Trust and relationship building in native title negotiations

The following post is by a member of our Network – Lily O’Neill. Lily is a negotiation researcher looking primarily at native title negotiations.  She also teaches Dispute Resolution at Melbourne Law School, and presented her PhD research at the civil justice conference in Adelaide in February.

This blog post considers the importance of trust and relationship building in native title land access negotiations. It focuses on the negotiations that led to the Browse liquefied natural gas (LNG) agreements of 2011.[1] Like the literature on negotiation and mediation more broadly, building trust and good working relationships between governments, traditional owners and companies is often said to be a key potential benefit of these negotiations. Yet, as detailed here, there is a danger that negative impressions formed during negotiations can colour participants’ views of opposing parties’ motivations, even when they believe a reasonable deal has been struck.

The Browse LNG agreements, concluded by Goolarabooloo/Jabirr Jabirr traditional owners, Western Australia and Woodside Energy in mid 2011, were said to be worth $1.5 billion to traditional owners, and ‘much more positive’ than those typically achieved in negotiations between extractive industries and Aboriginal people.[2] These agreements were negotiated between 2007 and 2011.

Interviewees from all negotiation parties agreed that trust and relationship building should be important goals of native title negotiations, noting that they are particularly important attributes for implementing an agreement. Wayne Bergmann of the Kimberley Land Council, for example, said that where parties do not have a good relationship, agreements “don’t deliver half of what they should”.

However the parties viewed the negotiations in very different terms after the agreement was concluded. Negotiators from Western Australia and Woodside largely felt that while the negotiation had been “robust”, it had resulted in significant trust developing between all parties. One government negotiator described the feeling in the negotiation room as like:

“Stockholm syndrome – everyone became committed to each other in some sort of way or affected by the outcome and the desire to not see hurt, the desire to see everyone come out as a winner.”

Traditional owners and those working for them expressed a very different view. The negotiations were “long, protracted, quite bloody”, said one. Western Australia and Woodside had been “disingenuous” and had viewed traditional owners as “a thorn in their side … and they would do almost anything to get that thorn out”, said another. Of the company, a traditional owner said “you can’t take them at face value, they bullshit you.”

When interviewees were asked why parties had such different views of this aspect of the negotiations, two key reasons emerged.

The first was that traditional owners felt at a disadvantage in negotiations. A negotiator for traditional owners said:

“I think that we always had the David and Goliath, so we were very defensive.  Ready to take offense at anything, even sometimes when I don’t think they were actually intending to. If you think you are the underdog and you are fighting your way up, you have a certain attitude.”

The second was that both professional and non-professional negotiators conducted negotiations. Two senior government officials observed that traditional owners who had never experienced commercial negotiations were sometimes visibly upset by adversarial tactics because “they weren’t in on the gamesmanship of it all”. One reflected that Western Australia’s negotiation approach might have been different had they known from the outset that non-professional negotiators would be in the negotiation room.

These are lessons that are useful for all types of negotiations where trust and relationship building should be key negotiation outcomes.

[1] The information contained in this blog post is based on my PhD research: see Lily O’Neill, ‘A Tale of Two Agreements: Negotiating Aboriginal Land Access Agreements in Australia’s LNG Industry’ (PhD thesis, 2016). Available https://minerva-access.unimelb.edu.au/handle/11343/111978. This research used a comparative case study analysis to empirically examine the land access negotiations that led to agreements for Browse LNG in the Kimberley, Western Australia, and Curtis Island LNG in central Queensland. Among other data, it analysed 53 interviews conducted with negotiation participants from all negotiation parties.

[2] Ciaran O’Faircheallaigh, ‘Extractive Industries and Indigenous Peoples: A Changing Dynamic?’ (2013) 30 Journal of Rural Studies 20, 28. Note that in April 2013 Woodside announced that it was pulling out of the development option as detailed in the agreements, leaving large aspects of them likely unenforceable.

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About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

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