Ensure that negotiations are being held with the right people. Seek
advice to ensure this happens.
Agreement governance;
5
For example, the Queensland Petroleum Act 1923 specifies that parties to agreement should endeavour to utilise ILUA provisions of the
NTA.
6
See Attachment A1 Native Title Act provisions and Indigenous Land Use Agreements.
20 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
Negotiations, and
12
Clive Senior, The Yandicoogina Process: a model for negotiating land use agreements, Regional Agreements paper no. 6, Australian
Institute of Aboriginal and Torres Strait Islander Studies, 1998, page 12. The description of the contents of the agreement that follows
relies on this paper.
28 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
Income;
36 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
Kuyani Association.
The Port Augusta Native Title Working Group was also involved in
negotiations.
The expansion of WMCs Olympic Dam uranium mine took place against
a background of opposition from Indigenous organisations and
environmental groups over uranium mining and use of water resources.
Further, some perceived the company as opposing Indigenous rights and
aspirations, which led to mutual suspicion. Although the company
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION 37
succeeded in negotiating agreements with four Indigenous parties, there
opposition from others to the mine remains
19
.
A recent history of poor relations inevitably affects the present, and it was
against this background that WMC sought to enter agreements with
Indigenous stakeholders.
Initial impetus for the agreements came from plans to expand the mine,
including construction of a power-line from Port Augusta to the mine-
site, and a later requirement to expand the tailings system at the mine. In
1996, the South Australian government offered an easement for the
power-line under the pre-existing indenture agreement. But after the High
Courts Wik judgement in December 1996, the Government advised the
company to seek a negotiated agreement with native title parties, due to
concerns that grant of the easement might entail a past act under the terms
of the NTA. In addition, the native title parties indicated that they would
challenge the easement. In such circumstances, the company decided it
had little choice but to negotiate.
Initial contact between the parties was difficult, with negotiations taking
some time to get under way. WMC wished to confine discussions to
heritage protection matters under State legislation, but the native title
parties insisted that native title issues were central to the agreement. The
company agreed to meet most of the costs of negotiation, although there
were early attempts to acquire funds for the purpose from the Aboriginal
Legal Rights Movement. WMC funded each Indigenous group to engage
its own advisers on heritage matters.
An early matter for resolution concerned the scope of benefits payable by
the company under the agreements. The claimants sought compensation
including direct cash payments as well as transfers into community trusts
for community purposes. The company refused requests for cash
payments, insisting that it would only allocate resources for community
purposes. Once the Indigenous groups accepted this condition ,
negotiations between the parties proceeded reasonably smoothly and in
good spirit.
Each group selected four men and four women to carry out negotiations.
The groups represented themselves, without the involvement of an
NTRB. At WMCs request, initial discussions focussed on heritage
approvals so that construction of the power-line could commence. Once
these approvals were given, the time frame for negotiation of the final
agreements proceeded and, although it took some time, was not subject to
similar tight time constraints.
The agreements cover a range of matters:
19
In 1999, an Arabunna group elder filed a notice of trespass on WMC, and also sought to pursue a High Court action against the WMC
CEO for mining without consent on Arabunna and Kokotha land.
38 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
In return, Comalco pledged its support for native title claims over its
areas and agreed to support fast tracking of claims and that after
claims have been registered, and after Comalco has relinquished land
under claim, it would not object to native title rights being restored to
the fullest effect at law.
Features of the agreement
Significant aspects of the agreement include:
1. Recognition and support for traditional owner groups and their
claims for native title;
2. Registration of the agreement as an ILUA under the NTA;
3. On signing the agreement, relinquishment then, and
progressively, of parts of the Comalco lease no longer needed for
mining, to the State Government for return to Aboriginal
ownership;
4. Contribution of $2,500,000 each year (minimum) to Western
Cape Communities Trust for projects benefiting traditional
owner groups and the Western Cape communities. This amount
may increase with increases in Weipa production and with higher
aluminium prices;
5. $500,000 annual Comalco expenditure on employment, training
and youth educational programs endorsed by the Western Cape
Communities;
6. State Government contribution of about $1.5 million a year to the
Western Cape Communities Trust for allocation to local
community development projects and Traditional Owner
proposals once the Agreement is registered as an ILUA;
7. Cultural heritage surveys and site protection plans, and cultural
awareness training for all Comalco staff and principal contractors
in Weipa, and
8. Support for community development, Indigenous business
enterprises and establishment of outstations on suitable areas of
the mining lease.
