35 Dispute resolution process
35.1 Scope of process
(a) Disputes arising in Treaty negotiations or incidental to or in connection with Treaty negotiations will be resolved in accordance with this Framework, including disputes in relation to:
- (i) the relevant Minimum Standards under clauses 8, 13, 16 and 20;
- (ii) entry onto the Negotiations Database under clauses 9, 11, 14, 21, 23 or clause 2.4 of Schedule 1;
- (iii) Delegation formation, agreement, or reconstitution under clause 10;
- (iv) preparations for and involvement in the negotiation process under Parts B-E;
- (v) the proposed interaction between Traditional Owner Treaties and a Statewide Treaty; and
- (vi) formalising Treaty agreements under Part F.
(b) The Negotiating Parties agree to work to:
- (i) resolve disputes:
- (A) efficiently and with finality;
- (B) through a culturally strong process;
- (C) having regard to Aboriginal Lore, Law and Cultural Authority; and
- (D) in a timely manner; and
- (ii) enable Treaty negotiations to continue during the dispute resolution process wherever possible;
- (iii) recognise the interconnectedness of First Peoples' communities who may be affected by a dispute;
- (iv) treat all parties to the dispute fairly and ensure all parties are listened to; and
- (v) be open, transparent and focused on finding common understandings and maintaining and strengthening the relationship between the parties to the dispute.
(c) The Parties acknowledge that Treaties will be reached by two or more Negotiating Parties coming together in good faith to reach agreement. The dispute resolution process will therefore seek to resolve disputes in a manner that supports agreement-making and preserves, restores and builds ongoing, just and respectful relationships, rather than through an adversarial dispute resolution process.
35.2 Treaty Authority guidance
(a) The Treaty Authority may issue guidelines in relation to the resolution of disputes in Treaty negotiations. This may include guidelines promoting informal, flexible and culturally strong dispute resolution.
(b) In seeking to resolve a dispute, the Treaty Authority will take account of the issues in dispute and Aboriginal Lore, Law and Cultural Authority.
(c) The Treaty Authority will provide advice to the parties to the dispute throughout the process to ensure they meet the requirements of Part I of this Framework.
(a) The dispute resolution process should be confidential and will only be disclosed to third parties where:
- (i) agreement is reached between all parties to the dispute; or
- (ii) the Treaty Authority considers disclosure is justified in the circumstances of the dispute.
- (b) In considering whether disclosure is justified the Treaty Authority will take into account:
- (i) the views of parties to the dispute;
- (ii) whether disclosure would prejudice the resolution of the dispute;
- (iii) whether disclosure would prejudice Treaty negotiations;
- (iv) any requirements of law;
- (v) any requirements of Aboriginal Lore, Law or Cultural Authority; and
- (vi) the need to uphold and respect Indigenous Data Sovereignty and Indigenous Data Governance.
36 Stages in dispute resolution process
36.1 Dispute resolution process
(a) If a dispute arises in Treaty negotiations or incidental to or in connection with Treaty negotiations, the parties to the dispute must try to resolve the dispute themselves on an informal basis and in good faith.
(b) If the dispute cannot be resolved informally, the party raising the dispute must provide written notice detailing the nature and content of the dispute to the Treaty Authority and to the other party or parties to the dispute.
(c) Subject to clause 36.1(f), upon receiving a written notice of a dispute, the Treaty Authority must:
- (i) commence dispute resolution under this clause by:
- (A) notifying the parties to the dispute that a dispute has been raised and will be dealt with under the dispute resolution process; and
- (B) notifying any other party it considers should be joined to the dispute and inviting them to participate as a party to the dispute resolution process; or
- (ii) notify the party issuing the notice under clause 36.1(b) that the dispute resolution process will not be commenced in relation to the dispute, if the Treaty Authority considers that the dispute is:
- (A) trivial, vexatious or not relevant to Treaty negotiations;
- (B) unlikely to be resolved through dispute resolution; or
- (C) not appropriate for dispute resolution, including because the commencement of the dispute resolution process is premature, and give advice to the party who issued the notice on alternative approaches for addressing the issues raised by the notice.
(d) If the Treaty Authority commences a dispute under clause 36.1(c)(i), the Treaty Authority will convene facilitated discussions or yarning circles to offer the parties to a dispute the opportunity to speak in a safe and non-judgemental place, share their strengths in an inclusive environment and collaborate to build a plan and create a collective commitment to action.
(e) If the Treaty Authority considers the facilitated discussions or yarning circles have not resolved the dispute, it will take action to seek to resolve the dispute, having regard to the nature of the dispute, what is culturally appropriate and the views of the parties, including to:
- (i) request information from parties;
- (ii) provide an opinion;
- (iii) present proposals for resolution of the dispute;
- (iv) engage experts to assist in the resolution of the dispute;
- (v) convene further facilitated discussions or yarning circles, or convene mediation;
- (vi) refer the dispute to an expert panel for recommendations;
- (vii) determine that no further action should be taken;
- (viii) make a recommendation; or
- (ix) make a determination for the purposes of clause 9.3(b)(ii), 9.3(c)(ii), 10.3(b), 10.6(c), 11.3(c)(ii), 11.3(d)(ii), 11.4(b), 18.5(a)(i)(C), 18.5(c)(ii) or clauses 2.4(b) and 2.4(g) of Schedule 1.
(f) For the purposes of resolving a particular dispute, the Treaty Authority may direct the parties to the dispute to follow any process or procedures that are different to those set out in clause 36.1(a)–(e) which the Treaty Authority considers necessary or desirable for the resolution of the dispute.
(g) If the Treaty Authority makes a recommendation under clause 36.1(e)(viii), the parties to the dispute will use their best endeavours to give effect to that recommendation.
(h) If the Treaty Authority makes a determination under clause 36.1(e)(ix) for the purposes of clause 9.3(b) (ii), 9.3(c)(ii), 10.3(b), 10.6(c), 11.3(c)(ii), 11.3(d)(ii), 11.4(b), 18.5(a)(i)(C), 18.5(c)(ii) or clauses 2.4(b) and 2.4(g) of Schedule 1, then that determination is final and has the effect described in that clause.
(i) Notwithstanding anything in this clause, the Treaty Authority cannot require the Negotiating Parties to alter the substantive content of any Treaty or Interim Agreement or enter into, or not enter into, any Treaty or Interim Agreement.
36.2 Legal proceedings
The parties to a dispute must not commence any legal proceedings in respect of a dispute arising in the course of Treaty negotiations or incidental to or in connection with Treaty negotiations, until the dispute resolution process set out in clause 36.1, or any other process or procedure that the Treaty Authority directs under clause 36.1(f) be followed, has been exhausted.
Reviewed 28 October 2022