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 (firstname.lastname@example.org).