Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Indigenous North Americans in Washington State in the US have established a new co-operative ethos in environmental management. The reason? They were winning most of their court cases, but this was not meeting their main goal of saving salmon. Indigenous people have identified key causes of the decline of salmon and negotiated, or attempted to negotiate, a series of innovative agreements with other stakeholders involved in these issues. These include the Timber-Fish-Wildlife Agreement over timber harvesting practices on privately owned forest lands throughout the State, the Chelan Agreement over water allocation and its subsidiary processes, and the Sustainable Forestry Roundtable, an attempt to improve wildlife management under the Timber-Fish-Wildlife Agreement. These negotiations hold lessons for Australia in terms of sustainable environmental management regimes, reconciliation between indigenous and non-indigenous Australians, and the handling of complex negotiation processes. They offer possibilities - complementary to regional agreements - for environmental management processes which incorporate the rights inherent in native title and the High Court's Wik decision. [2]
In Washington State in the Pacific Northwest of the US, indigenous peoples have established a new ethos in environmental management of collaborating with industry, government and environmental groups to solve their concerns. Some 15 years ago they realised that they were winning most of their court cases objecting to industry practices and government lapses in regulation, but meanwhile the salmon they were trying to save were still dying out. They were introduced to people in industry who also sought an alternative to litigation, which led to the negotiation, and attempted negotiation, of a series of innovative agreements with other stakeholders [3] involved in the key threats to salmon. They are now active partners with industry and government in managing commercial forestry and water allocation, and thus in promoting more sustainable resource management throughout Washington State. The agreements give indigenous people a substantial role in the management of lands they were obliged to cede under their Treaties. They also strengthen their political status, and have brought resources which have assisted their other environmental management activities. Indigenous people have thus helped to improve resource management practices in a range of sectors, both on and off reservations.
The Tribal Governments' strategy of resolving environmental management issues by negotiation linked to their legal rights over natural resources meets their natural resource management, political and cultural goals simultaneously. While the Tribes are highly committed to 'co-operative management' agreements, negotiation is seen as a complement, rather than an alternative, to court action or political action to protect or advance treaty rights.
Kowanyama Aboriginal community, near the mouth of the Mitchell River on the Gulf of Carpentaria in far north Queensland, has been inspired in its innovative approach to resource management by these management philosophies. [4] They have learnt directly from tribal representatives, through exchange visits, for a decade.
This commentary outlines the key negotiation processes and strategies by which the Tribal Governments, industry, environmental groups and the State Government of Washington have attempted to resolve their concerns about resource use and environmental management. It explains the ethos of cooperation, and examines lessons Australia might learn both from the specific environmental management arrangements which were negotiated and from the negotiation process itself.
The research is based on interviews with participants in the negotiation processes, and on the study of documents, and was conducted under a Fulbright Senior Award late in 1996. The interviews focused on the experience of Tribal Governments in the negotiation processes. The study does not purport to incorporate the perspectives of their partners in the industry and environmental groups, which have been canvassed in other studies. [5]
Washington State is in the northwest corner of the US. With its neighbours Oregon and Idaho, and British Columbia in Canada, it forms part of the 'Pacific Northwest', renowned for its natural beauty - mountains, waterways and extensive forests - and also as the homes of Boeing and Microsoft. The indigenous population numbers some 80,000 (1.5 per cent) of the State's population of nearly 5 million. [6] Forests and forested national parks cover at least a third of the State. Forestry is a major industry: most of the wood cut is softwood such as Douglas Fir, and comes from the western part of the State. Population growth is rapid, as migrants are attracted from elsewhere in the US by the booming economy and attractive surroundings.
The indigenous people of Washington State describe these negotiations, and many
of their other environmental management arrangements,
as 'co-management'
(co-operative management), yet there are some contrasts with the co-management
arrangements found in Canada
[7] and the 'joint management'
arrangements of Australian national parks.
[8] The best known Canadian
co-management arrangements are for the shared management of fisheries and
migratory wildlife, where the
species are either 'common property' (fish) or
migrate over lands held under different forms of indigenous and non-indigenous
tenure.
The Canadian agreements are usually two or three party agreements
between indigenous peoples, government, and sometimes recreational
hunters and
fishers. Many of these arrangements, although they are single species
agreements, are incorporated within comprehensive
claims agreements
(regional agreements) which Australians have become interested in as a
model for indigenous land and resource rights.
[9]
Australia's first example of co-operative management was joint management of national parks. These are two party agreements in which indigenous people share the management of a park with a State or Federal Government department. Here a defined area of land - rather than a species, as in Canada - is the focus of management. It is possible that other arrangements, such as the management of turtle and dugong in the Great Barrier Reef area, and the proposed Marine Strategy for the Torres Strait, will progress to become true co-management arrangements, in which the power-sharing is equal. [10] Landcare [11] has some characteristics in common with co-management, although no formal agreements were negotiated among the parties to govern the actual form of management. Landcare, unusually, was initiated in 1988 when two unlikely partners - the Australian Conservation Foundation and National Farmers Federation - decided to solve a common problem. The Federal Government later joined in to create a nationally supported program of local cooperation in land management.
Co-management agreements are now developing through the negotiation of indigenous land use agreements under the Native Title Act 1993 (Cth) (the NTA). [12] Agreements negotiated independently of the native title claims resolution process can also be given strength through registration with the National Native Title Tribunal. A number of these are multi-party agreements, and there is great flexibility as to the issues and activities they may address. Examples include the Rubibi-Broome Shire Council Agreement, which provides for joint planning and joint management in the Broome town area, the Century Zinc Agreement, which provides funds for a multiple land use strategic plan, [13] and the Stradbroke Island-Quandamooka People/Redlands Shire Native Title Process Agreement, which provides a process for a joint detailed planning and management study for North Stradbroke Island.
The idea of partnership between government and non-government stakeholders, and between levels of government, is clearly growing as part of the search for pathways to sustainability. Here in Australia it is clearly worthwhile to draw inspiration from examples of overseas partnerships.
Co-management has been defined as:
... power sharing in the exercise of resource management, between a government agency and a community or organisation of stakeholders ... [14]
although some examples are entirely between non-government stakeholders. Another description is that of
... traditional outsiders act[ing] in cooperation with each other and with the government agencies that exercise legal mandates ... and have traditionally controlled most of the financial resources and information used in management. [15]
McCay and Jentoft [16] distinguish between 'co-management', which should be an equal partnership, and 'consultative management', in which one party, usually government, retains greater power.
There are a variety of reasons for government and non-government parties engaging in co-management. Kakadu National Park started pragmatically as a solution to the Alligator Rivers Land Claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This option enabled Aboriginal people to own the land while still allowing the area to be managed as a national park and to remain open to non-indigenous people. [17]
The Canadian wildlife agreements, which mostly apply to remote northern regions, combine advantages to all parties. The government lacks the staff presence to enforce its regulations in remote areas, while local indigenous people can contribute their knowledge and presence to the management effort. Their hunting rights are recognised and harvest rates are introduced under a system of self-regulation.
The Washington agreements and negotiations allow indigenous people to protect their culturally and economically important fishing rights, and also involve them in managing lands where they would otherwise have no say. Industry reduces damaging and expensive conflicts, as well as benefiting from other stakeholders' scientific and policy input into the management arrangements. Government finds its regulatory role easier, while the other parties share in the decision-making process.
Co-management, like every other form of public involvement in environmental management, provides an opportunity for a consensual approach: 'people will not support what they cannot understand, and they cannot understand that with which they are not involved'. [18]
There are a number of unusual features to the Washington negotiations and agreements I review here.
The agreements and negotiations described here all focus at least partly on salmon and steelhead trout, fish species which spawn in freshwater rivers and lakes, migrate to the ocean to mature, then return to their original rivers to spawn and die. These species have powerful cultural, symbolic, economic and recreational importance both for Native and non-Native Americans. As well as being a mainstay of the economy of the Pacific Northwest, [19] these species provide a useful indicator of ecosystem health because of their need for high quality environments in mountain streams and lakes, rivers and the ocean. These in turn depend on the condition of entire catchments. Salmon are extinct over 40 per cent of their original breeding range in the Pacific Northwest, and are extinct or threatened over two-thirds of their original range. A number of sub-species have been declared endangered. Given the complexity of factors affecting the survival of salmon and steelhead trout, including water quality, quantity and temperature, and obstacles to migration such as dams, habitat management and rehabilitation needs to be co-ordinated at the landscape level. Human threats to salmon habitat include dams for irrigation and hydro-electric power; forest clearance, especially along rivers; tribal, commercial and recreational fishing; agriculture and grazing through irrigation, erosion and pollution. Industry pollutes water and affects temperatures. Urbanisation and population growth result in conversion of forested land to urban land. Hatcheries have demographic, ecological and genetic effects on wild fish. [20]
Salmon are a thus a focal species for broader issues, and this species is the one over which the Western Washington Tribes' treaty rights are strongest. Because of their economic, conservation and symbolic significance, the salmon also provide a common ground between the tribes and other Americans.
