Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland
[2013] NNTTA 30
•31 March 2013
NATIONAL NATIVE TITLE TRIBUNAL
Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 30 (31 March 2013)
Application No: QF2012/0013
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
Adani Mining Pty Ltd (grantee party)
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Jessie Diver, Patrick Fisher, Lynette Landers, Irene White, Elizabeth McAvoy, Patrick Malone and Les Tilley on behalf of the Wangan and Jagalingou People
(native title party)
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The State of Queensland (Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: President Graeme Neate
Place: Brisbane
Date of decision: 31 March 2013
Hearing dates: 15 November 2012
Representatives:
Grantee party: Mark Geritz and Tosin Aro, Clayton Utz
Native title party: Nadia Rosenman, Chalk & Fitzgerald
Government party: Sara Newrick, Department of Natural Resources and Mines
Catchwords: Native title – future act – application for determination for the grant of mining lease – no agreement with native title party – whether grantee party negotiated in good faith with native title party – legal principles on good faith negotiations – evidence
Legislation:Native Title Act 1993 (Cth), ss 29, 30, 30A, 31, 33, 35, 36, 38, 75, 151
Aboriginal Cultural Heritage Act 2003 (Qld)
Mineral Resources Act 1989 (Qld)
State Development and Public Works Organisation Act 1971 (Qld)
Cases:Brownley v Western Australia (1999) 95 FCR 152
Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying- gu (NC11/3), Warrabingu-Wiradjuri People (NC11/4)/State of New South Wales [2012] NNTTA 145
Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276
FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141
FMG Pilbara Pty Ltd/Ned Cheedy and others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 38
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52
Placer (Granny Smith) v Western Australia (1999) 163 FLR 87
QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019
Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303
Walley v Western Australia (1999) 87 FCR 565
Western Australia v Dimer (2000) 163 FLR 426
Western Australia v Taylor (1996) 134 FLR 211
White Mining (NSW) Pty Ltd v Franks (2011) 257 FLR 205
REASONS FOR DECISION
Adani Mining Pty Ltd (‘the grantee party’) plans to develop large, greenfield coal mines with supporting infrastructure in the Galilee Basin in central Queensland. To do so it needs, among other tenements, Mining Lease 70441. The State of Queensland intends to grant that tenement over an area where there is a registered native title claim made on behalf of the Wangan and Jagalingou People. Negotiations with a view to obtaining the agreement of the applicant for the native title claim to the grant of the mining tenement were unsuccessful. The grantee party applied to the National Native Title Tribunal (‘Tribunal’) for a determination that the tenement be granted without conditions. The applicant for the native title claim contends that the grantee party did not negotiate in good faith as mentioned in s 31(1)(b) of the Native Title Act 1993 (Cth) (‘the Act’) and therefore the Tribunal has no power to make the determination.
These reasons for decision are confined to the issue whether the Tribunal is satisfied that grantee party did not negotiate in good faith as mentioned in s 31(1)(b) and hence whether the Tribunal has power to decide that Mining Lease 70441 must not be granted or may be granted or may be granted subject to conditions to be complied with by any of the parties (s 38(1)).
Background
The State of Queensland (‘the Government party’) gave notice under s 29 of the Act of its intention to grant Mining Lease 70441 (‘the proposed tenement’) to the grantee party pursuant to the Mineral Resources Act 1989 (Qld). The notice was published in the Koori Mail and the Central Queensland News on 2 November 2011. In accordance with s 29(5) of the Act, 23 November 2011 was specified as the notification day in relation to the proposed future act.
The notice stated that the grant of the proposed tenement would authorise the holder to ‘mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld) for a term not exceeding fifty (50) years with the possibility of renewals for a term not exceeding fifty (50) years’.
The proposed tenement is an irregularly shaped block with an area of approximately 26,015 hectares, centred approximately 160 kilometres north-west of Clermont and 200 kilometres south-east of Pentland in the locality of both the Isaac Regional Council and the Charters Towers Regional Council.
When notice of the proposed future act was given, there was a registered native title determination application by Jessie Diver, Patrick Fisher, Lynette Landers, Iren White, Elizabeth McAvoy, Patrick Malone and Les Tilley on behalf of the Wangan and Jagalingou People (‘the native title party’). The Wangan and Jagalingou People native title claim (QUD85/2004, QC2004/006) was entered on the Register of Native Title Claims on 5 July 2004. It overlaps 99.38 per cent of the area covered by the proposed tenement. The ‘native title party’ within the meaning of s 30(1) of the Act has status as a ‘negotiation party’ under the right to negotiate provisions of the Act (s 30A). There is no other native title party to these proceedings.
At a meeting on 6 February 2010, the Wangan and Jagalingou People passed a resolution authorising the seven persons who comprise the native title party to ‘negotiate and reach agreement with proponents of Future Act matters’. The Wangan and Jagalingou people did not give such authority to any other persons or entities at the 6 February 2010 meeting or at any subsequent meeting. Another resolution provided that where the persons constituting the native title party cannot agree by consensus, the decisions by them are to be by majority vote.
On 7 November 2012, more than six months after the notification day, the grantee party applied under s 35 of the Act for a future act determination under s 38. The application stated that the negotiating parties had ‘not been able to reach agreement on the doing of the act’, i.e. the grant of the proposed tenement. On 9 November 2012, I was appointed as the Member to conduct the inquiry in relation to the application.
The grantee party describes the proposed tenement as a ‘key component’ of the grantee party’s proposed integrated Carmichael Coal Mine and Rail Project (‘the Carmichael Project’). The Carmichael Project involves an open-cut and underground coal mine with a projected yield of 60 million tonnes per annum from 2022, and associated infrastructure including a railway line and associated quarry areas. The railway line will run from the mine to Moranbah, a distance of approximately 200 kilometres.
According to the grantee party, the Carmichael Project will involve developing greenfield open-cut and underground coal mines and supporting on-site and off-site infrastructure over EPC 1690 and the eastern part of EPC 1080. This development is expected to result in rail facilities being connected to two export terminals. Significant port expansion works are also to be included in the project. The Carmichael Project is expected to have an operating life of approximately 90 years.
The scale of the Carmichael Project is illustrated by material provided by the grantee party. According to the Environmental Impact Statement, Executive Summary, the Project has been declared a ‘significant project’ requiring an Environmental Impact Statement under the State Development and Public Works Organisation Act 1971 (Qld). The expected capital investment for the life of the mine amounts to a total of $21.5 billion. For the operational phase of the mine component of the project, the total impacts on Gross Regional Product at the point of full production, within that specific year, would be expected to reach approximately $3.795 billion for the Mackay Region and $4.17 billion for the State of Queensland. The Project’s mine component is expected to generate, on average over the construction years, $78.2 million per annum in impacts on the Gross Regional Product of the Mackay Region and $203 million per annum in respect of the State of Queensland.
The grantee party also submits that the grant of the proposed tenement would allow works to proceed regarding construction of the rail infrastructure which would generate, on average over the construction years, approximately $145 million per annum in impacts on the Mackay Region’s Gross Regional Product and approximately $229 million in impacts on the State of Queensland’s Gross Regional Product.
The ‘good faith issue’ and how it is to be decided
The Act states that the negotiation parties ‘must negotiate in good faith’ with a view to obtaining the agreement of ‘each of the native title parties’ to the doing of the future act or the doing of the future act subject to conditions to be complied with by any of the parties (s 31(1)(b)). The Act also provides that if any negotiation party satisfies the Tribunal that any other negotiation party (other than a native title party) did not negotiate in good faith, the Tribunal must not make a determination pursuant to s 38 (see s 36(2)).
