Written guide to Figure 1: The two stages of negotiation of a Traditional Owner Settlement Agreement
Figure 1 appears in the printed book version of the Threshold Guidelines, and sits between Parts3 and 4 of the guidelines. It is not attached to the Word version of the Threshold Guidelines, which is text only and was prepared to meet online accessibility requirements.
This document describes the flowchart content in written text, and has also been prepared in order to meet online information accessibility requirements.
Figure 1 contains a flowchart and a legend. The flowchart depicts the processes involved in two key stages of negotiation of a Traditional Owner Settlement Agreement: Stage One covers threshold negotiations, while Stage Two covers the settlement negotiations. The legend provides further text about each step along the way. The process flow starts with preparation of a threshold statement and, where thresholds are met and negotiations are completed, ends with the settlement agreement coming into force. The sequence of steps where thresholds are not met is also depicted.
The following describes the flowchart and provides the expanded information contained in the legend beside it. It is a sequential process; however, in the Stage One threshold negotiations it is not linear. Threshold issues may be identified which warrant discussion and efforts at resolution via a threshold conference, before the matter can proceed to the next step. Such issues may be identified either from the State’s evaluation of the Part A threshold statement, and/or from submissions received during the threshold notification process, and/or from the State’s evaluation of the Part B threshold statement. Stage Two is a linear progression.
Preparation of the Threshold Statement
Traditional owner group: seeks support of NTSV; for the Part A threshold statement this includes taking part in research, settling decision-making, making key decisions on group composition and extent of country, seeking agreements with neighbouring groups, preparing a statement of association and endorsing a Part A statement; for the Part B threshold statement this includes nominating a group entity (corporation), appointing a negotiation team, preparing a strategic plan and endorsing a Part B statement.
Native Title Services Victoria (NTSV): considers applications for assistance, seeks consent for and undertakes research and community outreach, presents research findings to the group, supports capacity building, facilitates discussions with neighbours, assists with nomination of the group entity and strategic planning, and prepares Part A and B threshold statements.
State agencies: provide process information about the process (DJR), mapping assistance (DJR with NNTT, OAAV and DELWP), agreement-making and capacity building support (RPfC and OAAV) and research cooperation (between DJR, VAHC and NTSV).
STAGE ONE: THRESHOLD NEGOTIATIONS
Lodgement of the Part A Threshold Statement
Evaluation of Part A Threshold Statement (right group and country)
DJR provides a written evaluation of the Part A Threshold Statement against Part 4 of the Threshold Guidelines:
A1. Statement of intent to negotiate
A2. Traditional owner group statement of association to country
A3. Description and basis of traditional owner group
A4. Description and basis of proposed agreement area
A5. Research process overview, chronology and findings
A6. Traditional owner group decision-making
If no significant outstanding Part A issues identified, the matter may proceed to threshold notification.
Threshold notification
DJR and the traditional owner group settle the public documents and map.
DJR gives notice to the wider Victorian traditional owner community and invites submissions: Is it the right group for the proposed area? Does it include all the members of that group? Have all members had a reasonable opportunity to participate in the full group decision making?
Notice is given via print media, letters and online at www.justice.vic.gov.au. DJR also writes to the VAHC, and to NTSV, if not assisting the group. No confidential submissions will be accepted. The traditional owner group seeking a settlement has a right of reply.
Part A thresholds are met.
If no significant outstanding Part A issues arise from threshold notification, then
DJR will advise the traditional owner group that Part A requirements are met.
Threshold conferences
DJR meets with the traditional owner group to provide and discuss the evaluation (Part A and/or Part B).
If outstanding threshold issues (from Part A or B) are identified, the parties will seek to develop strategies to address them, such as: topic-specific conferences, agreement-making assistance under RPfC, mediation, additional research, independent expert advice or reviews and conferences of experts.
If submissions from threshold notification raise outstanding threshold issues, threshold conferences may be convened to discuss and address these.
Once significant outstanding issues are resolved, the matter can proceed further.
Lodgement of the Part B Threshold Statement
Evaluation of Part B Threshold Statement (negotiation readiness)
DJR provides a written evaluation of the Part B threshold statement against Part 5 of the Threshold Guidelines.
B1. Appointment of traditional owner group entity
B2. Statement of negotiation capacity
B3. Strategic plan
Part B thresholds are met
DJR advises the traditional owner group that Part B thresholds are met.
Thresholds not met
Significantly flawed or vexatious statements are returned to the traditional owner group early on. DJR provides brief reasons for the decision not to evaluate further.
OR
DJR considers that, despite best efforts to address outstanding issues, thresholds (Part A and /or Part B) are not able to be met. DOJ provides reasons for decision.
STAGE TWO: SETTLEMENT NEGOTIATIONS
Commitment to proceed to Stage Two negotiations
The government and traditional owner group confirm their mutual commitment to proceed to Stage 2 settlement negotiations, marked by a milestone event.
Settlement negotiations
Negotiations proceed, including:
· negotiation plan and timetable agreed
· agreement-in-principle sought for each element of settlement package
· agreement documents drafted
· agreements authorised by full group
· agreements endorsed by government.
Signing ceremony
Agreement documents executed by Ministers and traditional owner group at a signing ceremony.
ILUA registration
NTSV certifies the ILUA application for registration made to the NNTT Registrar. The NNTT runs a 3 month public notice process, and considers any objections received. The NNTT Registrar makes a registration decision. (If negative, the parties must remedy).
Following a positive registration decision, the NNTT enters the ILUA on the Register of Indigenous Land Use Agreements.
The traditional owner group discontinues native title or compensation claims in the Federal Court (if any).
Settlement agreements come into force
The traditional owner group and the State celebrate the commencement of the settlement agreements in a public ceremony!!
Implementation commences.
Acronyms:
DOJ Department of Justice & Regulation
DELWP Department of Environment Land Water Planning
ILUA indigenous land use agreement, under the Native Title Act 1993 (Cth)
OAAV Office of Aboriginal Affairs Victoria
NNTT National Native Title Tribunal
NTSV Native Title Services Victoria Ltd, the native title service provider for Victoria
RPfC Right People for Country Project
TOGE Traditional Owner group entity
VAHC Victorian Aboriginal Heritage Council.