| Background to the Framework Agreement
South Australia's statewide native title negotiation framework was initiated in 1999 amidst growing awareness of the high costs, delays, fraught relationships and unsatisfactory outcomes that frequently accompanied native title litigation under the Native Title Act 1993 (Cth). In 2000, the State of South Australia, the Aboriginal Legal Rights Movement (ALRM), the SA Farmers Federation (SAFF) and the SA Chamber of Mines and Energy (SACOME) agreed that the social division and high costs associated with litigated native title determinations could be addressed 'by holding discussions aimed at achieving a number of ILUAs that apply to farmers, pastoralists, resource explorers and producers, native title parties, the State Government and others who occupy, work, use or have access to ladn covered by native title claims' (SA Indigenous Land Use Agreement (ILUA) Statewide Negotiations Strategic Plan at 2).
The resulting Framework Agreement aims to provide a negotiation and agreement-based alternative to the adversarial court process through the participation of both native title groups and the key bodies listed above. Negotiations under this Framework Agreement seek to deliver a meaningful recognition of native title and the speedier, more cost-effective settlement of native title claims.
The Framework Agreement does not seek to provide an alternative to the Native Title Act 1993 (Cth). Instead, it seeks to encourage the resolution of native title claims under the same legislation, but through either the negotiation of Indigenous Land Use Agreements or consent determinations, rather than through contested hearings in court.
The South Australian native title negotiation framework operates over a number of sectors and scales. Its aim is to strengthen the governance structure of native title groups and build a 'solid foundation of understanding and respect between peak body leadership in Aboriginal, pastoral and mining sectors, developing the will to search for mutually beneficial outcomes, and the cross cultural understanding necessary to identify these' (P Agius and J Davies, 'Initatives in Native Title and Land Management in South Australia', at 206).
The role of Indigenous Land Use Agreements in the South Australian native title resolution framework
Together, the abovementioned participants in the negotiation process have developed five template Indigenous Land Use Agreements (ILUAs) that relate to the following areas:
Fishing and aquaculture;
Local government;
Minerals exploration;
Outback areas; and
Pastoral.
These ILUAs are intended to 'provide an alternative means for having native title recognised and meaningfully incorporated into practices, policies and legislation' (J Morrison at vi). They are also used to alleviate the need to have each individual native title claim determined separately through the courts, instead providing for a statewide agreement-making process.
The role of negotiation forums
The peak forum for native title negotiations under the South Australian framework is known as the ‘Main Table’. It consists of representatives from the South Australian government, SAFF, SACOME and ALRM, with the National Native Title Tribunal (NNTT) acting as an observer. Main Table meetings were initiated in 1999, and native title groups also agreed to participate in this process in late 2000. The Main Table manages the approach to negotiations, and has developed protocols for discussions between the parties about various issues of concern.
There are also ‘Side Table’ groups that involve all or some of the Main Table parties, and that consider the specifics of issues, research background information and provide a discussion forum for developing statewide solutions to potential problems. The Side Tables have so far worked on issues including heritage, minerals exploration, pastoral, communications and relationships with land (P Agius and J Davies, 'Initatives in Native Title and Land Management in South Australia', at 203).
The role of the ALRM Native Title Unit
While the ALRM Native Title Unit is the Native Title Representative Body for South Australia, it has made it clear that its function is only to assist claimants in the negotiation progress, and not to make decisions on their behalf. As Judith Morrison states, '[t]his is because, in accordance with Aboriginal customary law, only Aboriginal people themselves, whose native title rights are unique within each claim, can talk authoritatively and make decisions about their traditional country' (J Morrison at vi). By participating directly in negotiations and by devising their own outcomes, it is hoped that native title groups will gain a sense of empowerment and leadership, as well as an improved understanding of how native title is managed at a governmental level.
Through ALRM’s work with native title groups, each group has identified a Native Title Management Committee (NTMC) that comprises all the named applicants for each claim, as well as other people nominated by the group. These people are authorised by all the members of the claim group to lead decision making about the management of the claim. While ALRM continues to work towards initiating mechanisms through which the NTMCs will become direct participants in the Main and Side Table processes, at a local level NTMC leadership in negotiations has already occurred through the pilot negotiation process (P Agius and J Davies, 'Initatives in Native Title and Land Management in South Australia', at 204).
The pilot negotiation process
The pilot negotiation process was intended to develop experience in negotiation methods that were applicable to broader scale issues, and to settle some key issues for three native title groups represented by their NTMCs. The pilot programs involved the Narungga, Yankunytjatjara and Anatakarinya Peoples, and covered a range of issues including extinguishment, mining exploration, pastoral lease futures, biodiversity, conservation, outback tourism and protected area management (P Agius and J Davies, 'Initatives in Native Title and Land Management in South Australia', at 205). A program of on-country meetings was implemented to facilitate the direct involvement of these groups in issues related to the future of native title, and to create the template agreements that will set clear guidelines and procedures for subsequent negotiations.
For more information on the South Australian process for the resolution of native title claims, please refer to the ATNS database listing for the South Australian Indigenous Land Use Agreement (ILUA) Statewide Negotiations Strategic Plan 2006-2009. | |
