South West Aboriginal
Land & Sea Council
Our ref: LEG.512
30 November 2010
The First Assistant Secretary
Social Inclusion Division
Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
BY FACSIMILE TO: (02) 6141 4928
Dear Sir
Discussion Paper
Leading Practice Agreements: Maximising Outcomes From Native Title Benefits
The South West Aboriginal Land and Sea Council (SWALSC) is the Representative Body for the native title claimants in the South West of Western Australia. SWALSC welcomes the opportunity to make submissions to the above Discussion Paper.
SWALSC appreciates that the Discussion Paper proposes significant reforms and brings a level of government oversight as to the content of native title agreements but not quantum. We note that the Discussion Paper does not focus on any single industry rather it applies to all native title agreements.
A Governance Measures
The proposed measures are not egregious and are in any case prevalent in many existing operations, however it is debatable whether mandating the features, such as appointing independent directors, will prove any less paternalistic than current government attempts to engage with the Indigenous population.
It would be more beneficial for the measures to be incorporated into the organisation’s ethos to build appropriate governance measures such that any benefits received from native title agreements naturally fall into the same transparency and accountability processes in existence.
Consequently, what is required is less of a prescriptive nature to native title agreements and more resources directed to ensuring the relevant native title bodies are suitably empowered to adopt the proposed governance measures. This alternative suggestion could be in the form of actual funding aimed at educating the relevant body in the principles of good governance and may also extend to the secondment of experienced professionals to the relevant body to assist in the education process for a set period but at no cost or at a reduced cost to the relevant body.
Our experience has shown that the comprehension level among various working parties and within each working party varies considerably, as most likely it does in other regions, however, we maintain a process whereby full disclosure is made to the working parties of the benefits and distributions received from native title agreements. As is the case with most native title agreements, the benefits flowing from these agreements are held in a charitable trust that has an independent corporate trustee appointed to manage the trust fund. Nevertheless, we envisage that further down the track, a governance structure that incorporates the proposed measures for newly created entities would give greater transparency and accountability to the beneficiaries however the governance process should be with the entity and not prescribed in native title agreement.
B Improving governance and native title agreements
Yes there is a need to support parties to native title agreements and the proposal for a new statutory body may be an appropriate method, however the review function proposed for the new body may not be the most suitable function.
Most agreements are finalised through intense and invariably lengthy negotiations by all parties and the proposal that a statutory body review the sustainability of the benefits package would unnecessarily delay the entire process, particularly where the body has no power to veto any unfair quantum or any unreasonable commercial terms.
Perhaps the support could comes in the initial stages of a negotiation to bring the parties together to review and implement best practice principles and then the body may be available to provide further assistance as required during the negotiations stage. At present, the National Native Title Tribunal (NNTT) offers a mediation process that is resort to typically when negotiations have stalled. Perhaps that could be a function of the new body.
Apart from the review function, which appears to serve no useful purpose to the negotiation of the agreement, the remaining suggested functions of the body are appropriate.
There are some questions raised by the introduction of this statutory body, namely,
· how it intends to “maximise the positive financial and non-financial benefits from native title agreements now and for future generations” when it has no power of veto?
· How would the body be funded?
· If there is a confidential register of agreements maintained, who has access to them, what are the restrictions on access, what is the timeline for the storage of the agreements?
If there is a statutory body established we suggest that it is more appropriate that it be a newly created independent body and not have the proposed functions tacked onto some existing body.
We cannot see the value of requiring agreements to be registered with the body for review purposes when the body does not have the ability to veto an agreement. Similarly, we are somewhat sceptical as to the value of the assessment report if the body is not to be given power to veto agreements lacking those best practice principles. We query the resources that would be required for the review body to ensure that the assessment reports are delivered in a timely manner.
We agree, however, that there is some merit in the proposal to publish leading practice sustainability principles in advance so that the negotiating parties have some guidance in their negotiations.
We note that by the time the agreement is reviewed or submitted for review, the negotiating parties have no doubt come close to concluding their agreement and the assessment report is unlikely to be adopted or considered by either party, especially if it requires incorporation of additional terms which would have the effect of further lengthening an already lengthy and expensive process. The end result of submitting agreements for review prior to conclusion of the negotiating process may not be beneficial to either of the parties.
Leading practice agreements toolkit
Overall this process has merit. It is important to advertise it sufficiently to relevant parties, particularly smaller players, who have little or no expertise and little or no resources. They quite often expect the native title party to draft agreements or have a template available for their particular project. This is unreasonable and puts enormous drain on the native title party’s resources.
We would welcome a proposal such as the Toolkit as our experience has been that ‘boilerplate’ clauses are difficult to locate as is obtaining checklists and other guidance materials such as agreement templates which would certainly assist in the negotiation process. In addition, there should be information available on the Toolkit that identifies the various minimum standards to be addressed in an agreement including factors to be taken into account when making an offer to the native title party.
C Futre Acts Reforms
Streamlines ILUA Processes
We have no substantive comments to make apart from acknowledging that the cost of going through an ILUA process is the major problem to be faced.
Clarifying Good Faith Requirements
Clarification is definitely required to the good faith requirements. This is especially important post the FMG[1] decision. Clarification by amendments should be with the intention to encourage all parties to reach substantive agreement before making an application to the NNTT for a determination.
It is difficult to be prescriptive regarding the requirements of amendments because negotiations do not follow any particular script apart from the 6 month time period before which parties can approach the NNTT for a determination.
It must be remembered that negotiations are with the native title party which comprises both the native title claimants and their legal / negotiating representative. Native title claimants need time to grasp the complexities of the agreement being negotiated and need time to discuss, with their family member, the implication of benefits being offered through the negotiations. We suggest that to force them to resolve issues within a relatively short period of 6 months is mostly unreasonable and unrealistic.
Additionally, most negotiations are conducted through a delegated subcommittee of the larger working party which ensures focussed discussion of issues. The subcommittee then has to report to the working party on the various issues discussed at the negotiation meetings to receive working party endorsement of proposed actions entered into by the subcommittee. All this takes time and we repeat that the 6 month period to conduct negotiations is an unrealistic timetable. We, nevertheless, have been fortunate that not too many mining companies have threatened NNTT determination failing agreement within the 6 month period.
Yours sincerely
[Maryse Aranda]
Maryse Aranda
Principal Legal Office
South West Aboriginal Land and Sea Council
[1] FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49