How healthy is your native title corporation?

Native title corporations hold, manage, and protect recognised native title rights and interests.  We have developed a checklist to see how healthy your corporation is.

 

Native title corporations should:

  • be managed in a way that is transparent and promotes accountability;
  • act in accordance with the law; and
  • ensure their directors act professionally, responsibly and plan for the future.

MPS Law has worked with native title corporations (or ‘RNTBCs’) and Aboriginal and Torres Strait Islander corporations across Australia and has developed a checklist to assist you in determining how healthy your corporation is.  We encourage you to read this document in conjunction with our heritage survey checklist, native title benefits checklist, RNTBC AGM checklist and template letter agreement for heritage surveys in native title land.

The checklist is available here.

Note: This document is intended as a guide only to assist directors and members in ensuring their corporation is well managed.  This does not constitute legal advice.  The issues and questions set out are of a general nature and may not reflect your specific circumstances.  There may be additional and important issues that should be considered when evaluating the actions of the corporation.  If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

Witness Statement Checklist for Native Title Claims

This checklist sets out necessary legal, ethical, and practical considerations to ensure that witness statements are obtained and prepared in a way that increases the likelihood of success and satisfies obligations.

 

 

Witness statements are a key source of evidence in native title claims. The United Nations Declaration on the Rights of Indigenous Peoples require that free, prior and informed consent is a key aspect when obtaining instructions or legal agreements from Indigenous clients. Free, prior and informed consent implies that consent should be obtained with no coercion, sufficiently in advance and with the size, pace, reversibility and scope of the activity appropriately explained. In addition, native title law is complex and the settings can be challenging, which can make witness statements more difficult than usual.

You can download the checklist here.

Note: This document is intended as a guide only. This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the requirements of your corporation and its rule book. If you or your organisation has a legal problem, you should obtain professional advice from a legal practitioner.

Checklist for an AGM of a Registered Native Title Body Corporate

This checklist is to help RNTBCs plan and hold Annual General Meetings.

Registered Native Title Body Corporates are required to hold an Annual General Meeting before December each year. Procedurally, these meetings are held to ensure that RNTBC members have an opportunity to comment, make decisions and elect directors.

Practically, these meetings are a key opportunity for community to hold the RNTBC accountable. These meetings provide community with a platform to make key decisions which effect their interests and enjoyment of country.

You can view the checklist here.

Note: This document is intended as a guide only to assist with the facilitation of RNTBC AGMs in accordance with the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the requirements of your corporation and its rule book. If you or your organisation has a legal problem, you should obtain professional advice from a legal practitioner.

Native title decision checklist for RNTBCs

This checklist sets out necessary considerations to ensure that native title decisions are properly made.

 

 

A native title decision is a decision by common law holders that will either surrender or otherwise affect their native title rights or interests. The Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Regulations) set out the requirements that RNTBCs and PBCs must satisfy to ensure that a native title decision is validly and effectively made. These requirements include requirements to consult and obtain the consent of common law holders in relation to the decision.

Aside from the Regulations, effective consultation with common law holders is vital for the principle of free, prior and informed consent of traditional owners for decision-making processes affecting their interests and enjoyment of country.

The checklist is available here.

An explanatory summary that takes into account changes to the law in 2021 is available here.

Note: This document is intended as a guide only to assist with the facilitation of native title decisions in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the requirements of your corporation and its rule book. If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

Template heritage survey procedure and checklist for native title parties

We have created a free checklist to set out the necessary steps to review a survey request, organise an appropriate survey team and correctly report survey findings. More generally, this checklist identifies issues Traditional Owners should consider so that heritage can be effectively managed.

 

Heritage surveys are a necessary part of ensuring explorers and miners comply with their obligations under agreements and heritage legislation when conducting activities on country. More importantly, heritage surveys play an important role in ensuring Traditional Owners are consulted and informed about what happens on country. This allows Traditional Owners to assess any risks to heritage during exploration and mining activities and how those risks can be minimised

Aside from complying with the law and managing risks, heritage surveys also play an important role in establishing an effective relationship between companies and Traditional Owners. Being proactive in conducting heritage surveys ensures that Aboriginal heritage issues form an integral consideration from the initial stages of a project. This also helps to establish lines of communication for Traditional Owners to voice heritage concerns or report issues.

