Agreement Making with Indigenous Peoples: Background Material
Agreement making with Indigenous peoples in Australia is becoming increasingly important in areas relating to land, resources, health, education and research. 'The emerging culture of agreement making is not homogenous', but is 'evident in a range of fields and jurisdictions, under a range of regimes, and in a variety of contexts and circumstances'. Agreements are made between 'Australian Indigenous people and resource extraction companies, railway, pipeline and other major infrastructure project proponents, local governments, state governments, farming and grazing representative bodies, universities, publishers, arts organisations and many other institutions and agencies. Some of these agreements have statutory status, such as those concluded under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); some have resulted in determinations of the Federal Court of Australia; some are registered under the terms of the Native Title Act 1993 (Cth). Others are simple contractual agreements that set out the terms of 'licences to operate' and future developments. Yet others are memoranda of understanding or statements of 'commitment' or intent' (Langton and Palmer 2003: 1-2).
Land Related Agreements
Agreement making with Indigenous people in relation to land has been particularly influenced by various Statutory Land Rights Acts, Heritage Legislation and the Native Title Act 1993 (Cth) and its amendments. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) was the first major land rights legislation in Australia, and provided for statutory titles granted on the basis of Aboriginal customary land tenure systems and procedures relating to use and access of Aboriginal land. The Act sets out the processes for negotiation of exploration and mining agreements as well as other activities that might occur on Aboriginal land by governments or developers. State land rights legislation in South Australia (Pitjantjatjara Land Rights Act 1981 (SA), Maralinga Tjarutja Land Rights Act 1984 (SA)), New South Wales (Aboriginal Land Rights Act 1983 (NSW)), Queensland (Aboriginal Land Act 1991 (Qld), Torres Strait Islander Land Act 1991 (Qld)), and Tasmania (Aboriginal Lands Act 1995 (Tas)) similarly provided for grants of land and procedures relating to access to and use of land.
In 1992 the High Court of Australia in Mabo v Queensland (No 2) recognised native title as a form of customary title arising from traditional laws and customs that pre-existed and, under certain conditions, survived British sovereignty. In response to this decision the Commonwealth Parliament enacted the Native Title Act 1993 (Cth) (the NTA) with the stated aim of recognising and protecting native title rights whilst ensuring a workable, secure and effective system of dealing with land. It also worked to resolve the retrospective effects of native title which had the potential of invalidating certain land titles including pastoral leases. In response to the High Court's decision in Wik which held that Indigenous rights to land could co-exist with certain property rights, controversial amendments to the NTA were passed in 1998. While the amendments generally worked to limit the scope of native title, other amendments emphasised agreement making over litigation as the preferred method of resolving a wide range of native title issues. Especially important in this context are the sections of the NTA that provide for provisions relating to Consent Determinations, Indigenous Land Use Agreements, and Future Act agreements.
Canada: Agreements Relating to Land
In 1973, the Canadian federal government established a federal policy for the negotiation and settlement of Aboriginal land claims. This occurred largely in response to the Supreme Court of Canada's decision in Calder v Attorney-General of British Columbia (1973) which suggested that land rights based on Aboriginal title originating in traditional use and occupancy of the land might be recognised by the common law. The policy divides claims into the two broad categories of comprehensive and specific claims. Comprehensive claims are based on the assertion of continuing title to land and resources. The Comprehensive Claims Policy states that land claims may be negotiated only in areas where claims to Aboriginal title have not been dealt with by treaty or some other legal means (although a limited number of claims have been accepted for negotiation as comprehensive claims in areas affected by treaties, particularly where treaty provisions have not been implemented). Specific claims settlements may be negotiated under the Specific Claims Policy. Specific claims arise from Canada's breach or non-fulfilment of legal obligations found in treaties, agreements or statutes (including the Indian Act). The federal government restated and clarified its Specific Claims Policy in a document entitled Outstanding Business, released in 1982. The document outlined the policies and procedures for dealing with specific claims. The Policy has since been substantially reformed by the Specific Claims Resolution Act 2003 which will establish an independent centre for the resolution of specific claims.
The federal Comprehensive Claims Policy was reaffirmed in 1981 in a publication entitled In All Fairness. This outlined the aims of the policy which seeks to exchange claims to undefined Aboriginal rights for a package of clearly defined rights and benefits set out in a settlement agreement. Section 35 of the Constitution Act, 1982 also recognises that Aboriginal treaty rights presently exist or may be acquired via land claims agreements. Substantial amendments were made to the Comprehensive Claims Policy in 1986 subsequent to the issue of the Coolican Report which was produced as a result of extensive consultation with Aboriginal and other groups. The 1986 reforms provided for greater flexibility in land tenure and better definition of subjects for negotiation.