At a preliminary conference on 15 November 2012, the legal representative of the native title party confirmed that the native title party contends that the grantee party did not negotiate in good faith for the purpose of s 31(1)(b) (‘the good faith issue’). Directions were made on 16 November 2012 requiring, among other things, that each party provide a statement of contentions and supporting documentary evidence in relation to the good faith issue by specified dates. In compliance with those directions:
(a)the native title party provided a statement of contentions on 17 December 2012, which is supplemented by Affidavits of Leanne Patricia Mitchell (an employee of Chalk & Fitzgerald), Andrew John Chalk (principal of Chalk & Fitzgerald), David Neville Meale and Nadia Alexandra Rosenman (solicitors employed by Chalk & Fitzgerald), and Patrick Allan Malone (one of the persons who comprise the native title party) provided on various dates between 14 and 18 December 2012
(b)the grantee party provided a statement of contentions, together with Affidavits of William Thomas Haseler (General Counsel of the grantee party), Graham Milroy Carter (a Managing Director of Environmental Land Heritage Pty Ltd (‘ELH’), native title and cultural heritage advisers to the grantee party) and Mark Graham Annandale (a Managing Director of ELH), on 21 December 2012
(c)the Government party provided a statement of contentions with four Annexures on 21 December 2012, and
(d)the native title party provided a statement in reply and additional evidentiary material (including affidavits of Ms Rosenman, Mr Malone, Irene White and Terry Wilson) on 21 January 2013.
Subsequent correspondence was sent to the Tribunal comprising the grantee party’s letter dated 24 January 2013 addressing the native title party’s statement in reply, and the native title party’s reply dated 30 January 2013.
It is relevant to note that, because the native title party made no allegation regarding lack of good faith by the Government party, the Government party made no contentions in relation to the good faith issue other than to set out the relevant legal principles which guide the resolution of that issue. The Government party noted that representatives of the State of Queensland were not involved in the negotiations which are the subject of specific complaint by the native title party, and that the other parties had made contentions and provided supporting material in relation to those negotiations.
Section 151 of the Act provides that, for the purposes of an inquiry:
(a)the Tribunal may hold hearings
(b)the Tribunal may make a determination in relation to a right to negotiate application by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal, and
(c)the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.
The parties did not request an oral hearing in relation to this matter.
Having regard to the detailed submissions of the parties and the nature and volume of the documents lodged with or provided to the Tribunal, I am satisfied that the good faith issue can be adequately decided in the absence of the parties and that the Tribunal may make a decision by considering those documents without holding a hearing.
Given that the Government party played no active role in the resolution of the good faith issue other than by providing submissions in relation to relevant legal principles, these reasons focus primarily on the submissions and evidence provided by the native title party and the grantee party.
The native title party contends that the grantee party did not negotiate in good faith as required by s 31(1)(b) of the Act. In particular the contention is that, in its behaviour the grantee party failed to meet accepted standards of good faith negotiation and its behaviour was sustained and serious enough to constitute more than a lapse in good faith. Accordingly, the native title party submits, the Tribunal has no power to make the determination sought by the grantee party and should dismiss the future act determination application.
In reply, the grantee party seeks to:
(a)demonstrate that it has discharged its obligation to negotiate in good faith, and
(b)rebut the contentions of the native title party to the effect that the grantee party has not discharged that obligation.
The good faith issue – overview of legal principles
Subsection 31(1) provides that, unless a s 29 notice includes a statement that the Government party considers that the future act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act, and
(b)the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act (with or without conditions to be complied with by any of the parties).
The term ‘negotiation parties’ is defined in s 30A to include the Government party, any native title party and the grantee party. Any negotiation party may apply to the Tribunal for a determination under s 38 if at least six months have passed since the notification day and no agreement of the kind mentioned in s 31(1)(b) has been made in relation to the future act (ss 35, 75).
If any negotiation party satisfies the Tribunal that any other negotiation party (other than a native title party) did not negotiate in good faith, the Tribunal must not make a determination under s 38 (see s 36(2)). The implications of s 36(2) were explained by the Full Federal Court in FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 (‘Cox’) (at [11]) as follows:
... the statutory prohibition at s 36(2) affects the ‘power’ of the Tribunal to make an arbitral determination rather than its ‘jurisdiction’. The prohibition on exercise of the power only arises when the good faith point is both taken and taken successfully by a negotiation party. If there were no good faith but the point were not taken, the Tribunal would still have jurisdiction and power. The power to make a determination is a function of the jurisdiction conferred on the Tribunal.
The obligation is to negotiate in good faith with a view to obtaining each native title party’s agreement to the doing of the future act. A minimum six month period after notification is prescribed before arbitration can be sought. As Member O’Dea pointed out in FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia (‘FMG Pilbara’) ([2009] NNTTA 38 at [67]):
the Act does not require any party to negotiate in any physical sense for a period of six months. What is required is that the parties negotiate in good faith with a view to obtaining an agreement with the native title party to the doing of the [a]ct ... . The actual period of negotiation which would need to take place in order to establish that the parties had negotiated in good faith, is not necessarily related to the length of time spent negotiating. Rather it is the quality of the process that will be determinative of the question of whether the parties have engaged in the process in good faith.
Once the six month period has elapsed it is open to any negotiation party to exercise its statutory right to seek a future act determination. It is not necessary that the negotiations have reached any particular ‘stage’ before a party seeks arbitration. This was explained by the Full Federal Court in Cox (at [19]) as follows:
The expression “negotiate in good faith” is to be construed in its natural and ordinary meaning and in the context of the Act as a whole: Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 at 319. Accordingly, the act of lodging an application under s 35, taken alone, cannot be relied upon in order to establish bad faith in the negotiating process (Strickland 85 FCR at 322). If negotiations reach a standoff, notwithstanding attempts in good faith to negotiate within the relevant six-month period, there are no further obligations after the completion of the six-month period on a party which wishes to lodge a notice under s 35 of the Act. There is no need, for example, to give further warning of the intention to do so.
Although negotiations are not required to have reached any particular stage before a future act determination is sought, ‘it is not sufficient for good faith negotiations to merely “go through the motions” with a closed mind or a rigid or predetermined position’ (Cox at [24]). The Full Court highlighted that the requirement for good faith in negotiations is directed towards ‘the quality of a party’s conduct’. Drawing on previous Federal Court and Tribunal decisions, the Full Court stated (at [20]):
It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in negotiations.
Accordingly, it is important to ascertain whether negotiations have not advanced due to one of the parties engaging in misleading conduct or a stalling process so that by the time the six month period has elapsed there was never any real intention to reach agreement. In White Mining (NSW) Pty Ltd v Franks (‘White Mining’) ((2011) 257 FLR 205 at [33]) Deputy President Sosso observed:
... it is central to a good faith assessment to have regard to a negotiation party’s state of mind as manifested by its conduct. A party will fail to negotiate in good faith if it proposes a course of action which could be characterised as stalling, and then seeking arbitration after six months when the other party or parties reasonably would have expected that negotiations be on-going. In short, while good faith is not evaluated on the basis of the “status”, “stage” or “substance” of negotiations, it is evaluated on how negotiations are conducted. Consequently, if a party has deliberately taken advantage of another party’s understandable misapprehension that the negotiations would lead to an accord and delays in putting offers on the table or engaging in substantive negotiations to “buy time” so that the six months would elapse and arbitration could be sought, then the Tribunal will find that there have not been good faith negotiations.
The Full Federal Court also held in Cox (at [38]):
The Act does not dictate the content and manner of negotiations by compelling parties to negotiate in a particular way or over specified matters. Providing what was discussed and proposed was conducted in good faith and was with a view to obtaining agreement about the doing of the future act, the requirements of s 31(1)(b) will be satisfied.