42 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
Traditional owner groups have agreed to invest 60% of the revenue
stream for 20 years (including reinvestment of dividends) to provide for
their childrens financial future.
There is no formal implementation plan for the agreement. The parties
contend that it is so broad that a plan is not practicable. A co-ordination
committee meets monthly to monitor implementation, however. It is
intended that as implementation progresses, meetings will move to
quarterly. The committee comprises representatives of all signatory
parties. Comalco provides the funding for the committee. The agreement
also provides for the appointment of an executive officer to provide
administrative support for agreement implementation.
From Comalcos perspective, the principal benefit is certainty for its
operations. Both sides agree that they have an agreement that is worth
preserving and making every effort to ensure that it is successful in
delivering the mutual benefits intended by the negotiators.
The agreement was registered as an Indigenous Land Use Agreement on
24 August 2001. There were no objections during the formal 90-day
objection period. Registered native title claims (for example, the Wik
claim) have been changed to conform to the agreement and these have
received support form the Federal Court, in part because it recognised
that good faith has been shown by the parties.
Lessons l earned
Comalco considers there are some significant lessons from the
negotiations for itself and other parties, including mining companies.
These include:
Heritage protection;
Exploration access;
20
Adelong Gold was subject to a dot.comcompany that was taken over by Orchid Capital. It is now in the process of being acquired by
Golden Cross Resources, which will wholly own the renamed company/project Challenger Gold.
44 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
Whether the claim falls wholly or partly within the jurisdiction of the
YLSC;
23
See Attachment A5, Native Title Representative Body functions under the Native Title Act .
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION 51
Whether the claim is inclusive, that is, the claimant group includes all
persons with native title rights or interests in the land or waters in
question;
Whether there is evidence to show that the native title claimant group
is the appropriate level of community to hold native title;
Whether there is legal advice that the claim meets requirements of the
NNTT registration test and has a good chance of successful
determination under the provisions of the NTA.
24
Assistance is usually in the form of service provision, including legal
advice and management, research, fieldwork, and facilitation of meetings.
Cash grants are rarely given by NTRBs for any of these purposes.
Native title claimant groups who choose not to seek representation from
their NTRB, sometimes use private sources, including under agreements
with mining companies, to fund their native title claims.
The level of coverage by NTRBs varies considerably from region to
region. In some areas, such as the Kimberley, Pilbara and Murchison-
Gascoyne, the KLC and YLSC (NTRBs for these areas) represent the vast
majority of claimant groups, while in others such as New South Wales,
the majority of claimant groups are privately represented (although the
New South Wales Land Council (NSWLC) represents a number of
significant claims in the State)
25
.
If the claimants are represented by a NTRB, inquiries should be directed
to that organisation. It is rarely good practice to meet claimants
individually (or in an ad hoc manner). Such meetings can be counter-
productive if they cause resentment in the community if some people feel
they have been excluded from the process. While there may well be
claimants who for various reasons do not wish to deal with the local
NTRB, it can prove costly to try to exclude a NTRB from negotiation
processes involving agreements. There may be multiple claimant groups
with native title interests in a particular development, and some of these
may be represented by the NTRB. Since NTRBs have a number of
functions requiring them to be sources of information, as well as to
24
This information is taken fromthe Annual Report 2000/2001 of the YLSC.
25
The web-site of the NNTT (Snapshot) records existing claims in each State, including their
current status and representationsee www.nntt.gov.au
52 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
develop community information strategies about native title in their
region, they can make a useful contribution to the processes. This can be
the case, even if they do not directly represent claimant groups in relation
to a mining development.
NTRBs can be a vital first point of contact and valuable source of
information for companies intending to do business in their region. In
addition, NTRBs have other functions directly relevant to the business of
agreement making, such as the certification function
Under section 203BE(2) of the NTA, a NTRB may certify an application
for determination of native title if it is satisfied that:
Reasonable effort has been made to ensure that all potential native
title holders have been identified, and
The meeting should be publicised exhaustively, not only the fact that
it is taking place, but also what it is about. Written information,
including letters or advertisements are useful in some situations, but
often direct contact is more effective. Companies may need to
consider short term employment of liaison people from the
community, whose job it is to travel to stakeholder communities to
inform people of the meeting.