To put Traditional Owners in the best position to assess risks to heritage, establish an effective relationship with companies and explorers and uphold heritage considerations during all stages of activities on country, there are several factors you will need to consider. This checklist has been prepared to set out the necessary steps and identify issues Traditional Owners should consider so that heritage can be effectively managed.

The checklist is available here.

MPS Law strongly encourages you to read this document in conjunction with our Heritage Survey Workflow. This template workflow (or process) is available here.

Note: These documents are intended as a guide only to assist with the preparation and conduct of a heritage survey. This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the parties’ contractual requirements and any internal survey procedures. If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

Benefits checklist for native title parties negotiating agreements

Native title parties are often required to negotiate agreements with project proponents on mining, oil and gas and exploration agreements. We have created a checklist to help with negotiations.

 

 

Negotiations are complex, but can result in significant benefits to native title parties, as well as certainty for project proponents.

We have been fortunate to negotiate several landmark agreements, and continue to act for native title parties and project proponents in land access matters.

We have developed a checklist to help native title parties, like claim groups and registered native title body corporates, check their processes and agreements. You can download the checklist here. It is available in a text format but can be provided in alternative formats on request.

MPS Law strongly encourages you to read this document in conjunction with our Healthy Contract Checklist and Native Title Decision Checklist. Click here to access the Heathy Contract Checklist and here to access the Native Title Decision checklist.

Like all templates and checklist, this is intended as a guide only to assist with the negotiation of a native title mining agreement. This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important issues that should be covered by an agreement in your specific circumstances, depending on the nature of the arrangement you wish to enter into and the circumstances of the contracting parties. If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Template letter agreement for heritage surveys in native title land

Work Area Clearances, or Heritage Surveys, are often conducted to reduce the risks of mining and petroleum exploration activities impacting Aboriginal heritage.

 

In some instances, it may be practical or necessary for a project proponent and native title group to agree to conduct a survey without, or prior to, finalising a substantive agreement. This could be, for example, due to a project need, or, logistical challenges with execution of a final agreement. In those cases, the parties can exchange letters to help facilitate a survey.

MPS Law has developed a template letter that identifies some of the key parts of the letter. The template letter agreement is available here.

Letter agreements should only be entered into once legal advice is sought, and project proponents should promote the free, prior and informed consent of the native title party.

Fore more information, contact Michael Pagsanjan (michael@mpslaw.com.au) or Michael Pagsanjan (info@mpslaw.com.au).

The golden rules for good contracts and our healthy contracts checklist

BY KAI SINOR

This article provides a summary of the golden rules for good contracts, and should be read together with our Healthy Contract Checklist available here.

 

General commentary

The golden rule for agreements is that terms should be capable of clear interpretation as to their meanings in an ordinary and natural sense of the word (or words) in the context of the clause in which they appear. Words or noun phrases that have special meaning should be defined in a dictionary to the agreement. Are there any terms intended to have a meaning which is specific to how the word is used by a particular trade or group of persons? 

To ensure clarity and certainty of terms within the agreement, consideration should be given to syntactic ambiguity.  Do any words have multiple ordinary meanings which are affected by syntax or context? Are there any phrases which describe a quality of continuous variation and which may require assessment of whether a given set of circumstances are within or outside the contractual stipulation – for example, although day and night are antonyms, there a range of graduations in the transition from day to night, such that it is difficult to say where one stops and the other begins.

Does the contract define ‘rules’ for how to interpret it? For example, it is common for clauses within the agreement to clarify what a particular terms mean by identifying what is “included” within the meaning of that term.  A question then arises whether if what is listed as being “included” is exhaustive (nothing else is included) or if other things that fall within the natural meaning of the term (or phrase), in context of the particular contract, are also included.  Note that where the word “means” is used to define what a word or phrase means, the definition given is exhaustive.

 

Nature of relationship (contractors providing services)

Where applicable, ensure the agreement specifies it is the express intention of the parties that there is not an employment relationship. This is important because if an employment relationship exists, the contracting party has obligations under the National Employment Standards and employment legislation.

Remember that even where such a relationship is specifically excluded by words within the agreement, courts will examine the substance of the agreement and the relationship between the parties outside of the contract.  Care should be taken to clarify matters such as, who provides tools and equipment, who is responsible for defects in the work performed, who has control over hours, time and place of work, whether subcontractors can be used, and whether the contractor can undertake other work or engage in other business activities.

