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by Ciaran O’Faircheallaigh
Negotiated agreements are now being used extensively as a basis for addressing conflicts (or potential conflicts) arising from resource development on the traditional lands of Indigenous peoples. An agreement based approach enjoys strong support from Indigenous and non-Indigenous interests and from across the political spectrum.[1] However, reaching an agreement in itself neither resolves issues raised by resource development nor ensures that development delivers substantial benefits to Indigenous people.
Agreements must first be put into effect, and it is becoming increasingly apparent that successful implementation cannot be taken for granted. For example, in 2000 a native title party obtained an injunction in the NSW Supreme Court in relation to the alleged failure of a developer to implement cultural heritage provisions of a gas pipeline agreement and native title parties in Western Australia have initiated legal action in response to similar alleged failures.[2] A number of trusts established to manage and disperse financial benefits under agreements have yet to operate, including one established in 1997.[3] Recent studies and evaluations of native title and agreement-making in Australia have found extensive evidence of implementation failure.[4]
Some agreements are working well and have generated substantial benefits for Indigenous peoples over extended periods.[5] However, it cannot be taken for granted that concluding an agreement will ensure such an outcome – due attention to implementation (defined here as the initiatives and activities required to give effect to the provisions of agreements) is also essential.
Despite their importance, implementation issues receive virtually no attention in the literature on agreement-making in Australia. This focuses largely on the frameworks for negotiating agreements and particularly on relevant provisions of the Native Title Act 1993 (Cth), on requirements for successful negotiations and, to a much lesser extent, on the content of agreements.[6] This article uses the limited literature that does exist, combined with a more general review of literature on policy implementation[7] to identify critical issues that must be addressed to ensure successful implementation of agreements. The article then reviews some 40 mining agreements negotiated in Australia and Canada during recent decades to assess the extent to which they address relevant implementation issues. It concludes that, in general, implementation issues are dealt with poorly or entirely ignored by the agreements.
The following points emerge from a review of the existing literature on mining agreements and on policy implementation in general. A key finding of almost every study involves the need to allocate adequate and appropriate resources, financial and human, specifically for implementation functions. For example, if agreements provide for payments to native title parties through a trust, specific resources must be allocated to establish that trust and make it operational. Resources also need to be provided to support implementation structures for an agreement as a whole.
Structures are required to ensure that implementation issues receive sustained attention over time from senior personnel who have the authority to commit resources, and enforce decisions within organisations that are parties to agreements. It is important in this regard that structures exist whose primary purpose is to ensure that implementation occurs. In addition, mechanisms are needed to ensure regular review of progress on implementation, and to allow amendment of agreements where necessary to reflect changes in the goals of the parties, the parties’ experience and changes in the external environment.
Agreements should be drafted so that goals, commitments and responsibilities are unambiguous and concrete, yet sufficiently flexible to allow for the unexpected. Lack of clarity and precision in the expression of objectives or of responsibility for the tasks required to achieve them is widely recognised as a major barrier to successful implementation.
Agreements should include appropriate and credible measures to deal with failure by a party to fulfill commitments that are essential to implementation. In this regard a general right to take action for breach of contract may not be appropriate and credible, since a party may lack the resources required to pursue litigation whose outcome is uncertain. Parties may also be unwilling to threaten an agreement (and a wider relationship) that is delivering benefits in other areas.
A point that emerges clearly from the general literature on policy implementation is the need to achieve the support of key political actors. The same applies to agreements, which have little chance of being successfully implemented unless they enjoy strong political support. Goals and lines of responsibility may be clear, appropriate structures may be created and resources may be mobilised, but all of this may have little effect if critical political support is not available as implementation occurs.
Twenty Australian and 18 Canadian resource development agreements were reviewed in order to assess the degree to which they address implementation issues. All the agreements relate to substantial resource projects. About a third include government parties as well as Indigenous peoples and resource developers. Two thirds were negotiated during the period 1991 to 2001, the remainder between 1978 and 1991.
Confidentiality provisions and the absence of any central repository for information on agreements make it impossible to select a stratified sample of agreements. However, the group discussed here is broadly based in that it includes:
Access to some agreements was provided on a confidential basis for research purposes only, and so no information is included that might allow individual agreements to be identified.