In 1854 and 1855 the US Federal Government hastily negotiated a series of treaties with coastal tribes of western Washington, in which each tribe ceded most of their land area, retaining a small proportion as a reservation. Each of these treaties guaranteed the protection of tribal hunting and fishing rights:
... the right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory [21]
The treaty rights, and even the reservation areas, were progressively eroded in a series of administrative steps and through ignorance or repudiation of the treaty rights. From the 1960s, conflict over resource rights and resource use intensified. The tribes conducted a series of 'fish-ins' to challenge oppressive state regulation of their fishing [22] and mounted a number of court cases designed to uphold and clarify their treaty rights. [23]
A key issue requiring clarification was the precise nature of the fishing rights enunciated in the treaties. The pivotal US v Washington case heard in the Federal District Court (popularly known as the 'Boldt decisions', or 'Boldt and Orrick decisions') established these rights in two stages. [24] The phase 1 judgement in 1974 established that 'in common with all citizens' means 50 per cent of the catch migrating back to each tribe's traditional fishing places. It also confirmed tribal members' rights to fish off-reservation. [25] This judgement was upheld by the Supreme Court on appeal in 1979. The phase 2 judgement in 1980 [26] caused further public controversy by allowing that the treaty rights also contained an implicit requirement for protection of salmon habitat, with the famous quote that if fish habitat destruction were to continue, 'the right to take fish would eventually be reduced to the right to dip one's net into the water and bring it out empty'. [27]
This judgement also addressed the tribes' rights to hatchery-bred fish, which had not been distinguished from wild fish in phase 1. The case was upheld but reduced somewhat on appeal in 1985. The Ninth Circuit Court of Appeals Court could not fix the exact scope of the 'environmental right' without review of a specific case of environmental damage. [28] The matter was eventually resolved by the State Governor as a policy decision, on the grounds that:
although vacated, there is little doubt that an environmental right accompanies the treaty right to take fish. The scope of this environmental right is potentially vast because of the immense migratory range of the salmon runs related to 'usual and accustomed' fishing grounds. [29]
From 1974 there was a series of court cases between Native Americans, industry and the State Government related to forest practices and the adequacy of the State's management. [30] The US v Washington judgements gave strength to the tribes' arguments. The overwhelming winners in this series of court actions were the Tribal Governments - Indians are said to have won all but three of 73 cases in fisheries in a single year [31] - but all parties suffered from the cumbersome nature and costs of the litigation. [32] They also suffered from the 'win-lose' aspect of court judgements, in which the parties risk losing ground through an adverse judgement, and in effect cede control of the solutions to the courts.
The US v Washington decisions created great uncertainty as to tribal authority over resource management. They profoundly affected land use practices such as forest and agricultural practices, and also have an effect on the water rights inherent in treaty law. [33] The main basis for water allocation in the US is a historical one, in which the first user in time has prior rights over others, subject to them maintaining their rate of water consumption. [34] Later users have queued rights to the remaining water. [35] This system invites over-use. The US v Washington phase 2 decision was interpreted to mean that if the issue were tested in court, the tribes would jump to the top of the 'prior rights' queue on the basis of their right to protection of the salmon's habitat. [36] Realising the negative impact for others and the conflict that would be produced if this argument were pressed in court, the Tribal Governments of Washington magnanimously offered to solve the issues by negotiation.
A further development which influenced the later negotiations described here was the Centennial Accord 1989 between the State of Washington and the Tribal Governments officially recognised by the Federal Government. The Federal Government had always treated tribal administrations as governments. In the Centennial Accord, the State Government recognised the tribes as equal rather than subordinate governments, and agreed to negotiate with them on a government-to-government basis. [37] Although the memorandum is not enforceable, it has made government-to-government relationships between tribes and state a reality. [38]
In 1989 the Tribal Governments and the State of Washington also negotiated a Memorandum of Understanding concerning environmental protection which became a framework for addressing issues arising from the Boldt decisions. The Memorandum set out both parties' concerns and goals, and agreement was reached on some steps towards water use, fish and wildlife habitat protection and enhancement, and the cooperative resolution of environmental issues. While the MOU was not explicitly linked to the Centennial Accord, both documents were a result of the Governor's decision to put negotiations with the tribes on a better footing. The MOU was also a precursor to the Chelan Agreement. [39]
By the early 1980s, some of the parties involved in these court conflicts over resource management were beginning to recognise the problems inherent in sorting out what their rights were solely through court processes. Tribal governments realised that while they were winning most of their court cases, the salmon were continuing to decline. They identified their main goal as being to protect the fish, rather than winning court cases. They realised they needed a different strategy to achieve this goal. [40] A group of industry parties called the Northwest Water Resources Committee were interested in solving issues arising from the second US v Washington decision and commissioned a report which pointed towards negotiation as the best long-term approach to achieve lasting resolutions of the issues. [41] This report, and author Jim Waldo's subsequent help in building bridges between key individuals from different stakeholder groups, led to a recognition that negotiation could produce better solutions than either court action or political lobbying. It also meant that control of the process remained with the various parties, instead of being ceded to judicial or legislative bodies. State Government departments were also concerned about the continuing decline of salmon.
With Waldo's encouragement, the leader of the Northwest Indian Fisheries Commission (Mr Billy Frank) and the leader of the timber industry's peak body, the Washington Forest Protection Association (the late Mr Stu Bledsoe) began meeting and building a working relationship between their two organisations. After three years of meetings, [42] these two bodies felt ready to negotiate a new approach to statewide timber harvesting practices. Timber harvest practices are regulated by the State Department of Natural Resources through its Forest Practices Board. Forest practices also have an effect on fish, wildlife, and water resources, all of which are the responsibility of other government departments. There was a general weariness with the costly and lengthy legal conflicts. Once an alliance like this started to take a shape which promoted a co-operative approach, the State Government could hardly refuse to participate. Although the Federal Government was interested in Indian affairs and environmental issues, it participated in the negotiations and subsequent implementation processes on the State team solely in an observer capacity. The fourth stakeholder category initially invited to negotiate was environmental groups, represented by their peak body, the Washington Environmental Council. [43]
Thus began a new era of cooperative problem-solving. Over the course of several negotiations, this process has emerged as the tribes' preferred model for resolving environmental and treaty rights issues. The tribes are committed to developing a long-term strategy for protecting the salmon, while trying at the same time to establish co-operative processes with each of the sectors which have the greatest impact on the fish's habitat: forestry, water, agriculture, and urban growth management.
The Northwest Renewable Resources Center played an essential role in developing the ethos of cooperation by encouraging the parties to communicate initially and by providing mediation and ground rules, and helping to develop a collaborative culture of negotiation.
The Center was set up in 1984 by leaders of industry, tribes and environmental organisations [44] to facilitate the resolution of major resource disputes by encouraging negotiation and relationship building. It employed a number of mediators, and also conducted research. Funding came mainly from grants. It was a direct offshoot of the Northwest Water Resources Committee, a body of key business, industry and agricultural organisations involved with water resources which was formed in an attempt to find a way to resolve their differences with the tribes outside the courtroom. [45] The organisation has now been disbanded.
Forestry practices began in the 1820s in Washington, and by 1880 the land around Puget Sound and the Hood Canal (the key inland waterways) was cleared for two miles inland, and seven miles around rivers. After 1945, new technology permitted access to steep, formerly inaccessible areas, exacerbating the impacts of forestry on salmon habitat. High road to forest area ratios (three to four miles, sometimes 12 miles, per square mile) caused landslides and sedimentation of streams and rivers. By the 1970s, indigenous and environmental groups were highly critical of the impact of forestry practices on salmon habitat. The problem chosen for negotiation in the Timber-Fish-Wildlife (TWF) process was the improvement and regulation of forestry practices to protect habitats and thus ensure the survival of fish and wildlife. [46] Over 8.7 million acres of privately owned commercial timber land, or nearly 20 per cent of the State of Washington, was covered by this agreement in 1996. [47]
One catalyst for the TFW negotiations was a 1995 conference on the links between timber and fisheries which was jointly convened by the Northwest Renewable Resources Center (NRRC) and the Schools of Forestry and Fisheries at the University of Washington. Much of the information presented came from private industry and the tribes, as well as from university researchers. Many of the 400 participants left feeling that the problems were more solvable than they had thought. [48] The negotiations commenced with a two and a half day exploratory meeting in 1996, to which each party sent their best political, technical and managerial experts. This meeting agreed on a broad basis on which to proceed; all parties had to commit themselves to achieving all of the goals, and to making all decisions by consensus. [49]
The stakeholder parties which initially negotiated the Agreement were the 26 (now 27) Federally recognised Tribal Governments; the private timber industry, [50] represented by its peak body; the State Government, led by the Department of Natural Resources; [51] and environmental groups, also coordinated through a peak body.
New parties have been added as required. By 1991, it was realised that local government was a neglected stakeholder which could have a major influence on land uses alternative to timber. If timber operations are not viable, the land is likely to be sold and cleared for residential development (euphemistically referred to as 'land conversion'), an outcome which is even more damaging for salmon. The Federal Government joined the process more explicitly in 1996, and has since contributed new elements to the TFW process through watershed analysis and planning under the Federal Water Pollution Control Act 1972 (US), otherwise known as the 'Clean Water Act'. Environmental groups were active in the early stages of the agreement and also in later attempts to renegotiate wildlife issues under the Sustainable Forestry Roundtable. Since then, their participation has been wound back to attendance at the policy committee level - not because of a reduced commitment, but because their staff resources are meagre and their action priorities now lie elsewhere.
After some three years spent building relationships between the stakeholders, [52] the negotiation process took place in an intense six months in 1986 and early 1987, and involved about 60 meetings. [53] Around 40 people participated, taking turns at the table. Breaks were often called to allow those at the table and those observing to confer, a procedure which became known as 'caucuses'. Consultation with constituencies was possible between meetings. A set of ground rules was agreed on from the beginning, and this created a positive climate of commitment and mutual respect. Katherine Baril, [54] one of the facilitators, recalls that the rule 'leave your weapons at the door' truly reflected the degree of conflict at the start of the process. There were four facilitators from the Northwest Renewable Resources Center, led by Jim Waldo. [55] The discussion is said to have been heated on many occasions, yet the participants emerged with strong and lasting relationships, both among individuals and as groups.
The Agreement is an unsigned 'handshake' one, yet the lack of legal status does not appear to have restricted any of the parties' commitment to it. It is a broad agreement, focusing on goals (see box 1), and the structures and processes which were created to deal with decision-making and research.
Structures and processes
The peak committee managing the TFW process is the 'Policy Group', which reviews the larger policy questions addressed in TFW. The State Forest Practices Board, which has statutory responsibility for forest practices, adopts and ensures implementation of the Policy Group's recommendations.
Subsidiary to the Policy Group are a number of topic groups, including an Administrative Committee and Committees for Training, Information and Education; Cultural Heritage; and Cooperative Monitoring, Evaluation and Research (CMER). The latter Committee includes a system of interdisciplinary teams (ID teams) for evaluation and research.