A useful and succinct statement of what constitutes negotiating in good faith was provided by Member (later Deputy President) Sumner in Placer (Granny Smith) v Western Australia (1999) 163 FLR 87 (‘Placer (Granny Smith)’) at [30]:
Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’: Western Australia v Taylor (1996) 134 FLR 211 at 219. Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Western Australia v Taylor as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour. Lack of good faith in the negotiations by the native title party will be relevant to whether the parties have fulfilled their obligation and may impose a lesser standard on them.
It should be noted that the references to the Government party in that passage should be read (following the commencement of the 1998 amendments to the Act, including to s 31(1)(b)), as applying to all negotiation parties.
As noted earlier, s 36(2) provides that the Tribunal must not make a determination on the application if any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith as mentioned in s 31(1)(b). The Tribunal has held that the practical effect of s 36(2) is to place an evidential burden on the party alleging that another party did not negotiate in good faith which would normally require it to produce evidence to support its contentions (see e.g. Placer (Granny Smith) at [28]; Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52 (‘Gulliver Productions’) at [10]).
The passage from Placer (Granny Smith) just quoted referred to the good faith negotiating indicia which were outlined in Western Australia v Taylor (1996) 134 FLR 211 at 2245, often referred to as the Njamal indicia. These indicia were set out in full in the judgment of RD Nicholson J in Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 (‘Strickland’) at 312–313 with apparent approval. The indicia of failing to negotiate in good faith are as follows:
(i)unreasonable delay in initiating communications in the first instance
(ii)failure to make proposals in the first place
(iii)the unexplained failure to communicate with the other parties within a reasonable time
(iv)failure to contact one or more of the other parties
(v)failure to follow up a lack of response from the other parties
(vi)failure to attempt to organise a meeting between the native title and grantee parties
(vii)failure to take reasonable steps to facilitate and engage in discussions between the parties
(viii)failing to respond to reasonable requests for relevant information within a reasonable time
(ix)stalling negotiations by unexplained delays in responding to correspondence or telephone calls
(x)unnecessary postponement of meetings
(xi)sending negotiators without authority to do more than argue or listen
(xii)refusing to agree on trivial matters, for example a refusal to incorporate statutory provisions into an agreement
(xiii)shifting position just as agreement seems in sight
(xiv)adopting a rigid non-negotiable position
(xv)failure to make counter-proposals
(xvi)unilateral conduct which harms the negotiating process, for example, using inappropriate press releases
(xvii)refusal to sign a written agreement in respect of the negotiation process or otherwise
(xviii)failure to do what a reasonable person would do in the circumstances.
Each party to these proceedings refers to the Njamal indicia. The Government party notes that, although the Tribunal may have regard to those indicia as a guide to whether the obligation to negotiate in good faith has been fulfilled, the question whether a negotiation party has negotiated in good faith must be examined on a case by case basis and will depend on the relevant circumstances. The native title party draws from these indicia to make its case that the grantee party’s behaviour failed to meet accepted standards of good faith negotiation. The grantee party uses some of these indicia as a framework for its contentions both to rebut the native title party’s contentions and to demonstrate that the grantee party has discharged its obligation to negotiate in good faith.
It is important to note that these are indicia only. They provide a guide to assist the Tribunal when evaluating evidence about the negotiations. When assessing whether a party has negotiated in good faith, the Tribunal will consider all of the material before it and not make a decision mechanistically on the basis that a party has not met all of the indicia or even most of them (see Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276 (‘Drake Coal’) at [84]). The correct approach was summed up by Member Lane in Western Australia v Dimer (2000) 163 FLR 426 (at [85]) as follows:
In determining whether parties have negotiated in good faith, the criteria developed in Njamal will be relevant. But these criteria do not constitute a checklist or series of conditions. It is not necessary that parties engage in all of the activities described there in order to negotiate in good faith. Likewise, the failure to do one or more of the things described in the criteria will not require the Tribunal to find that the parties have not negotiated in good faith.
When determining whether the parties have negotiated in good faith, a contextual evaluation is required. The approach taken by one party is normally influenced by the approach taken by, or the conduct and actions of, another. The obligation to negotiate in good faith applies to all parties, so the Tribunal will not ignore the relevant actions of others when assessing the negotiation conduct of the party being challenged. For example, as the passage in Placer (Granny Smith) quoted above indicates, lack of good faith in the negotiations by a native title party will be relevant to whether other parties have fulfilled their obligation and may impose a lesser standard on them. Similarly, if a grantee party is a small miner with few resources and limited capacity to make offers or give concessions in relation to a small project, what would be regarded as negotiating in good faith could be different from that of a large mining company with the capacity to make substantial offers and concessions in relation to a large project (see Drake Coal at [85]).
In summary, when considering the contentions of the native title party in respect of the grantee party, the Tribunal needs to bear in mind:
(a)the obligation on the negotiation parties to negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the grant of the proposed tenement or the grant subject to conditions to be complied with by any of the parties (s 31(1)(b))
(b)the need to consider the behaviour of each party as a whole and in context (e.g. by reference to the approach taken by, and the conduct and actions of, one or more of the other parties), to assess the party’s state of mind as manifested by its conduct in negotiations, and to assess the quality of the party’s conduct by reference to what it has done or failed to do
(c)that the Act does not require the Tribunal to evaluate the reasonableness of each proposal or counter-proposal or that negotiations have reached any particular stage, and
(d)that it is for the negotiation party that asserts that another negotiation party did not negotiate in good faith as mentioned in s 31(1)(b) to satisfy the Tribunal of that.
Outline of contentions in relation to the good faith issue
The native title party contends that the grantee party did not negotiate in good faith as required by s 31(1)(b) because, in summary, the grantee party:
(a)delayed in responding to the native title party’s proposal and then required that an ILUA and ancillary agreement be executed, and required ‘in principle’ agreement to the grantee party’s ‘best offer’ within two weeks
(b)expanded the scope of the consents that it required throughout the negotiation period, and advised the native title party that it sought agreement to a range of specified acts in addition to the doing of the future act at the time it delivered the draft ILUA and ancillary agreement
(c)engaged in misleading conduct in relation to the negotiations
(d)sought to influence the native title claimants in relation to their choice of a legal adviser
(e)sought to advance the negotiations by excluding the native title claimants’ legal adviser from a meeting and hence sought improperly to obtain a negotiating advantage
(f)engaged with a third party and subverted the authority of the native title claimants in a bid to obtain the agreement of the Wangan and Jagalingou People.
Read in context, references to the ‘claimants’ in these contentions are references to the native title party.
In reply, the grantee party seeks to rebut each of the allegations made by the native title party. It also contends that it:
(a)acted promptly in initiating communications with the native title party and its legal representatives
(b)provided comprehensive proposals for consideration by the native title party
(c)has not failed, without explanation, to communicate with other parties within a reasonable time
(d)responded promptly to counter-offers and other communications received from the native title party
(e)organised, attended and funded a number of meetings with the native title party
(f)invested considerable time, money and energy in an effort to reach a negotiated outcome
(g)responded to reasonable requests for relevant information (and assistance) within a reasonable time
(h)sent negotiators with full authority to make decisions and bind the grantee party
(i)did not refuse to agree on any trivial or inconsequential issues
(j)cannot be accused of shifting position just as agreement seems in sight
(k)has not participated in unilateral conduct that harms the negotiating process.
The grantee party also contends that the material demonstrates that it satisfies the other Njamal indicia.
Each of the contentions is considered later in these reasons. In dealing with these contentions it should be borne in mind that:
(a)under s 36(2) of the Act, the native title party has to satisfy the Tribunal that the grantee party did not negotiate in good faith as mentioned in s 31(1)(b), and
(b)the grantee party does not have to satisfy the Tribunal that it did negotiate in good faith as mentioned in s 31(1)(b), but
(c)the Tribunal will have regard to the grantee party’s conduct as a whole in the context of the negotiations when deciding whether the grantee party did not negotiate in good faith as mentioned in s 31(1)(b).