One of the main points that came out of the interviews for this study
is that Indigenous people do not like to be pressured by time
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION 57
constraints. This may mean that a meeting will run over the course of
a few days. This does not mean that the mining company
representatives have to be there for the entire period, although it may
prove advantageous if a representative remains on site to answer
questions or clarify issues.
4.4 The importance of corporate culture
It is important that in deciding to enter negotiations to reach agreement on
a mining project, a company be explicitly and clearly committed to such a
course of action, and that the approach has the unambiguous support of
company leaders. Negotiations with Indigenous stakeholders are rarely
easy, and many problems and pitfalls may emerge that challenge the
values and established practices of people more accustomed to operating
in the corporate boardroom. Once the decision to negotiate is taken, the
company should be prepared to follow this through, and accept the
frustrations and difficulties that will inevitably follow. If Indigenous
parties can see that a company is acting in good faith, that they are valued
negotiating partners, and that an agreement is sought for reasons of
mutual benefit, the chances of an effective and sustainable agreement will
increase.
Conversely, if there is a perception that a company is negotiating because
it has no other option, or there is a feeling that negotiations are not in
good faith, then the path to successful agreement will be more difficult.
It is the case that many companies will find themselves in the position of
having to convince a sceptical audience of their good faith. This will
often be for historical reasons, and long experience of communities
feeling they have been done over by mining companies. Many
Indigenous people have negative experiences of mining, and it is
important for company people to acknowledge and understand this. After
all, it is only very recently that agreement-making between Indigenous
people and mining companies has become a reality. The experience of
many, particularly older Indigenous people is one of no consultation and
no involvement in mining projects, of finding one day that they no longer
have access to traditional lands, or that sites of significance have been
destroyed.
None of this is to suggest that problems exist only on one side. Some
companies, despite approaching negotiations from a position of sincere
good will and faith have found themselves the centre of inter-community
strife, and have felt badly let them down by their experience, often in a
costly manner.
The challenge to companies is similar to that for NTRBs: to move
forward and to find ways of working constructively across these
experiences and divides.
58 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
4.5 Negotiation methods
Many mining company people have substantial experience in negotiation.
However, much of this is irrelevant and may also be counter-productive
in an Indigenous setting. Alternative approaches to negotiating need to be
considered seriously by mining companies, as in an Indigenous context,
and particularly where issues of native title are concerned, the aim of
negotiations is not to screw the other party to the ground, but to find
common ground, and arrive at mutually beneficial solutions to common
challenges.
4.5.1 Native title claimants
One of the most difficult areas for companies is addressing the nature of
the party with whom they are trying to negotiate a settlement. This
difficulty stems from native title being a communal right, It is, therefore,
essential that the claimant community as a whole share any benefits that
flow from an agreement. Given this, good practice would initially entail
full community involvement before negotiations commence. There are
several important considerations in this regard.
Identifying the right peopl e
It is vital that mining companies engage with the right people in seeking
to negotiate a durable agreement. Failure to include all people who may
have a native title interest may have a negative long-term impact on the
viability of an agreement, resulting in possible later challenges, or
unwillingness to certify by a NTRB.
For this reason, the relevant NTRB is usually the best starting point, as it
can in most cases provide accurate information on the native title-holders
or claimants and other Indigenous stakeholders in a project. Even if the
NTRB does not represent all native title parties, it will usually hold
information of relevance to the exercise. It may be necessary for a
company to be prepared to provide resources for comprehensive
identification of all relevant parties. However, where a NTRB has already
undertaken ethnographic research, this information may be available to a
company.
Accurate knowledge of probable native title parties to an agreement will
assist a company to consult effectively in relation to a project, and will
also give clear indications of the likely composition of negotiating groups
for later stages of the process.
Timeframes for accurate identification of Indigenous stakeholders depend
on the level and availability of existing information. Companies need to
recognise that such information often includes confidential cultural
materials that are held by a NTRB on that basis. Therefore, companies
should not expect to be supplied with information that may be used as
evidence to argue for a subsequent determination of native title, or other
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION 59
important elements of native title management, including information
about competing native title claims.