All stakeholder parties are represented, or eligible to be represented, on each committee, although the environmental groups now restrict their participation. Committees can be added or dissolved as required.
In parallel with the committee processes for addressing general questions, there is an intensive process for evaluating timber harvest applications put forward by timber companies. At the time of the Agreement, there were approximately 8000 applications each year, and by 1996 there were 20,000. [56] These applications are copied to all stakeholders' local representatives. Each tribe takes responsibility for an area, and may receive several hundred applications each year. [57] These are then scanned to identify which ones may require special attention. Any stakeholder concerned about an application may ask the local representative of the Department of Natural Resources to convene an ID team. These teams are formed from scientific specialists contributed by each stakeholder group as needed, for example geomorphologists, hydrologists, fisheries and wildlife biologists. [58] Although these specialists are supplied by stakeholders, they meet and deliberate as scientists. They prepare notifications, with recommendations, to the Department of Natural Resources, which has authority to approve or reject each application. The ID teams thus offer a scientific and technical process for resolving disputes on a site-specific basis. A number of the tribes' scientific staff are Indian, tertiary trained specialists.
There is a productive symbiosis between the field ID teams, and the committee level of CMER. This scientific research has involved collaboration between scientists from the different stakeholder groups, and has revolutionised certain forestry practices. For example, the tribes raised concerns about the adequacy of the stream classification system used. Research confirmed their knowledge that salmon bred in narrow as well as wide streams. [59] This led to a new classification scheme, which required different widths of vegetation to be left alongside streams to protect salmon breeding habitat. [60] Other research and management issues addressed in the TFW scientific process included wildlife use of managed forests, the effects of water flow and temperature on adult migration, and the effects of timber harvest on landslides. Watershed analysis has become particularly important, including river catchment conditions and a monitoring strategy. This makes possible an integrated approach to the cumulative impacts on water, fish and wildlife. [61]
The adaptive environmental management approach
The Agreement follows the philosophy of adaptive management, [62] which applies the concept of scientific experimentation to the design and implementation of natural resource and environmental policies. A policy or management practice is treated like a hypothesis, and its performance is monitored. If the policy succeeds, the hypothesis is affirmed. If it fails, lessons are learnt and future policies are designed from a better base of understanding. [63] Adaptive management thus uses a cycle of planning and adaptation.
While other parties participate at their own expense, the tribes needed substantial additional funding to participate. The Federal Government granted each tribe sufficient funds to employ at least one (often several) new staff members for 10 years. This enabled the tribes to build a strong environmental management staff, which assisted their development of further environmental initiatives. Terry Williams comments that the proportion of lawyers and environmental scientists employed by his tribe had reversed in the previous 15 or so years, from a couple of environmental scientists at the beginning to over 15 by 1996. [64] However, by having to apply for funds, the tribes were delayed in joining the implementation process. Industry had its own funds, and the State Government was able to reallocate existing funds.
The tribes also have to rely on grant funding from foundations, with the problem that their scientific staff also have to be skilled writers, and may spend a third of their time writing grant applications to cover their salaries.
Strengths and problems
The Agreement has remained viable for 12 years now, although several times in the 1990s the parties only refrained from abandoning it because they recognised that a return to court and political conflicts would be even worse than the frustrations they were suffering with the Agreement. Low spots in cooperation occurred due to stalling, inability to address some of the issues (particularly wildlife), and ups and downs in the leadership of some stakeholder groups. Since late 1996, the Agreement has enjoyed a resurgence, thanks to some changes of leadership among the stakeholders and linkage of its responsibilities to Federal water resources concerns. [65]
Factors which have helped TFW to work include:
Factors which have threatened the success of the TWF include:
The Agreement has been quite successful in securing changes to forest practices to protect fish, but far less so with wildlife and cultural heritage. The same stakeholder groups (though not exactly the same representative organisations and individuals) conducted a separate set of negotiations in 1989-90 to try to address wildlife issues.
Water allocation is at crisis point in a number of Washington State river basins, because the historical and legal basis of water allocation (see above) discourages efficiency measures and has led to a situation where water is over-allocated. Much of this water allocation occurred before the connection between water quantity and fisheries was statutorily acknowledged. [71] The second US v Washington decision [72] protected fish habitat, effectively requiring that 'in-stream flows' (leaving enough water in-stream for fish and other species) became the first priority for water distribution. The tribes chose to negotiate rather than cause hardship to all parties by pressing this legal right through the courts.
The rapid growth in population and hence urban development is one of a number of pressures on salmon habitat in Washington. Irrigation affects large areas, since only one third of water is returned to streams and lakes, usually in a warmed and degraded condition. Irrigation also causes water level fluctuations, which leads to loss of food sources, affects spawning, rearing and migration habitat, strands salmon fry and makes juvenile salmon more susceptible to predators. Juvenile mortalities are high at the channel intakes, and the technical solution to this, fish screens, is costly. Dams block migration routes, especially those built prior to the successful design of fish ladders.
The issue addressed by the Chelan Agreement was the over-allocation of water which affected salmon habitat. The stakeholder groups involved in negotiations were the tribes, the State Government (led by the Department of Ecology), local governments, agriculture, business, fisheries, environmental and recreational groups.
As in TFW, a Conference in November 1989 helped to establish the issues and a climate for negotiation. Pre-negotiation meetings took six months, and the actual negotiations were conducted over a further six months, during 1990. The negotiations enabled a larger pool of people to participate, by beginning and ending with two large three day meetings (with 175 and 200 people respectively). As in TFW, the stakeholder groups referred to themselves as 'caucuses', and could break for separate discussions during the proceedings.
An 'interim team' representing all parties met in the intervening six months to prepare options for a water resources planning process. It recommended a combination of State government ('top-down') and local ('bottom-up') process, with statewide guidance for regional planning, and local implementation processes.
A statewide policy committee, the Water Resources Forum (WRF), was formed with representation from all stakeholder groups. Its 24 members included six tribal representatives, and between one and three representatives of each of the other caucuses. Its role was to shape and review water management policies, provide a framework for the development of local water management plans and use these to elaborate a state-wide basis for water allocation. For local level implementation, two pilot areas were identified - the Dungeness-Quilcene pair of catchments on the northern coast of the Olympic Peninsula, and the Methow, an inland basin towards the north of the State. The Water Resources Forum met monthly, and its definition of 'consensus decision-making' was no negative votes, with abstentions being permitted. State agencies, which retained formal regulatory authority, committed themselves to giving substantial weight to the WRF's recommendations.
The WRF accomplished a great deal in its four years of existence (1991-1995). It generated and supervised the pilot projects and developed policies on water conservation, instream flow, and hydraulic continuity (the maintenance of water continuity along salmon migratory routes). [74] However, the implementation of crucial recommendations was affected by senior management changes, budget cuts and loss of water resources staff in the Department of Ecology from 1992. Lack of continuity in membership meant that it was necessary to continually educate new participants. Only half of the WRF's members were present at either of the two negotiation conferences, and later there was further turnover.
Agriculture and business representatives withdrew in 1994, looking to a newly elected Republican State Government to support their interests better. One difficulty was that their representatives on the WRF, though diligent, were not considered the key people by these interest groups and so did not enjoy sufficient constituency support to be able to 'sell' agreements. Since other parties involved in negotiations were also dissatisfied with aspects of the process, [75] some believe that the Agreement would have dissolved anyway, even if the agricultural and business parties had not withdrawn. In 1995, the other parties agreed to put the WRF 'on hold', while still focusing on and keeping their members informed about progress in implementing the Agreement. The tribes continue to support the Agreement in principle, and the parties to the pilot studies continue to maintain the research side of the process.
Since each water catchment was sure to require different, localised solutions, with local stakeholder participation and support, pilot studies were created as a potential model for other areas. The State Government allocated almost $US600,000 for each of these case studies.
Dungeness - Quilcene pilot study
This pilot study incorporated two adjacent catchment areas. As the issues and requirements for each of these two catchment areas diverged, negotiations separated into two processes. Initial facilitation was poorly planned and eventually collapsed, so a Regional Planning Group was convened and coordinated by the Jamestown S'Klallam. [76] This group consisted of the same stakeholders as the Chelan Agreement, with representatives selected locally. Although the convenors of the negotiations were also participants in the process, the potential conflict of interest inherent in these different roles was apparently handled successfully.
Key issues for the Dungeness river catchment were the discrepancy between fish needs and out-of-stream uses, especially irrigation (this became known as the 'gap concept'), the poor condition of fish habitat, the lack of water conservation measures and the inefficiency of irrigation systems. The Quilcene catchment area was added to the case study because of the municipal and industrial issues involved.
Careful attention to building working relationships, effective leadership among the irrigators, and strategic use of environmental monitoring data (much of it supplied by the Jamestown S'Klallam) [77] gradually led to constructive negotiations over two years (1992-1994). The following environmental arrangements were eventually agreed upon:
(1) the principle of shared sacrifice ('share the pain, share the gain'): irrigators voluntarily cut back on use of their rights, on a basis agreed each year with the tribe according to measures of water available;(2) the objective of working with major water users on agreements to reduce water use in dry years and to retain more water in-stream to protect fish stocks which are at risk;
(3) the setting of in-stream flows for the watersheds, which take a conservative approach in setting new water rights;
(4) the formation of a watershed council in each watershed, to monitor and coordinate implementation; and
(5) comprehensive studies of each watershed's groundwater supply and quality.
One important interest group, residents of poorly designed subdivisions of agricultural land who depend on groundwater usage, had been omitted from the formal planning process. They gradually gained a voice in the implementation stages. [78]
Everything seemed promising when the negotiations were completed, but the pilot agreement stumbled at the implementation stage. A new Republican State Government had no commitment to a process commenced under a previous regime and would not vote funds. This left the Department of Ecology highly embarrassed. Although the Planning Group formally dissolved, the parties then attempted partial implementation on their own, through creative means. For example, the Jamestown S'Klallam applied for Federal grants, and passed the funds to irrigators for capital works to screen young salmon out of irrigation channels. [79] In the 1994 drought, a paper company implemented emergency water conservation measures and offered to curtail mill operations.