To the extent that the grantee party’s contentions as set out in [38] are in response to the native title party’s contentions in [37], they will be dealt with as responses to those contentions. Any remaining, separate contentions will then be considered insofar as it is necessary or appropriate to do so.
Key events in relation to the negotiations
Before considering the contentions of the native title party and the grantee party, and in order to put those contentions in context, it is appropriate to set out a chronology of the key events in relation to the negotiations between those parties. The chronology draws on material provided to the Tribunal by the native title party and the grantee party.
May 2011 The grantee party commenced discussions with the native title party about the Carmichael Project. Initial discussions focussed on an agreement to deal with cultural heritage clearance and native title party consents in relation to exploration and early works in the area covered by EPC 1690. The grantee party and the native title party concluded an informal agreement in advance of a formal cultural heritage management plan (‘CHMP’) under the Aboriginal Cultural Heritage Act 2003 (Qld) (‘the ACHA’).
26 July 2011 Letter from the grantee party giving formal notice to the native title party of the proposed development of CHMPs in relation to the whole of the Carmichael Project and inviting the native title party (as the Aboriginal party under the ACHA) to take part in the development of the Adani Carmichael Project – Wangan and Jagalingu People CHMP and asking them to provide written notice of their intention to take part by 1 September 2011.
12 September 2011 Introductory meeting between the native title party and the grantee party about the Carmichael Project and the negotiation process. The proposed tenement was not dealt with separately in negotiations but was considered with other parts of the Carmichael Project.
6-7 October 2011 Meeting between the native title party and the grantee party at which the native title party provided an initial position paper in relation to the proposed tenement and an infrastructure corridor, dated 6 October 2011 and marked Confidential.
28 October 2011 A CHMP in relation to the Carmichael Project was approved.
2 November 2011 Notice in accordance with s 29 of the Act about the intention to grant the proposed tenement was published in the Koori Mail and Central Queensland News.
3-4 November 2011 Meetings between most members of the native title party and the grantee party at the proposed mine site and a mine site inspection. The grantee party gave a presentation of its own position paper in which it sought agreement, in relation to approximately 28,700 hectares, of:
·the grant of the proposed tenement for an initial period of 50 years (approximately 26,000 hectares)
·the acquisition of native title within its project infrastructure corridor of approximately 17 kilometres by 100 metres (approximately 1,700 hectares)
·the acquisition of native title in relation to its proposed permanent accommodation camp and air strips (approximately 1,000 hectares), and
·all other native title permissions in relation to the Carmichael Project (extractive, environmental etc)
23 November 2011 Notification day specified in the s 29 notice published in the Koori Mail and Central Queensland News on 2 November 2011
30 November 2011 Meeting of the native title party in Rockhampton funded by grantee party to provide the native title party with an opportunity to develop its financial settlement proposal to submit to the grantee party in consideration for the native title consents and support required to be given by the Wangan and Jagalingou people for the Carmichael Project.
5 December 2011 Letter from HWL Ebsworth Lawyers on behalf of the native title party to Mr Haseler responding to the grantee party’s position paper of 3 November 2012. The letter acknowledged the grantee party’s:
preference to commence negotiation of the ILUA and Ancillary Agreement now with a view to the negotiations being concluded and the ILUA and Ancillary Agreement authorised by the W&J People and signed by the Applicant by the end of March 2012. Subject to how the negotiations proceed, the Applicant believes that such a timeframe for concluding the ILUA and Ancillary Agreement is achieveable.
The letter set out the details of an initial financial settlement proposal and the conditions to which that proposal was subject. It also stated that there was a range of non-financial benefits and outcomes that were ‘critical’ for a successful native title agreement for a project of this kind which would need to be the subject of detailed negotiation.
9 December 2011 Meeting between the native title party and the grantee party in Brisbane at which the respective proposals of the native title party and the grantee party were discussed.
12 December 2011 Confidential email from HWL Ebsworth to Mr Haseler and Mr Carter providing further material in support of the native title party’s position.
21 February 2012 Email from Mr Carter to Philip Hunter at HWL Ebsworth advising that the grantee party was considering the native title party’s settlement offer and the location of additional CHMP infrastructure.
February-June 2012 Some contact between grantee party and native title party in relation to cultural heritage matters.
17 July 2012 Letter from Mr Haseler to HWL Ebsworth with the grantee party’s response to the native title party’s proposal on 5 December 2011, and a further proposal regarding the finalisation of native title and cultural heritage matters for that part of the Carmichael Project that falls within the Wangan and Jagalingou People native title claim area.
The grantee party sought to have the ILUA signed in December 2012 (allowing for a three month notification period following the anticipated s 29 notice in August 2012 in relation to the proposed grant of the ML out of the eastern section of EPC 1080).
The letter contained a detailed ‘offer to settle all compensation payable’, and confirmed that the grantee party was ‘agreeable to including non-financial benefits around commercial opportunities related to the project in any ancillary agreement’. It concluded by requesting a meeting with the Wangan Jagalingou ‘to progress negotiation and settlement of native title and cultural heritage matters’.
31 July 2012 Meeting in Brisbane between the native title party and the grantee party at which grantee party’s settlement counter offer was discussed.
16 August 2012 Meeting of the native title party in Rockhampton funded by the grantee party to provide the native title party an opportunity to consider the grantee party’s settlement counter-offer and determine the further financial settlement proposal that it wanted to submit in consideration for the native title consents and support required for the Carmichael Project.
28 August 2012 Letter from HWL Ebsworth to Mr Haseler. The letter noted that the native title consents required for the Carmichael Project had been ‘clarified’ in the grantee party’s letter of 17 July 2012 to include:
·the grant of the proposed tenement and any renewals (approximately 26,100 hectares)
·the grant of the ML in relation to EPC 1080 and any renewals (approximately 18,500 hectares)
·the compulsory acquisition or surrender to the State of all native title rights and interests in the proposed infrastructure corridor (up to 1,100 hectares), industrial purposes area including an airstrip (up to 2,030 hectares) and permanent accommodation camp (up to 1,930 hectares).
The potential area for the surrender or acquisition of native title had increased from 2,700 hectares to up to 5,060 hectares. The native title party’s initial financial settlement proposal made on 5 December 2011 was submitted on the basis that no more than 2,700 hectares were involved.
The letter set out the terms of the native title party’s ‘further financial settlement offer’ or ‘proposal’ and referred to a meeting in Brisbane on 4 and 5 September 2012. It stated that, subject to how the negotiations proceed, the native title party believed that the revised timeframe for concluding the ILUA and Ancillary Agreement by December 2012 ‘is achievable’.
4-5 September 2012 Meeting between the native title party and the grantee party at which they discussed the native title party’s ‘further financial settlement proposal’. The grantee party agreed to provide the native title party with its written ‘best offer’ and the parties would meet on 7-8 October 2012 with the intention of reaching in-principle agreement.
4 September 2012 Email from HWL Ebsworth sent at 2.47pm to the native title party attaching the grantee party’s summary of settlement offers and a PowerPoint presentation from the meeting that day.
5 September 2012 Email from HWL Ebsworth sent at 12.20pm to Mr Haseler attaching the settlement offers document with the latest settlement offer made by the native title party.
5 September 2011 Six of the seven people who comprise the native title party resolve to change their legal representative in relation to the Carmichael Project, by terminating the retainer to HWL Ebsworth and appointing Chalk & Fitzgerald.
