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Indigenous Experiences in Negotiation
Loretta Kelly*
Editors’ Note: In a contribution likely to shake many readers’ implicit assumptions, an Australian Aboriginal mediator uses a detailed examination of one key type of case to examine how negotiators who make the common Western assumptions can trip over their own feet as soon as they find themselves negotiating with people who operate from totally different cultural assumptions. The lessons from this chapter are relevant even for ordinary negotiators with no plans to go to the outback.
This chapter is republished from the same editors’ Negotiator’s Fieldbook (American Bar Assoc. 2006). We appreciate the ABA’s courtesy in agreeing to this republication. Although this chapter was not updated for the NDR, we believe it continues to be a unique and valuable resource. Some formatting has been updated; the text of the chapter and the author’s bio are unaltered.
Negotiating with people from another culture can be awkward and taxing. When the other party is not only from another culture but is a community of people,[1] the difficulties are doubled. In this chapter I provide some hints for a ‘western’ negotiator when tackling such a situation. I write from my perspective as an Australian Aboriginal lawyer and mediator.
Although I have mediated many inter- and intra- cultural disputes,[2] it is my experience in native title negotiations that I draw upon in this chapter. Native title negotiations have become an excellent illustration of the problems that tend to arise in other settings. A little of the legal background, however, is necessary first.
Native title—also known in other Anglophile countries as ‘aboriginal title’—is a complex area of property law. It is an attempt to shoe-horn the Indigenous relationship to our land into a new category of Australian common law—native title—first recognized in the Australian High Court case of Mabo v. Queensland,[3] and consequently formalized by the Federal Government in statute[4] establishing the National Native Title Tribunal.
In some Australian states and territories, such as New South Wales (NSW), Aboriginal land rights were created prior to the Mabo decision. Land rights are purely a creature of statute, and quite distinct from native title. In NSW this form of land tenure was created in 1983 by the Aboriginal Land Rights Act. The interplay between title created by Aboriginal land rights legislation,[5] native title, Crown (‘state government’) title and leasehold title has created the sort of complexity in Australian property law not seen since we switched our system of freehold land tenure from ‘old system’ title (still prevalent in the United States) to statutory (‘Torrens’) title more than a century ago.
If we go a little further back in NSW history—to the early part of the 19th century—we see that the emerging law of the new colony of NSW (based entirely on British law) was complicit in, and adapted to suit, the progressive parceling-out of Indigenous lands (that is, the entire Australian continent and islands) to white ‘settlers’ without payment to, or treaty with, its Aboriginal and Torres Strait Islander owners. It is the ‘remnant’ lands—the (at the time) uneconomic land not wanted by either settlers or the government—with which both land rights and native title are principally concerned. These remnant Crown lands—mainly existing in the less populated areas of the country—provide less disputation than the far more contentious ‘leasehold lands.’ The latter are the vast (mainly) pastoral lands in western NSW, Queensland and Victoria (also northern South Australia and throughout Western Australia), often held under 99-year or perpetual leases. The other ground-breaking native title case, Wik,[6] held that native title could survive on leasehold land. The practical import of that decision, however, is the subject of ongoing, often heated, negotiation, mediation and litigation.
This history must be kept in mind when reading the following scenario, for it is only recently that Indigenous tenure of land (the sort of tenure that existed prior to invasion in 1788) has been recognized by the legislature and judiciary of Australia.
The scenario used here for illustration is an agglomeration of facts from the author’s experience on the management team of the Gumbaynggirr[7] Nation Aboriginal Corporation (which will hold the title to several small pieces of land on the north coast of NSW, if our native title claims are successful); my interviews conducted as part of an Australian Research Council grant with native title claimants, mediators and professional consultants (such as anthropologists); and my personal contacts with Aboriginal people from central Australia.
The scenario is intended to highlight aspects of negotiation with a non-western people that can easily go awry for a well-meaning ‘western’ negotiator. But it is not only that we are ‘the other’ (a non-western people) that makes the negotiation challenging; it is that we have been devastated by colonization, marginalized by dominant institutions, and stripped of dignity. In the midst of a wealthy nation, our people hang on to what little we have. It is no wonder a mindset exists in our community that whatever we have will be taken away.
…
For full contents please purchase The Negotiator’s Desk Reference.
Endnotes
*(from The Negotiator’s Fieldbook, ABA 2006) Loretta Kelly is a Gumbaynggirr and Dainggadi woman from the mid-north coast of New South Wales. Loretta was appointed as a lecturer at Southern Cross University in 1999, where she became the first tenured Goori (Aborigine) in an Australian law school. Since completing her B.A. and LL.B. in 1996, she has worked for a number of community and government organizations in dispute resolution and restorative justice. Her passion lies in the development of alternatives to the criminal, civil and family justice systems for her people. Loretta received a Young Australian of the Year Award in Community Service (2000), and has published extensively, trained many Gooris, and mediated countless disputes. But she found her own mediation with Yuludarra (the Father) through Christ.
[1] The community is usually represented by several people in the negotiation process.
[2] I use these terms to mean disputes between: a party who is of the minority culture and a party who is of the majority culture (inter-cultural); and parties who are both of the minority culture.
[3] (No 2) 175 C.L.R. 1 (1992).
[4] Native Title Act 1993 (Commonwealth of Australia).
[5] Only a few jurisdictions in Australia enacted statutes that gave ownership of land to Indigenous people. The one I am referring to is the New South Wales Aboriginal Land Rights Act (1983).
