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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 opportunities 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
For: Advisors/Negotiators representing Indigenous Groups 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.
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) 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 FOR THE CLIENT: (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY) THE DOs and DON’Ts of 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 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 FOR THE CLIENT: (USE PLAIN ENGLISH, INTERPRETERS IF NECESSARY) 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 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
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