Aboriginal Australians' Cultural Norms for Negotiating Natural Resources


Intercultural approaches to both negotiation and dispute resolution need to be developed from an understanding of both cultures for which the particular approach is intended. It is not sufficient to assume that well-tried western models, such as the Harvard approach (Roger Fisher and William Ury 1981) or the set of approaches promoted by Australia's Conflict Resolution Network (Helena Cornelius and Shoshana Faire, 1989))0 will work, or can be adapted directly for intercultural encounters. Intercultural approaches to negotiation need to be developed in an egalitarian way, which gives the underlying assumptions and modes of interaction of the non-western cultures, at least as much role as the western ones, preferably more. Ideally, intercultural teams should work together in developing such approaches.

This article to describe some of the aspects of Australian Aboriginal decision-making and dispute resolution which could be pertinent to an approach to negotiation for land and and resource management issues. It does not claim to be comprehensive, nor to go so far as designing an approach. Negotiation can be used proactively to forestall grievances and disputes which might otherwise occur, and it is far from the only method of resolving disputes in either western or Aboriginal societies. Negotiation should therefore be considered an option which could be combined creatively with other forms of dispute resolution and methods of forestalling disputes.

Australia has two groups of indigenous peoples, Aborigines of mainland Australia and Tasmania, and Torres Strait Islanders from the islands of the far north east tip between Queensland and Papua New Guinea. This article refers only to Aboriginal cultures, since the author is not familiar with the variants in social norms and resource use decision-making which apply in Torres Strait Island cultures. Aboriginal cultures are extremely diverse, owing to localized differences in traditions and social norms, and to the varying impacts of non-Aboriginal development and administrative history of their lands and peoples. This article therefore emphasizes features which are likely to be common across Australia, but specifies where information comes from a particular language group or region (see figure 1). I will not confine the discussion to environmental matters, since within Aboriginal society domestic disputes often have inter-group relationships, and therefore access to land and resources, as their underlying issues (see Nancy Williams 1987) because of the close connection between kingship and land ownership and management. Further, many of the social norms of decision-making and conflict resolution which apply in domestic situations are also relevant to environmental matters.

Aboriginal approaches to conflict resolution need to be considered in the context of the social norms and decision-making rules which apply to the issue concerned. To understand the decision making it is vital to understand certain structural and process aspects of each Aboriginal society, especially the nature of kinship relationships and obligations in that society, and the nature of that society's relationships to land. We will return to these issues later.

Aboriginal Intracultural Dispute Management

Conflict resolution presupposes a grievance, or set of grievances. Grievances commonly arise out of breaches of Aboriginal law and social obligations, whether in the realm of religious and ritual matters, resource use matters, martial and inter-group relationships, or inter-personal relationships. Not all tensions are aired publicly as grievances. One of the most important mechanisms for maintaining social harmony in a traditional Aboriginal camp was that people would move their dwelling away from those with whom they were experiencing friction, often taking the opportunity to do so when the whole camp moved (Helen Ross 1987, Michael Heppell 1979). This both signaled and helped to resolve a difficulty without requiring confrontation. Sometimes the very fact of airing a grievance publicly can bring about solution. The offender is publicly "shamed" by the airing, and the aggrieved gets the matter off their chest so that reconciliation can proceed once feelings are cleared.

Public airing of a grievance can build up gradually. My observation among Jaru people was that on a community (rather than a marital or family) matter people would experimentally complain to others one by one, testing their reactions. They would only go public with a grievance when confident of enough social support for the complaint. Sometimes the complainant would feel relieved by talking about the issue with a few friends, and taken no further for the time being. If she or he went public with the grievance, with the support of others, that would often be sufficient signal to the offender to mend his or her ways or to absent him or herself from the community until feelings had subsided. Sometimes the matter would lead to a series of community discussions, in which both sides of the argument would be aired and other members of the community would propose solutions.

