The Australian Institute of Aboriginal and Torres Strait Islander Studies

1. The Australian Institute of Aboriginal and Torres Strait Islander Studies The Australian Institute of Aboriginal and Torres Strait Islander Studies The Australian native title agreement-making landscape: engaging in-between and negotiating cultural difference Toni Bauman Pacific-Asia Partnerships in Resource Development Symposium, Divine Word University, Madang, Papua New Guinea, 18th October 2010

2. Approx 517,000 (2.5% of the total population) Most live in cities and major regional centres, not the ‘outback’, but policy emphasis on remote Government settlement, missions, regional centres, cities High proportion of children and youth Children under 14 years more than one-third of population (38%) (twice non-Indigenous stats) Australian Indigenous Demographics

3. Native Title Act 1993 Asserted the power of the Crown to extinguish rights The doctrine of extinguishment (freehold) Coexistence and inconsistency Exclusive and non-exclusive title (bundle of rights; Wik and Ward decisions) Section 223: traditional laws and customs and connection to group at sovereignty High Court of Australia: Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) (Murray/Mer Island/Meriam people, Torres Straits)

4. Exclusive but still regulated Guaranteed rights to resources for customary (domestic) purposes No formal recognition of property rights in commercially valuable resources (minerals and water)?? Closing the Gap and agreements (requires full embrace of market economy) Native title rights and interests

5. Native Title Governance Regime • Commonwealth Government: Dept of Attorney-Generals (responsibility for the system) • Federal Court of Australia • National Native Title Tribunal FaHCSIA • Native Title Representative Bodies • National Native Title Council (Partnership with MCA – amendments to NTA and tax) • Registered Native Title Bodies Corporate • State and Territory Government Departments

6. 23 Litigated Determinations and patchy jurisprudence Interest-based agreement-making: the NTA paradigm mediation, negotiation, facilitation 91 Consent Determinations 461 Indigenous Land Use Agreements (registered with NNTT) Authorised by the whole group Certified that attempts have been made to find all native title groups Registered after period of notification and objections Alternative Settlements Native title determinations and agreement-making: Significant inequities across the country

7. Old Reserve, Roebourne, Western Australia NgarlumaYindjibarndi Litigated Native Title Determination, May 2005, High Court of Australia

8. Gregory National Park Handback, 2009 • Complex regime: • NTA • ALRA, NT

9. Future Acts and the Right to Negotiate: 2482 applications apply prior to and after a determination (registered claims can access): Negotiation, consultation and notification rights – statutorily defined depending on impact and public interest non-extinguishment principle No fiduciary duty/ honour of the crown Good faith negotiations – a view to reaching an agreement Strict timeframes Costs of negotiation borne by proponent No right to say ‘no’ Arbitration by NNTT if no agreement Expedited procedure available

10. Risks and benefitsGovernment involvement can slow negotiation; BUTSome compensation/packages only government can provide (eg land)

11. Thalanyji Agreement to develop Kimberley Liquified Natural Gas Project (April 2009) The Naagujafinalise agreement with MGM Pipelines Pty Ltd (May 2009) Ngarla people announce agreement with the Boral Group of Companies (December 2009) The KurumaMarthudunera conclude negotiations with Chevron Australia (June 2010)

12. S 223 Native Title Act 1993 (Cth) Continued connection pre sovereignty According to traditional laws and customs State and Territory Connection Guidelines Codification of law, custom and culture as ‘things’ Traditionalism rather than emphasis on contemporary polities Disputes over identity, group membership and overlapping claims Proving Native Title Connection

13. 73 Registered Native Title Bodies Corporate (RNTBCs) (Aboriginal and Torres Strait Islander) Act 2006 (‘CATSI Act’) Hold and manage native title Consult with members Compliance (Office of register of Indigenous Corporations (ORIC) Range of other Aboriginal corporations under CATSI ASIC Corporations (mainstream) Issues of corporate membership and group definition Corporate Governance