The Federal policy is implemented in the Province of British Columbia through a specific tri-partite treaty process established in 1993.
The federal government has subsequently introduced the Inherent Right Policy 1995, whereby self-government arrangements may be negotiated as a part of comprehensive claims agreements. These arrangements may be constitutionally protected under s 35 of the Constitution Act, 1982. In the provinces, the majority of lands and resources subject to comprehensive claims is under provincial jurisdiction. The federal government's position is that the establishment of certainty regarding such matters will benefit the provinces. As such, the federal government is committed to the participation of provincial governments in the negotiation process.
In 1998, the federal government published Canada's Aboriginal Action Plan, Gathering Strength, which was released in response to the recommendations of the Royal Commission on Aboriginal Peoples. It described its objectives as the renewal 'of the relationship with the Aboriginal people of Canada […] [which] builds on the principles of mutual respect, mutual recognition, mutual responsibility and sharing'. The Plan affirms that modern treaties will continue to be the basis for the ongoing relationship between Aboriginal people and the Crown.
Typically there are 6 stages in the comprehensive land claims agreement-making process:
- Submission of a statement of claim or statement of intent to negotiate;
- Preparation for negotiations;
- Initial negotiation, when issues are identified for discussion;
- Substantive negotiation, when issues are discussed to produce the Agreement-in-Principle (AIP) that contains all the features of the eventual settlement;
- Finalisation, when all parties formalise the agreement needed in the AIP to produce a final agreement and the agreement is enacted by settlement legislation;
- Implementation of settlement legislation, after which the terms of the agreement are implemented by all parties.
The process of negotiating a final agreement may produce the following types of agreements:
- Framework Agreement
- Agreement-in-Principle (AIP)
- Interim Measures Agreement
- Final Agreement
- Implementation Plan
New Zealand: Agreements Relating to Land
The New Zealand Treaty settlement process was developed to resolve historical grievances between Maori and the Crown relating to the loss of land since British sovereignty. The Treaty of Waitangi, initially signed on 6 February 1840 at Waitangi in the Bay of Islands by various Maori chiefs and Captain William Hobson on behalf of the Crown, has retained its importance as a founding document of New Zealand and provides the basis for Maori claims resulting from past actions of the Crown. In 1975, the Treaty of Waitangi Act came into effect providing for the observance and confirmation of the principles of the Treaty of Waitangi by establishing the Waitangi Tribunal to make recommendations on claims relating to the practical application of the Treaty.
A Treaty Settlement is an agreement to settle all of the claimant groups' (usually iwi or large hapu) historical claims against the Crown that occurred before 21 September 1992 (the date of the 'Sealord' Fisheries Settlement). These claims usually relate to actions or omissions by the Crown in relation to the following types of land loss:
- Pre-1865 land transactions, including pre-Treaty purchases later investigated and validated ("Old Land Claims"), Crown purchases, and post-Treaty private purchases made during the Crown's waiver of its pre-emptive right to purchase Maori land;
- Confiscation of Maori land by the Crown under the New Zealand Settlements Act 1863; and/or
- Transactions after 1865 under the various native/ Maori land laws.
Claims based on Crown actions or omissions after September 1992 are known as contemporary claims and are dealt with through separate processes.In order for the settlement process to begin, a claim must be registered with the Waitangi Tribunal. Once this is done, claimant groups can seek negotiations with the Crown straight away, or may choose instead to have their claims heard by the Tribunal before entering negotiations. Where a claimant group wishes to negotiate with the Crown they have to demonstrate how the breach or breaches of the Treaty of Waitangi harmed their tupuna (ancestors). The claimant group must provide a Deed of Mandate to the Crown which defines the claimant group, the claim area and the claims that are intended to be settled; states who has the authority to represent the claimant groups in negotiation; and describes how the mandate was obtained and how the negotiators are to be held accountable to their community. While each negotiation with claimant groups is different, there are four main steps that are followed:
- Preparing claims for negotiation;
- Ratification and implementation.
The Crown prefers that any negotiation with a claimant group covers all that group's historical claims so that the settlement is comprehensive. Through the Office of Treaty Settlements, the Crown provides a contribution to claimant funding with figures depending on the circumstances of the claim.
To begin the negotiation phase, the Crown and the mandated representatives discuss the interests they wish to protect and promote, and try to reach agreement on particular proposals for settling the claim. An Agreement in Principle or Heads of Agreement is then signed which records, in an open and transparent manner, the basic outline of the proposed settlement.