 

Restraint of trade and non-compete (contractors)

Where applicable, consideration should also be given to risk for the business if the other party works with a rival competitor during the term of the agreement, or within a specified period of time after the agreement ends.  Similarly, the business may also need to ensure that the contractor does not ‘poach’ clients or employees, interfere with the business or engage in a competing business.

These kinds of clauses require careful drafting. If a restriction is too broad it may be unenforceable or it may indicate to a court that in substance, the parties are in an employment relationship.

Where the agreement is to engage a contractor, any clause that attempts to prevent the contractor from ‘engaging in’ or working for a competing business should be considered carefully.  Generally, a contractor is free to pick and choose who they work for. If there is a requirement that the contractor works exclusively for one party, this may impact how a court assesses the contractual relationship.  If the substance of the engagement (which include the written terms of the agreement) is deemed to bring the parties into an employment relationship, the hiring party has obligations and duties under employment law.

 

Agreement to other party’s policies

A contracting party may require that the other party comply with its policies for such things as anti-bribery, human trafficking, conflicts of interest, data protection or safeguarding of vulnerable persons.

The party requesting compliance usually retains discretion to update such documents and the obligations of any updated versions will apply. If the agreement states that the party is required to comply with such documents “as updated from time to time” or words to that effect, consider including a requirement for the requesting party to notify the other party prior to policy change, be consulted on changes that increase the burden of compliance in a material way or to terminate the agreement if there is a material change in policy.

 

Assignment and subcontracting

Consider, is there a need to limit or prevent a party to the agreement from subcontracting or assigning its obligations and rights under the agreement?  Are the risks and consequences of a subcontractor not performing their duties significant?  Remember that where the agreement engages a contractor, limits on the right to subcontract may indicate an employment relationship between the parties.

 

Risk: liability, indemnity and insurance

Scope of parties’ liability

Some agreements attempt to impose obligations and liabilities “jointly and severally” to all parties.  This may happen explicitly, or by referring to parties, a group of entities or persons collectively, and in doing so, create or extend rights and obligations under the contract. Where these clauses are included, consideration should be given to whether this enlarges the parties’ rights and obligations beyond those provided by the operative provisions of the agreement. When interpreting contracts, courts are cautious of attempts to impose secondary liability as an additional safeguard to primary liability of the principal party to whom the obligation (under the agreement) belongs. If such a clause is capable of being applied to the agreement in more than one way, it may be applied in a way that serves its purpose rather than in a way that extends parties’ obligations beyond what is contemplated in the operative clauses of the agreement.

Indemnity clauses

Careful consideration should be given to clauses which seek to limit (or remove) liability for a particular party. Indemnity clauses may limit liability by restricting liability only to certain losses or setting a cap on the level of liability. If it is appropriate to include an indemnity clause, consider if a party should be required to indemnify against other third parties (i.e. subcontractors, agents, consultants).

Indemnity clauses should be considered carefully because they affect who bears risk. Other mechanisms for assigning or managing risk in a contract are to limit the form of damage that is compensable (i.e. to direct losses, not indirect or consequential loss), the quantum of damages payable, or to require the contractor to effect and maintain such insurance policies as are appropriate for the nature of the work to be performed.

Insurance

Unless specifically required under the agreement, each party is responsible for obtaining their own insurance. Consideration should be given to risks if either or both parties do not have insurance and whether there should be a contractual requirement to effect and maintain specific types of insurance to mitigate the financial impact of those risks.  If insurance is required, what is the scope or coverage of such insurance?

If performance of the agreement carries a high risk, consider including a requirement for the delivering party to effect and maintain insurance.  For example, where the contract involves producing or installing equipment or delivery of a service to third parties, and there is a potential for harm if not delivered or carried out correctly, it may be appropriate to include a requirement for insurance.  If insurance is required, what is the scope or coverage of such insurance?  Public liability insurance should be a minimum. Other insurances may include professional indemnity, workers compensation (if staff are engaged) or personal accident (for sole traders). Will each party bear their own costs or will this be shared?