Usually other members of the extended family or community take the initiative of mediating, at a point where the initial conflict threatens a wider set of interests. In a variation to Fisher and Ury's (1981) recommendation that the negotiating parties try to identify one another's underlying interests and negotiate those rather than their positions, this Aboriginal approach suggests that the underlying interests and their representatives (rather than the disputants) actually initiate the resolution process. Nancy Williams (1987 p 49-66) describes how Yolngu members of two clans gathered for a "moot" to hear and try to settle grievances between two brothers whose conflict over a woman threatened long-term obligations between the two clans, and thus access to the resources of one another's lands. In this case, a senior relative of the brothers took the initiative of calling the moot, and the discussion took place mainly between senior members of the two clans, who constantly affirmed the mutuality of their interests. This equates with the advice by Roger Fisher and William Ury, and by Helena Cornelius and Shoshana Faire, to work on the relationship between the parties and look for common ground.

While some grievances are talked through, physical violence is an accepted means of both expressing grievance and settling in issue among both men and women (Phyllis Kaberry 1939, David McKnight 1982, Victoria Burbank 1994). David McKnight points out that kinship loyalties generally incline relatives to side with a member of their clan. (1982, p. 494). A fight between two people can therefore draw in other relatives. On the other hand, relatives on both sides will also intervene to make sure that the disputants are not hurt more than the circumstances seem to warrant, so it is not uncommon to see relatives holding each disputant back from the fray.

These observations illustrate some important features of Aboriginal intracultural dispute management which need to be considered in developing intercultural approaches. 1 There is a range of steps from the expression and expansion of tensions to the use of overt means of conflict resolution (cf Helena Cornelius and Shoshana Faire 1989). Further, conflicts take time to "ripen" to a stage that a community or family group feels that it warrants intervention. In the resolution of intercultural environmental issues, this suggests the value of timing. It would often be better to communicate and learn of potential tensions early, than to allow them to escalate. There may be occasions, however, when the Aboriginal parties are not ready to address the issues and would prefer to wait. 2 Conflicts are not always resolved by negotiation. There are other avenues, some of them unique to Aboriginal society. The specific indirect methods of conflict resolution, such as moving away from the scene, are not likely to appeal to the non-Aboriginal parties to an environmental conflict, although the Aboriginal parties often wish a developer would cancel an unpopular project. However, non-Aboriginal parties need to be alert to signs of avoidance behavior and explore its meaning. 3 There are a variety of options as to who takes the initiative in conflict resolution. The aggrieved party may take the initiative in raising the grievance with others, but may choose not to confront the other party directly. Others with a stake in the issues, perhaps those responsible for inter-clan and land relationships placed under threat, may choose to initiate the conflict resolution steps. Phyllis Kaberry (1939) points out that matters of a domestic or marital nature are usually left to family members to resolve, whereas those with ritual or a land and resource focus require the attention of ritual and community leaders. Those designing an intercultural negotiation process could well look for such potential initiators and mediators and have them included among the individuals taking part directly in negotiation sessions.

Decision-making and Conflict Resolution over Environmental Matters

The western development paradigm has brought a range of decision issues never contemplated in the Aboriginal societies of the past. Under Aboriginal customary law, decisions about land and natural resources were encased in a complex (and locally differing) set of rules and social norms, given spiritual and temporal force by the "Dreaming" sets of beliefs. The resource use and environmental management ethic was generally conservative, what we would now call "sustainable." Food resources were generally managed so as to be available again for future seasons. Food gathering was based in detailed ecological knowledge, framed and taught in terms of "Dreaming" beliefs. Replenishment of food resources involved both ritual and practical aspects, including the scattering of seeds and division of tubers to propagate plants, and the burning of grasslands to encourage habitat for mammals (Helen Ross, Elspeth Young and Lynnette Liddle 1994).

