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AGREEMENT MAKING AND NATIVE TITLE
‘Agreements, framed by human
rights principles rather than discriminatory principles contained
in the Native Title Act, are an important tool for providing a
stable and enduring basis for a dynamic and long term relationship
between Indigenous and non-Indigenous people over land.’
(Aboriginal and Torres Strait Islander Social Justice
Commissioner,
Native Title Report 2002: Summary)
Overview
Agreement-making has always been
central to native title. From its inception the Native Title Act
1993 (Cth) (NTA) stressed the need for mediated outcomes, and the
Act has always had the potential to act as a 'negotiation protocol'
to facilitate new agreements between Indigenous peoples, governments
and other groups. This feature was undoubtedly strengthened by the
1998 amendments to the Act which looked to further facilitate the
negotiation of Indigenous Land Use Agreements (ILUA).
A preference for negotiation and
agreement-making to resolve disputes between Indigenous peoples and
others has been noted by all sides of the native title system.
Justice Wilcox recognised this was ‘particularly true of native
title litigation, where the parties may have an ongoing relationship
and there may be a need for day-to-day cooperation in implementing
the litigation outcome' (see Wilkes v State of Western Australia
[2003] FCA 1206 [9 October 2003]). While agreement making has been
most prominent with respect to facilitating mining and exploration
(see O’Faircheallaigh, Langton, ISS/ACIL Consulting), this
recognition of the 'relational' aspect of native title points to the
potential for comprehensive and 'treaty-style' agreements to
facilitate new relationships between Indigenous and non-Indigenous
peoples more broadly.
As outcomes under the NTA remain
limited, the importance of alternative processes, such as the
negotiation of comprehensive regional agreements, only increases.
The content of these comprehensive agreements is potentially very
broad – allowing Indigenous peoples to gain more control over
issues, such as health and education, as well as governance and land
management. The Commonwealth's 'whole-of-government' approach to
Indigenous affairs, which aims at a more coordinated system of
service delivery, could promote the negotiation of this type of
agreement.
In other settler societies, such as
Canada, Indigenous-state relations are defined not by delivery of
services, but by a treaty relationship. (For information and
resources on Canadian agreement processes,
click here). In Canada,
First Nations enter into a ‘nation to nation’, or
'government-to-government' agreements, where both parties recognise
each other as equal, self-governing peoples, and negotiate on this
basis. If we are to move towards such relationships in Australia we
must develop models to assist Native Title Representative Bodies,
emerging regional authorities, and local Indigenous organisations to
develop appropriate and sustainable processes of decision-making and
consensus-building at all levels. This is critically important in
ensuring Indigenous peoples are able to gain real and sustainable
benefits from Australia’s emerging culture of agreement-making
within and outside of native title.
Legislation
Native Title Act
1993 (Cth)
Resources
Agius,
Parry, Jocelyn Davies, Ritchie Howitt & Lesley Johns, 2002, ‘Negotiating
Comprehensive Settlement of Native Title Issues: Building a New
Scale of Justice in South Australia’ Land, Rights, Laws:
Issues of Native Title Vol 2, No 20, Native Title Research Unit,
AIATSIS, Canberra.
Agius, Parry & Richie Howitt, 2003,
‘Different
Visions, Different Ways: Lessons and challenges from the native
title negotiations in South Australia’, paper presented at the
Native Title Conference 2003, Alice Springs NT 3-5 June 2003.
Agius, Parry, Ian Dixon & Peter
Hall, 2005, ‘Implementing
the South Australian Indigenous Land Use Agreement (ILUA) Statewide
Negotiations’, paper presented at the Native Title Conference
2005, Coffs Harbour, NSW 2-3 June 2005
ATSIC National Policy Office, 2000,
Report on Greater Regional Autonomy, Canberra.
Australian Local Government
Association, 1998, Working Out Agreements - a practical guide to
Agreements between Local Government and Indigenous Australians,
ALGA and ATSIC, Canberra (publications
order form).
Australian Local
Government Association, 1999, Justice and Equity for All – Local
Government and Indigenous Partnerships, Canberra.
Australians for Native Title and
Reconciliation, 2000, ‘A
Partnership of Equals? – the role of formal negotiations in
Reconciliation for Australia’, submission to the Council for
Aboriginal Reconciliation.
