Aboriginal Rights, Interests & ADR – A new Epoch?

Seminar, 5 September 2019

By Gigi Lockhart, Dispute Resolution Associate and Zuzanna Cieplinska, ADC/ACICA Intern

On 5 September 2019, The Australian Disputes Centre (‘ADC’) hosted an in-depth seminar on the bourgeoning significance of Alternative Dispute Resolution (‘ADR’) in resolving matters that involve Australia’s Aboriginal and Torres Strait Islander (‘ATSI’ or ‘First Nations’) communities. The value of ADR in resolving disputes related to a broad range of issues across First Nations communities can be attributed, amongst other things, to its flexibility and cultural openness. Particularly, mediation offers Indigenous parties an opportunity to fully voice their interests and concerns in a safe and negotiable space where the rigidity of law courts do not. Shifting from a focus on adversarialism and the strict rules of evidence, mediation can facilitate more culturally acceptable and mutually beneficial outcomes for the parties involved.

Expanding on these points of value, our three distinguished guest speakers explored the practicality of using ADR mechanisms both within and between Indigenous communities, offering both professional and personal anecdotes to illustrate its successes and challenges. This exciting seminar, followed by a stimulating Q&A session, provided attendees with unique and diverse insights into the constantly evolving and highly innovative space of intra and inter-cultural, multi-party ADR.

Stephen Wright, Chief Operations Officer at the Deerubbin Local Aboriginal Land Council, opened discussion by offering a first-hand glimpse into the intricacies of agreement-making with Aboriginal Land Councils. From the Land Councils’ perspective, ADR (in the form of traditional and ceremonial Indigenous dispute resolution practices) is central to, and deeply embedded in, their work.

Of the 120 Local Aboriginal Land Councils in New South Wales (‘NSW’) with varying degrees of wealth, membership and activity, Deerubbin Land Council is the largest private land holder across Western Sydney (including Penrith, the Hills District, Hawkesbury and the Blue Mountains). This wealth of freehold land brings many individuals, corporations and developers to Deerubbin’s doors. Consequently, Stephen explained:

‘Land hold cooperation and agreement-making through an ADR framework becomes paramount’. Fortunately, ‘these processes are already entrenched in Deerubin’s ethos, enabling them to occur simultaneously and efficiently, if and when a dispute arises’. 

Stephen emphasised that core ADR principles of ‘good faith, confidentiality and acceptance of the authority structure’ are critical to contemplating disputes at the macro level and ensuring consistent processes with all stakeholders involved. As there are more than thirty thousand undetermined land claims in NSW, consistency is particularly important in modern agreement-making especially where it involves land use planning, commercial development, bio-diversity issues, Aboriginal cultural heritage, management of national parks, and benefits to Indigenous people.

Building on the complexity of land disputes, Stephen referred to the Uluru Statement, a critical milestone in Australia’s history, which is central to facilitating cross-cultural engagement and dispute resolution. In particular, Stephen highlighted Clause 8 of the Statement, providing for a First Nation’s agreement and the concept of ‘Makarrata’. Makarrata is crucial to the Statement’s aim because it provides a framework for truth telling before a process of genuine agreement making is attempted. Building on this notion of ‘genuine agreement-making’, Stephen proceeded to rhetorically ask the audience;

‘So, why would you want to engage with Local Aboriginal Land Councils?” His response: ‘Simply, our method of agreement-making through an ADR framework establishes respectful dialogue and engagement between parties’.

ADR, by its very nature, is respectful and is a very good mechanism through which to establish durable and long-lasting relations. The ADR framework also provides a sound legal instrument with which to establish a clear process of negotiation while considering the corporate characteristics of the Land Council.

In his concluding remarks, Stephen emphasised that the value of Deerubbin’s ADR framework (or as he refers to them, ‘Principles of Engagement agreements’) is grounded in their adaptability to the character of the parties and the process pursued. However, they still ensure a process of ‘having a working group, facilitating a meeting, identifying issues and prioritising interests as part of the negotiations’. The practical nature of this ‘relationship model’ does not mean that the legal issues are forgotten; rather, the legal ramifications are anticipated in the context of the specific relationship.

‘I am advocating for ADR because all agreement making is being mediated. Whether it is mediated explicitly or whether it is mediated by stealth, it is an inescapable truth that Local Land Councils own very large amounts of land and mere “government consultation” will no longer cut it. It’s called Land Rights 2.0’

Helen Shurven, Member of the National Native Title Tribunal, explored the complexities of multi-party mediation within the context of the Australian Native Title scheme. Helen supported Stephen’s sentiments, positing that the core of ADR is ensuring that a respectful approach is adopted when resolving disputes in order to maintain meaningful working relationships across jurisdictions. She then touched on the difference between multiparty mediation and two-party, or ‘traditional’ mediation, referring to the model that is often taught in mediation training programs like that of the ADC’s.