 

Warranties

A warranty is not a guarantee; it is a mere promise that, if breached, may be enforced by an award for damages.  If a party has made a representation or undertaking about something that relates to performance of their obligations but which is not an essential condition of the agreement, consider if this should be included as a warranty. Warranties may be express or implied, so it is important to clarify whether only warranties stated in the agreement will apply. 

Where the agreement seeks to exclude non-contractual warranties, assess if warranties stated in the agreement are adequate and appropriate. Are there any important assurances or promises that were made about a contracting party’s qualifications, skills or experience? Are there any licenses, consents or permits that must be held or obtained? Are there any regulatory requirements or industry codes of practice that the contractor is expected to abide by?

Typically, the agreement will confirm that the parties have not relied on any representation or warranty, other than as expressly provided in the agreement.  Remember however, that some warranties, such as those under the Australian Consumer Law, cannot be excluded by contract. 

 

Ethical requirements

Where applicable, clauses dealing with relevant ethical issues should be included in supply contracts or contracts that anticipate a supply chain relationship.  These clauses are most suitable where the other party is part of a sector where compliance with ethical norms and standards is proscribed by regulation (such as aged care and the NDIS). For NDIS providers, this may include such things as compliance with the NDIS Practice Standards, respecting participant privacy and dignity, acting on and reporting abuse, neglect, violence and discrimination, and compliance with the NDIS Practice Standards.

 

Ending or suspending a contract

Termination

Ensure the contract does not have terms that give an excessively broad discretion to cancel the contract unilaterally. It is common for there to be key ‘material’ terms, a breach of which allows one party to terminate (with or immediately without notice).  There may also be events which bring the agreement to an end – such as insolvency or bankruptcy.

If there are specific ethical, cultural or other values that are important in the contracting relationship, consider including these as grounds for termination.  For example, if the contractor is convicted of an offence involving dishonesty, or the contractor’s personnel are subject to an adverse finding from a workplace investigation or regulatory inquiry.

Suspension (contract for services)

Typically, if something happens which materially impacts rights and obligations under the agreement, the impacted party has the ability to cancel or suspend delivery of the services.  Ensure that any such terms in the agreement are reasonable – that they only apply to matters which are significant to performance of the agreement. Consider including an option to enable fulfillment of the contract at a later date and any requirements for notice so that the impacted party has time to make alternative arrangements.

Force majeure

The COVID-19 pandemic highlights the importance of making allowances for unforeseen events.  In contractual terms, a ‘force majeure’ clause sets out who bears the risk of loss or damage if the agreement cannot be performed due to circumstances beyond the reasonable control of a party.  These clauses usually provide that neither party has liability or is deemed to be in breach for any delays or failures in performance which result from such circumstances.

For more information, contact Michael Pagsanjan (info@mpslaw.com.au) or Michael Pagsanjan (michael@mpslaw.com.au).

 

Ownership, Privilege and Confidence in Native Title Documents

Many reports, documents and evidentiary material are produced throughout native title proceedings, such as genealogies, connection reports and other anthropological material (Native Title Documents).

 

Although often held by Native Title Representative Bodies (NTRBs) or in a solicitor’s office, Native Title Documents contain cultural knowledge, personal information about group members and other highly sensitive information. The management of these documents raises issues about copyright, legal professional privilege and confidentiality. Moreover, it raises broader questions about the rightful ownership of Indigenous Cultural and Intellectual Property (ICIP).

For these reasons, a clear access protocol should be in place to manage the use and disclosure of Native Title Documents, to protect the interests of native title members in relation to their information, and to ensure that communities are properly consulted on the use and disclosure of their cultural knowledge.

This article explains legal issues that are relevant in the development of an appropriate access protocol, once a native title claim has been fully resolved. Indeed, Native Title Documents should not be shared with or disclosed to, for example, native title claimants during native title proceedings for several reasons. This includes the need to avoid contaminating witness evidence, which may undermine the proper conduct of a trial. As a result, this article focuses on issues that arise after a claim has been resolved.

 

Copyright

Native Title Documents would constitute ‘literary works’ for the purposes of copyright,[1] and therefore may attract copyright.

Who holds the copyright?

Ordinarily, copyright is held by the creator of a work (‘the author’).[2] However, where the work is created as part of an author’s employment, copyright is held by the employer.[3] In contrast to this (and in the absence of an agreement otherwise), copyright in a work produced by an independent contractor remains with the contractor.[4]

The contract of services for the Native Title Document can be a useful tool in determining where copyright over the documents lay. A contract of services may expressly assign copyright to a Registered Native Title Body Corporate (RNTBC) or to the native title group members who contributed important traditional and cultural knowledge to the creation of the documents.