Methow basin pilot study
In the other pilot study in the Methow basin, some of the major issues included working out how to respect existing water rights while increasing instream flows to improve fish and wildlife habitat, and how to allow for economic growth and still preserve the quality of the Methow Valley. Irrigation and a proposed ski/tourism development became foci for discussion.
Once again, the parties consisted of the Chelan Agreement participants and made use of a planning committee made up of the same caucuses. The negotiation process lasted two years, from 1992 to 1994. The Agreement proposed the formation of a Methow Valley Water Resources Forum to implement the planning committee's recommendations. [80] The committee used research in its deliberations, with an examination of instream flow needs, and in-depth analysis of certain tributaries. A groundwater plan was also produced.
The arrangements focused on improving the efficiency of agricultural, residential, commercial and industrial water use. The Agreement proposed setting up a water accounting process or 'water bank'. Under this system, water saved within the available water balance in each reach and sub-basin was reallocated to in-stream flows (90 per cent) and new uses (10 per cent). [81]
Despite the high level of commitment from the parties involved, the Methow plan suffered the same implementation problems as the Dungeness-Quilcene plan; insufficient funds allocated for implementation. [82] The planning committee stayed together to implement the Agreement, and sought Federal funding for an efficient irrigation system. [83]
While the Chelan Agreement is no longer formally working, the Tribal and State Governments continue to support the Agreement in principle, and the parties to the pilot studies continue to maintain the research programme. However, after two years of uncertainty over funding (1994-1996) after which they had to rely on their own initiative, they were also losing patience. The attitude of the new government and senior management has also led to a shift towards different approaches for resolving water issues within the Department of Ecology.
The TFW process had little success in addressing wildlife habitat issues in its first five years. It was more difficult to develop proposals and reach consensus on wildlife issues, because these were immensely more complex than the management of fish habitat. While TFW aimed to protect the habitat of all species found in Washington's private forests, including riverine as well as land animals, in reality there were difficult choices to be made between different timber cutting regimes, which favoured different animal and bird species.
The Sustainable Forestry Roundtable (SFR) was convened late in 1989 at the request of the state's Forest Practices Board. The negotiations thus occurred concurrently with the Chelan process. The aim was to address wildlife concerns on a landscape-ecology basis, by considering the cumulative impacts of development on wildlife. The stakeholder parties were the same as in TFW, although more organisations and individuals participated. Although the initiative for TFW came from outside government (the Northwest Water Resources Committee, tribes and timber companies), this process was convened by the Washington Department of Natural Resources.
Like the Chelan negotiations, this process used a combination of three large 'summit meetings', with an intervening process involving meetings between eight subject specific working groups to work out the detail. The negotiations took a year. The negotiation timetable was hasty given the complexity of the issues, and it was difficult for the parties to keep up with all aspects of the issues involved, let alone maintain constituency support for them. Although the proposed Agreement appeared likely to be signed, the environmental groups asked for additional time to consult their constituents before the proposed signature date, and in the end some of these groups did not agree to sign. Interestingly, the groups which refused to sign were apparently those which had not had the opportunity to develop trusting relationships with the other parties through participation in previous negotiations. They believed that the proposals would not prevent overcutting of forests, and were uncomfortable with the commitment to a 10 year time frame which would constrain their pursuit of forest reform via other avenues. [84] They were nevertheless willing to lobby for the parts of the proposal they supported. This left the parties with no Agreement at all, missing the opportunity for a substantial revolution in wildlife habitat management and its signature into law. Although an Agreement was not signed, the negotiation process did nevertheless influence parties collaborating on the TFW and also the Forest Practices Board, especially with respect to watershed analysis. [85]
The TFW and the Chelan Agreements established broad frameworks for management systems, leaving the details to be worked out later in the implementation stage. The draft SFR Agreement made far more complex proposals for implementation, which some participants found difficult to grasp. This Agreement aimed to find ways of maintaining the commercial timber land base in the face of pressures to convert it to residential and other land uses. It also provided a radical new basis for managing forests and timber harvests so that the stages of forest growth were distributed on a catchment basis to meet the habitat needs of different species. It included a commitment to reserving 10 per cent of each owner's forested lands in a catchment for mature forest, in a network of reserves and corridors to be designed by wildlife biologists. Green trees and woody debris were to be left on harvested areas, to assist in maintaining wildlife diversity and connections between cut and regrowth areas. It also included incentives for retaining land as forest, and for reforesting. The draft was regarded as a landmark in planning for sustainable forest management, more advanced than had been attempted in any other state of the US and remarkable for the willingness of timber operators to support it.
Strengths
Problems
Fundamental to the success, or near success, of these and subsequent negotiations in Washington was a strong ethos of cooperation.
This ethos was far from easy to develop, and only took root gradually. All parties started off on poor terms after years of intense legal and political conflict. Nor did three of the stakeholder categories (tribes, industry and State Government) have strong internal cohesion. The entities known as 'tribes' were formed artificially by the act of treaty-making, [89] and more localised family and settlement-based political forms remain strong. Tribal office bearers face a challenge in ensuring that their constituency understands and continues to support their initiatives. [90] Until the Northwest Indian Fisheries Commission consolidated and gained widespread support, coordinated action among tribes was difficult. [91] The timber industry has divisions between large corporate operators, which are engaged for the long-term and therefore interested in sustainable forestry, and smaller operators, who tend to take a shorter term view of timber resources. Educating individuals from this last sector who may enter and leave the industry rapidly is a major challenge. While state government is accustomed to interdepartmental coordination, it still needed to find a way of representing different departmental interests. The Department of Natural Resources has taken the lead in forest negotiations, and the Department of Ecology, which is responsible for water management, takes the lead on behalf of State Government in water negotiations.
A decade after the initial negotiation of the TFW Agreement, the parties had become confident that co-operation brings better solutions than court cases or political lobbying. The process is directly controlled by the parties, and thus more likely to produce lasting solutions. By contrast, those unhappy with court outcomes will appeal to higher courts, prolonging uncertainty, while those unimpressed by political outcomes will await a government more friendly to their interests, then lobby again. A court case could take far too long for the survival of salmon in some rivers. [92] A new generation of tribal leaders is solidly behind co-management. [93] Setbacks in the Chelan and SFR processes have not damaged the ethos, perhaps because other co-management arrangements are so well established. [94]
Key features of the current ethos of cooperation include: [95]
The real business is protecting all the resources.Understand your shared history, shared environment.
A polluted watershed makes us all sick. [98]
The ethos is summed up well by Patty Parry, [101] explaining that cooperation is about:
Process rather than product;
The journey rather than the destination;
Consensus rather than conflict; and
Influence rather than control.
The ethos of cooperation has expanded far beyond the processes reported in this commentary. The three negotiations can be seen as part of a long-term strategy by the tribes to address threats to salmon, while ensuring recognition of their treaty and other legal rights. Actual negotiations must be preceded by a phase dedicated to building relationships between the participants. For instance, in 1996, the Northwest Indian Fisheries Commission began building relationships with the agricultural sector in the hope of forming a basis for future negotiations. The Northwest Renewable Resources Center conducted a 'Tribes and Counties' project, [102] with the explicit intention of improving relationships between selected tribal and local governments, without any intention of proceeding towards negotiation. Nevertheless, considerable cooperation and coordination developed between tribal and county governments in their planning roles. The main lessons drawn from this project were that:
In 1995 the Lummi Indian Nation, Federal Government and State of Washington agreed to negotiate on a government-to-government basis about the use of groundwater resources under the Lummi Reservation.104 Meanwhile the Department of Ecology had convened the Nooksack Watershed Task Force [105] in 1994 to set and take action on environmental priorities in the Nooksack River watershed. The Department agreed with the Lummis' request to have the groundwater issue resolved before proceeding with wider discussions about off-reservation water issues.
Like the Canadian regional agreements, [106] these agreements from Washington State demonstrate that comprehensive agreements addressing issues across a large area are possible. They illustrate a potential alternative to regional agreements, in which an area of land and water can be defined by an issue like the preservation of a fish species or by a category of land, such as privately owned forest land.
However, the environmental issues and legal framework in Australia are entirely different from the US. For a start, Australian indigenous people do not have treaties, and do not enjoy 'government' status, with the exception of a few local governments. [107] However, indigenous and other Australians may still draw a variety of lessons from the Washington Agreements which may assist in negotiating environmental management arrangements associated with native title claims, or in other situations. Both O'Faircheallaigh and Jull [108] caution that Australians need to be aware of the processes by which overseas agreements were developed, and how these relate to the wider political environment in their place of origin. For this reason, there are certain drawbacks in importing overseas models to Australia which could disadvantage indigenous participants. The Mabo [No 2] and Wik decisions and the NTA may well become as significant as the Boldt decisions for the recognition of indigenous rights. However, their potential utility for negotiating new environmental management regimes is still in the early stages of exploration. There is also no focal, charismatic species such as the salmon in Washington around which concerted action and public support could be rallied. This need not be a limitation: where the Washington court cases strengthened fishing rights, indigenous Australians could try to extend arguments from their hunting and gathering rights, and conceivably their management of land.
While new opportunities are opening up through Indigenous Land Use Agreements, [109] there are also many potential new avenues for greater indigenous involvement in environmental decision-making and management through native title, and its interaction with other legislation. For example, Bennett [110] focuses on the potential under native title and the National Strategy for Conservation of Australia's Biological Diversity to support traditional ecological knowledge and intellectual property. Lane et al [111] offer a model for developing land use and land management plans under native title, and Wensing and Sheehan discuss the roles of land use planning and management, in tandem with native title provisions, to promote sustainability. [112] Bartlett and Sutherland [113] discuss the extent of recognition of indigenous fishing rights under native title and other regimes. This type of analysis is at an early stage. A key question is whether or not it may be feasible to use native title rights to mount a habitat protection argument similar to what was argued for salmon in the US v Washington decision, on the grounds that exercise of native title subsistence rights depends on the continued availability of the species concerned. An Australian Institute of Aboriginal and Torres Strait Islander Studies project [114] is exploring the issues which need to be addressed as Australia develops regional agreements under the native title regime.
