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Indigenous Communities Respond to Threats: Conflict Resolution & Negotiation Strategies Threats to indigenous territories by the exploration or encroachment of an extractive industry can lead to potential fractious outcomes. It is critical for communities to manage these situations through effective conflict resolution strategies and negotiation skills.

Indigenous Communities Respond to Threats: Conflict Resolution & Negotiation Strategies The Extractive Industries- Present two sides of the coin:

• Risks to the Indigenous community of a cultural, social and environmental nature;

and

• Opportunities for the Indigenous community to generate businesses, employment
• pportunities and establish revenue streams through impacts compensation

Australian context- the Native Title Act 1993 (Cth) (NTA)

The strongest mechanism currently available to Indigenous groups in creating economic opportunities and protecting their native title rights and interests is the NTA, specifically- the Future Act regime under that NTA. In the hierarchy of rights available to native title groups under the Future Acts regime- the ‘right to negotiate’ sits at the top- and applies to certain proposed acts on native title lands, designed to ensure those acts can be lawfully done. A native title party’s ‘right to negotiate’ is time limited- to 6 months- during which time the developer and the State government must negotiate with the native title party in ‘good faith’.

PRACTICAL STRATEGIES FOR ADVISORS OF INDIGENOUS GROUPS IN NEGOTIATIONS WITH RESOURCE DEVELOPERS

The client is usually a large group of people with various ties/relationships with one another. It is imperative to have an effective flow of information to and from your client. It is critical therefore at the point of authorization of representatives for the client group that the representative group is:

• Large enough to be sufficiently representative of the affected party (family groups) but not so large as to

be unwieldy/difficult to seek instructions from efficiently

• Active and engaged members of the client group
• Appropriately senior or authorized within family groups
• Available

For: Advisors/Negotiators representing Indigenous Groups

If the representative group is disparate:

• Assess your ability to obtain instructions and proceed with negotiations or advise of the need to call a meeting on

authorization;

• Reinforce that it’s only possible to act on the instructions of the representative group, within the terms of their

authorization;

• Reassure that the representative group may not agree on all things- but it is key is to identify the matters of

fundamental importance to all there- find common objectives;

• Explain the ability to do job to best extent requires effective information flow;
• Explain the benefits of unification as against divided, disparate representative group; and
• Allow time for representative group to work together and schedule community meetings.

For: Advisors/Negotiators representing Indigenous Groups

FOR THE CLIENT: HOW TO SUCCEED IN NEGOTIATIONS (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY)

• Work out exactly what you want and stay united in pushing for this.
• Understand the other side and what they want.
• Have a clear plan about how to get what you want (strategy).
• Work hard to make sure that the agreement you negotiate really works on the ground

(‘implementation’), and start this work as early as you can.

Strategies for the client: Indigenous communities facing resource development on their native title lands

FOR THE CLIENT: HOW TO SUCCEED IN NEGOTIATIONS (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY)

• Negotiations are successful when Traditional Owners get the things they really want. This is why

implementation is so important. If the agreement doesn’t work well, people can’t get what they want.

• Different Traditional Owner groups may want different things so successful negotiations can lead to

agreements that are quite different.

Strategies for the client: Indigenous communities facing resource development on their native title lands

FOR THE CLIENT: HOW TO SUCCEED IN NEGOTIATIONS (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY) Often native title groups may not have a strong legal position But- where they are very clear about what they want and have had the chance to work this out Stay united about what they wanted, even when things got tough Clear strategy when negotiations got tough = Successful Outcome

Strategies for the client: Indigenous communities facing resource development on their native title lands

THE DOs and DON’Ts

• f

NEGOTIATIONS

Some key rules…

Strategies for the client: Indigenous communities facing resource development on their native title lands

FOR THE CLIENT: (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY)

• Never show disunity to the other side- ‘Strength in unity’
• Never argue with someone on your side in front of the company.
• Argue and disagree if need to, but do it in private. TO group might disagree among themselves, but

never show a hint of disunity to company.

• Make a plan for the meeting and stick to it. If things are going off track or if you think it would be good

to change the plan, take a break and talk about it.

Strategies for the client: Indigenous communities facing resource development on their native title lands

FOR THE CLIENT: (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY)

• Don’t respond when company puts an offer on the table, whether you think it’s good or bad. Make sure

you understand it then say you will consider it. Think hard about it before you do respond.

• Don’t raise issues or put opinions in a meeting that have not been agreed before hand.
• Make sure the positions you do put have been carefully thought through.

Strategies for the client: Indigenous communities facing resource development on their native title lands

FOR THE CLIENT: (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY)

• If you don’t understand anything, or feel uncomfortable, ask for a break and talk about it.
• Don’t let yourself be rushed by the other side. Hasty decisions are often bad decisions.
• Be clear about the jobs that different people have and support people in the jobs they have been given.

If someone has been told to play a friendly role, don’t pull them into an argument. It may be useful for peoples’ jobs to change over time.

