Challenge is to make agreements workable

The determination of native title and the subsequent negotiation of land-use agreements is a long and arduous process for all involved but a signature on the dotted line of a deal is only the beginning of the extremely complex and difficult implementation stage.

When it comes to mining Western Australia’s resources, land-use agreements last for the life of the mine and the continuous implementation of agreements is cited by lawyers, mining companies and indigenous corporations as the most difficult and challenging element of native title.

Jackson McDonald partner and expert in the implementation of native title land-use agreements Adam Levin said there were two distinct parts of implementation.

The first is the application of what has been agreed on in order for the mining company to access the land.

In the case of Rio Tinto’s agreement with four native title claimant groups represented by Yamatji Marlpa Aboriginal Corporation last year, a series of participation agreements and regional standards were formed and implemented by local committees and corporations represented by Rio and the traditional owners.

There are standards in employment and training, cultural heritage management, life-of-mine planning, business development and contracting, environmental management, cultural awareness training and land access.

Both parties in the negotiation are bound to meeting the standards.

“The challenge for both Rio Tinto and the groups is to continue to work together in implementing the agreements,” Rio Tinto general manager iron ore communities Robyn Sermon said.

“They are so big, where do you start? A traditional owner group might have more of an interest in environment than business development. How do you tailor your programs for different groups?

“The challenges are trying to do too much too quickly and just letting a lot of groups organically evolve and build up their knowledge, expertise.”

The second implementation stage is in managing the benefit structures and implementing a suitable governance structure that meets requirements of robust, transparent and effective management.

Mr Levin said this would be a difficult task for any organisation.

“There is unfair judgement and criticism of indigenous communities and native title groups in managing that money, it would be hard for anyone,” he said.

“The big message that has come out of WA in the last few years is that different communities work differently and different native title groups need to have their own governance structures.

“There are always going to be those who look to a top-down approach … top down doesn’t work. This is ground up.”

Ms Sermon said the best models were those that allowed groups to decide their own future, make their own decisions and get to choose their own priorities and guide what they do.

“One of the biggest challenges is for traditional owner groups to get good advice and good support and set themselves up as an organisation,” she said.

“The other challenge is, traditional owner groups are very busy. There is one particular group that is negotiating 10 agreements at once, we are just one. Resources are stretched because at the end of the day the elders make the decisions and lead it.”

Yamatji Marlpa Aboriginal Corporation chief executive Simon Hawkins agreed the implementation of native title agreements was the most difficult part of the system.

“It is moving from an adversarial phase to a collaborative phase – having people recognise they have signed and agreed upon an agreement. Now we are going to be transferring parts of that across to a collaborative approach,” he said.

Ashurst partner and head of energy and resources Geoff Gishubl said the biggest challenge in dealing with native title was figuring out who needed to be negotiated with and how to make agreements stick, because with extensive and long-held agreements, circumstances could change and that caused challenges.