Public reaction to the High Court's Wik decision [115] showed clearly that the majority of Australians, politicians included, had great difficulty in absorbing the concept of overlapping rights applying to the same tracts of pastoral land. The off-reservation tribal resource rights established by treaty and confirmed by the US v Washington decisions [116] demonstrate that resource rights (in this case, fishing rights and the right to maintain fish habitat) can coexist with land ownership and indeed other resource rights. At a general level, this is comparable to the situation with native title. In Australia, a number of land use agreements have been reached in native title claims recently. [117] These and the Washington State Agreements show that pragmatic arrangements can be negotiated to cater for such situations, to the general benefit of the parties.
While this commentary has concentrated on negotiation and its legal supports, political avenues for problem solving complete a triangle of options. [118] The Washington examples show that legal, political and negotiated avenues to settling environmental rights are both complementary, and alternative. The legal leverage provided by the US v Washington and some other court decisions is extremely helpful, though arguably not essential, for underpinning environmental negotiations. The same rights that can keep parties in court for years can propel them to sort out their differences in less expensive and more easily controlled ways. [119] Negotiation is therefore both an alternative to contestation in court, and at the same time something which relies on legal rights established in courts. Strong indigenous legal rights can encourage other parties to the negotiating table, and help keep them there. Indigenous people can negotiate from a position of strength, with the other parties well aware that they could resort to court should negotiations falter. Meanwhile, political circumstances can be propitious or otherwise for negotiations to succeed, and of course change rapidly. [120] The Chelan Agreement and its pilot studies illustrate this well. A change of government led two parties to change their level of commitment to the negotiations, and this in turn led to the dissolution of the statewide structure, and to the denial of funding which was needed to implement the pilot studies.
In Australia, native title rights and the opportunity to register agreements reached independently of the claims process has provided a strong legal base for negotiating and fulfilling environmental management. [121] A number of Aboriginal communities and Land Councils have also negotiated agreements where native title may be one of the issues, but where the process is essentially conducted independently of any claims procedure. Agreements with mining companies typically include land access and economic benefits, and may include environmental management arrangements. [122] The Cape York Heads of Agreement, a set of principles for the planning and future management of the Cape negotiated by indigenous people, the pastoral industry and conservation groups, is also independent of any particular legislative basis. [123]
The Washington Agreements and negotiations illustrate the degree of reconciliation possible through working together to solve tangible problems. Positive relationships, and the ethos of cooperation developed through TFW have carried over into numerous other processes. Reaching agreement on new ways to share responsibility for natural resources may be a powerful way of realising the statements of intent in Australia's reconciliation process.
The Washington experience, like the National Native Title Tribunal mediation experience, [124] demonstrates that a focus on working together towards common goals overcomes prejudices and increases mutual understanding. It shows that arrangements can be created through negotiation which are mutually beneficial both to indigenous and other parties.
The arrangements negotiated in TFW and Chelan give indigenous people a say over their ceded lands, which they might otherwise have had no role in managing. In doing so, they reinforce indigenous rights and inter-governmental relations.
In terms of environmental management, a key lesson from the Washington precedents is the value of clarifying one's goals. For the tribes, the goal was to save fish and fish habitat, and by so doing, to reinforce their treaty rights. By identifying the mutual needs of stakeholders and the environment, it became possible to develop better approaches to environmental management. Some examples of this are the interdisciplinary teams working on the ground level in the TFW process, the 'share the pain, share the gain' principle adopted by the Dungeness-Quilcene water allocation pilot study, and the catchment-based forest management regime designed by the SFR. These creative solutions are only possible when parties put the emphasis on collaborative problem-solving rather than just a defence of their property rights and regulatory responsibilities125 - although it is also possible to safeguard these, as in the Chelan Agreement.
The processes make use of adaptive management processes. [126] The TFW and Chelan Agreements are essentially frameworks for ongoing decision-making, rather than prescriptive formulae which determine fixed outcomes. The SFR draft agreement was focused on the detail of implementation, since TFW already existed as a structure for collaborative decision-making. The openness of the TFW and Chelan Agreements appears to have made it somewhat easier to reach initial agreement; many of the practical details were left to be worked out later through the processes established under the Agreements. A notable feature of the TFW and Chelan Agreements is that they focus on both process and product; decision-making arrangements and the outcomes aimed for through those arrangements. In accordance with the adaptive management philosophy which underlies these Agreements and the SFR proposals, scientific analysis with shared access to information is an important basis for deliberations. In effect, these environmental management processes use scientific information within a participatory process. Both scientific information and stakeholders' interests and values are respected.
Indigenous Australians and those who negotiate with them can also derive ideas from the processes of negotiation described here.
Issues of representation
One of the limitations of negotiation, compared to weaker forms of public participation in decision-making, is the necessity to minimise the number of individuals (though not necessarily parties) at the table. The fewer individuals at the table, the more effective the discussion but the greater the compromises necessary in obtaining representation, and the greater the difficulties in maintaining the support of constituencies. The Washington negotiations offer ways of managing discussions among several stakeholder groups, each with complex constituencies made up of organisations and their individual members. It is interesting to compare these processes with procedures used by the National Native Title Tribunal mediators, [127] or with attempts by Maori negotiators to seek a mandate for the expansion of Maori participation in fisheries under the terms of the Treaty of Waitangi and Maori Fisheries Act 1989 (NZ). [128]
The caucus approach in all three processes allowed a large number of constituency members to be present, taking turns at the table. Thus a larger than usual base of people within each stakeholder group was familiar with the proceedings and supported the outcomes. This no doubt assisted communication with the remainder of each constituency. The approach used in Chelan and the SFR of alternating large conferences with smaller group deliberations expanded participation further, without apparently compromising the working detail possible in smaller groups.
Relationship building
Relationship building is extremely important, and should preferably be pursued well before negotiation starts or is even proposed. Given the hostility among the stakeholder groups prior to the TFW process, it is not surprising that the relationship building phase was prolonged. The early literature on environmental negotiation emphasised the need for relationship building prior to negotiations, but envisaged this occurring in a training day or a matter of weeks. It appears that Washington's slower approach is a sound one.
Related to this is the principle of relationship building in its own right, regardless of whether it leads to negotiations. Later projects by the Northwest Renewable Resources Center have taken this direction. [129]
A conference may provide a valuable, non-threatening, relationship building step or catalyst for negotiation. Conferences were used before TFW and during the Chelan Agreement negotiations.
Ground rules
Ground rules and protocols help to establish a common culture of communication for the negotiations, and can help set the scope of the negotiations before they actually commence. The TFW ground rules helped to establish a mutually respectful climate for the discussions. Rules included:
These ground rules assume that 'everyone wins by addressing the needs and goals of all participants', 'by stepping back and looking at the whole picture' and 'everyone wins by discovering that all the different viewpoints, when received with an open mind and understanding, aren't so different after all'. [130]
The negotiation protocol agreed upon by the Lummi Indian Nation and Federal and State Governments [131] spelled out the purpose of the negotiations, issues to be addressed, the time frame for discussions, conduct of negotiation sessions, media contacts, a local community education strategy, and confidentiality.
The negotiation culture and the role of mediators
Environmental negotiation needs a different process and ethos from industrial relations, a point which was apparently brought home during the SFR negotiations. The culture of negotiation used in TFW and subsequent processes grew out of the ground rules proposed by the Northwest Renewable Resources Committee facilitators at the start of the TFW process.
The climate of cooperation created in each Washington negotiation process has also carried over to other dealings among the stakeholder groups. The negotiation culture needs constant maintenance because of the turnover among individual representatives (and possibly organisations) within the life of an Agreement. This slows the processes and can jeopardise the arrangements. The TFW Final Agreement [132] recommends devising specific ways to implement each negotiation process in a way which reinforces and perpetuates the cooperative spirit.
The environmental negotiation literature shows that while negotiations may be successful without facilitators, they are certainly helpful. Manring et al [133] argue that a facilitator provides a central source of leadership and resources for the process, educating those who are unfamiliar with the procedures and easing the dispute settlement process in an acceptable manner.
The Washington processes had the advantage of consistency in mediation support through the NRRC. As NRRC was run by its stakeholders, the stakeholders had a strong and continuing relationship with the mediation and research staff who served them. Mediators appear to have played an important role in bringing the TFW parties together initially, and in facilitating all three processes. [134]
Negotiation can work well if initiated by one of the non-government parties. These parties may have a stronger commitment to a process if they themselves have started it, whilst government is easily drawn into negotiations if other key stakeholders are anxious to solve the problems.
Both process and outcomes are important to the stakeholders. They must feel confident that the process will be fair and serve their interests. But they must also be sufficiently satisfied with what the process delivers for them to devote their time and effort to it. A sense of purpose is vital: it is essential to maintain focus on the issues throughout the negotiation and implementation phases.
The negotiation timetable must be speedy enough to maintain the parties' focus and sense of forward progress, but not proceed so fast as to force agreement before all participants are genuinely ready to commit. Shortage of time may well have been an error in the SFR process. Time between meetings needs to be judged carefully, to allow communication with and briefing from constituencies.
Funding to participate in the process and to implement the agreements is particularly important, especially for indigenous and environmental parties which may have inadequate staffing levels and communication infrastructure to devote to the process. The Federal Government assisted the tribes to participate in the implementation of TFW for ten years, after which they were to find their own resources.
Type of agreement and style of decision-making
The respective benefits of framework or process agreements, and agreements which specify intended actions in some detail, need careful consideration. Agreement at a broad level can be hard to put into operation at a detailed ground level, but does have the virtue of remaining flexible in changing circumstances. It may also be easier to reach agreement on principles than on specifics. The TFW Agreement represents a blend of these approaches. [135]
An important process issue is the relative merits of consensus or majority decision-making, especially during implementation of the agreements. Waldo [136] explains that consensus decision-making was chosen by the TFW participants to avoid parties taking advantage of one another. All needed to be interested in staying with the process and supporting the Agreement, as well as meeting their own goals. However, good process involves time and energy: participants in the Dungeness-Quilcene plan became tired of process and eager to proceed with implementation. [137] Maintaining a focus on the issues can help to avoid getting 'bogged down' in process.
