Scoping Process Issues in Negotiating Native Title Agreements

Scoping Process Issues in Negotiating Native Title Agreements Report

AIATSIS Research Discussion Paper

  • Author(s): Delwyn Everard
  • Published: 2009
  • Publisher: Australian Institute of Aboriginal and Torres Strait Islander Studies; Native Title Research Unit
  • Volume: AIATSIS Research Publications

Abstract: It is widely acknowledged that native title agreements have the capacity to generate significant positive social, economic, environmental and cultural benefits for Indigenous communities. If this is so, why are such outcomes the exception and not the rule? Why is it that the obvious passion and commitment driving many negotiators representing native title claimants routinely fails to deliver such outcomes. Indeed, outcomes from agreements often fall far below traditional owners’ expectations. It is not controversial that agreements with outcomes relating to employment and training and business development, together with financial payments, can be instrumental in securing sustainable economic benefits for Indigenous communities. Studies on the social impact of negotiated agreements in the resource sector show that dealing with environmental management and cultural heritage issues is crucial in minimising negative cultural and social impacts and protecting Indigenous cultural integrity and social vitality. The aim of this paper is to focus broadly on the process issues faced by claimant groups and their negotiating teams throughout the varied phases of a native title negotiation. It is hoped that the scoping of such issues may assist in the design of future training for native title negotiators and that this, in turn, will assist native title groups to mobilise and engage their available negotiating power. Native title negotiations are characterised by the complexity of the subject matter and the fact that there are usually multiple parties. The Indigenous claimant group is seldom homogenous and its diversity reflects a tapestry of needs. Furthermore, the negotiations often occur over a long period of time – sometimes years. It is not uncommon for native title determinations and ancillary Indigenous Land Use Agreements (ILUAs) to be negotiated in parallel. Attention to process design and a strategic approach to process choice can play a fundamental role in securing the participants’ confidence in, and commitment to, the negotiation process as well as in achieving successful native title outcomes. The discussion in this paper and the accompanying lists of ‘Things to Think About” are based on a number of interviews with individuals with experience across a broad cross section of native title negotiations including large mining negotiations, statewide framework agreements, ILUAs, consent determinations of native title, both assisted and unassisted negotiations, agreements reached both outside the Native Title Act 1993 (Cth) (NTA) and those driven by it. Interviewees were asked to describe their negotiation experiences and to reflect on the obstacles to agreement, the strategies adopted and the relationship of those strategies to the outcomes achieved.

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Suggested Citation
Delwyn Everard, 2009, Scoping Process Issues in Negotiating Native Title Agreements, Volume:AIATSIS Research Publications, Report, viewed 17 August 2022,

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