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Mediation, Negotiation & Facilitation
Mediation & Negotiation
This project focuses on three central themes:
1. Negotiation: The nature of the negotiation process in native title agreement making is critical to the success and sustainability of the agreements. This Project builds on the research of the Indigenous Facilitation and Mediation Project (2003-2006) and the Negotiation Workshop held in 2009. In partnership with the Kimberley Land Council (KLC) and negotiation expert Ciaran O’Faircheallaigh, the project will include: identifying good practice negotiation; developing materials for NTRBs around negotiating native title agreements; and 1-2 day workshop with traditional owners and NTRB staff.
The KLC has offered to provide their collection/archive of material regarding negotiations for development as an accessible 'hands-on package' for other NTRBs and Traditional Owners in entering negotiations.
The NTRU will also seek pro bono contributions from high profile mainstream negotiation experts to participate in a workshop with CEOs.
2. Anthropology in mediation and dispute: Anthropologists often approach their work as having concluded once appropriate native title holder groups have been identified and ‘connection’ has been established. However, anthropology has much to offer in its application to decision-making and dispute management. This project will analyse the role of anthropology and anthropologists in agreement-making and identify best practice in doing so.
- Martin, D., Bauman, T., and Neale, J (2011) Challenges for Australian native title anthropology: practise beyond the proof of connection, AIATSIS Research Discussion Paper 29, Native Title Research Unit, AIATSIS, Canberra.
3. Mediation in the Federal Court: The project will describe and evaluate new approaches to decision-making and dispute management which may be introduced by the Federal Court in its new role under the NTA. The project will build upon previous NTRU research:
- Pope, J., and T. Bauman (2008) Solid work you mob are doing: Case Studies in Indigenous Dispute Resolution & Conflict Management in Australia
2.1MB. Federal Court of Australia, Melbourne.
Workshop papers and presentations
The Native Title Research Unit has coordinated and been involved workshops related to negotion in native title.
Pacific-Asia Partnerships in Resource Development in PNG Symposium, Divine Word University in Madang, Papua New Guinea, 18-20 October 2010
Ms Bauman facilitated two sessions on negotiation and agreement making in the Asia-Pacific context, and presented a paper on Australian native title agreement-making and disputes. The facilitated sessions considered questions arising from the symposium papers such as: ‘What does development mean to you?’; ‘How can meaningful engagement occur with landowners, new and old Chinese, students, academics, and developers?’; ‘Are Papua New Guineans racist?’; and ‘Why do people agree and sign agreements when they don’t understand what they’re signing?’.
Ms Bauman's paper, The Australian native title agreement-making landscape: engaging in-between and negotiating cultural difference, noted significant exploration activity by China in Australia and used the Wik/Aurukun Chalco proposal as an example of where traditional owners seemed happy with the process, but also suffered significant social impact when the project failed to go ahead.
- Bauman, Toni 2010. ‘The Australian native title agreement-making landscape: engaging in-between and negotiating cultural difference’, presentation to Pacific-Asia Partnerships in Resource Development in PNG Symposium, Madang, Papua New Guinea, 19 October
Aurora Field Officer Workshop, Perth, 11 November 2010
Ms Bauman presented a session on Indigenous decision making and dispute management processes to an Aurora Field Officer workshop.
- Bauman, T 2010, ‘Exploring Traditional Owner Interests in Decision Making and Dispute Management’, Aurora Field and Liaison Officer Training, Aurora, Perth, 11 November.
Australian Anthropological Society (AAS) Conference 2009: The Ethics and Politics of Engagement, Macquarie Universit y, Sydney, 10 December 2009
Ms Bauman co-convened a one-day stream with Dr Kingsley Palmer (Appleby Consulting) at the Australian Anthropological Society (AAS) Conference 2009 ‘Applied anthropology in native title in Australia: dilemmas in ‘proving’ connection and continuity in normative systems’. This session involved the presentation of 6 papers followed by a panel discussion involving David Martin (Anthropos Consulting), Katie Glaskin (University of Western Australia), David Trigger (University of Queensland), Wendy Asche (Northern Land Council). Details of the papers presented are outlined below:
- Palmer, K, 2009, Understanding another ethnography: the use of earlier texts in native title inquiries
- Burke, P, 2009, Overlapping jural publics: a model for dealing with the 'normative system' and 'society' question in native title
- Pilbrow, T, 2009, Embracing our hallmark latencies: on centering anthropological practice
- Morton, J, 2009, Working With, For and Against the Act
- McCaul, K, 2009, “Title Competing narratives” and “interest based negotiations”: two approaches to settling native title claim with differing impacts on ethnographic analysis
- Bauman, T, 2009, ‘Serendipity is not enough! State and Territory connection processes in an ever changing legal and policy native title environment
Ms Bauman’s presentation at the conference addressed issues of goodwill in processing connection if flexibility and non-technicality is to be achieved; the presumption of continuity; minimum thresholds and disputes. The paper highlights the importance of the Victorian Settlement Framework in providing a model for reaching more flexible and non-technical processes.