Maintaining agreement
Keeping the Agreement working is as important as reaching agreement in the first place, and requires as much effort. TFW and Chelan illustrate this well. Agreements can and do fall apart, particularly if difficulties in communication arise, or frustrations with the process or rate of progress. Personnel changes, personalities, and funding availability make implementation fragile, although new personnel can also be a source of new ideas.
The text of the TFW Final Agreement [138] suggests that future negotiators should record the progress made, find ways to communicate the process and its successes to both constituents and others, and stress the need for both continued effort and good faith in implementing the agreement. This helps to educate the constituency members who may become future representatives at the table, or become active in implementing the agreement, and thus helps to maintain the continuity of the process.
Most important of all is maintaining the motivation for working together. Successful resolutions to environmental issues through negotiation require commitment to a co-operative, rather than a competitive or exclusionary ethic.
The ethos of co-operation is now strongly established among tribal leaders and staff. And yet there are significant obstacles in moving towards this co-operative ethos which seeks negotiated solutions to environmental management and indigenous with non-indigenous resource rights issues. The process has not been easy for the tribes of Washington State, as Waldo [139] relates. There are also some indigenous people, less connected with the decision-making processes, but still an important constituency, whose sense of hurt from the history of tensions between indigenous and non-indigenous Americans makes them highly sceptical that negotiation is a viable approach. Similarly, while some of the larger companies in the forest industry are strongly committed to negotiation, smaller and newer operators still need convincing.
In Australia, there is a patchwork of promising co-management arrangements and other forms of land use agreements, including mining agreements, in various resource management sectors. And yet these developments are offset by continuing political pressure by the Federal Government to weaken the legislative framework for native title.
Native title negotiations in Australia are certainly producing some positive outcomes. But although some indigenous leaders have promoted negotiation and participated in successful agreements, many of their constituencies remain doubtful, and with good reason. Indigenous people are unwise to negotiate from the position of disadvantage which their histories lead them to expect. [140] The same applies to the pastoral and other industries. [141] Some leaders and some constituents are attracted to negotiation and co-operative approaches, but so far they remain in the minority. The reconciliation movement, whose high level, formally created committee focus has recently been complemented by a groundswell of non-indigenous and indigenous commitment and participation, may well become crucial in promoting the ethos necessary for co-operative ventures to succeed.
My information on the three US Agreements comes from study leave in 1996 funded under a Fulbright Senior Fellowship and by the Australian National University, and hosted at Battelle Seattle Research Center and the University of Washington. My information on the progress of the Agreements was updated briefly in 1998. I thank the many government and non-government organisations, representatives of Tribal Governments, and individuals who took time to explain these agreements to me, and provided me with literature. These include Jovana Brown (Evergreen State College), Shirley Solomon (formerly NRRC mediator), Gordon Smith, Penny Eckert (University of Washington Department of Forestry) Jeffrey Thomas (Puyallup), Steve Robinson, John Hollowed (Northwest Indian Fisheries Commission), Terry Williams (Tulalip), Ann Seiter (Jamestown S'Klallam), Denise Dailey, Ned Currence (Makah), Stephen Bernath, Matt Burnengo, Jim Peters (Department of Natural Resources), Cynthia Nelson, Terry Husseman, Tom Laurie (Department of Ecology), Ed Liebow, Jeff Brandt (Battelle Seattle Research Center), Nick Zaferatos (Swinomish), Katherine Baril (Washington State University), Fay Cohen (Dalhousie University, Canada), and Polly Dyer (formerly with Institute of Environmental Studies, University of Washington). I also thank the anonymous reviewers whose comments have assisted this article.
[1] Helen Ross is a social scientist with the Centre for Resource and Environmental Studies, Australian National University. Email: hross@cres.anu.edu.au.
[2] Mabo [No 2] v the State of Queensland [No 2] (1992) 175 CLR 1; Native Title Act 1993 (Cth); Wik v Queensland (1997) 141 ALR 129.
[3] In this commentary, the concept of 'stakeholder' is used to refer to all parties, government and non-government alike, who affect, or are affected by, an issue. Government and non-government parties are thus regarded equally as 'stakeholders'. The tribal governments of Washington sometimes prefer to negotiate issues on a government-to-government basis, between themselves, State and local government or Federal Government if appropriate. In that sense, the term 'stakeholder' is often reserved for parties without government status.
[4] Sinnamon V, 'Gulf of Carpentaria coast and river management: an Aboriginal management agency perspective', paper presented to the Queensland Environmental Law Association Conference, 15-17 May 1992, p 8; Dale A, Aboriginal access to land management funding and services - case studies: Kowanyama, Aurukun, Woorabinda and Trelawney, University College, University of NSW, Canberra, 1991.
[5] Key references are Mangin R M, A multi-disciplinary systems-based analysis of the Timber/Fish/Wildlife environmental policy negotiation PhD thesis, Washington State University 1989; Halbert C L and Lee K N, 'The Timber, Fish and Wildlife Agreement: implementing alternate dispute resolution in Washington State' The Northwest Environmental Journal, 6, 1990 pp 139-175; Flynn S and Gunton T, 'Resolving natural resource conflicts through alternative dispute resolution: a case study of the Timber Fish Wildlife Agreement in Washington State' Environments 23, 2, 1996, 101-112.
[6] 1990 census figures. Precise numbers are 77,627 Native Americans, of a State population of 4,866,692 at that census.
[7] Osherenko G, Sharing the power with native users: co-management regimes for Arctic wildlife Canadian Arctic Policy Paper no 5, Canadian Arctic Resources Committee, Ottowa, 1988; Pinkerton E (ed), Cooperative management of local fisheries: new directions for improved management and community development University of British Columbia Press, Vancouver, 1989.
[8] Woenne-Green S, Johnston R, Sultan R and Wallis A, Competing interests: Aboriginal participation in National Parks and Conservation Reserves in Australia - a Review, Australian Conservation Foundation, Melbourne, 1994.
[9] Coombs H C, Ross H, McCann H and Williams N (eds), Land of Promises: Aborigines and Development in the East Kimberley Aboriginal Studies Press, Canberra, 1989; Richardson B J, Craig D and Boer B 'Indigenous peoples and environmental management: a review of Canadian regional agreements and their potential application to Australia: Parts 1 and 2' Environment and Planning Law Journal 11(4) 1994, 320-43 and 11(5) 357-381; Harris A (ed), 'A good idea waiting to happen: Regional Agreements in Australia' Proceedings from the Cairns workshop, July 1994 Cape York Land Council, Cairns, 1995; Ivanitz M,. The Emperor has no clothes: Canadian Comprehensive Claims and their relevance to Australia AIATSIS Native Titles Research Unit Regional Agreements Paper no 4, Canberra 1997; Edmunds M (ed), Regional Agreements: key issues in Australia AIATSIS Native Titles Research Unit, Canberra, 1998; Sullivan P, Regional Agreements in Australia: an overview paper AIATSIS Native Titles Research Unit Issues Paper no 17, Canberra, 1997; French Justice R, Local and regional agreements AIATSIS Native Titles Research Unit Regional Agreements Paper no 2, Canberra, 1997.
[10] Ross H, Young E, and Liddle L, 'Mabo [No 2]: an inspiration for Australian land management' Australian Journal of Environmental Management, 1(1) 1994 24-41. Davies J, Higginbottom K, Noack D, Ross H and Young E, Indigenous community wildlife management in Australia: a national review International Institute for Environment and Development, London, in press.
[11] See Campbell A, Landcare: communities shaping the land and the future Allen and Unwin, Sydney, 1994.
[12] Smith D E, 'Indigenous Land Use Agreements: the opportunities, challenges and policy implications of the amended Native Title Act' Centre for Aboriginal Economic Policy Research Discussion Paper 163/1998, Canberra, 1998; Padgett A, 'Native title and associated resource use issues' paper presented at the Australian Agricultural and Resource Economics Society 43rd Annual Conference, Christchurch, New Zealand, January 20-22 1999.
[13] Smith D E, as above, pp 11-16.
[14] Pinkerton E, 'Translating legal rights into management practice: overcoming barriers to the exercise of co-management' Human Organisation 51(4) 1992, 330-341, p 331.
[15] Committee on Protection and Management of Pacific Northwest Anadromous Salmonids, Upstream: Salmon and society in the Pacific Northwest National Academy Press, Washington DC, 1996, p 333.
[16] McCay B J and Jentoft S, 'From the bottom up: participatory issues in fisheries management' Society and Natural Resources, 9(3) 1996, 237-250.
[17] Young E, Ross H, Johnson J and Kesteven J, Caring for country: Aborigines and land management AGPS, Canberra, 1991, p 136.
[18] Forest Ecosystem Management Assessment Team (FEMAT) Forest ecosystem management: an ecological, economic and social assessment Report of the Forest Ecosystem Management Assessment Team, Washington DC, 1993, p 89.
[19] This term refers to Washington, Oregon and Idaho in the US, and British Columbia in Canada.
[20] Committee on Protection and Management of Pacific Northwest Anadromous Salmonids, Upstream: Salmon and society in the Pacific Northwest National Academy Press, Washington DC, 1996.
[21] Quoted from Treaty with Nisqually's & c , December 26, 1854, in Minot G, The Statutes at Large and Treaties of the United States of America, from December 1, 1851 to March 3, 1855 Little, Brown and Co, Boston 1855. All of the western Washington treaties included this wording.
[22] Cohen F G, Treaties on Trial: the continuing controversy over northwest Indian fishing rights University of Washington Press, Seattle 1986, pp 64-65.
[23] As above; Waldo J, US v Washington, Phase II: analysis and recommendations Report prepared for the Northwest Water Resources Committee, Seattle, 1981.