Decisions about a particular area of land, and its natural resources, were the prerogative of a group of "traditional owners," often in consultation with an inter-related group of "managers" who carried ritual roles towards that land. The traditional ownership role is more of a custodial responsibility than "ownership" in the western sense of the concept. While traditional owners are the main decision-makers for their land, their decisions are circumscribed by Aboriginal law. They also bear a responsibility to consult others before reaching their decision, though the form of consensual decision-making can involve considerable deference to the wishes of the principal traditional owners.

People were entitled to hunt and gather on the land of relatives, provided that permission was sought (overtly or tacitly) from the traditional owners. In times of scarcity, traditional owners accepted that they would need to help more distant groups to obtain food, but could expect reciprocation when their situations were reversed. Environmental decision-making was thus closely bound with social relations as well as prescription under customary law.

These norms continue as a foundation for contemporary decision-making about land, and must become part of any intercultural negotiation process. 1 There are reasonably clear understandings about who should be party to a decision involving land and resources. This can be glossed as: * those with traditional ownership relationships to the land concerned * those they in turn have a duty to consult - usually those with managerial roles over the same land, those whose land and totems are affected spiritually through "Dreaming tracks" or "songlines," other neighboring traditional landowners, and perhaps residents of the area who are not landowners.

These norms are crucial to participation in any intercultural negotiation or, indeed, communication. It is important that all traditional owners for the land concerned in a decision be located and involved. For a major issue, this may require an anthropological study to identify the relevant landholding groups and spokespeople. Since the principal spokespeople have responsibilities to consult others, they must be able to choose the timetable and process for consulting these others according to their own local norms. 2 These decision-makers consider themselves bound by Aboriginal Law to make decisions consistent with that Law. Their perceived rights of decision-making are thus far from absolute, and they risk the sanctions of spiritual powers associated particularly with sacred sites on their land, not to mention "pay-backs" or criticism from neighboring traditional owners who may feel they have failed to uphold the Law. Even if they are in fact powerless to prevent a development, such as mining on a sacred site, they are not exempted from the spiritual sanctions or the criticism of their peers.

This means that not all resource development issues proposed by non-Aborigines are negotiable in Aboriginal eyes, and there may also be limitations on the options invented for solutions (cf Roger Fisher and William Ury's principle "invent options for mutual gain"). Much as Aboriginal groups may be attracted by economic development which benefits them, if the conflict with Aboriginal Law, particularly spiritual matters, is judged extreme, an issue may be treated as nonnegotiable. There have been many famous cases of aboriginal resistance to mineral exploration on sacred sites in the last two decades, at Noonkanbah and at Argyle diamond mine in the Kimberley (Steve Hawke and Michael Gallagher 1989; Rod Dixon and Michael Dillon 1990), and at Coronation Hill in the Northern Territory (Marcus Lane and others 1990, Ian Keen and Francesca Merlan 1990). In the latter case, Jawoyn elders resisted mining strongly and eventually effectively over some five years, then negotiated a very satisfactory mining agreement elsewhere on their land, with another company some two years later. They thus demonstrated that they were in favor of economic development, and were prepared to negotiate over mining, but not in breach of religious norms.