15. The RNTBC/PBC Journey • All PBCs are unique • at different stages • some advanced and some just learning the system • a diversity of experiences • some with major development projects • others attempting to negotiate as ‘first nation’ land owners with no resources • But PBCs also have much in common • significant unpaid work which should be recognised • many with limited resources • committed to their mandate as the custodians of country • aspire to independently care for their country and representing their own interests to government with decision-making powers

16. Masig (York) Island April 2008 Djabugay Governing Committee, Kuranda, QLD

17. PBC National Meeting, MCG 2009: the future of land & sea management and decision making about country

18. Native Title Conference 2010, Canberra

19. ‘So in an attempt to get a third bite at the pie – after extinguishing NT without Crown compensation, then forcing the mining companies to pay it on his behalf, [WA politician Brendon Grylls] wants the money to pay for the responsibilities of his own government.’ Crown sheds responsibility to compensate for NT extinguishments onto private sector – often mining and energy companies Private transactions seen as compensation and public finance paying for public infrastructure to improve Aboriginal living conditions Majority of payments small, less than the annual wage of a cleaner, yet PBCs expected to administer their affairs with these small payments The ‘resource curse’. State governments collect royalties from resource-rich areas, but under-develop them. The Super Profits Tax proceeds ought to be allocated to the regions where the wealth was generated. Prof Marcia Langton: Native title, Poverty and Economic Development

20. ‘The Government is taking action so all Australians can share the benefits of the boom …It's a responsibility that rests with us all. With government, with the mining industry, with Indigenous leaders.’ Aboriginal people irresponsible in managing and structuring financial transfers from developers to native title holders – proposing regulator (already NNTT) Maximise the potential of native title as a platform for indigenous economic and social development – Closing the Gap The mining industry will generate huge financial flows to native title holders with these payments administered by PBCs (but only a few) The proposed Resources Super Profit Tax will boost mining investment, production and employment and thereby benefit (all) indigenous communities as native title holders. Jenny Macklin, Minister for Family, Housing Community Services and Indigenous Affairs

21. Chinese buyers active in Australia, proposing more than $8 billion in resource investments since the beginning of last year: June 2009, China Minmetals Non-Ferrous Metals Co. bought most of the assets of Oz Minerals Ltd., a Melbourne-based producer of copper and other minerals, for $1.4 billion Sinosteel Corp. snatched up iron-ore company Midwest Corp. in a hostile takeover Yanzou Coal Mining Co. is trying to take over Australian coal producer Felix Resources Ltd. for $3 billion China Non-Ferrous Metal Mining Group is angling for a controlling stake in Lynas Corp., an Australian producer of "rare earth minerals" used to make hybrid-car batteries and other goods Australian regulators have begun imposing more restrictions and limiting Chinese investment. Allowed the Minmetals deal only after Minmetals agreed to leave one mine in the hands of Oz Minerals and make other concessions, including maintaining a primarily Australian management team. The government has limited Sinosteel to a maximum 49.9% stake in a second iron-ore developer, Murchison Metals Ltd. More recently regulators delayed a decision on whether to approve China's offer for Lynas Corp. amid concerns that China would control too much of the world's rare-earth metals. Chinese investment in Australia

23. Future Act exploration activity (Chalco) but no agreements to date Indirect in that regulatory body/bureaucracy enormous will keep a close eye Conform to Corporate Social Responsibility only so far as mandated - willing to ignore CSR in Africa Impact on commodity prices: Drive up price – how can Indigenous people capitalise Failed agreements Social Implications of Chinese investment for Indigenous people

24. Aluminium Corporation of China Limited (Chalco) and WikAurukun Bauxite Mine Indigenous Land Use Agreement (ILUA) 2007 • Wik native title holders, Chalco and the State of Queensland • Feasibility study over 2 years (Stage 1)

25. Aurukun Aborigines Community Delegation visited the ChalcoGuizhou branch from 14th to 17th June 2008 to exchange ideas and views on mine development, relocation, ethnic policies and languages . Great expectations: what Aurukun stood to gain…keen to go ahead • $30m investment in town. • Eventual mining royalties for native title holders. • 700 jobs in construction phase and 100 full-time jobs once operational. • Improved coordination of services such as sport and recreation and job training. • Commercial partnerships. • Broader business opportunities from eco-tourism to development of farming and forestry sector. • A stable PBC administration with guaranteed income

