outcomes, particularly for Indigenous parties?
To date there has been little research on the implementation and effect/impact of agreements, yet governments, industry and Indigenous peoples themselves are using these as the major policy and governance tool for the conduct of their relationships in terms of economic service delivery, land access, social and environmental management and associated infrastructure development. Accordingly, this project will examine 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 context. A significant element of our focus on agreement outcomes will be the role of implementation in the creation of robust local and regional economies with the consequent benefits for Indigenous and local communities (these areas have been identified as ones of particular disadvantage for Australia's Indigenous and remote communities: Steering Committee for the Review of Government Service Provision 2003). Within the context of the project's broad aims, there is a need for specific legal and social research in two major areas: first the social and cultural issues that arise during negotiation which impact on the implementation and sustainability of agreements and second the role of law and governance structures affecting implementation and outcomes. These two aspects have emerged as crucial for the long-term viability of agreements.
There is a critical need to develop models and frameworks to assist the effective implementation of agreements, analysis of their long-term viability and integration of economic, environmental and social sustainability. The project's interdisciplinary team is uniquely placed to investigate this critical gap in current research and investigate the factors that promote sustainability. This requires the development of novel and innovative conceptual forms to fully investigate:
- features of agreements that enhance social, cultural and economic benefit to local and Indigenous people and innovative implementation approaches that accelerate these outcomes;
- the social and legal contexts of implementation, including pertinent social and legal issues and governmental arrangements at the national, provincial and local level, that enhance or mitigate against successful implementation of agreement provisions; and
- the planning and resourcing of agreement implementation.
The legal aspects will involve 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 sustainable agreements with Indigenous peoples (Dorsett & Godden 2002; Strelein et al 2002). Further, in the development of a 'triple bottom-line' policy of economic, environment and social sustainability (Jonas 2003), the latter has received far less empirical and theoretical attention (Howitt 2001). Thus there is an urgent need for specific interdisciplinary research, such as this project, which can integrate legal models with social and cultural sustainability.
In undertaking this research, the project will augment the online 'Agreement Treaties and Negotiated Settlements' (ATNS) database [LP0211447] as an innovative research and communicative tool that can effectively integrate information on agreements across disciplinary areas. Moreover, this project 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 comparative analyses and a discrete research concentration for examining the factors influencing the effective implementation and outcomes of agreements to better inform and direct the legal and sustainability frameworks for implementation of agreements and the outcomes achieved within Australia's Indigenous communities.
The large increase in native title and related agreements (Edmunds 1999; Langton et al 2004) has seen concomitant increases in financial and human resources directed into agreement negotiations and conclusions. While the value of 'non-litigated' outcomes for Indigenous people has increasingly been recognised (Langton & Palmer 2003a), the emphasis to date has primarily been on reaching agreement as an end in itself, with little attention directed to the factors that promote or inhibit long-term sustainability (O'Faircheallaigh 2002, 2004). Sustainability is defined here as the capacity of agreements to endure over time and continue to meet the economic, environmental and social objectives and goals of the parties.
The initial project and critical literature suggest that effective implementation remains the central factor in ensuring sustainability of negotiated settlements (Ivanitz 1997). In the native title field in Australia, almost all native title consent determinations also require agreement on the exercise and enjoyment of native title rights (Sheiner 2001). In Canada, the process for implementation is now a central part of all major agreements negotiated with Indigenous peoples, whether by government or industry (de Costa 2004). The research team, through previous project experience, is well placed to meet the urgent need to obtain and analyse comparative data on agreement implementation. Further, 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). Such a view reflects the predominant focus on a legalistic, formalised, and 'top-down' agreement structure. This structure does not effectively integrate the many Indigenous customary polities that continue to exist as cultural and economic relationships (Langton & Palmer 2004). Even less legal research 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, 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 contribution to the social and economic fabric of remote and rural communities through enhanced planning and management of the implementation of agreements between Indigenous and local peoples and their government and Industry Partners in a range of jurisdictions. This new research proposal focuses existing expertise upon the investigation of four areas - legal, economic, governance and social/cultural sustainability that we have identified as central research issues for examining agreement implementation and outcomes.
More specifically, the project will investigate novel conceptual and practical issues related to agreements, including:
Identification of Parties to an Agreement - The manner in which parties are identified, described and included in the decision making process can have long-term implications for the sustainability of agreements. It is integral to establishing coherent cultural identity and 'ownership' of agreement outcomes (Langton & Palmer 2003a).
