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Agreement Making

Agreement Precedents: A Knowledge Management Initiative for NTRBs

The AIATSIS ''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 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. Importantly, access is restricted to NTRBs and native title service providers. Building on the success of the pilot, 2011 will see the project rolled out to over 75% of NTRBs Australia-wide. Each of these NTRBs will contribute precedents and related information to the initiative.

The inception of this project lies 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 29th 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, a recent 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 has been completed, 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.

2011 is set to be a significant year for the project. Given the role of participating NTRBs as both strategic advisors and primary information source, and given the significant increase in NTRB participation following the successful conclusion of the pilot, the database is set to expand significantly in both size and scope over the next 12 months.

Contact Information

For further queries please contact Catherine McLeish
Email: catherine.mcleish@aiatsis.gov.au
Phone: 02 6246 1160