7 September 2012 Letter from Mr Haseler to the native title party and HWL Ebsworth regarding a proposed CHMP for the ‘additional project areas’, inviting the Wangan and Jagalingou People to take part in the development of the proposed Adani Carmichael Project – Wangan and Jagalingou People CHMP No 2. Written notice of their intention to take part was requested by 15 October 2012.
10 September 2012 Email from HWL Ebsworth to the native title party attaching business development and contracting principles discussed at the meeting with the grantee party in the previous week, and confirming that the next negotiation meeting with the grantee party was to take place in Brisbane on 7 and 8 October 2012. Also attached was the letter from Mr Haseler dated 7 September 2012.
18 September 2012 Letter from Irene White on behalf of the native title party sent by email to HWL Ebsworth giving notice of their decision to change their legal representative.
21 September 2012 Four members of the native title party who were members of the Wangan and Jagalingou Adani Carmichael Cultural Heritage Committee attended a Committee meeting with representatives of the grantee party (Mr Haseler and Mr Carter) in Brisbane.
24 September 2012 Letter from Harsh Mishra (Group President – International Business, Adani Mining Pty Ltd), sent by email to the native title party and HWL Ebsworth advising of the grantee party’s ‘best settlement offer’ in relation to the Carmichael Project, and seeking the parties’ in principle agreement by 8 October 2012. The letter noted that if such agreement was not reached by that date, the grantee party reserved its right to commence proceedings to have the Tribunal arbitrate in relation to the grant of the proposed tenement and the State to declare the proposed native title acquisition areas as State Development Areas in preparation for compulsory acquisition. The letter also recorded the grantee party’s understanding that the native title party ‘may be considering changing lawyers at this final stage of negotiations’, and made observations about some of the potential implications of such a change for the negotiations.
25 September 2012 Email from Mr Annandale to native title party members confirming he had found James Purtill, ‘a good facilitator’ for the native title party’s meeting (to be held on 27 September 2012).
26 September 2012 Letter from Chalk & Fitzgerald sent by facsimile to Mr Mishra referring to the 24 September 2012 letter, confirming that Chalk & Fitzgerald have ‘only just’ been instructed to represent the Wangan and Jagalingou People in relation to negotiations over the Carmichael Project, and advising that they were reviewing previous correspondence and other background materials. The letter asked the grantee party to refrain from discussing any matter concerning the Project with HWL Ebsworth. The letter advised that Chalk & Fitzgerald did ‘not believe it is possible to reach agreement by 8 October 2012’. It continued:
Our client is keen to progress discussions quickly and sees the development of the mine as having the potential to provide significant economic and social opportunities that will assist in offsetting the damage likely to be caused to their traditional country. However, at this stage, our client has not received any independent economic advice on your offer and, as lawyers, we are not in a position to provide them with that advice. We are currently making arrangements to retain that expertise.
The letter advised that Mr Meale, a lawyer with Chalk & Fitzgerald, would attend the meeting on Thursday in order to ‘introduce ourselves’, hear about the Project and the grantee party’s latest offer and to ‘discuss the steps for advancing the discussions, including assistance with representation and other expert advice’.
27 September 2012 Meeting of the native title party, conducted by Mr Purtill, an independent facilitator paid for by the grantee party. The meeting was held at ELH offices in Brisbane. The native title party signed a document recording that, among other things, they agreed to accept certain payments in relation to the Carmichael Project, agreed to Chalk & Fitzgerald being their legal representative by a vote of six of seven, and agreed that the proposed meeting on 7 and 8 October 2012 proceed as planned in respect of Adani’s timetable.
28 September 2012 Letter from Mr Purtill to Mr Annandale at ELH reporting on the 27 September 2012 meeting and providing a copy of the formal resolution signed by the native title party.
2 October 2012 Letter sent by facsimile from Chalk & Fitzgerald to Mr Mishra setting out some concerns of the native title party about the conduct of, and matters considered, at the meeting on 27 September 2012 and the exclusion of their lawyer, Mr Meale, from that meeting. It also advised that the native title party felt under pressure from the facilitator to participate in facilitating and signing a ‘resolution’ setting out a response to the grantee party’s offer, and noted that any agreement in-principle negotiated by the native title party with the grantee party would not be binding on the Wangan and Jagalingou People ‘unless and until it is properly authorised by the native title holding group’. The letter advised that none of the native title party who signed the resolution considered themselves bound by it, other than confirming the appointment of Chalk & Fitzgerald.
3 October 2012 Letter from Mr Haseler to Chalk & Fitzgerald in response to their letters of 26 September and 2 October 2012 (both apparently received on 2 October 2012). It acknowledged the appointment of Chalk & Fitzgerald by a majority of the Wangan and Jagalingou native title applicant as legal adviser, but stated that the grantee party was not aware of that appointment before the meeting on 27 September 2012. The letter responded to Chalk & Fitzgerald’s comments about the 27 September meeting, and reiterated the grantee party’s position about the implications of the native title party’s change of lawyers for the negotiations. The letter also reiterated, in relation to the best offer on 24 September 2012, that the grantee party hoped that the offer would be ‘refined’ on 8 October 2012 and agreement in principle ‘confirmed’. The grantee party reserved its rights should the parties have not reached in principle settlement by that time. The letter also set out the grantee party’s response to the proposal to commission economic advice for the native title party, and described arrangements for the meeting on 7 and 8 October 2012.
4 October 2012 Letter sent by facsimile from Chalk & Fitzgerald to Mr Haseler concerning when and how the grantee party was informed of the change of the native title party’s legal representative, and aspects of the meeting on 27 September 2012. The letter asked that all further communications between the grantee party and the native title party be made, in the first instance, through Chalk & Fitzgerald. It advised that, in light of the ‘pre-conditions’ that the grantee party had placed on the meeting proposed for 8 October 2012, ‘our clients no longer wish to attend that meeting’. The letter continued:
Our clients will be happy to respond properly to Adani’s 24 September 2012 offer and otherwise advise their position in relation to the project, when they have had a proper opportunity to receive and consider our advice as well as the economic advice that they propose to obtain. In this regard I advise that Mr Murray Meaton, mining economist, has confirmed that he will be happy to advise our clients. Unfortunately Mr Meaton is not available before 10 October 2012. However, the fact that, through Queensland South Native Title Services Ltd, he has previously advised in relation to another project in our clients’ area, ought to assist him to perform his work efficiently and with minimal delay.
In the meantime, it would assist in advancing matters if Adani could fund a meeting of us and the Applicant. This might be followed by a meeting with Adani representatives to obtain a briefing on the project, including the approvals which it seeks from the claim group, and to check the documentation which we hold on the discussions to date and to discuss the timing and resourcing of the remainder of the negotiations.
With initial misunderstandings hopefully now behind us, we look forward to working constructively together from here on to reach a timely and fair outcome.
5 October 2012 Letter from Clayton Utz sent by email to Chalk & Fitzgerald advising that Clayton Utz acts for the Adani Group including the grantee party. It confirmed the grantee party’s position in relation to negotiations with the native title party, including advising that the grantee party did not intend to re-open negotiations that had been proceeding for 15 months. The letter stated that representatives of the grantee party would be available to meet with the native title party on 10, 11, 16 or 18 October 2012. The grantee party did not agree to pay for a mining economist and did not see the ‘relevance of the re-introduction of such a person at this stage of the negotiations’.
Given the delays caused by the commencement of Chalk & Fitzgerald as legal advisers, the grantee party was willing to extend the deadline for acceptance of its ‘best offer’ until 19 October 2012 after which time it would be deemed to be withdrawn. If ‘in principle agreement’ was not reached by then, the grantee party would ‘reconsider its position in relation to future negotiations and whether to proceed with any further negotiations’. Attached to the letter was an ILUA dated 5 October 2012, ‘for background purposes only’. Assuming that ‘in principle’ agreement could be reached, Clayton Utz would prepare an ancillary agreement which, it proposed, would be the ancillary agreement for the ILUA and s 31 deeds relating to the grant of the proposed tenement and ‘any MLs to be granted from EPC 1080’.