Approximately 60 participants attended throughout the day despite a strongly competitive program. The NTRU is in the process of transcribing discussions which will be included in a volume co-edited by Ms Bauman and Dr Kingsley Palmer.
Ms Bauman also co-convened a stream on issues of anthropological representation and positionality in contemporary practice with Dr Sarah Holcombe (Australian National University) for the Australian Anthropological Society (AAS) Conference 2009: the ethics and politics of engagement. Papers arising from this are being prepared for publication in an edited volume.
Aurora Researchers’ Workshop, Toowong, Brisbane, 29 October 2009
Ms Bauman co-convened with Dr David Martin (Anthropos Consulting) two sessions on Indigenous decision making and dispute management in native title agreements for an Aurora Researchers’ Workshop. The first session on decision-making was presented and facilitated by Dr Martin; the second on dispute management by Ms Bauman. Both sessions were aimed at establishing the roles anthropologists might play in decision making and dispute management and agreement-making more generally. An NTRU issues paper to be co-authored by Toni Bauman and Dr Martin will be published before the end of the financial year.
Negotiation Workshop, Sydney, 19 March 2009
On 19th March 2009, a one day negotiation workshop was held in Sydney for Native Title Representative Body staff in association with FaHCSIA’s Senior Policy Officer forum. The workshop was facilitated by Shirli Kirschner of Resolve Advisors.
The morning was taken up with the filming of a negotiation hypothetical, the panel consisting of a range of representative stakeholders including: Denise Lovett, CEO Gunditj Mirring Traditional Owners; Des Hill, Ord Final Agreement Projects Implementation Officer, Yawoorroong Miriuwung Gajerrong Yirrgeb Noong Dawang Aboriginal Corporation (MG Corp); Wayne Bergmann, CEO, Kimberley Land Council; Dr Mary Edmunds, Anthropologist and previous lead negotiator Rio Tinto in the Pilbara; Ian Dixon, Dixon Partnership Solutions; Shawn Whelan, Senior Consultant at CMA (Conflict Management Australasia); Christine Charles, previously Newmont Australia and Member of the Indigenous Relations Group, Minerals Council of Australia; and John Litchfield, Family and Housing and Community Services and Indigenous Affairs (FaHCSIA), Land Policy Section Manager, Land Reform Branch, Indigenous Remote Service Delivery Group.
The afternoon had two training ‘taster’ sessions: Shawn Whelan formally a native title lawyer and now a mediator and trainer of negotiators, discussed the structure of negotiation in terms of 7 interest-based elements and their use. Lynora Brooke who is a trainer and conflict coach for senior managers, a facilitator and mediator with cross disciplinary skills, and has worked in the Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY) Women’s Council, Alice Springs ran a session identifying triggers or ‘buttons’ which get pushed within or across the teams, strategies for dealing with them and the power of language working in large groups.
The film will be available from the NTRU on request from NTRBs for training purposes and a copy is deposited in the AIATSIS library.
A draft paper titled ‘Scoping Process Issues in Negotiating Native title Agreements’ was prepared by Ms Delwyn Everard for the NTRU was distributed to participants in the negotiation workshop (see above) and informed the design of the negotiation hypothetical. Following the workshop the paper was revised, peer reviewed and has now been published.
The paper was informed by a number of interviews with a number of people who have had significant experience in native title negotiations, who generously gave their time and provided a range of unique perspectives on native title negotiations: Mr Damein Bell, Gunditjmara traditional owner, chairman of the Gunditj Mirring Prescribed Body Corporate and Lake Condah Sustainable Development Project Manager; the Hon Fred Chaney, AO; former Deputy President of the National Native Title Tribunal; Dr Mary Edmunds, formerly lead negotiator of the Rio Tinto Iron Ore Pilbara Aboriginal Agreements Project ; Mr Des Hill, traditional owner of Miriuwung Gajerrong country and the Ord Final Agreement Project Implementation Officer for Yawoorroong Miriuwung Gajerrong Yirrgeg Noong Dawang Aboriginal Corporation; Mr Simon Hawkins, CEO of Yamatji Marlpa Aboriginal Corporation (YMAC); Ms Kirsten Isaacs, former NTRB legal adviser and State government native title negotiator; Ms Denise Lovett, Gunditjmara traditional owner and CEO of Gunditj Mirring prescribed body corporate; Dr David Martin, Director Anthropos and anthropologist; Ms Julie Melbourne, former general manager of the Yawoorroong Miriuwung Gajerong Yirrgeb Noong Dawang Aboriginal Corporation; Professor Ciaran O'Faircheallaigh, Griffith Business School, Griffith University; Ms Margaret Scott, senior consultant, Westwood Spice Consulting; and Mr Shawn Whelan, negotiator and conflict resolution trainer.
- Everard, D. 2009. Scoping process issues in negotiating native title agreements, Native Title Research Discussion Paper No. 23, Native Title Research Unit, Australian Institute for Aboriginal and Torres Strait Islander Studies: Canberra.