[24] US v Washington 384 F. Supp 312 [1974]. Judge Boldt retired in 1979, and the case was continued by Judge Orrick.
[25] This judgement led to an elaborate system of monitoring fish stocks and regulating catches, in which the Northwest Indian Fisheries Commission (NWIFC) plays a key role coordinating inter-tribe negotiations over catch allocations and helping to represent the tribes in negotiations with the State Government.
[26] US v Washington 506 F. Supp 203-5 [1980].
[27] Brown J, 'Treaty rights: 20 years after the Boldt decision' Wicazo Sa Review, 10(2) 1994, p 3.
[28] US v Washington 759 F2nd 1353, 1357 (1985). See Brown J, above note 27, p 3.
[29] Quoted by Brown J, above note 27, p 3.
[30] Department of National Resources, The Timber Fish Wildlife Agreement: introduction distributed by Department of Natural Resources, Olympia, Washington, no date.
[31] Wilkerson B, 'Perspectives on tribal, state and local cooperation: no simple matter' in Northwest Renewable Resources Center, Working effectively at the local level: tribal/county cooperation and coordination NRRC, Seattle, 1993 pp 10-15.
[32] Although resources for litigation brought by the tribes were provided by the Federal Government, without limit, under a 1966 law and the Civil Rights Attorney's Fees Act 1976 (Zaferatos N, Political sovereignty in Native American community development: implications for tribal planning strategies PhD thesis, Interdisciplinary Program in Urban Design and Planning, University of Washington, 1996 p 250). This legislation increased the incentive for the tribes to engage in litigation. The Federal Government also brought some key cases on behalf of Indian interests, including US v Washington.
[33] Waldo J, above note 23, pp 52-58.
[34] Under a 1908 legal interpretation known as the Winters doctrine (Winters v United States, [1908] USSC 13; 207 U.S. 564 [1908]), Indian tribes' water rights are deemed to date from the formation of their reservations. Unlike other water users, however, they are not required to maintain their rates of water usage in order to retain their priority (see Waldo J, above note 23 pp 52-54).
[35] Cottingham K, 'Developing a water resource process' in Whose water: past, present, future Institute of Environmental Studies, University of Washington, Seattle, 1993 p 142.
[36] Waldo J, above note 23, p 57.
[37] Reynolds B, Building bridges: a resource guide for Tribal/County Intergovernmental Cooperation: a final report of the Tribes and Counties Intergovernmental Cooperation Project, Northwest Renewable Resources Center Northwest Renewable Resources Center, Seattle, 1997 p 14.
[38] Deborah Juarez, speaking at the Conference Tribes and Counties: the spirit of cooperation in changing times, Seattle-Tacoma, 9-10 December 1996. (Referred to hereafter as the Tribes and Counties Conference, 1996).
[39] Brown, Jovana, in preparation, Water Resources Planning, p 13.
[40] Cohen F G, above note 22, p 146.
[41] The group included companies involved in timber, utilities, transport, and a bank (Cohen F G, above note 22 p 145). For the report, see Waldo J, above note 23.
[42] Dating from a formal meeting in 1983; Brown J 1994, above note 27, p 4.
[43] The organisations which participated in the negotiations are listed in TFW, A better future in our woods and streams Final report, Department of Natural Resources, Olympia, WA 1987 (referred to as the TFW Final Agreement) p 1.
[44] State Government was also represented on its Board.
[45] Department of Natural Resources, above note 30 p 1; Waldo J, 'Redefining winning: the TFW process' Forest Planning Canada 4(3) 1988, 14.
[46] Department of Natural Resources, above note 30, p 2.
[47] Department of Natural Resources staff, personal communication, 1996.
[48] Waldo J, above note 45, p 15.
[49] Waldo J, above note 45, p 15. In their consensus decision-making, the parties may decide to leave a matter on the table for a time. Their motto for consensus decision-making is 'to go where the truth leads them' (Stephen Bernath, Department of Natural Resources, personal communication 1996).
[50] This does not include the lands owned and managed by government. The US Forest Service owns 5.4 million acres, and the State Forest Service owns 2 million acres (Department of Natural Resources staff, personal communications, 1996).
[51] Other departments include the Departments of Fish and Wildlife, and Ecology (responsible for water).
[52] Waldo J, above note 45, p 14-15; Pinkerton E, above note 14 , p 332.
[53] TFW Final Agreement, p 1.
[54] Speaking at the Tribes and Counties Conference, 1996.
[55] Waldo J, above note 45; Katherine Baril, personal communication June 1998.
[56] TFW Final Agreement, p 11; Matt Burnengo, Department of Natural Resources, personal communication 1996.
[57] Jeffrey Thomas, Puyallup Tribe, personal communication 1996.
[58] Smith G, 'Making decisions in a complex and dynamic world' in Kohm K A and Franklin J F, Creating a forestry for the 21st century Island Press, Washington DC, 1997 pp 431-433. See also the NWIFC website <http://nwifc.wa.gov/TFW/inform.htm> for details on the procedures.
[59] Northwest Indian Fisheries Commission, Tribal participation in the TFW Agreement, no date, p 3.
[60] Department of Natural Resources, Northwest Indian Fisheries Commission, personal communications 1996.
[61] NWIFC, above note 59, p 2.
[62] Holling C S (ed), Adaptive environmental assessment and management John Wiley and Sons, New York, 1978.
[63] Committee on Protection and Management of Pacific Northwest Anadromous Salmonids, above note 15, p 336.
[64] Fisheries Director, Tulalip Tribe, personal communication 1996.
[65] Bill Wilkerson, speaking at the Tribes and Counties Conference, 1996; Jovana Brown, personal communication 1998.
[66] For example, it was several years after the Federal Government's listing of the spotted owl as endangered before the TFW participants were able to reach a resolution on it (Stephen Bernath, Department of Natural Resources, personal communication 1996).
[67] Smith G, above note 58, p 433.
[68] Smith G, above note 58, p 433..
[69] Smith G, above note 58, p 433; Fraidenburg M, 'The new politics of natural resources: negotiating a shift toward privatisation of natural resource policymaking in Washington State' Northwest Environmental Journal 5 1989, 221-240 (see pp 236-7); Halbert C L and Lee K N, 'The Timber, Fish and Wildlife Agreement: implementing alternate dispute resolution in Washington State' The Northwest Environmental Journal 6, 1990, pp 139-175 (see pp 146-155).
[70] Ned Currence, Makah Tribe TFW biologist, personal communication, 1996.
[71] Nelson C, Elusive solutions to water issues in Washington State Masters thesis, Evergreen State College, Olympia WA, 1994 p 51.
[72] US v Washington 506 F. Supp 203-5 (1980).
[73] Abridged version of the Agreement text which is published in Dyer P (ed), Whose water: past, present, future Institute of Environmental Studies, University of Washington, Seattle, 1993 pp 155-181.
[74] Brown, Jovana, above note 39, p 16.
[75] For example, the tribes criticised the process as not protecting their sovereign rights, and weakening their position at the top of the water rights priority list protected under Federal law after the Boldt decisions. They also felt their government to government relations were trivialised by the inclusion of irrigation districts as 'governments' (Department of Ecology staff, personal communications 1996; Brown Jovana above note 39, p 17).
76 Seiter A, 'Putting process into practice: tribal leadership in regional water planning' paper presented at American Water Resource Association Summer Symposium on Changing Roles in Water Resources Management and Policy, Seattle, 27-30 June 1993.
77 For example in-stream flow studies, irrigation usage and ditch leakage, groundwater quantity and quality, a fisheries habitat inventory, aerial photographs, and a Geographic Information System showing the network of irrigation channels.
[78] Penny Eckert, Cynthia Nelson, personal communications 1996.
[79] Ann Seiter, Jamestown S'Klallam Natural Resources Director, personal communication 1996.
[80] See Nelson C, above note 71.
[81] Terry Husseman and Tom Laurie, Department of Ecology, personal communications 1996.
[82] Cynthia Nelson, Department of Ecology, personal communication 1996.
[83] Tom Laurie, Department of Ecology, personal communication 1996.
[84] SUSTAIN Alert, 23 November 1990. SUSTAIN was part of the environmental constituency consulted by environmental representatives in SFR.
[85] Pinkerton E, above note 14, p 337. Brown, Jovana, Habitat protection: Forestry, in preparation p 17; Matt Burnengo, personal communication 1996.
[86] Ramsey R, Participant reflections from the Sustainable Forestry Round Table Department of Natural Resources, Washington, 1991. The following comments are drawn from this report and interviews with Gordon Smith and Department of Natural Resources staff, 1996.
[87] Note that a major party became sole facilitator in the Dungeness-Quilcene negotiations, yet this did not ultimately present difficulties.
[88] Ramsey R, above note 86.
[89] The US Government negotiator asked that bands of extended families and settlements be formed into tribes in 1854-55 (Waldo J, above note 23, p 3).
[90] Waldo J, above note 23, pp 4-5.
[91] It remains most successful when basic policies are already set, and approved by the tribes (Waldo J, above note 23, pp 6-7).
[93] Ann Seiter, speaking at the Tribes and Counties Conference, 1996.
[94] Deborah Juarez, speaking at the Tribes and Counties Conference, 1996.
[93] US v Washington phase 1 required co-operation between the tribes and states, becoming the basis for a statewide co-management arrangement for fisheries (Zaferatos N, above note 32, p 252). Other co-management activities, between particular tribes and other parties, are widespread.
[95] This synthesis is derived from interviews with stakeholder groups in 1996, and comments by Bill Wilkerson, Kurt Davison, Deborah Juarez, Leonard Forsman and Bob Peterson, and other speakers at the Tribes and Counties Conference, 1996.
[96] This is consistent with Fisher and Ury's (1981) principles for negotiation: Fisher R and Ury W, Getting to yes: negotiating agreement without giving in Houghton Mifflin, Boston, 1981. These include 'focus on the issues, not the people', and 'invent options for mutual gain'.
[97] TFW Final Report, p 1.
[98] Wilkerson, Kurt Davison, Deborah Juarez respectively, speaking at the Tribes and Counties Conference, 1996.