How can copyright be infringed?

The holder of the copyright to a work will have the exclusive rights to reproduce,[5] to publish,[6] to publicly perform,[7] to publicly communicate,[8] and to make an adaptation of that work.[9] If you do not hold the copyright, and neither have you the consent of the copyright holder, you can infringe the copyright of a work by doing any of these acts in relation to a substantial part of the material.[10] Importantly, copyright attaches to the specific expression of an idea or information, as opposed to the idea or information itself.[11]

Legal Professional Privilege

As part of civil litigation maters across Australia, all parties have an expectation to disclose documents relevant to the ongoing proceedings. As part of disclosure, the documents must be made available for inspection and copy by the opposing party. However, certain documents are exempt from being revealed to the opposing party. This includes documents which are subject to legal professional privilege.

Legal professional privilege attaches to confidential communication and documents made by  a legal representative for the dominant purpose of providing a client legal advice, or made for use in current or anticipated litigation. [12] More information on legal professional privilege in relation to a recent native title decision be found here.

Legal professional privilege is important to protect documents from any unwanted disclosure during litigation. As Native Title Documents contain highly sensitive information, including cultural information and personal information about members to an Indigenous group, it is important that the privilege is in no way waived.

How is legal professional privilege waived?

Legal professional privilege may be waived generally or in parts of a document.[13] The privilege can be waived expressly, or implicitly where it would be unfair to maintain it due to a document being dealt in some way that is inconsistent with the maintenance of the privilege.[14] An inconsistent dealing would be for instance where a client knowingly and voluntarily discloses the substance of the document to another person.[15]

However, it is important to note that disclosure to a third party might not waive the privilege if that third party has sufficiently close interest as the privilege-holder in the legal advice (‘common interest privilege’).[16] For instance, an RNTBC and its members may have common interest privilege, due to the RNTBC holding and managing the members’ native title rights and interests.

 

Confidentiality

Information that has the ‘necessary quality of confidence’ is protected by confidentiality.[17] Native Title Documents such as historical records, genealogies, oral histories and personal testimonies contain highly sensitive information which is necessarily confidential in nature. An obligation of confidence would therefore be owed to the native title group members who have an interest in the personal information contained in those documents.

Who owes the duty of confidentiality?

A contract that commissioned a Native Title Document may explicitly impose a duty of confidentiality on the contracting parties. An implied duty of confidentiality may also be inferred by the nature of the relationship between the parties.[18]

Upon a positive determination of native title, Native Title Documents are often handed over to third parties, such as to the RNTBC established to hold or manage native title. In these instances, it is important to note that a third party who comes into possession of confidential information may come under a duty not to disclose that information where it would be reasonably expected that that information was given in confidence.[19]

Who owns cultural information?

The management of Indigenous cultural knowledge contained in Native Title Documents raises ethical questions about ownership and rights of use and disclosure. Although ICIP is often not protected under Australian copyright law,[20] it has more generally been recognised for its importance in relation to indigenous heritage, cultural identity and self determination.[21] Article 31(1) of the United Nations Declaration on the Rights of Indigenous Peoples states:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions… They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.[22]

 

Policy considerations

The above issues may help to inform a clear access protocol for Native Title Documents.

The protocol should consider

  • how express (and ideally written) consent from any copyright holders (as well as interested native title groups and members more generally) should be obtained;
  • that, for the purposes of legal professional privilege, access should only be  granted on strict terms of confidentiality, limiting any further disclosure; and,
  • that confidential information should only be accessed by individuals to whom the information relates, or from whom the information was given.

 For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Footnotes

[1] Copyright Act 1968 (Cth) (‘Copyright Act’), Part III.

[2] Copyright Act, s 35(2).

[3] Copyright Act, ss 35(6) & 213(6).

[4] TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444.

[5] Copyright Act, s 31(a)(i) – to ‘reproduce a work’ means to produce an objectively similar work; Francis Day & Hunter Ltd v Bron [1963] Ch 587.

[6] Copyright Act, s 31(a)(ii).

[7] Copyright Act, s 31(a)(iii).