Effective Legal Models for Implementation - Agreements might be structured into legal forms that inhibit or enhance the enjoyment of benefits. The role of joint ventures and the use of trusts for the distribution of funds and as vehicles for economic development are examples. Thus 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 specific project partners would be undertaken (Altman & Levitus 1999; O'Faircheallaigh 2002, 2003).
Economic Development - Economic development is a key outcome of agreement making. 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 economic development in relation to capital accumulation by Indigenous and local peoples (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 the arrangements for potential finance and securities, assume critical importance. Our partners, Rio Tinto, have negotiated agreements with Indigenous peoples where economic development has been a crucial part of the negotiated settlement (Harvey 2004). The research will provide an important avenue for developing principles for community governance of individual enterprises.
Governance - The settlement of conflicts over resource use is a crucial basis for capacity-building that agreements give rise to, especially in Canada, New Zealand and the USA where Indigenous peoples enjoy the status of forms of sovereignty. The existence of such formal relationships with governments raise questions of evolving forms of representation, governance and federalism which require investigation to understand the role of the agreements in resolving conflicts between Indigenous peoples and national and other interests (Brennan et al 2004).
Communication Structures - The formulation of practical policies and procedures to guide corporate engagements with Indigenous and local peoples create substantial challenges for 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 implementation (Crooke et al 2004). There is a need for a detailed examination of governance and social and legal responsibilities and 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 where governmental institutions are poorly conceived or developed (Cornell 1993).
Community Governance and Social Sustainability - Current literature on Indigenous governance (Dodson & Smith 2003) and developing models of social sustainability (Barron & Gauntlett 2002) will inform our own framework for measuring social sustainability which occurs '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).
Biodiversity and Cultural Rights - Central to sustainability for many Indigenous and local peoples is environmental viability. Thus we will identify the key factors supporting or mitigating against Indigenous and local participation in conservation and biodiversity management in their traditional territories in several jurisdictions (Akimichi 1995; Jaireth & Smyth 2003; Langton & MaRhea 2003; Nettheim et al 2002). Many Indigenous and local peoples have been marginalised by the 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 Indigenous and local peoples to be robust participants in the economy at regional, national and global scales (Howitt 2001; Langton 2003).
The ATNS database developed in the earlier project will be upgraded to expand its functionality as a rich storehouse of empirical data and to reflect an extended analytical framework for understanding the content, scope, outcomes and implementation of agreements. Enhancement of the database to achieve new levels of complexity will extend its utility as a public resource and a research tool for project and other researchers.
The comparative analysis proposed involves an investigation of how, in postcolonial states, modern agreements and treaties provide avenues for Indigenous and local peoples to have standing in the national and international regulatory regimes over land, resource and cultural rights. Several major projects in Canada, New Zealand and USA (Godden & Dorsett 1999) and the region of southeast Asia will be investigated, including mines, (Banks 2003; Howitt et al 1996), water, aid agreements and major infrastructure construction agreements. Our Industry Partners will provide considerable assistance in facilitating access to sites and in liaising with particular resource and related projects. South Africa and East Timor are postcolonial locations of new nation-building and resource development (Hunt 2004; McWilliam 2003). Both countries have extensive areas of customary land holding and are devising models of land and resource use that give greater recognition to the customary and local structures (for South Africa see Mostert 2002). Issues of the inclusion and economic opportunity for Indigenous and local peoples are ongoing ones throughout the Indigenous and developing worlds (Cornell & Kalt 1992; Howitt et al 1996). The comparative focus will extend the Chief Investigators' previous work which involved an audit of agreements in the development of the ATNS database and 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 facet of the investigation is the 'ground up' approach which focuses on using an empirically based case study analysis to build an understanding of agreement implementation and outcomes. The case study emphasis will enable the development of innovative, interdisciplinary and grounded theoretical frameworks developed through place-oriented research. The scale of the project is such that the case study approach allows the research questions to be investigated in a manageable way.
The multi-facetted project design comprises the following methodological stages:
- innovative upgrade and extension of 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 arising in different legal frameworks, covering disparate subject matter, of diverse scale and in different jurisdictions;
- the conduct of an in-depth empirical research program comprising qualitative interviews and surveys of selected agreements in selected Australian and international locations; and
- a critical assessment of the effectiveness of various implementation strategies and the long term outcomes for Indigenous and local peoples with the conduct of a final workshop and dissemination of results.
Each methodological stage will be centred around a series of research questions which engage the social, economic cultural and legal parameters of agreement making:
Social and cultural contexts of the implementation of the agreements
- The role of implementation in achieving sustainable agreements through relationship building and 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).
- The structural limitations and capacity issues for affected communities (Altman 2002b).