26. ‘Devastating Blow’! After a long drawn-out process Chalco decided not to proceed Cape Alumina also announced that it was handing in its exploration permit on Cape York. The company was advanced in negotiations for training and employment with indigenous people – approx 350 indigenous jobs A ‘devastating blow’ to a town whose spirit has already been worn away by welfare, domestic violence and drug and alcohol abuse, says indigenous leader Gerhardt Pearson.

27. The Business of Process: Good process means owned sustainable outcomes Ensuring agreement as to how interests will be dealt with before participation in any social impact statement (not just a report) Exploring issues Options generating Assisting negotiations with each other Reality checking solutions

28. Issues in decision-making • Imbalance of resources (processes and outcomes) • Building group cohesion, negotiation and governance capacity • Free prior and informed consent • Decision-making and dispute management processes • Map and match heterogenous, unbounded, hierarchical and negotiable land interests in a group • Map commercial but also other social, cultural, political and economic interests • Tailor processes to local situations incorporating local practices and individual expertise – no one size fits all – no one ‘Aboriginal cultural model’ • Sustainability and implementation • Risks and benefits

29. Specialised interest based alternative dispute resolution communication skills • Ideally third party independent process manager: facilitation, mediation and negotiation skills • Conflict of interest (incl mining companies paying) • Free prior and informed consent versus consultation • Did the process do harm or did it improve relationships and well being? • Incommensurability between aspirations and reality • Transparent, informed and agreed decision-making processes (contingencies, identifying underlying disputes

30. Decision-making processes • Preparation and design is critical • Big meetings are ineffective (smaller more informal gatherings followed by meeting to ratify): free, prior and informed consent • Processes for implementation reality checked: governance and blaming • Micro communication: • How to ensure that people have understood technicalities – incorporation of technical experts including lawyers acting adversarial, anthropologists being precious etc • Community education processes • Free prior and informed consent (lawyers taking instructions) • Feedback and debriefing loops • Who determines the agenda • Was all the information available to everyone at the same time? • Were all groups resourced to participate? • Were the right people at the table?

31. Cultural meanings are: negotiated out of the conditions in which they are embedded including native produced inter-culturally and inter-subjectively from multiple positions experienced and embodied subjectively individual subjectivities embody a wide range of consciousness, influences including educational, social, class and cultural, personalities, attitudes, and non-Indigenous forces Culture as process and inter-subjectivity

32. Culture and agreement making • All relationships are intercultural: whether negotiations are within or across cultural groups: • Blackfellas, yellafellas and whitefellas (range of rels of exchange) • Partnerships: all require building trust, relationships, clear definitions of roles and responsibilities and sharing risks • Key is identifying different emotional, substantive and procedural interests, how people want to do things and designing processes around this

33. ‘…the responsibility of the writer (read third party process manager) is commensurability – to render the subjects of the writing understandable by translating their difference and otherness into a related or shared way of being if not the same, then different, by virtue of being human’ (Veena Das in Langton, p. 93)

34. Bauman, T. (2009) ‘Speaking across difference: towards an ‘intercultural’ mediation and peacebuilding native title praxis in Australia.’ in Bagshaw, Dale & Porter, Elisabeth (Eds). Mediation in the Asia Pacific, Transforming Conflict and Building Peace. Routledge: London and New York. Bauman, T. and J. Pope (2008) ‘Solid Work you Mob are Doing’: Case studies in Indigenous dispute resolution and conflict management. Federal Court of Australia, Melbourne.

35. Contact Details Native Title Research Unit Australian Institute of Aboriginal and Torres Strait Islander Studies Acton Peninsula, next to the National Museum. PO Box 553,Canberra ACT, 2601. Tel +61 2 6246 1195; Fax +61 26249 7714 e-mail: Toni.Bauman@aiatsis.gov.au web: www.aiatsis.gov.au