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

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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

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Commercial Negotiation with Indigenous peoples
28 November 2006

• Introduction
• Background
• Negotiation technique and strategy
• Conclusion

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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

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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

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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

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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

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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

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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

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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

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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

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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.