17 October 2012 Email from Clayton Utz on behalf of grantee party to Chalk & Fitzgerald providing a draft ancillary agreement dated 17 October 2012 that incorporated elements of the grantee party’s offer.
19 October 2012 Meeting, funded by grantee party, between the native title party and Chalk & Fitzgerald, to provide native title party an opportunity to develop their response to grantee party’s ‘best offer’.
22 October 2012 Letter from Chalk & Fitzgerald to Clayton Utz referring to Clayton Utz’s letter of 5 October 2012 and emails of 17 and 21 October 2012. Although they did not accept many statements in that correspondence about the history of the negotiations, the native title party was ‘focused on finding a path’ that would see the parties’ respective interests ‘aligned as quickly as possible with a view to enabling the project to progress on mutually beneficial terms’. The letter then stated: ‘Given the apparent range of approvals being sought, an ILUA approach is likely to be the fastest and most certain method of seeing the project advance’. The letter indicated the native title party’s willingness in principle to accept the final offer put by the grantee party on 24 September 2012 on the condition of a commitment of the grantee party to enter into a life of mine services contract with the Wangan and Jagalingou people for the mine camp and associated facilities. The letter stated that there would be ‘many details and other ancillary issues to work through if this broad approach is considered an appropriate basis to proceed’ and that they were ‘confident’ that if there was agreement on the broad principles of the services contract, together with the elements already noted as agreed, ‘the details and other matters can be attended to in a timely way’. The letter suggested that it would ‘form the basis of our discussions this afternoon’, and that other issues raised by Clayton Utz in their correspondence would be addressed separately.
22 October 2012 Teleconference involving Mr Haseler, Mr Carter, lawyers from Clayton Utz (Mark Geritz and Tosin Aro) and lawyers from Chalk & Fitzgerald (Andrew Chalk and Nadia Rosenman). The discussion concerned the mine services contract referred to in the letter from Chalk & Fitzgerald of 22 October 2012.
31 October 2012 Letter from Clayton Utz to Chalk & Fitzgerald referring to letters from Chalk & Fitzgerald dated 22 and 30 October 2012 and to a teleconference between representatives of the native title party and the grantee party on 22 October 2012. The letter referred to a decision on the part of the native title party to ‘seek to reopen negotiations in respect of the agreed parameters that would form the basis for a commercial agreement’ between the grantee party and the native title party. Having particularised some of the grantee party’s concerns, the letter stated that Clayton Utz was instructed to apply to the Tribunal to seek a determination under s 38 of the Act that the proposed tenement be granted without conditions. However, the grantee party continued ‘to hold the view that reaching a voluntary and commercial agreement would be preferable to obtaining a determination from the Tribunal and following other processes available’ to the grantee party to progress its Carmichael Project. Attached to the letter were ‘revised versions’ of the ILUA and the ancillary agreement dated 31 October 2012 so that the native title party was ‘kept apprised’ of the grantee party’s position. The letter noted that the ancillary agreement contained an ‘improved offer’ with respect to specified ongoing annual payments. It advised of the grantee party’s intention to take the draft ILUA to an authorisation meeting of the Wangan and Jagalingou People on the afternoon of 1 December 2012, following another authorisation meeting scheduled for that morning. If the ILUA were to be authorised on 1 December 2012, the grantee party would consider discontinuing its future act determination application. The letter also acknowledged the advice that the native title party would sign the Expansion Area CHMP at the next opportunity.
7 November 2012 Grantee party makes future act determination application to the Tribunal.
Before considering the parties’ contentions in detail I make some brief observations about the chronology:
(a)negotiations between the grantee party and the native title party commenced in about May 2011 and had reached the stage where the native title party had provided an initial position paper in relation to the proposed tenement and an infrastructure corridor, and had discussed it with the grantee party before the notification date of 23 November 2011 specified in the s 29 notice
(b)the native title party changed lawyers in about September 2012, some 16 months after negotiations commenced and about two months before the future act determination application was made
(c)as will be apparent, the main focus of the native title party’s contentions and the bulk of the evidence provided by it relates to the period from September 2012 onwards.
I note also that the evidence comprises correspondence between the parties but generally speaking does not include minutes or other records of meetings (whether meetings of the native title party, or meetings of the native title party and representatives of the grantee party). Consequently, the characterisation of those meetings in the chronology at [40] and elsewhere in these reasons is drawn from the parties’ statements of contentions, affidavit evidence and the correspondence.
To the extent that they are relevant, negotiations that occurred before the s 29 notice was given and the notification day are taken into account for the purpose of whether the parties negotiated in good faith (see White Mining at [52]-[55], Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabingu-Wiradjuri People (NC11/4)/State of New South Wales, [2012] NNTTA 145 at [165]).
Other observations about the negotiation meetings are also relevant here as they provide some context within which to consider the respective contentions of the grantee party and the native title party.
Mr Carter states that, in early 2011, he was approached by the grantee party to assist it to negotiate cultural heritage and native title agreements with a number of Aboriginal groups in relation to the Carmichael Project. These included negotiations with the native title party from the middle of 2011. He was present at all the negotiation meetings with the native title party as part of the negotiation team of the grantee party, and he is authorised to make his affidavit on behalf of the grantee party.
According to Mr Carter, ELH (on behalf of the grantee party) assisted with the organisation of all meetings in relation to the Carmichael Project cultural heritage and ILUA negotiations. All meetings were convened at a location and time suitable to the native title party. The grantee party met the costs of the native title party associated with travelling to and attending each negotiation meeting. The grantee party also met the costs for the provision of legal advice to the native title party.
Mr Haseler also attended all relevant negotiation meetings with the native title party, and was involved in all relevant discussions associated with the early works agreement, the CHMP and the ILUA. He had authority to negotiate agreements and settle documents on behalf of the grantee party.
Grantee party delayed in responding to native title party’s proposal, then required ‘in principle’ agreement within two weeks.
Contentions: The native title party contends that the grantee party failed to negotiate in good faith in relation to the grant of the proposed tenement in that:
(a)following some two months of discussions in relation to the Carmichael Project, including the doing of the future act, it did not respond to the native title party’s proposal dated 5 December 2011 until 17 July 2012
(b)when it did respond, the grantee party required that an ILUA and ancillary agreement be executed in December 2012, and
(c)on provision of its ‘best offer’ on 24 September 2012, the grantee party required that in-principle agreement in relation to all aspects of the Carmichael Project, including the grant of the proposed tenement, be reached by 8 October 2012, less than three weeks from the date of its response.
The native title party’s submission puts this contention in the context of the negotiations overall by stating, in summary, that:
(a)the grantee party was proposing a large scale coal mining project which would have a significant impact on the traditional country of the native title claimants
(b)the grantee party required negotiations to be completed by March 2012, within just three months from the notification day
(c)in good faith the native title party strove to comply with this requirement, including by delivering a detailed position statement only 12 days into the negotiation period, and
(d)when the grantee party responded more than seven months later, it had expanded the scope of the consents that it required from the native title party (a contention dealt with separately later in these reasons) and engaged in sharp conduct in various ways (also dealt with separately later in these reasons).
In response, the grantee party explicitly rejects each of these contentions. In particular, the grantee party contends that:
(a)there was good reason for the delay
(b)the period of delay, when set in the overall context of a fulsome negotiation process, is not sufficient to show that the grantee party failed to negotiate in good faith, and
(c)the timeframes within which ‘in-principle’ agreement was to be reached (initially March 2012 and then December 2012 following the period of delay) were agreed between the parties.