Principled intercultural negotiation would require that such "non-negotiables" be respected, and Aboriginal people not pressured to deny or abrogate their values and custodial responsibilities. Non-Aboriginal parties to an environmental issue, whether developers or the governments encouraging development, need to be prepared at times to back away. Options are nevertheless possible for mutual gain: Aboriginal people often have alternate and more sustainable development vision for their regions, or may be willing to allow development elsewhere on their land. Respect for Aboriginal values would help to build the working relationship and, hence, Aboriginal willingness to suggest alternate options. 3 Consensual decision-making takes a slightly different form in Aboriginal societies than in western ones. Space does not permit a detailed description here, nor is every detail of an Aboriginal process necessarily relevant for our purposes. The important features seem to be that: * Consensual decision-making does not mean that everyone consulted has an equal say in a decision. Those consulted generally defer to the views of the principal traditional owners and concentrate on offering advice to assist them in their decision. They may signal displeasure with some of the options, letting the traditional owners know they can expect more support for some options than others, but still respect the right of the traditional owners to make the eventual decision. I have observed many try to gauge the traditional owners' preferred position before speaking out. In an intercultural negotiation process, two aspects of consunsual owners' preferred position before speaking out. In an intercultural negotiation process, two aspects of consensual decision-making need to be considered: those occurring in the intercultural discussion sessions, and those occurring intraculturally between sessions when spokespeople consult others. * Timing is very important. If an issue is not judged "ripe" for a decision, traditional owners will often prefer to defer further discussion until there is more likelihood of reaching consensus or, at least, accommodation. This is extremely difficult for the non-Aboriginal parties to a proposal to grasp, since there may appear to be no activity among the Aboriginal parties. In an intercultural negotiation, efforts should be made to allow generous pauses in the interests of improving the climate for reaching consensus. * In my experience, and that of Nancy Williams, Aboriginal people seem more inclined than non-Aborigines to consider underlying issues rather than position (cf Roger Fisher and William Ury 1981). Indeed, their overt presentation of underlying interests can puzzle non-Aboriginal parties, some of whom wonder how improving living conditions in Aboriginal camps or addressing land aspirations can have anything to do with their development proposals. The Aboriginal readiness to recognize and address underlying interests is a distinct advantage for intercultural negotiation processes. * Issues are raised, and respected, according to need. Among Aboriginal societies, traditional owners can sometimes expect to receive, and sometimes to initiate, requests (though the resource use issues are generally so clear-cut under Aboriginal Law that requests are minor in their environmental import). Nowadays, they are almost always on the receiving end of non-Aboriginal development proposals, many of which are highly problematic in terms of aboriginal resource use ethics or local decision-making. Aboriginal people are seldom asked what their visions are for the development of their lands and regions, and assisted to achieve these. This leaves Aboriginal people feeling gross inequality, and often a considerable degree of suspicion about non-Aboriginal development motives. I believe the spirit of "inventing options for mutual gain" (Roger Fisher and William Ury 1981) should be moved forward in the national environmental agenda to throw the focus on planning for the sustainable development of regions, rather than pressing Aboriginal people to agree to development proposals initiated by non-Aborigines, which seldom fit their visions. National, state and local governments should therefore facilitate planning processes which negotiates the visions of all stakeholders, rather than leaving a planning vacuum which invites individual developers and Aboriginal traditional landowners to clash over particular proposals.

Principles for an Intercultural System of Negotiation and Conflict Resolution

I stated in my introduction my belief that new modes of negotiation and conflict resolution could be developed to assist Aboriginal and non-Aboriginal people to share in making environmental decisions, and that these should ideally be developed by intercultural teams. This article has suggested some features which intercultural dispute resolution principles, and processes, could include. The principles and processes are closely linked, since each principle has implications for appropriate process.

PRINCIPLES 1 Recognize and respect one another's values and beliefs, particularly where indigenous people's spiritual beliefs are affected: * Recognize that these may render some issues "non-negotiable." * Recognize Aboriginal custodial responsibilities for the land and environment. * Build this recognition into the communication process. 2 Preempt the need for conflict resolution: * Circumvent contentious environmental and development issues by using negotiation in planning based on each culture's visions. * Communicate early and respectfully to try to avoid the occurrence and escalation of grievances. 3 Recognize and provide for both or all cultures' decision-making systems: * Who speaks for each issue, and on what authority? Who else do they need to consult between negotiation sessions, and how? * Decision-making timetables. Aboriginal ones are extended, and require pauses for intracultural consultation and building of consensus. * Aspects of consensual decision-making in Aboriginal society, institutionally-structured and consensual decision-making in non-Aboriginal society. * Loyalties, where to kin, government, or corporation depending on the party concerned. 4 Focus on interests and underlying issues (cf Roger Fisher and William Ury 1981).