- The interface between law and relationship building from both empirical and theoretical perspectives (Borrows 2002; Morse 2004).
- The role of law in establishing frameworks for implementation, enforceability, flexibility and sustainability in agreements and the impact of negotiation structures upon long term durability.
- Resources provided for implementation (Riley 2002; Allbrook & Jebb 2004).
- Managing practical implementation, including monitoring, liaison, compliance and breaches.
- Institutional and structural arrangements necessary for implementation and sustainability of agreements including Indigenous governance arrangements.
- 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 research questions requires discovery, investigation and analysis at different levels: specifically there would be further work on the ATNS database; primary legal, historical and social research; and 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 the data at an interactive geospatial level. The database and case studies require the collection of wide ranging data involving primarily qualitative analysis. Quantitative statistical methods will be used to produce initial descriptive data on agreements and correlations for later intensive qualitative case study analysis. A review and upgrade of the infrastructure of the database 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
This research is foundational in identifying case studies targets and their substantive analysis. It will involve general legal and social analysis of the research questions, ultimately to inform the conceptual and theoretical bases of proposed frameworks for implementation and conclusions about best practice. It will also guide the reconstruction of the database.
(iii) Domestic Case Studies
This phase will identify a sample of 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. Empirical investigation will involve interviews with participants as to an agreement's workability, endurance and outcomes, the process and impact of negotiating the agreement on these issues. Research papers from expert associate investigators on economic development and capital accumulation, and on taxation issues will be used in this phase of the project. Further inquiry will include analysis of the normative impact of agreements in strengthening Indigenous and local communities.
(iv) International Case Studies
Selection of international case studies will be driven by their usefulness for comparative study with Australia. Initial primary legal, historical and social research on sites of potential international case studies will be undertaken prior to extensive empirical research commencing.
(v) Analysis and Writing
Office of Indigenous Policy Coordination (OIPC)
OIPC began 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, Community Services and Indigenous Affairs. OIPC is the primary source of advice on Indigenous issues to the federal Minister and is responsible for coordinating and driving innovative whole-of-government approaches to Indigenous policy development and service delivery across the Australian Government. The Australian Government's new approach to Indigenous service delivery is based on 'shared responsibility' partnerships between governments and Indigenous communities, families and individuals. Agreement-making will be the primary mechanism for capturing the partnership and for shaping government investment in Indigenous communities. 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. Effective implementation and sustainability of agreements will be the key to achieving improved outcomes for Indigenous Australians under these new arrangements. The proposed research will help elucidate the critical success factors and inform the development of strategies to support implementation, thus delivering tangible benefits to OIPC. The innovative development of the ATNS database is supported by OIPC as it will assist OIPC to track the development of these agreements and will provide a mechanism for making that information and analysis publicly available. A significant area of OIPC's responsibility is native title. Native title is the key subject matter of a large number of agreements under study. The proposed research has the capacity to enhance both the practicability and enduring nature of these agreements, and has significance for OIPC's whole-of-government policy development role. The research findings will help inform future directions in whole-of-governmen t policy development, particularly in relation to capacity-building, and economic and business 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, fundamental principles and 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 which will be to the ultimate advantage of Indigenous people in those countries in which they operate. The research envisaged is to the advantage of both parties in this partnership by informing and enhancing Rio Tinto community engagement and sustainability policies in these countries.
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, particularly in relation to accelerating positive outcomes in employment, skills training, income levels, education standards, health and other social and economic indicators (Harvey 2004). However, the magnitude of these impacts, and the levels of disadvantage encountered among rural populations, have been under-estimated, and remain little understood until the implementation phase of these agreements (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. The broad range of issues in this comparative study would be of great benefit to Indigenous peoples for whom economic development issues are of the highest priority.
The research will benefit private sector corporations who seek a 'licence to operate' in concluding agreements with Indigenous peoples, and governments whose responsibilities include interventions aimed at economic and social development and service delivery for the welfare of citizens. The role of public and private sector agencies in planning for efficient and beneficial implementation of agreements would be greatly enhanced by this research project which aims to identify innovations and best practice with respect to administrative and legal contexts and measures for the sustainable implementation and productivity of agreements. Other outcomes of benefit to governments and Industry Partners in relation to both project specific and service delivery agreements include innovative approaches to capital accumulation and commercial and legal capacity to negotiate economic arrangements, and legal and administrative innovation in land transfers and resource use, especially in the context of the administration and benefits of native title. Whole-of-government efforts to achieve better coordinated and integrated service delivery to Indigenous communities will also be improved through the insights gained from the research, particularly the implementation of regional partnership agreements and local 'shared responsibility' agreements.
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