In support of its contentions, the grantee party refers to the decision of the Tribunal in FMG Pilbara in which Member O’Dea stated (at [71]):
In this matter there were delays, even lengthy ones, on both sides. The delay that the native title party complains of was significant. However, in the context of the negotiations and in light of my other findings, I do not think that it, in itself, is enough to satisfy me that it prevented the parties from fully exploring the possibility of agreement and, as such, cannot be said to amount to a failure to negotiate in good faith.
In that case also there was a delay of 82 days in the grantee party providing a particular proposal to the native title party. The Tribunal found that the delay was ‘significantly longer’ than the native title party could reasonably have been expecting to wait given the statements made by the grantee party’s representative at their meeting, The Tribunal accepted (at [70]) various factors for the delay, including that the making of the relevant calculations may have been complex.
The grantee party states that it and the native title party had initially worked towards reaching agreement in March 2012. Following the period of delay, that timeframe was extended to December 2012. In order to meet that target timeframe, the grantee party and the native title party agreed to work towards achieving an in-principle agreement in early October 2012 (allowing the work of drafting and finalising the ILUA and associated ancillary agreement to be completed by the end of the year). These timeframes were agreed with the native title party and their (former) legal representative and were not unreasonable in all the circumstances.
Consideration: The evidence relevant to the contentions is summarised in the chronology earlier in these reasons (at [40]), and is found in the affidavits of Mr Malone, Mr Carter and Mr Haseler and relevant correspondence.
First, I will deal with the contentions concerning the delay in the grantee party’s response to the extent that it is relevant to the good faith issue. In summary, the grantee party commenced discussions with the native title party in relation to the Carmichael Project in the middle of 2011. There were meetings arranged and funded by the grantee party, with the native title party and their legal representative as well as internal native title party meetings attended by their legal representative. The grantee party adopted a strategy, with the consent of the native title party, of including its negotiations for the agreement by the native title party to the grant of the proposed tenement within broader negotiations with the native title party for a ‘whole of project’ ILUA. Under such an ILUA, the parties would consent to:
(a)the grant of the proposed tenement
(b)the grant of future mining leases out of an eastern area of EPC 1080
(c)the surrender of native title when required to allow the delivery of railway and perhaps other infrastructure and residential areas required for the Carmichael Project, and
(d)the doing of other future acts or classes of future acts that might need to be done in association with the construction and operation of the Carmichael Project.
At a meeting on 7 October 2011, the native title party provided the grantee party with an ‘initial position paper’ regarding, among other things, compensation for the native title party’s consent to the grant of the proposed tenement. At a meeting on 3 November 2011, the grantee party delivered its comprehensive response to the native title party’s initial position paper, together with its own initial position paper as to the principles and valuation methodologies that would underpin its formal settlement proposals. On 5 December 2011, the native title party provided a formal ‘initial settlement proposal’ and supporting documentation. The parties met to discuss the proposal on 9 December 2011, and the native title party’s legal representative provided economic and other supporting information to the grantee party on 12 December 2011.
In a letter dated 17 July 2012 to HWL Ebsworth, Mr Haseler for the grantee party referred to the letter of 5 December 2011 and provided the grantee party’s response to it and a further proposal regarding finalisation of native title and cultural heritage matters for that part of the Carmichael Project within the external boundaries of the Wangan and Jagalingou native title application area. The letter stated:
As you are aware, Adani’s Carmichael project has evolved slightly over the past year. Adani is now seeking native title consents for the following within the Wangan Jagalingou native title application area:
oGrant of MLs
oGrant of ML 70441 (approximately 26,100 Ha)
oGrant of an ML out of the eastern section of EPC 1080 (approximately 18,500 Ha)
oAcquisition of native title
oInfrastructure corridor – up to 1,100 Ha
o‘Industrial purposes’ areas, including airstrip – up to 2,030 Ha
oPermanent accommodation camp – up to 1,930 Ha
oTotal – up to 5,060 Ha
oOther native title approvals
oAll relevant applicable authorisations in relation to development of the Carmichael Project within the external boundaries of the Wangan Jagalingou native title application area that constitute ‘future acts’.
In addition, Adani wishes to utilise clause seven of the existing Adani and Wangan Jagalingou CHMP to expand the existing CHMP to cover the eastern section of EPC 1080.
The letter advised that ‘in the near future’ the grantee party would:
·issue a CHMP notice for the proposed CHMP expansion area
·apply for a mining lease out of the eastern section of EPC 1080 and commencement of the right to negotiate process for the grant of that mining lease.
The grantee party would provide the native title party with further details of both these events ‘as soon as they are available’. The grantee party stated that it proposed to obtain ‘all requisite native title approvals for the Carmichael Project within the external boundaries of the Wangan Jagalingou native title application area’ in the form of:
·an ILUA (for the acquisition of native title and consent to other native title project rights) to which would be appended s 31 deeds for the grant of the proposed tenement and for the grant of the ML out of the eastern section of EPC 1080, and
·an ancillary agreement that contains all compensation benefits payable for each of the above.
The grantee party sought to have the ILUA signed in December 2012 (allowing for a three month notification period following the anticipated s 29 notice in August 2012 in relation to the proposed grant of the ML out of the eastern section of EPC 1080).
The letter contained a detailed ‘offer to settle all compensation payable’, and confirmed that the grantee party was ‘agreeable to including non-financial benefits around commercial opportunities related to the project in any ancillary agreement’. It concluded by requesting a meeting with the Wangan Jagalingou ‘to progress negotiation and settlement of native title and cultural heritage matters’ and confirmed its availability to meet in Brisbane during the week commencing 30 July 2012.
It will be noted that the letter of 17 July 2011 states: ‘As you are aware, Adani’s Carmichael Project has evolved slightly over the past year’ and the grantee party was seeking specified native title consents.
The grantee party’s contentions and Mr Carter’s affidavit explain the delay in responding to the native title party’s letter of 5 December 2011 in the following terms. During the period from December 2011 until July 2012, the grantee party was considering the scope of that part of the Carmichael Project that fell within the area covered by the Wangan and Jagalingou People native title claim, including consideration of its plan for an eastern area of EPC 1080 and developing plans for infrastructure and residential development outside the area of the proposed tenement.
Mr Carter states that, at the same time it was considering the offer made by the native title party, the grantee party was making decisions about the scope of the Project, of which the proposed tenement is ‘the key component’. The grantee party, he says, wanted to ensure that it could provide the native title party with ‘as much precision as possible’ in relation to the Project. Having said that, he agrees that it was a frustrating time for the grantee party and the native title party.
In the grantee party’s submission, all these developments were clearly relevant to the negotiation of the proposed whole-of-Project ILUA and the unsurprising decision was made by the grantee party that it would be counter-productive to expend time and costs on trading offers on the proposed tenement only to have to then adjust agreements reached once the Project scope was finalised. Accordingly, it is contended that there was good reason for the period of delay.
The related issue is whether any explanation for the grantee party’s delay in responding was given to the native title party during that period.
The native title party’s submission on this issue refers to the evidence of Mr Malone who, in his affidavit of 18 December 2012, refers to correspondence between the native title party and the grantee party in December 2011. He continues: ‘After our contact with Adani in December 2011, I did not hear anything about Adani for a long time’.
The grantee party maintains that it kept in regular contact with the native title party and their legal representative, particularly in the context of the required ongoing work with the native title party in relation to Aboriginal cultural heritage clearances under the Carmichael Project CHMP. The grantee party states that it regularly updated the native title party as to the changes being considered for the Project.