While a NTRB may be a key participant in the agreement-making
process, there may be other Indigenous organisations in the area that
should be taken into account. For example, ATSIC regional councils,
which are elected by Indigenous people for each region in Australia, have
significant responsibilities not only in relation to ATSIC and other
Commonwealth programs, but also as important consultative forums for a
range of issues. Furthermore, regional councils can often provide
information on employment and training schemes, important community
issues and priorities, as well as non-native title issues with the potential to
impact on the development. Thus, the potential to develop linkages
between the proposed development and other community programs and
strategies may be enhanced through early contact with a regional council.
Other government or non-government organisations may also be
consulted, including:
Allow the parties to report back to their constituencies, and gain their
approval for decisions taken, and to authorise future directions.
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION 61
A number of the major agreements examined for this project used
subsidiary agreements for some of these reasons including:
Timeframes;
Issues to be negotiated.
Such an agreement, as well as defining the negotiation process, may also
serve as a point of reference and as a means of evaluating the progress of
subsequent negotiations.
Once the parties have reached substantive agreement, it is vital for its
durability that its terms are agreed to and supported by the wider
constituency. A number of the agreements examined by this project drew
up comprehensive MOUs following agreement, which were then used to
inform the wider group, and to gain their formal consent to the terms of
agreement. The documents can also double as drafting instructions for the
formal agreement.
4.6 Impact of the development
As with the need for accurate information on Indigenous stakeholders,
clear and relevant information on the development and its potential
impact will often have a direct influence on subsequent negotiations, and
the durability of an agreement. The availability of appropriate
information and effective strategies to deliver this to Indigenous
stakeholders at an early stage of a project may well save a company from
trouble further down the line.
J ust as companies may have preconceptions about an Indigenous
community, members of the Indigenous community may sometimes have
preconceptions about the company, the project or mining activity in
62 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES
general. Efforts by the company to inform stakeholders about the project
proposal through a comprehensive consultation process will go a long
way towards dispelling misinformation and innuendo on both sides. An
information strategy should be designed to open channels of
communication, to allow Indigenous people the scope to consider the
proposal, how it may affect them and their communities, and how to
obtain further information.
Companies should aim to ensure that assessments of likely social and
environmental impacts of a proposed development explicitly examine
issues perceived by the Indigenous community as important. This may
well require active participation in research by Indigenous stakeholders as
well as involvement of specialist researchers.
It is vitally important that clear information be given to Indigenous
stakeholders about the financial elements of a project, so that they can
begin to appreciate its economic and commercial characteristics. In some
cases, it may be useful for a company to provide funds to Indigenous
parties for independent economic evaluation of their project plans.
An effective information strategy will provide Indigenous stakeholders
with a clear idea about how their rights and interests are likely to be
enhanced or diminished. It can, therefore, have an impact on subsequent
negotiations.
4.7 Appropriate financial support
In theory, a best practice approach to agreement making should not
depend on the financial resources of the proponent. However, it many
cases it will be necessary for companies to allocate resources to the
negotiation process, particularly if there are tight time frames to get a
project to the production stage. In this context, the limited budgets and
high functional workloads of most Indigenous organisations, including
NTRBs, are important considerations for companies.
Companies may need to provide financial support for a number of
elements of the negotiation process, including:
Where an ILUA states that the right to negotiate does not apply;
Mining infrastructure;
The Tribunal must consider the views of all native title parties
involved in negotiations, not simply the party seeking arbitration;
The Tribunal must consider the views of grantee parties, and take
account of existing uses of land or waters in the area subject to the
proposed act;
The Tribunal may specify particular matters as the subject for future
negotiations, and
Bind all native title parties regardless of whether they were parties to
an agreement, including future generations;
Limit the level of compensation for acts effecting native title to levels
negotiated under an ILUA.
An ILUA may be:
Any person may request assistance from the NNTT, not just native
title parties;
Ensure that all native title parties are equally involved in negotiations
and have access to resources to support negotiations;
Ascertain with the NTRB and other native title interests requirements
for certification and/or authorisation of an agreement.
Engagement with NTRBs
The Acts ILUA provisions allow a number of key roles for NTRBs in
negotiating agreements, which give emphasis to the need for Industry
parties to establish early contact. These include:
Notification (s. 203BG) of native title parties about matters that may
effect native title;
Internal review (s. 203BI), to provide a process for native title parties
to seek review of decisions or actions of the NTRB, and