Indigenous Agreements Research - Background
The last two decades have seen significant changes in the relationship between indigenous people and resource management. Previous practices, in which governments and developers simply dealt with land and resources while ignoring indigenous interests in that land, are no longer accepted. There is a growing preference for negotiated outcomes, where developers and/or governments seek agreement with indigenous parties in relation to developments which will affect them.
Even though there is more emphasis on negotiated outcomes, agreements with indigenous parties are not new. There are many court and tribunal decisions interpreting and applying agreements, and other legal documents, involving indigenous people. The significance of these agreements cannot be underestimated - documents from the 1800's are still being used by courts today in deciding contemporary legal relations involving indigenous parties. Some court/tribunal decisions result in agreements operating as the contracting parties intended, but other decisions involve companies and indigenous parties being frustrated by the unintended effects arising from the interpretation and effect given to earlier documents.
There are many different types of documents involving indigenous parties, such as treaties (with a former colonial force or national government), contracts with a mining company, or declarations by official bodies. Court/tribunal approaches to interpretation differ according to what 'type' of agreement has been made. Nevertheless, valuable guidance for developer-indigenous agreements can be derived from court decisions involving all these types of agreements.
In common law jurisdictions, court/tribunal decisions provide important guidance to assist negotiating parties to structure and write an agreement that will give legal effect to their intentions. This study focuses on courts/tribunals' engagement with indigenous agreements across four countries: Australia, Canada, New Zealand and the United States.
There is little trans-national research on courts/tribunals' interpretation of indigenous agreements. The studies and analysis that exist mainly consider indigenous agreements from different or broader aspects (eg. their social or political effects, their implementation etc) or are jurisdiction-specific.
Companies and indigenous parties negotiating and writing agreements would benefit from a comprehensive record of all the court decisions dealing with agreements or documents involving indigenous parties. A searchable database will enable parties to quickly identify previous statements of courts/tribunals, to be used in further research or in drafting or understanding agreements.
Methodology
The project received funding from the Nuffield Foundation which enabled a Researcher to be hired to undertake most of the reading, analysis and drafting of database entries. The project was fortunate to engage as a Researcher, Obinna Dike (BL, LLB, Barrister and Solicitor of the Supreme Court of Nigeria), who worked on this project throughout 2009. The database's compilation and editing was overseen by John Southalan, Rio Tinto Research/Teaching Fellow at CEPMLP. We are extremely grateful to CEPMLP's IT Manager, Angela Dunsire who constructed the database.
The Nuffield Foundation is a charitable trust with the aim of advancing social well-being. It funds research and innovation, predominantly in social policy and education. It has supported this project, but the views expressed are those of the authors and not necessarily those of the Foundation. More information is available at www.nuffieldfoundation.org.
List of decisions and commentary for database
The following lists comprise the materials (court decisions, academic articles) that were reviewed in compiling the database. The lists include many materials that are not summarised in the database because they say nothing specifically on how courts interpret/approach agreements involving indigenous parties. However the following lists do provide a comprehensive overview of materials on indigenous/resources/agreements issues.
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For the list of court/tribunal decisions, click here.
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For the list of commentary and other material about court/tribunal decisions and indigenous agreements, click here.