Helen reminded the audience that ‘these skills – identifying interests, agenda-setting, generating options and moving toward resolutions – remain critically important in both multi-party and cross-cultural mediations.’ However, she also noted that these processes are very ‘linear’. In contrast,

‘in the Native Title and multi-party world, you end up with a bit of a “spaghetti” in the middle of your mediation’.

Helen highlighted that the key difference between multi-party and two-party mediation is the coalition-forming and shifting alignment of interests that is inevitable where multiple parties are involved. This dynamic system results in the unique use and reliance on the ‘Best Alternative to a Negotiated Agreement’ (‘BATNA’).

Central to Helen’s discussion was her emphasis on relationship building:

‘Relationship building is vital. The participants usually each bring a representative. In family mediations you may also have a social worker, support person or financial advisor. It is important that everyone knows their role and particularly, their role in relation to your role.’

Illustrating the multi-party mediation process as highly organic, Helen proposed that it is something that may even be designed on an ad-hoc basis by the parties themselves. For example, the mediator can decide when to have the preliminary conferences or how many are adequate in the circumstances. ‘Time pressure may also complicate a mediation process, particularly in the context of varying cultural values.’ Helen notes that external factors may also be at play; for example in Western Australia, the Government amended their fracking policy, placing a moratorium on certain areas of the State. Consequently, many petroleum mediations were affected, adding further considerations and complexities to agreement making.

Changes in representation was also noted as a key issue, particularly in Native Title Mediation. ‘There is usually not a solid handover with lost files and the like – it becomes a bit of a dog’s breakfast trying to continue the mediation’. Helen notes that funding, or the lack thereof, can also raise issues for multi-party mediation, manifesting power imbalances. The flexibility, integrity, and respectful nature of mediation is key to negotiating the emotions, positions, and interests that underpin conflict.

Tony McAvoy SC, concluded the Panel’s presentations by providing the audience with a unique political perspective on the evolving field of ADR. Titled ‘ADR in the “New Relationship”’, Tony’s presentation was centred on the future of ADR and agreement making in a fluctuating national political landscape.

Tony, like Stephen, emphasised the significance of the Uluru Statement. In Tony’s perspective, the Statement was an invaluable amalgamation of the principles of ‘Treaty’ and ‘Truth’ in the context of an ongoing process to achieve recognition of Aboriginal and Torres Strait Islander people in the Commonwealth Constitution. Tony highlighted the following phrase of the Uluru Statement as fundamental to this goal:

‘When we have power over our destiny, our children will flourish. They will walk in two worlds and their culture will be a gift to their country. We call for the establishment of a First Nations voice enshrined in the Constitution. Makarrata is the culmination of our agenda, the coming together of a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia, and a better future for our children based on justice and self-determination.’

Tony emphasised that the aim of the Uluru Statement is premised on the notion of self- determination insofar as First Nations people might successfully participate in the political debate. Tony emphasised that this will help to change the rules, perceptions, and narratives of and about Indigenous people.

Returning to his own professional background, Tony highlighted that the process of Makarrata is occurring in the context of the Native Title compensation scheme. The audience was then reminded of the importance of ADR in this space and its role in nation-building.

‘First Nations are going to receive a significant amount of compensation, and with that compensation comes the responsibility of managing and making decisions about its distribution. This will bring to the fore the many fractures and cracks that exist within the Nations as they come together’.

Tony proposed that the challenge might be met effectively by ADR in developing a fair and equitable distribution mechanism:

‘A practical outcome of the Uluru Statement within the context of Land Claim disputes will not simply be treaties between individual Governments and individual First Nations groups, but broader framework agreements that encompass all parties. These framework agreements can be analogised to Deerubbin Land Council’s Principles of Engagement, as previously illustrated by Stephen.’

Finally, Tony touched on the rising prominence of transitional justice models.

‘Transitional justice talks to the moving away from positions of conflict to a post conflict scenario, where justice, truth and reconciliation can all happen simultaneously.’

‘I am not sure that we can say there’s a new epoch, but I do believe that there are very many opportunities for ADR practitioners in the Indigenous space from dealing with the sacred to the mundane, from the highly commercial native title compensation issues to the very emotional truth commission issues.’

The ADC thanks all three of our distinguished guest-speakers for bringing their immense wealth of experience and expertise to what was an outstanding and insightful seminar.

If you missed the seminar and would like the opportunity to hear all three presentations in full, the event video is downloadable on the ADC website HERE. link needed