Basten, J., 2002, ‘Recent
Developments in Native Title Law and Practice: Issues for the High
Court’, Land, Rights, Laws: Issues of Native Title Vol 2
No 13, Native Title Research Unit, AIATSIS, Canberra.
Behrendt, Larissa, 2002, ‘The Link Between Rights and a Treaty’ 4
Balayi: Culture Law and Colonialism, 21-28.
Michael Bissell, 2004, ‘Indigenous
relations and agreement making in the minerals industry’ paper
presented at the Native Title Conference, 2004, Adelaide, SA 3-4
June 2004.
Bradfield, S. 2001. ‘Autonomy,
solidarity, legitimacy: Towards a treaty (as) relationship in
Australia’, paper presented at the Rethinking Indigenous
Self-Determination Conference, University of Queensland, Brisbane.
Bradfield, S. 2003, 'Towards
Decolonisation: Treaties and Agreements', The Drawing Board:
An Australian Review of Public Affairs.
Bradfield, S, 2003, ‘A
just agreement or just another agreement?’ paper presented at
the Native Title Conference 2003, Alice Springs, NT 3-5 June 2003.
Bradfield, S., 2004, ‘Agreeing
to terms: What is a ‘Comprehensive’ Agreement?’, Land,
Rights, Laws: Issues of Native Title, Vol 2, No 26, Native Title
Research Unit, AIATSIS, Canberra.
Dodson,
Michael & Lisa Strelein, 2001, ‘Australia's Nation-Building;
Renegotiating the Relationship between Indigenous Peoples and the
State’, University of New South Wales Law Journal, vol. 24,
no. 3, pp.826-839.
Dolman, K, 1997, Indigenous
Regional Agreements - International and Comparative Indigenous Legal
Issues, UNSW, Sydney.
Edmunds, Mary, (ed.), 1998, Regional
Agreements: Key Issues in Australia, Volume 1:Summaries, NTRU,
AIATSIS, Canberra.
Edmunds, Mary, (ed.), 1998,
Regional Agreements: Key Issues in Australia, Volume 2: Case Studies,
NTRU, AIATSIS, Canberra.
French, R.S., 1996, 'Pathways to
Agreements', in G. Meyers (ed), The Way Forward:Collaboration "In
Country", Proceedings of the Indigenous Land Use Agreements
Conference, 26-29 September 1995, Darwin, NNTT/AGPS, Perth.
Gibson,
C, 1999, ‘Rebuilding the Jawoyn Nation: regional agreements, spatial
politics and Aboriginal self-determination in Katherine, Northern
Territory’ Vol1 Australian Aboriginal Studies, 10-25.
Hart,
Ted, 2004, ‘Noongar
Comprehensive Regional Agreement Process’ paper presented at the
Native Title Conference 2004, Adelaide, SA 3-4 June 2004.
Horrigan, B., and S Young (eds), 1997, Commercial Implications of
Native Title, The Federation Press, Sydney.
Howitt,
R., J. Connell and P. Hirsch (eds), 1996, Resources, Nations and
Indigenous Peoples, Oxford University Press, Melbourne.
Indigenous Support Services/ACIL Consulting, 2001, Agreements
between Mining Companies and Indigenous Communities: Report to the
Australian Minerals and Energy Environment Foundation, Final Draft,
December.
Jefferies, Sam, 2004, ‘Building
Relationships: Keeping an eye on the bigger picture’, paper
presented at the Native Title Conference 2004, Adelaide, SA 3-4 June
2004.
Jull, P., and Donna Craig, 1997,
‘Reflections on Regional Agreements: yesterday, today and tomorrow’
Australian Indigenous Law Reporter, vol. 2, no.4.
Langton, Marcia & Lisa Palmer, 2003,
‘Negotiating Settlements: Indigenous peoples, settler states and the
significance of treaties and agreements’, in Treaty Let’s Get it
Right, AIATSIS & ATSIC, Canberra.
Langton, Marcia & Lisa Palmer, 2003,
‘Treaties
and Agreements as Instruments of Order in and Between Civil
Societies: A rational choice approach’, paper presented at the
ATSIC National Treaty Conference, Canberra, 27-29 August 2003.
Langton, Marcia & Lisa Palmer, 2003,
‘Modern Agreement Making and Indigenous People in Australia: Issues
and Trends’, 8(1) Australian Indigenous Law Reporter 1.
Langton, Marcia, Lisa Palmer,
Maureen Tehan & Kathryn Shain, 2004, Honour Among Nations?