To what extent do the agreements reflect the requirements for effective implementation identified in the previous section? In general, they deal poorly with implementation issues. A critical point involves the question of resources. Only seven agreements or less then 20 per cent of the total (four in Canada, three in Australia) allocate any resources to the task of implementation. Three Canadian agreements (all facilitated by the same individual) stand out in allocating substantial resources specifically to the tasks of implementation, monitoring and review. Under an agreement signed in the early 1990s, for instance, the developer and the Government of Canada (a party to the agreement) jointly allocate C$335,000 (indexed) per annum to these tasks. It should be stressed that these funds are not allocated to specific programs (for example training or business development), but to support the ‘administration, management and implementation of the Agreement’.
Turning to the issue of structures for implementation, a substantial number of agreements create a ‘coordinating’, ‘steering’ or ‘management’ committee with representation from each of the parties. These committees typically perform a range of functions, including liaison, dissemination of information and review or monitoring. However, in most agreements two factors detract from their potential role in ensuring effective implementation. First, they rarely provide any resources to support their operations. Only five of the 38 agreements provided any resources to support the operations of such committees, other than by requiring the project operator to pay for meeting costs.
Second and very importantly, in general there is a lack of provision for ensuring that committees receive regular input from key decision makers within organisations that are parties to agreements, input which as noted earlier is critical to successful implementation. One Canadian agreement stands out as an exception in this regard. A management committee is charged with implementation of this agreement as a whole. Its membership consists of an independent chairperson, the CEO of the resource company involved, the Chairman of the regional Band Council, the Chief of the Band and two public servants at deputy secretary level representing the federal and provincial governments. While members of coordinating committees, established under the agreement to deal with specific issues such as employment and training, may nominate representatives to attend meetings on their behalf, members of the management committee may not do so. This ensures that senior decision makers within each of the parties focus on implementation issues on a regular basis.
With a single exception, none of the agreements provide for penalties or sanctions for failure to honour specific commitments made by the parties, other than through an (often implicit) right of the aggrieved party to take court action for breach of the agreement. For example, the agreements that involve commitments in relation to employment and training or cultural heritage protection provide no indication of what consequences will follow if those commitments are not complied with. The exception involves a provision under which the project developer must increase expenditure on relevant activities if specific goals are not achieved.
Few agreements contain goals that are specific and unambiguous. In relation to employment, for instance, provisions typically refer to a desire to ‘maximise’ Indigenous employment, rather than to achieving specific proportions of Indigenous employment at different levels of the operation. In addition, use of terms like ‘as far as is practicable’, ‘as far as is reasonable’ and ‘reasonable efforts’ is common, creating further ambiguity regarding the specific nature of a party’s commitments.
In combination with the previous point regarding absence of specific remedies for breach, use of such general objectives and of ambiguous wording can, in effect, make relevant provisions of agreements unenforceable. Unenforceability is clearly not conducive to effective implementation.
As indicated earlier it is critical to successful implementation that agreements be reviewed on a regular basis and amended to ensure that goals are still relevant, to modify provisions that have proved ineffective or have served their purpose, and to adjust to changes in the external environment. A surprising finding is that less than half of the agreements (17 of the 38) include any provision allowing for a formal review of their terms. Critically, none provide separate funding to support review processes, or specify who should be involved in the review, how long it should take, what method of review should be employed, what information would be required to support the review, or what process would be used to deal with review findings. These omissions represent significant obstacles to the maintenance of an effective implementation effort over the life of an agreement.
It is not surprising that there is evidence of substantial implementation failure in relation to mining agreements. Many of them are poorly designed and drafted from an implementation perspective. Unless parties to agreements, their advisers and academic researchers pay considerably more attention to implementation issues, the ability of agreements to address issues related to resource development on Indigenous lands will be seriously compromised over the longer term.
In making this point, it is important to recognise the relevance of wider issues related to agreement-making as a whole. First, Indigenous parties often suffer from serious resource constraints (financial and organisational) in negotiating agreements, with the result that they must focus their attention on the most urgent tasks. These usually involve signing an agreement so as to deal with immediate pressures from developers and governments and to grasp available opportunities, which makes it difficult to achieve a substantial focus on implementation.
Second, negotiations often occur under tight time constraints. In particular, if a party involved in a right to negotiate under the Native Title Act 1993 (Cth) elects to proceed to arbitration, only six months is available to complete the negotiation process. It is difficult enough to reach an agreement within such a brief period, let alone devote any serious attention to implementation.
