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Agreement Making

Agreement Precedents: A Knowledge Management Initiative for NTRBs

The NTRB knowledge management project: Agreement Making commenced in October 2009 with the aim of examining options for the development of an agreement precedents database for Native Title Representative Bodies and Native Title Service Providers (NTRBs). The initial pilot phase concluded successfully at the end of 2010 with the online launch of a prototype of this database – known as the NTRB Legal Precedents Database. Building on the success of the pilot, the project was expanded in 2011 to include 80% of NTRBs Australia-wide. Each of these NTRBs contributes precedents and related information to the database, and importantly, access is restricted to those participating NTRBs. The 2011 expansion also saw the addition of new categories of precedents, including Court and Tribunal documents and documents relating to the establishment of prescribed bodies corporate and other corporate and trust structures.

The inception of this project lay in the priority status of agreement-making for the native title sector and for the Australian Government. At the Native Title Ministers Meeting in Adelaide on 29 August 2009 it was recognised that native title can provide opportunities and outcomes for Indigenous people through facilitation of broader settlement packages. The Guidelines for Best Practice devised by the Joint Working Group on Indigenous Land Settlements has similarly structured its directives based on this principle. It recognises that practical and sustainable outcomes are desirable. In addition, an Australian Government discussion paper on optimising benefits from native title agreements has recognised that agreements arrived at from within the native title framework provide a major form of engagement between Indigenous groups, industry and governments.

It is generally acknowledged, however, that significant challenges and opportunities remain in improving the efficiency and effectiveness of agreement making. Among other things, these challenges and opportunities engage with issues of capacity, transparency and confidentiality.

This project responds to calls for resources to address these issues. In practical terms, the project involves the collation, analysis and dissemination of agreement data of precedential value for use by NTRBs, and builds on previous efforts to create open-access databases. In doing so, the project also serves to implement a national knowledge management system to ensure the ongoing accessibility and maintenance of the information collected over the course of the project. The database itself is modelled on the knowledge management systems used by larger law firms. It aims to provide two primary benefits: promote best practice in both the form and content of agreements, and reduce duplication of effort by NTRBs thereby increasing transactional efficiencies. The project also tests possibilities for increased communication and coordination among NTRBs.

With guidance from an Advisory Group of NTRB representatives, the first round of information gathering and analysis was completed in 2010, with participating NTRBs themselves acting as the primary information source. During this process, agreements and agreement clauses suitable for use as precedents were gathered, sanitised (to remove confidential information) and subsequently uploaded onto the database for dissemination among participants. For the sake of clarity and simplicity during the initial stages, mining and exploration agreements were targeted. Information gathering will be an ongoing process for the life of the project, however, and during successive iterations other classes of precedent will also be sourced in line with priorities set by the Advisory Group.

Following the successful launching of the upgraded and expanded website in October 2011, the priorities for the project are to consolidate and improve the content of the database (including the newly added categories of precedents), to encourage users to develop work systems that make the best possible use of resource, and to produce some in-depth analysis that will add value to this unique collection of material.

Contact Information

For further queries please contact Nick Duff

Email: nick.duff@aiatsis.gov.au
Phone: 02 6246 1160