I consider these principles a supplement to the Fisher and Ury principles, which remain generally appropriate to the non-Aboriginal parties to an intercultural negotiation. Space does not permit a detailed analysis here of their applicability to the Aboriginal parties to a negotiation. My view is that the second and third principles, "focus on interests not position," and "invent options for mutual gain" are very useful. The first principle, "separate the people from the problem" does not always accord with Aboriginal loyalties, since kinship sometimes defines reactions to an issue. Nevertheless, the detailed advice by both Fisher and Ury and Cornelius and Fiar on relationship-building and management of emotions is pertinent. The fourth Fisher and Ury principle, "insist on objective criteria," should not carry the weight of the other principles, and could be problematic where matters of beliefs and values are concerned. Nevertheless, some recourse to independent authorities is possible, such as when the Resource Assessment Commission commissioned Ian Keen and Francesca Merlan to verify the sacredness of an Aboriginal site and the identities of its traditional owners, as a contribution to a government inquiry over a mining dispute.

PROCESSES 1 Concentrate on pre-negotiation phases: * Do not leave matters for negotiation if this can be avoided. * Prepare the process and parties carefully if negotiation is to be used. 2 Put thought and effort into designing each communication and negotiation process, preferably by an intercultural team. 3 The raising of the issues: * Watch for the initial expression and expansion of tensions. Aboriginal people may avoid direct expression of their concerns, and avoid confrontation. * Watch for the "ripening" of issues, and judge the best time to start communication or alternate dispute resolution (usually early). * Identify the issues of concern. Distinguish underlying interests from presenting symptoms. * Take advice and decide whether negotiation is appropriate for the circumstances. There may be alternatives. 4 Identify the stakeholders for these issues: * Take advice and, if necessary, commission research to identify the Aboriginal decision-makers for the land involved. * Consider including other parties which have less direct interest, but may play valuable supporting roles and contribute to mediation. Other Aboriginal people, not directly concerned with the land in question, but interested in solutions being found, may be useful. Governments and non-aligned, non-Aboriginal people may also play useful roles. 5 Consider the use of formal mediation. A mediator experienced in Aboriginal ways and body language could do a great deal to facilitate the process. 6 Timing: * Negotiate the timeframes at the start. Try to allow extended timeframes with opportunity for pauses to enable Aboriginal spokespeople to consult their constituents, and to allow for reflection if the prospects for consensus may improve after time out. * Allow generous time between sessions for intracultural con salutation and reflection. 7 Design the process for the comfort and communication styles of the Aboriginal participants: * Allow extended personal familiarization before embarking on substantive discussion of the issues (unless the Aboriginal parties happen to want to get the discussions over with). Visits as guests to the Aboriginal people's country (if welcome0 are an excellent idea, as Aboriginal people are best at explaining their values, feelings for country and environmental concerns when on their own country. * Allow the discussion settings and styles to be guided by Aboriginal people. Bush meetings are popular and make Aboriginal people more at ease using their own norms of communication. Formal city meeting setting are intimidating and put the non-Aboriginal parties at a power advantage. * Choose a mediator, or have advisers present, to ensure that communication is effective. For instance, eye contact or lack of it has different meanings in each culture. Non-Aboriginal discomfort with silence and, hence, temptation to fill silences cuts Aboriginal people off from speaking. Aboriginal people may give a long personal history the first time they speak. This may not be a digression or failure to understand the agenda; it is an Aboriginal way of explaining the speaker's credentials and how they have derived their views. * Never interpret Aboriginal silence as assent. In a face-to-face situation, it may indicate having heard but not being ready to reach a view, bewilderment, or disagreement whilst unwilling to say so. Never press Aboriginal people to give agreement to a proposition at a given moment. An individual may give some unwilling verbal indication of assent merely to end the pressurized interaction, only for both parties to have to face the consequences later.

Until a systematic attempt is made to develop a generic set of intercultural negotiation principles and processes for Australia, groups attempting principled negotiations would be advised to concentrate on aspects of process, to take advice from Aboriginal and other people experienced in Aboriginal forms of communication and decision-making, and to draw upon the existing principals for alternate dispute resolution.

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