On the Ground: Negotiating Native Title

Yamatji Marlpa Aboriginal Corporation (YMAC) is the native title representative body for the Pilbara, Murchison and Gascoyne regions of Western Australia. We represent over 20 Traditional Owner groups, all with their own culture, language, and traditions. Our primary role is progress native title but our work is heavily influenced by mining activity on country. About YMAC

Planning Good negotiations start with realistic planning: Be realistic about time, costs, number of people, travel and logistics. Call in experts when needed and conduct due diligence. Be aware of community issues, prior experiences and dynamics. Ensure decision-making is in accordance with traditional practices. Set up regular communications processes.

Planning Practical tips for planning: Provide 2 weeks written notification of meetings. Provide briefing papers, previous outcomes, draft resolutions with meeting notices, so that people can come prepared. Diagrams and tables and generally preferred. Research the project and create strong honest relationships with your clients.

Negotiations Be clear on your negotiation purpose: Native title is a unique set of rights for the people with proven connection to that part of country. Negotiations can easily steer into other areas – corporate social responsibility, personal philosophies, broader interests. Stay clear on purpose and let Traditional Owners drive any broader agendas for their community and country.

Negotiations Practical tips for negotiations: Establish the parameters and scope for negotiations early. Avoid ‘surprise tactics’, ‘show stoppers’ and ‘deal-breakers’. Always include plain-English explanations of legal terms. Provide hard-copies of maps and presentations. Provide logical, informative presentations and structured agendas, to focus on the negotiations at hand.

Respectful Relationships Genuine, respectful approaches are also the most effective: Respect that Traditional Owners will often be negotiating with several other companies and may have bigger priorities. Taking shortcuts or using political or bullying tactics wastes time and money. These tactics invariably fail and prolong negotiations – sometimes by years.

Respectful Relationships Practical tips for building relationships: Get to know the culture and unique circumstances of the group. Bring people with the authority to make decisions. Start doing practical things that will build respect and trust. Involve front-line people such as mine mangers and project managers – people who will be sustaining the agreement on the ground.

Implementation Build implementation into the agreement: A great deal of time and money is spent on negotiations but the failure of many agreements is in implementation. Negotiations should include how implementation will work after the agreement is signed. At least as much should be invested into implementation as into negotiations.

Implementation Practical tips for implementation: Set targets with measurable outcomes, timelines and penalties. Ensure commitment to implementation is shown at the highest levels. Provide access technical and legal advice for the life of the agreement. Give Traditional Owners the people, training and resources to fully participate as partners in implementation.

Flexibility Allow for flexibility if circumstances change in the future: The market can change suddenly and the future is impossible to predict. The life of a mine can often be over 40 years - agreements should be flexible enough to meet an uncertain future. Ensure both sides know what is happening, are genuinely listened to and can adapt the agreement if circumstances change.

Flexibility Practical tips for sustainable agreements: Set 3-5 year management plans and budgets. Build annual internal reviews into the agreement. Have regular independent audits and joint reviews of progress. Ensure Traditional Owners are more than ‘consulted’ – set up clear dispute resolution processes and give real negotiating power for the life of the agreement.

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