Third, scarce resources and limited time can make it impossible to address some more systemic and contextual but vital issues affecting implementation, for example mobilisation of political support.
Finally, much of the actual process of designing and drafting agreements is undertaken by non-Indigenous technical staff, who typically work with specific Indigenous organisations for brief periods of time and indeed often move onto another negotiation as soon as one is completed. These individuals build a professional reputation by facilitating the conclusion of agreements (not their implementation over extended periods of time), and they are rarely still working with an Indigenous organisation by the time the consequences of implementation failure become apparent. Therefore, it would not be surprising if they tend not to focus on implementation. This last issue can only be addressed if Indigenous groups enhance their capacity to conduct negotiations using their own, internal resources so that the people and organisations that negotiate agreements are the same as those who have to implement them.
Ciaran O'Faircheallaigh is a Professor and Head of the School of Politics and Public Policy, Griffith University, Brisbane. He has advised Aboriginal organisations in Australia on negotiation of mining agreements for over a decade and was Senior Consultant, Major Projects, to the Cape York Land Council from 1995 to 2001.
[1] See for example P Dodson, 'Welcome on behalf of the organisers' in G Meyers, National Native Title Tribunal (eds), The way forward: Collaboration and cooperation ‘in country’ (1996) 5; P Wand, 'Negotiating with Aboriginal people for land access' (Paper presented to the Symposium on native title: Facts, fallacies and the future, University of New South Wales, 30 May 1998); D Manzie, 'Welcome by Northern Territory Government’ in G Meyers, National Native Title Tribunal (eds), The way forward: Collaboration and cooperation ‘in country’ (1996) 3.
[2] S Phillips, 'Enforcing native title agreements' [2000] IndigLawB 65; (2001) 5(3) Indigenous Law Bulletin 14; 'Aborigines to sue miner', Sunday Times (Perth), 28 April 2002.
[3] Details of the trusts concerned are not provided for reasons of confidentiality and to avoid causing any offence to individuals or groups involved.
[4] (i) C O’Faircheallaigh and R Kelly, ‘Human rights, native title and agreement making’ (Report to the Human Rights and Equal Opportunity Commission, Griffith University, 2001); (ii) C O’Faircheallaigh, A new approach to policy evaluation: Indigenous people and mining (2002).
[5] O’Faircheallaigh, above n 4(ii), chapter 7.
[6] J Altman, ‘The Native Title Act 1993: Implementation issues for resource developers’ (Discussion Paper No 88, Centre for Aboriginal and Economic Policy Research, Australian National University, 1995); P Burke (ed), The skills of native title practice (1996); G Meyers (ed) Implementing the Native Title Act: First steps, small steps (1996); Indigenous Support Services, ACIL Consulting, 'Agreements between mining companies and Indigenous communities: Report to the Australian Minerals and Energy Environment Foundation', (2001); S McKenna, 'Negotiating mining agreements under the Native Title Act 1993' (1995) 2(3) Agenda 301; C O’Faircheallaigh, ‘Mineral development agreements negotiated by Aboriginal communities in the 1990s’ (Discussion Paper No 86, Centre for Aboriginal and Economic Policy Research, Australian National University, 1995); R Howitt, J Connell and P Hirsch ‘Negotiating with resource companies: Issues and constraints for Aboriginal communities in Australia’ in Resources, nations and Indigenous peoples (1996) 184; C Senior, ‘The Yandicoogina process: A model for negotiating land use agreements’ (Regional agreements paper No 6, AIATSIS, 1998).
[7] Brief comments on implementation issues associated with mining agreements are offered by R Blowes and D Trigger 'Negotiating the Century Mine Agreement: Issues of law, culture and politics' in M Edmunds (ed), Regional agreements in Australia: Vol 2: Case studies (2000) 85; C O'Faircheallaigh, ‘Negotiating major project agreements: The Cape York model’ (Discussion Paper No 11, AIATSIS, 2000); D E Smith, ‘Indigenous land use agreements: The opportunities, challenges and policy implications of the amended Native Title Act’ (Discussion Paper No 163, Centre for Aboriginal and Economic Policy Research, Australian National University, 1998); An extensive review of the policy implementation literature is provided by C O'Faircheallaigh, above n 4(ii), Chapter 2.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2002/60.html