What to do if your relationship with the Traditional Owners has gone pear-shaped

Aboriginal Corporation not taking your calls? Can’t get a meeting to start land access negotiations?

As someone who specialises in resolving conflicts between Traditional Owners and mining companies, I regularly see situations where the relationship has soured.   At the risk of putting myself out of business, the truth is that when I’m brought in to “fix” a situation the solution is usually not particularly complicated. 

In doing this work, I have learned valuable lessons which can serve as tips for companies to recover from poor Traditional Owner engagement and improve their negotiations.

1: Listen

Too often when companies start negotiations, they go in with a pre-baked idea of what a good agreement looks like and then impose this in the negotiation.  While usually well-intentioned, this is likely to waste time and is patronising.  Instead, ask the Traditional Owners what a successful agreement looks like and listen to what they say. 

For example, I was brought in to close an "intractable" negotiation between Traditional Owners in the Pilbara and a major iron ore mining company.  I met with the group and asked what the issue was with the attractive financial and non-financial benefits on offer.  It only took an hour to understand that they did not want more scholarships, which the company felt strongly about.  This particular group had more scholarships than kids to use them as they had several project agreements.  Instead, they needed resources so that their elders could live out their years comfortably.  This was easily achievable within charitable trust guidelines.  In the space of an afternoon, the “intractable” negotiation was finalised. 

2:  Be Flexible

In a similar vein, recognise that Traditional Owner groups across the State have their own cultural, social, and economic considerations. Avoid taking a one-size-fits-all approach and be willing to customise agreements based on what the Traditional Owner group wants. Be open to exploring different options and finding creative solutions that can meet the interests of both parties.

For example, if someone has negotiated one agreement, then it is a mistake to think that that is the only way agreements are negotiated – we call them “one agreement wonders”!!  Do not make that the benchmark of a good agreement or the only way it is done. 

3: Be Transparent

Transparency is key in building trust and credibility with Traditional Owner groups. Provide adequate information about the project, including financials, to facilitate an informed decision.  Don’t withhold information as it will breed suspicion and hinder progress. Be upfront about the project's viability and impacts, providing supporting evidence. 

Recently, a client advised that their project is marginal compared to the “big end of town”.  It’s important to know that I have heard this at least 100 times and if I’ve heard it, then Traditional Owners have heard it too.  That same client then released an ASX announcement the next day talking the project up.  Not a good look. 

4: Walk the Talk

Consistency is crucial to credibility and building trust.  It’s important to “walk the talk”.  Don’t boast about your ESG credentials and then dispute the significance of an important Aboriginal cultural heritage site. Don’t take #solarpanelselfies while dragging out negotiations unnecessarily, or worse, being in litigation with your Traditional Owner stakeholders.  Don’t promote your Aboriginal contract spend only to refuse a small Aboriginal Corporation’s request for your decommissioned dongas so that they can win a contract with an infrastructure provider. 

5: Long-term Relationship Building

Building meaningful relationships with Traditional Owner groups requires a long-term perspective. Avoid treating negotiations as a one-time transaction, or going for a short-term win that will bite you down the track.  Instead, the very first day of the negotiation is the opportunity to establish a relationship.  This will help in fostering positive relationships that can withstand challenges and conflicts in the future.

In conclusion, recovering from poor Traditional Owner engagement in a negotiation requires active listening, flexibility, transparency, consistency and a long-term relationship-building mindset.  As a negotiator, I have learned that by prioritising meaningful engagement, companies can navigate challenges, recover from setbacks, and create successful outcomes in negotiations.  Effective engagement with Traditional Owner groups will lead to sustainable partnerships and create a positive impact on communities, businesses, and the environment.