Strategies for the client: Indigenous communities facing resource development on their native title lands

• Set clear goals for the negotiations- what should be in the agreement
• Work with representatives to set the strategy- how to run the negotiations so that you achieve these

goals

• Make sure the negotiations stay on track
• Back up representatives in dealing with the company

Strategies for the client: Indigenous communities facing resource development on their native title lands

FOR THE CLIENT: (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY)

• Do the hard talking with the company when required
• Pass information from the community to the representatives and back to the community
• Prepare for post agreement signing- eg- getting rules in place about managing the compensation

payments

Strategies for the client: Indigenous communities facing resource development on their native title lands

FOR THE CLIENT: (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY)

ROLE FOR THE ADVISOR REPRESENTATIVE

• Provision of technical advice, for example: legal, economic, environmental.
• Do the hard negotiation when it’s better for the native title representatives not to.
• Assist in seeking get support for the Traditional Owners from government, political groups.
• Assist preparation for after an agreement is signed, for example to setting up trusts to manage

compensation payments.

Strategies for the client: Indigenous communities facing resource development on their native title lands

ROLE FOR THE REPRESENTATIVE

• Make sure process is open and achieves FPIC.
• Back up the native title party representatives and the broader client group in dealing with the company.
• Provide advice on how to run the negotiations (strategy).
• Obtain funding for the negotiations.
• Organise the negotiations, for example meetings with the company, finding and hiring good advisers for

the native title party.

Strategies for the client: Indigenous communities facing resource development on their native title lands

What is Important for the Traditional Owners and How Can a Native Title Agreement Help Them Achieve This?

(Enforceable rights beyond the bar set by the domestic legislative regimes)

Strategies for the client: Indigenous communities facing resource development on their native title lands

EXAMPLES:

• a. Rules for Consent- FPIC
• b. Rules for Compensation payments- management and distribution
• c. Rules for Work and Training
• d. Rules for Cultural Heritage
• e. Rules for Environmental and Land Management
• f. Rules for Business Development
• g. Rules for Regional Contributions
• h. Rules for Disposal of Assets by Companies
• i. Rules for Implementation of Agreement and Review
• j. Rules for Agreements with Traditional Owners

Strategies for the client: Indigenous communities facing resource development on their native title lands

Understanding the Extractive Industry: What drives mining companies?

Building indigenous communities’ negotiation skills and understanding

Building indigenous communities’ negotiation skills and understanding

Income from sale of minerals: Number of tonnes multiplied by price per tonne 1 million tonnes @ $40 per tonne = $40 million Outgoings: wages, mining, royalties, interest payments, Native Title Agreement Profits m inus equals

A Mining Company Making Profits

USE SIMPLE DEPICTIONS:

Building indigenous communities’ negotiation skills and understanding

m inus equals

A Mining Company Making a Loss

Income from sale of minerals: Number of tonnes multiplied by price per tonne 1 million tonnes @ $25 per tonne = $25 million

Outgoings: wages, mining, royalties, interest payments, Native Title Agreement Loss USE SIMPLE DEPICTIONS:

Earn as much money as they can by selling as many tonnes/barrels as they can at the highest possible price Spend as little as they can on wages, things required for mining, and on agreements with the native title holders

Building indigenous communities’ negotiation skills and understanding

What companies aim to do…

USE PLAIN ENGLISH:

But.. companies also need to …

Building indigenous communities’ negotiation skills and understanding Obey the law, for example, on cultural heritage protection, or on protecting the environment, or on native title; Ensure investors who have funded the building of the mine/infrastructure feel that their investment is safe, for example by reaching an agreement with native title holders.

USE PLAIN ENGLISH:

So companies might compelled to …

Building indigenous communities’ negotiation skills and understanding Reach an agreement with Traditional Owners to assist them in complying with the law and to keep their investors happy their investment is safe AND To get that agreement as cheaply as possible.

USE PLAIN ENGLISH:

Building indigenous communities’ negotiation skills and understanding

What can that mean for native title parties in negotiation?

Examples:

• Incomplete or insufficient information- not Free Prior and Informed Consent.
• Lack of due process- rushed decisions or consents given by the wrong people.
• Circumvention of authorized representatives to members of native title party who are in favor of

development.

• Derailment of negotiations.
• Damage to cultural heritage sites and places.
• Creation of conflict within and between family groups both party to and not party to the negotiations.

Questions/Comments

OUR TEAM

Zoe Ramsay has over 17 years pre and post-admission experience in commercial negotiation and litigation. Zoe was the Kimberley Land Council’s senior commercial lawyer in negotiations for the proposed LNG Hub at James Price Point and since 2010 has worked predominantly in the commercial and enterprise development, native title and corporate governance sectors. Hayley Haas is an experienced legal practitioner in complex commercial dispute resolution. She brings human rights advocacy and capacity building experience to her role at KRED Legal, having advised several international human rights

• rganisations.

Wayne Bergmann, a director of Arma Legal, is recognised as one of Australia’s leading advocates for Indigenous self- determination through economic empowerment and opportunity. He’s a proud Nyikina man, boilermaker-welder and former lawyer. He is also the current CEO of KRED Enterprises.

OUR TEAM

Katie O’Rourke has worked extensively in Native Title, environmental law, heritage law, Indigenous governance and community engagement. She has a broad background in statutory regulation and administrative policy co-ordination, community based project design and development and implementation of heritage policy. Megan Highfold is a proud Kokatha woman who has worked as an Indigenous land rights solicitor for the Central Land Council, focusing on negotiating and drafting commercial contracts and Indigenous land use agreements.

We have staff in Broome, Cairns and Sydney. For all enquiries please contact our Broome office: (08) 91 928782 admin-legal@kred.org.au PO BOX 3397, Broome WA, 6725 www.armalegal.com