[6] Wik Peoples v State of Queensland 187 C.L.R. 1 (1996).
[7] Pronounced roughly as “goom [as in book]-bayn-gear.”
This chapter is republished from the same editors’ Negotiator’s Fieldbook (American Bar Assoc. 2006). We appreciate the ABA’s courtesy in agreeing to this republication. Although this chapter was not updated for the NDR, we believe it continues to be a unique and valuable resource. Some formatting has been updated; the text of the chapter and the author’s bio are unaltered.
Negotiating with people from another culture can be awkward and taxing. When the other party is not only from another culture but is a community of people,[1] the difficulties are doubled. In this chapter I provide some hints for a ‘western’ negotiator when tackling such a situation. I write from my perspective as an Australian Aboriginal lawyer and mediator.
Although I have mediated many inter- and intra- cultural disputes,[2] it is my experience in native title negotiations that I draw upon in this chapter. Native title negotiations have become an excellent illustration of the problems that tend to arise in other settings. A little of the legal background, however, is necessary first.
Native title—also known in other Anglophile countries as ‘aboriginal title’—is a complex area of property law. It is an attempt to shoe-horn the Indigenous relationship to our land into a new category of Australian common law—native title—first recognized in the Australian High Court case of Mabo v. Queensland,[3] and consequently formalized by the Federal Government in statute[4] establishing the National Native Title Tribunal.
In some Australian states and territories, such as New South Wales (NSW), Aboriginal land rights were created prior to the Mabo decision. Land rights are purely a creature of statute, and quite distinct from native title. In NSW this form of land tenure was created in 1983 by the Aboriginal Land Rights Act. The interplay between title created by Aboriginal land rights legislation,[5] native title, Crown (‘state government’) title and leasehold title has created the sort of complexity in Australian property law not seen since we switched our system of freehold land tenure from ‘old system’ title (still prevalent in the United States) to statutory (‘Torrens’) title more than a century ago.
If we go a little further back in NSW history—to the early part of the 19th century—we see that the emerging law of the new colony of NSW (based entirely on British law) was complicit in, and adapted to suit, the progressive parceling-out of Indigenous lands (that is, the entire Australian continent and islands) to white ‘settlers’ without payment to, or treaty with, its Aboriginal and Torres Strait Islander owners. It is the ‘remnant’ lands—the (at the time) uneconomic land not wanted by either settlers or the government—with which both land rights and native title are principally concerned. These remnant Crown lands—mainly existing in the less populated areas of the country—provide less disputation than the far more contentious ‘leasehold lands.’ The latter are the vast (mainly) pastoral lands in western NSW, Queensland and Victoria (also northern South Australia and throughout Western Australia), often held under 99-year or perpetual leases. The other ground-breaking native title case, Wik,[6] held that native title could survive on leasehold land. The practical import of that decision, however, is the subject of ongoing, often heated, negotiation, mediation and litigation.
This history must be kept in mind when reading the following scenario, for it is only recently that Indigenous tenure of land (the sort of tenure that existed prior to invasion in 1788) has been recognized by the legislature and judiciary of Australia.
The scenario used here for illustration is an agglomeration of facts from the author’s experience on the management team of the Gumbaynggirr[7] Nation Aboriginal Corporation (which will hold the title to several small pieces of land on the north coast of NSW, if our native title claims are successful); my interviews conducted as part of an Australian Research Council grant with native title claimants, mediators and professional consultants (such as anthropologists); and my personal contacts with Aboriginal people from central Australia.
The scenario is intended to highlight aspects of negotiation with a non-western people that can easily go awry for a well-meaning ‘western’ negotiator. But it is not only that we are ‘the other’ (a non-western people) that makes the negotiation challenging; it is that we have been devastated by colonization, marginalized by dominant institutions, and stripped of dignity. In the midst of a wealthy nation, our people hang on to what little we have. It is no wonder a mindset exists in our community that whatever we have will be taken away.
…
For full contents please purchase The Negotiator’s Desk Reference.
Endnotes
*(from The Negotiator’s Fieldbook, ABA 2006) Loretta Kelly is a Gumbaynggirr and Dainggadi woman from the mid-north coast of New South Wales. Loretta was appointed as a lecturer at Southern Cross University in 1999, where she became the first tenured Goori (Aborigine) in an Australian law school. Since completing her B.A. and LL.B. in 1996, she has worked for a number of community and government organizations in dispute resolution and restorative justice. Her passion lies in the development of alternatives to the criminal, civil and family justice systems for her people. Loretta received a Young Australian of the Year Award in Community Service (2000), and has published extensively, trained many Gooris, and mediated countless disputes. But she found her own mediation with Yuludarra (the Father) through Christ.
[1] The community is usually represented by several people in the negotiation process.
[2] I use these terms to mean disputes between: a party who is of the minority culture and a party who is of the majority culture (inter-cultural); and parties who are both of the minority culture.
[3] (No 2) 175 C.L.R. 1 (1992).
[4] Native Title Act 1993 (Commonwealth of Australia).
[5] Only a few jurisdictions in Australia enacted statutes that gave ownership of land to Indigenous people. The one I am referring to is the New South Wales Aboriginal Land Rights Act (1983).
[6] Wik Peoples v State of Queensland 187 C.L.R. 1 (1996).
[7] Pronounced roughly as “goom [as in book]-bayn-gear.”