A draft Deed of Settlement detailing the comprehensive and final terms of the settlement and redress is then agreed and must be approved by Cabinet and initialed between the Crown and the mandated representatives. The redress that the Crown might give to the claimants may include: the Crown's acknowledgment and apology of past injustices; financial and commercial redress; the transfer of lands within the claim area; and mechanisms for recognising other important interests that claimants might have. The Deed must be clearly approved by the wider claimant group before it becomes binding through a ratification process which involves a postal ballot available to all members of the claimant group over the age of 18. The proposed Governance Entity for the settlement, which will hold and manage settlement assets, can also be ratified at this stage. Once the Deed is ratified, the Crown and claimants sign the final Deed of Settlement at which time it becomes binding.
Nearly all Deeds of Settlement require that legislation be passed. Legislation ensures the finality of the settlement by removing the possibility of historical claims being re-open by the courts or the Tribunal; and may be needed to vest land in the governance entity on behalf of the claimant group. Once the legislation has been introduced into Parliament and referred to a Select Committee, it is open to the public to make submissions to the Committee if they desire to do so. Once the Select Committee has reported back to Parliament on the submissions, the Bill is then passed through its final stages and is signed by the Governor-General. Once signed, the legislation then allows the settlement assets to be transferred to the governance entity and the claimant group can begin to make use of the cultural redress provided in the settlement.
For a summary of Settlement Progress see the Office of Treaty Settlements Website.
To view a Claims Process Flow Chart see the Waitangi Tribunal website.
South Africa - Agreements Relating to Land
Since 1994, the South African Government has implemented numerous initiatives to counter the effects of apartheid, the racial segregation policy of successive governments between 1948 and 1994 that resulted in entrenched white legal, social, economic and political superiority to the detriment of black, coloured and Indian South Africans. These initiatives include addressing racially-skewed patterns of land ownership as well as a range of measures introduced to counteract the economic effects of apartheid.
The South African Land Reform Programme comprises three elements, all of which are constitutionally protected. They are land restitution (s 25(7)), land redistribution (s 25 (5)) and land tenure reform (s 25 (6) South African Constitution).
Land restitution aims to compensate those who were dispossessed of property as a result of past racially discriminatory laws or practices. While land dispossession of black South Africans had been a practice and policy of successive colonial powers for several hundred years, the Constitution sets 19 June 1913 as the date after which the dispossession must have occurred in order for restitution to be possible. This was the date of the enactment of Natives Land Act, 1913, which curtailed the ownership and acquisition of land by non-white South Africans.
Under s 6 of the Restitution of Land Rights Act, 1994, a claim for restitution is mediated by the Commission on Restitution of Land Rights. If agreement cannot be reached between the dispossessed claimant and the current owner of the land, the claim is then adjudicated by the Land Claims Court. Claims for restitution are made against the state; where land earmarked for restitution belongs to an individual willing to sell that land, the state must pay compensation to them as the current legal owner. Restitution can also be in the form of cash payments, alternative state land or priority access to state housing and land. The cut-off date for claims to have been lodged with the Commission on Restitution of Land Rights was 31 December 1998. As at 31 March 2007, 74,417 claims had been settled, of which 19,627 involved land restoration (Commission on Restitution of Land Rights 2007). However, a large percentage of claims are yet to be settled.
Land reform also encompasses a number of land tenure reforms that recognise various degrees of 'informal' settlement with respect to housing and agricultural labour. For example, the Land Reform (Labour Tenants) Act, 1996 (South Africa) strengthens the property rights of those who historically resided or had a right to use farm land in return for their labour.
In addition, the Richtersveld decision, citing Mabo and Queensland (No. 2), acknowledged customary land ownership in South Africa, finding that these rights survived annexation by the British Crown. The content of customary land rights, the decision found, could only be determined with reference to customary law, rather than English common law. The court stated that the traditional nomadic lifestyle of the Richtersveld community 'is not inconsistent with the exclusive and effective right of occupation of land by indigenous people' (as cited in Richtersveld Community and others v Alexkor Ltd and another  ZASCA 14, para. 23).
Land-related agreements are also being negotiated between local South African communities and the corporate sector. These include equity arrangements with resource companies whereby the local landholding community receives company shares in lieu of royalty payments. These arrangements can also incorporate aspects of the government's policy of Black Economic Empowerment, in that the communities acquire the shares at a discount rate.
As one of a range of measures being used to counteract economic inequality, Black Economic Empowerment (known as BEE) focuses on preferential procurement of 'historically disadvantaged South Africans' (HDSAs), as well as on increasing the percentage of HDSAs that manage, own and control enterprises and productive assets.
Note: Many of the reforms of the post-apartheid government define the groups they wish to target with reference to the racial terminology that was used by governments during apartheid: that of 'black', 'coloured', 'white' and 'Indian'. The ATNS database also uses these terms, though we acknowledge that they are problematic (see, eg, Adams 2000: 52).