[99] Leonard Forsman and Bob Peterson, speaking at the Tribes and Counties Conference, 1996.
[100] See the example of Native American knowledge of salmon breeding habits given earlier.
[101] Executive Director of Grande Ronde Model Watershed Program, speaking at the Tribes and Counties Conference, 1996.
[102] Shirley Solomon, personal communications 1996; Northwest Renewable Resources Center Working effectively at the local level: tribal/county cooperation and coordination NRRC, Seattle, 1993; Zaferatos N, above note 32; Reynolds B, Building bridges: a resource guide for Tribal/County Intergovernmental Cooperation: a final report of the Tribes and Counties Intergovernmental Cooperation Project Northwest Renewable Resources Center, Seattle, 1997.
[103] Reynolds B, above note 101, pp 110-111.
[104] Lummi Indian Nation Federal Negotiating Team and State of Washington (1995)Protocols for Negotiation.
105 Department of Ecology, State of the Nooksack River Watershed Department of Ecology Nooksack Initiative Office, Bellingham, Washington, 1995. The Task Force included business, agricultural, environmental, fisheries, recreation, water suppliers, local, State, Tribal and Federal Governments.
[106] Richardson et al, above note 9.
[107] Indigenous local governments include a number of Cape York Peninsula communities, the Torres Strait Regional Authority and the Shire of Ngaanyatjarraku in the Central Desert of WA.
[108] O'Faircheallaigh C, Process, politics and regional agreements Native Titles Research Unit Regional Agreements paper no 5 AIATSIS, Canberra 1998 pp 1-2; Jull P, 'An Aboriginal policy for the millennium: the three social justice reports' 1(1) AILR, 1996 pp 9-10.
[109] See for instance the case studies of regional agreements in Edmunds, above note 9.
[110] Bennett D, 'Issues in the sustainable use of wildlife by indigenous peoples: the Convention on Biological Diversity and Native Title' in Grigg C G, Hale P T, and Lunney D, Conservation through sustainable use of wildlife Centre for Conservation Biology, University of Queensland, Brisbane 1995 pp 60-68; Bennett D, Native title and intellectual property Native Titles Research Unit Issues Paper no 10, AIATSIS, Canberra 1996.
[111] Lane M B, Brown A L and Chase A, 'Land and resource planning under native title: towards an initial model' Environmental and Planning Law Journal, 14(4) 1997 pp 249-258.
[112] Wensing E and Sheehan J, Native title: implications for land management discussion paper no 11, The Australia Institute, Canberra 1997.
[113] Bartlett R, 'Native title and fishing rights' 1(3) AILR 1996, 365-381; Sutherland J, 'Fisheries, aquaculture and Aboriginal and Torres Strait Islander Peoples: studies, policies and legislation: Summary of findings' 2(1) AILR 1997, pp 124-153.
[114] See Edmunds, above note 9.
[115] Wik v Queensland (1997) 141 ALR 129.
[116] US v Washington 384 F. Supp 312 (1974).
[117] Smith G, above note 58.
[118] Waldo J, above note 23, p 70ff.
[119] Wilkerson, B above note 31.
[120] Wilkerson B, above note 31, pp 12-13.
[121] Since the passing of amendments to the NTA, this potential has of course now been reduced with respect to pastoral leases.
[122] Craig and Ehrlich, Ross H, Lane M and Northern Land Council Indigenous participation in environmental impact assessment Commonwealth Environment Protection Agency, Review of Commonwealth Environmental Impact Assessment report series, Canberra 1996; O'Faircheallaigh C, 'Mineral development agreements negotiated by Aboriginal communities in the 1990s' Centre for Aboriginal Economic Policy Research Discussion Paper no 85 CAEPR, Australian National University, Canberra 1995; O'Faircheallaigh C, 'Negotiations between mining companies and Aboriginal communities: process and structure' Centre for Aboriginal Economic Policy Research Discussion Paper no 85 CAEPR, Australian National University, Canberra 1995.
[123] See text in AILR 1(3) 1996, 446-448. The omission of one key stakeholder, the State Government, from these negotiations has proved a stumbling block to implementation, but the Agreement remains a landmark in cooperation among former adversaries.
[124]
Outlook '95 û Applying the Native Title Act 1993 Australian Bureau of
Agricultural and Resource Development Annual Conference
(no further details
provided) on the National Native Title Tribunal website
<http://www.nntt.govau/>
.
[125] Waldo J, 'Perspectives on the future' in NRRC, above note 51 p 67.
[126] Holling C S, above note 62.
[127] See 'progressive reduction of parties' and 'group representation of interests' in Outlook '95 above note 123.
[128] Wickliffe C, 'The co-management of living resources and Maori customary fishing rights' in Meyers G D (ed), The way forward: collaboration and cooperation in country: Proceedings of the Indigenous Land Use Agreements Conference Darwin, NT, 26-29 September 1995 p 76.
[129] Shirley Solomon, personal communication 1996; NRRC note 51; Reynolds above note 101.
[130] Department of Natural Resources, above note 30.
[131] Lummi Indian Nation, Federal Negotiating Team and State of Washington (1995) Protocols for Negotiation.
[132] p 3.
[133] Manring N J, Nelson K C and Wondolleck J M, 'Structuring an effective environmental dispute settlement process' in Crowfoot J E and Wondolleck J M, Environmental disputes: community involvement in conflict resolution Island Press, US, 1990 pp 75-97.
[134] Information is available in Waldo J, above note 45; Ramsey R, above note 86.
[135] The parties decided to keep the Agreement general, recognising that proposals for detailed regulations might become less and less relevant (Matt Burnengo, Department of Natural Resources, personal communication 1996).
[136] Waldo J, above note 45, p 15.
[137] Ann Seiter, speaking at the Tribes and Counties Conference.
[138] Department of Natural Resources, above note 43.
[139] Waldo J, above note 45.
[140] See Outlook '95, above note 123.
[141] Farley R, Wik û the way forward AIATSIS Native Titles Research Unit Issues Paper no 13 AIATSIS, Canberra 1997.
Each TFW participant recognises that the goals of all participants are equally legitimate and important. As partners in TFW, the participants have accepted the following goals:
Wildlife
To provide the greatest diversity of habitats (particularly riparian [riverbank], wetlands and old growth), and to assure the greatest diversity of species within those habitats for the survival and reproduction of enough individuals to maintain the native wildlife of Washington forest lands.
Fisheries
- long-term habitat productivity for natural and wild fish, and the protection of hatchery water supplies.
Archaeological and cultural
- to develop a process to inventory archaeological cultural spaces in management forests; and to inventory, evaluate, preserve and protect traditional cultural and archaeological spaces and assure tribal access.
Water quality and quantity
- protection of water needs of people, fish and wildlife.
Timber
- the continued growth and development of the state's forest products industry which has a vital stake in the long term productivity of both the public and private forest land base.
Abridged from TFW Final Agreement, p 2.
Timber-Fish-Wildlife Chelan Agreement and its Sustainable Forestry Roundtable Agreement (TFW) pilot studies negotiations (SFR)
Environmental management issue Timber practices: affecting Water allocation Strengthen wildlife management fish and wildlife habitat under TFW
Legal leverage for negotiation US v Washington Stage 2, 1980, indicated that the tribe's treaty rights over fish contained an implicit requirement for habitat protection.
Stakeholders' caucuses Tribes, forest industry, State Tribes, State Government, local Tribes, forest industry, State Government, environmental government, environmental groups, Government, environmental groups. groups, later local government, agriculture, business, very recently Federal Government. fisheries, recreation.
Date and length of negotiations 1986 - early 1987; six months 1990; six months after six months' 1989-1990; one year pre-negotiations
Longevity of agreement Continuing, 12 years to date Four years for state policy committee No agreement concluded on final (Water Resources Forum), pilot draft, but aspects adopted by state studies still in implementation. Forest Practices Board.
Negotiation process Mediation by Northwest Renewable Resources Center (Department of Natural Resources joined the SFR facilitation team). Ground rules established for TFW, adapted for the later processes. About 40 people participated Two conferences with 175/200 Three large conferences. at each of around 60 meetings. participants. 'Interim team' 95 participants. Eight working Heated at times. developed options between parties (6-12 members each) conferences. developed proposals between conferences.
Type of agreement Unsigned Unsigned Intended to be signed, and
(legal status) (handshake agreement) (handshake agreement) to be implemented in legislation, to apply for ten years (Agreement was not reached).
Style of agreement Statements of principle and Statements of principle and Detailed on environmental intent, quite broad intent, quite broad, but with management procedures and implementation detail to be regulatory proposals. worked out for each catchment.
Discussion/decision-making Policy group. Special-purpose Water Resources Forum (state-wide). Stated periods for reviews.
structures established committees. Interdisciplinary Pilot planning processes in
(or intended) scientific teams (field level). catchments. Stated periods for Annual reviews. reviews
Interesting features Blending of science with policy Combining participation Combining participation discussion and on-ground conflict techniques to allow broad techniques to allow broad resolution, through interdisciplinary participation as well as intensive participation as well as scientific teams and Cooperative discussion. Referring challenge intensive discussion. Use of Monitoring, Evaluation and of difficult allocation decisions science in designing a new Research Committee. to local level. forest practices regime.
Strengths Very strong commitment Thorough review of water policies. Final draft was creative in its among the parties Adventurous proposals by pilot ideas for wildlife management. study participants, which could not have been proposed by government. [87]
Difficulties Consensus decision-making Retaining stakeholder commitment Difficulties inherent in the lapsed into 'stalling', low base when political opportunities topic, and negotiation process of acceptance for proposals. changed Dependence on government funding which was not forthcoming for implementation. The negotiation processes and their implementation involved heavy demands on key individuals and their staff.
Influence Consensual, progressive A number of policy Some proposals taken up by reformation of forest practices, recommendations adopted. Forest Practices Board. both among operators and in Pilot planning processes regulatory framework. highly successful. Each contributed to the development of a powerful ethos of statewide, inter-sectoral cooperation in environmental management.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/16.html