Treaties and Agreements with Indigenous People, Melbourne
University Press, Carlton (Click
here for more information about this publication.)
Langton, Marcia & Lisa Palmer, 2003,
‘Modern
Agreement Making in Australia Issues and Trends’, paper
presented at the Native Title Conference, Alice Springs, 4 June,
2003.
LLewelyn, David & Maureen Tehan,
2005, " 'Treaties', 'Agreements', 'Contracts' and 'Commitments' -
What's in a name? the legal force and meaning of different forms of
agreement making " , 7 Balayai: Culture, Law Colonialism 6.
McKenna, S., 1995, ‘Negotiating Mining Agreements under the Native
Title Act 1993’, Agenda, Vol 2, No 3, 301-12.
Meyers,
G., (ed), 1996. The Way Forward: Collaboration and Cooperation
"In Country", NNTT, Perth.
Meyers,
G., 1996 (ed), Implementing the Native Title Act: First Steps,
Small Steps, NNTT, Perth.
Murdi
Paaki Regional Council, 1996, Aboriginal Housing and
Infrastructure Regional Agreement Implementation Manual, Bourke.
Neate, Graeme, 2000, ‘Mediating
Native Title Agreements: Developing National Native Title Tribunal
Practice’, paper presented at the Native Title Conference 2004,
Adelaide, SA.
Nursey-Bray, M., 2000, ‘What’s up at
Cape York’, Habitat Australia, April, 26-27.
O’Faircheallaigh, C., 1995, ‘Mineral
Development Agreements Negotiated by Aboriginal communities in the
1990s’, Discussion Paper No. 86/1995, CAEPR, ANU,
Canberra.
O'Faircheallaigh, C., 2000, ‘Negotiating
Major Project Agreements: The 'Cape York Model', AIATSIS
Research Discussion Paper No 11, Canberra.
O’Faircheallaigh, C., 2003, 'Implementation of Mining Agreements in
Australia and Canada', Aboriginal Politics and Public Management
Research Paper No. 13, Griffith University, Brisbane.
O’Faircheallaigh, C., 2003, ‘Native
Title and Agreement Making in the Mining Industry: Focusing on
Outcomes for Indigenous Peoples’, Land, Rights, Laws: Issues
of Native Title, Vol. 2, No. 25, Native Title Research Unit,
AIATSIS, Canberra.
Gardiner-Garden, John, 1999 ‘From
Dispossession to Reconciliation’, Parliament of Australia,
Parliamentary Library, Research Paper 27, Social Policy Group,
Canberra.
Phillips, S., 2000, ‘Enforcing
Native Title Agreements: Carriage v Duke Australia Operations’,
Indigenous Law Bulletin, Vol 5, 14-16.
Senior,
C., 1998, ‘The
Yandicoogina Process: A Model for Negotiating Land Use Agreements’,
Land, Rights, Laws: Issues of Native Title, Regional Agreements
paper no. 6, Native Title Research Unit, AIATSIS, Canberra.
Smith,
D., 1998, ‘Indigenous
land use agreements: the opportunities, challenges and policy
implications of the amended Native Title Act’, Discussion
Paper No 163/1998,CAEPR, ANU,
Canberra.
Stacey,
Brian 2004, ‘Coexistence,
Partnerships and Economic Relationships: Agreements in Economic
Developments’, paper presented at the Native Title Conference
2004, Adelaide, SA 3-4 June 2004.
Wyatt,
Brian ‘Agreement
– The key to sharing Australia's wealth’, paper presented at the
Native Title Conference 2005, Coffs Harbour, NSW 2-3 June 2005.
Useful Websites
Agreements, Treaties and Negotiated
Settlements Project
Centre for Aboriginal Economic Policy
Research
Corporate Responsibility: Developing
Human Rights Principles for Resource Development on Aboriginal Land
(A joint project by HREOC and Griffith University)
Limits and Possibilities of a Treaty
Process in Australia (Part
1) (Papers from the AIATSIS Seminar Series Semester 1 2001)
Limits and Possibilities of a Treaty
Process in Australia (Part
2) (Papers from the AIATSIS Seminar Series Semester 2 2001)
National Native Title Tribunal
Native Title Negotiations (South
Australia)
Regionalism, Indigenous Governance and
Decision Making (Papers from
the AIATSIS Seminar Series Semester 1 2004)
South West Aboriginal Land and Sea
Council
Torres Strait Regional Authority
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