[8] Copyright Act, s 31(a)(iv); to ‘communicate’ a work means to make the work available online; see the definition of ‘communicate’ in Copyright Act, s 10(1).

[9] Copyright Act, s 31(a)(v).

[10] Copyright Act, s 14(1)(a) – a ‘substantial’ part is an essential or material part of the work; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.

[11] Hollinrake v Truswell [1894] 3 Ch 420.

[12] Evidence Act 1995 (Cth) (‘Evidence Act’), s 118.

[13] Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87 at 95.

[14] Mann v Carnell (1999) 201 CLR 1 at 13; Evidence Act, s 122(2).

[15] Evidence Act, s 122(3).

[16] Network Ten Ltd (“NTL”) v Capital Television Holdings Ltd (“CTHL”) & Anor (together “CT”), Supreme Court of New South Wales, Giles J, March 9, 1995.

[17] Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413 – in particular, the information should be private in nature, and not the matter of common knowledge; Burica Pty Ltd v Tops To Bottoms (Aust) Pty Ltd (1997) 39 IPR 447.

[18] Ecrosteel Pty Ltd v Pefor Printing Pty Ltd (1996) 37 IPR 22.

[19] Duchess of Argyll v Duke of Argyll [1967] Ch 302; Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587.

[20] ICIP often fails to satisfy the requirements for copyright, as the works are often not original, lack an identifiable author, and are not in material form; see Copyright Act 1968 (Cth), ss 22(1), 32 & 35.

[21] Australian Institute of Aboriginal and Torres Strait Islander Studies, Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Rights, (1999), XVII.

[22] United Nationals Declaration on the Rights of Indigenous Peoples, Article 31: <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>

Negotiations in native title

The Native Title Act 1993 (Cth) (‘the Act’) gives native title parties the right to negotiate in relation to particular grants, and in relation to other acquisitions of traditional land. This right gives native title holders the opportunity to come to an agreement with the other party on what activity can occur on land, and on what compensation will be offered for resulting impacts on the enjoyment of native title rights and interests.

 

Native title negotiations may also arise when negotiating the settlement of a native title claim, the resolution of native title compensation and the negotiation of Indigenous Land Use Agreements. Negotiations may also arise in relation to disputes with (or within) native title prescribed body corporates.

This article explores the role of power in native title negotiations and explores some realities for such negotiations. More information about power in negotiations more generally is available here.

 

Power in native title negotiations

In all native title negotiations, relationships of power are often obvious. Take, for example, native title holders negotiating a land use agreement with a mining proponent. In these instances, the mining party will often face industry and financial pressures to come to an agreement in a timely fashion. However, the native title party will often face its own limitations in the negotiation process, including in relation to resources, cultural differences (such as those of language, values and perceptions of relationships) as well as a legislative framework which limits the party’s procedural avenues. In relation to the latter it is particularly. In terms of negotiation, this then limits native parties’ opportunities outside of the negotiation table.

How, then, can a negotiator develop an ideal ‘best alternative to a negotiated agreement’ (‘BATNA’) in such take-it-or-leave-it situations? In such situations, the interest-based model of principled negotiation becomes important to ensure native title parties are not competing with the other party at an unevenly weighted negotiation table.

 

The reality of native title negotiations

The limitation on the legal avenues available in these situations leaves open the more general question for negotiators on how to assess the strengths and weaknesses of their (or their clients’) position. This question becomes further complicated where particular relationships to country and the native title interests that attach to them make it difficult to readily apply objective standards to decide what negotiated outcomes can be perceived as fair.

Negotiators should therefore think carefully about what benchmarks to rely on when understanding the opportunities and limitations of their client in native title negotiation. This can include a review of former agreements to better understand what negotiated outcomes a client could expect. This may also include an analysis of possible alternative legal avenues, such as through administrative law and heritage protection legislation, as well as common law claims. Indeed, the best solution may in fact not be grounded in a legal right or risk, but one of relationship building based on genuine partnering. However, it is important that an assessment of opportunities and limitations should reflect the specific context of the relevant negotiation, as well as the parties’ interests that should be satisfied at negotiation.

MPS Law provides expert negotiation services in native title matters, as well as assistance with strategic partnering. Most recently, MPS Law negotiated a landmark several hundred-million dollar settlement in Western Australia.

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).