Commercial Negotiation with Indigenous peoples: Setting the Table for the Future

1. Commercial Negotiation with Indigenous peoples: Setting the Table for the Future Craig Jones Principal Adviser - Indigenous Affairs, Santos Doctoral Candidate Aboriginal Environments Research Centre, UQ

2. Commercial Negotiation with Indigenous peoples – 28 November 2006 • Introduction • Background • Negotiation technique and strategy • Conclusion

3. Commercial Negotiation with Indigenous peoples – 28 November 2006 • Why should negotiation with Indigenous peoples be important for Industry now? • Increased production related to supplying energy needs in Australia • Increased production related to suppling China with resources • Green House • Increasing competition between companies

4. Commercial Negotiation with Indigenous peoples – 28 November 2006 • Cultural Heritage • Law in all States and a law of the Commonwealth • Independent of tenure and to some extent native title

5. Commercial Negotiation with Indigenous peoples – 28 November 2006 • Native Title • Most of continent is sparsely populated and has always been so • Native title not extinguished over most of continent (at least 75%) • Most native title claims unresolved • Many areas unclaimed • ILUAs

6. Commercial Negotiation with Indigenous peoples – 28 November 2006 • New pressures • Change in approach to Indigenous policy • Increase demand for labour • Incorporation of social relations or community relations into the concept of sustainability

7. Commercial Negotiation with Indigenous peoples – 28 November 2006 • Why negotiation? • Only realistic and pragmatic response. • Real question concerns risk management in areas where social factors are significant. • The native title claims process provides someone definitive to negotiate with either as registered claimant or as determined native title holder • ILUAs provide a tool to combine different outcomes such as cultural heritage and native title

8. Commercial Negotiation with Indigenous peoples – 28 November 2006 • People • One problem has been difference in power – company versus community • Addressed by relationships with people around the table • Authority to act within know parameters • Limited changes to negotiation group • Engagement beyond the table • Smoko • Negotiation as if more than one iteration • Listening to one another (history and commercial reality) • Lawyer role management

9. Commercial Negotiation with Indigenous peoples – 28 November 2006 • Consistency? • Transparency • Engagement across multiple groups • Throwing the divide a conquer rule out the window • Incorporating government initiatives • Global consistence vs local detail • Negotiate as if more than one iteration

10. Commercial Negotiation with Indigenous peoples – 28 November 2006 • Structure • Process – Id parties, Id issues, Id solutions, Test solutions, plan implementation, check back • Structure according to clear headings – compensation, cultural heritage, employment, business opportunity, equity • Local details as innovation/creativity

11. Commercial Negotiation with Indigenous peoples – 28 November 2006 • Conclusion • Risk management approach • Zero risk approach not appropriate • Social/political risk is manageable and quantifiable using the techniques above (likelihood vs consequence) • Agreements represent a significant innovation in Industry with a view to increasing sustainability and profitability.