Mr Carter refers to an email exchange with HWL Ebsworth in February 2012. Mr Hunter sent Mr Carter a request on 17 February 2012 asking Mr Carter to call him ‘to discuss the status of these matters’. The matters to which he referred were, presumably, as listed in the subject heading to the email: ‘W & J – Adani – ILUA negotiations – Additional CHMP’. Mr Carter replied by email on 21 February 2012 in the following terms:
Adani are still internally considering their response to WJ’s ILUA/RTN settlement offer and location of the additional CHMP infrastructure so unfortunately I do not have any further update to provide to you in relation to those matters…I very much hope that I will have more to report in the next week or so!
There is no evidence before the Tribunal of any subsequent email or other written communication from or on behalf of the grantee party to the legal representative of the native title party.
However, Mr Carter says, that during the first half of 2012, there was ‘regular contact’ by him with Mr Malone about the Project because Mr Malone is the Cultural Heritage Coordinator under the cultural heritage arrangements with the native title party and he did ‘considerable work during this period’. Mr Carter also refers to a meeting in March 2012 between the grantee party and members of the native title party in relation to cultural heritage management. He was present, as was Mr Haseler, for part of the meeting. According to Mr Carter, the ‘ongoing development of the Project was discussed in detail’, including the need for ongoing cultural heritage clearances and surveys.
Mr Carter says that this ‘ongoing contact’ between the parties meant that there was an ongoing dialogue about the Project. Consequently, he does not consider that it is correct that the native title party was not kept informed during this period.
In his affidavit of 21 January 2013, Mr Malone agrees that he was in regular contact with Mr Carter during the period between the letters of 5 December 2011 and 17 July 2012. However, he describes that contact as being in relation to ‘cultural heritage issues’, and says that the native title negotiations were not discussed during that contact and that he did not learn from Mr Carter why the grantee party was delaying in responding to the letter of 5 December 2011 on behalf of the native title party.
Conclusion: On the basis of the evidence referred to at [40] and [53] to [69] above, I find that:
(a)in the context of the original timetable for the negotiations about the grant of the proposed tenement and the broader ILUA negotiations, there was a substantial delay between when the native title party provided its proposal or position statement to the grantee party on 5 December 2011 (and the further discussion and exchange of information on 9 and 12 December 2011) and the grantee providing its written statement in response on 17 July 2012
(b)although the native title party’s legal representative sought an update from the grantee party, there were no written communications from or on behalf of the grantee party to the legal representative of the native title party subsequent to Mr Carter’s email message on 21 February 2012 (in which he advised that the grantee party was still considering its response to the native title party’s settlement offer, and he had no further update) and the grantee party’s letter dated 17 July 2012
(c)although there were some communications in the first half of 2012 between Mr Carter and one of the persons who constitute the native title party (Mr Malone), those communications were primarily about cultural heritage matters
(d)although Mr Malone might have gained some appreciation of ongoing developments in relation to parts of the Carmichael Project relevant to the native title party, the information was not of the type or detail set out in the grantee party’s letter dated 17 July 2012.
Those findings of themselves do not lead to a conclusion that the grantee party failed to negotiate in good faith with the native title party. That conclusion could only be reached if there was no reasonable explanation for the delay and if, despite causing that delay and changing the scope of what it sought from the native title party, the grantee party insisted on agreement being reached within a short timeframe.
As to the former point, I accept that during the first half of 2012 the grantee party was developing and refining its plans for that part of the Carmichael Project that falls within the area covered by the Wangan and Jagalingou People native title claim, and that it wanted to provide the native title party with the appropriate amount of information so that negotiations could resume.
As to the latter point, the native title party’s next contention (noted at [47](b) and (c)) is that the grantee party failed to negotiate in good faith because, when it responded on 17 July 2012 to the native title party’s proposal, the grantee party required that an ILUA and ancillary agreement be executed in December 2012 and further, on provision of its ‘best offer’ on 24 September 2012, the grantee party required that in-principle agreement in relation to all aspects of the Carmichael Project, including the grant of the proposed tenement, be reached by 8 October 2012.
The native title party contends that, while they acted at all times in a prompt and diligent manner in relation to the negotiations and attempted to meet the grantee party’s requirements, they did not agree to be committed to the grantee party’s timeframes.
The native title party’s contentions should be considered in the context of the communications between the parties after 17 July 2012.
In a letter to Mr Haseler dated 28 August 2012, HWL Ebsworth referred not only to the previous correspondence and position papers exchanged by the native title party and the grantee party, but also to:
(a)a meeting between the grantee party and the native title party in Brisbane on 31 July 2012, and
(b)a meeting of the native title party in Rockhampton on 16 August 2012 to consider the compensation offer as detailed in the grantee party’s letter of 17 July 2012 and to determine the further financial settlement proposal that the native title party wished to submit to the grantee party in consideration for the native title party consents and support required to be given by the Wangan and Jagalingou People for the Project.
The letter set out the further financial settlement proposal that the native title party submitted for the grantee party’s consideration for the native title party’s consents, and the conditions to which that further financial settlement was subject. It concluded by referring to a meeting with Mr Haseler in Brisbane on 4 and 5 September 2012.
The letter also stated:
In December 2011, we acknowledged Adani’s preference to commence negotiation of the ILUA and Ancillary Agreement now with a view to the negotiations being concluded and the ILUA and Ancillary Agreement authorised by the W&J People and signed by the Applicant by the end of March 2012. As we did not hear from you for almost seven months, a new timeframe to complete these processes has now been proposed. Adani has proposed that the ILUA and Ancillary Agreement be authorised and signed by the Applicant by December 2012. Subject to how the negotiations proceed, the Applicant believes that such revised timeframes for concluding the ILUA and Ancillary Agreement is achievable. (emphasis added)
There is no issue that the original timetable contemplated that proposed agreements would be finalised by the end of March 2012 and that, given the delay in the negotiations, the grantee party had proposed that the agreements be signed in or by December 2012. In the letter dated 28 August 2012, HWL Ebsworth indicated that such a revised timetable was ‘achievable’, ‘subject to how the negotiations proceed’.
At a meeting in Brisbane on 4 and 5 September 2012, the native title party and grantee party discussed the native title party’s further financial settlement proposal.
Mr Carter states that he believed that the meetings with the native title party on 4 and 5 September 2012 went ‘very well’. Mr Malone had asked the grantee party to provide its best offer before the next meetings, scheduled to be held on 7 and 8 October 2012. Mr Carter says that he left the 4 and 5 September 2012 meetings ‘confident’ that if in principle agreement was going to be reached, it would happen at those October meetings. The chairman of the Adani group was to be in Brisbane on 8 October 2012 and Mr Carter and Mr Haseler thought that it was a ‘real possibility’ that the chairman would be able to come to a ‘successful’ meeting on that date.
In an eight page letter dated 13 November 2012, Chalk & Fitzgerald advised that the native title party remained willing to negotiate with the grantee party in relation to the grant of the proposed tenement, the proposed grant of a ML out of the eastern section of EPC 1080 and all requisite native title approvals for the Carmichael Project within the Wangan and Jagalingou People native title claim area (as sought by the grantee party on 17 July 2012 and identified in the draft ILUA provided on 31 October 2012). The native title party’s intention, as stated in the 22 October 2012 letter, remained to ‘find a path that will see our clients’ respective interests aligned as quickly as possible and which might enable the project to progress on mutually beneficial terms’. It set out the basis on which the native title party was willing to accept the financial offer made by the grantee party (i.e. its right to contract to run the operations and maintenance on the mine camp and associated facilities on commercial terms for the life of the Project, as set out in Chalk & Fitzgerald’s letter of 22 October 2012), but stated that without that right they considered the compensation offered by the grantee party to the Wangan and Jagalingou People to be ‘wholly deficient’. The letter particularised the basis for the native title party coming to that view. The letter noted, and set out reasons for, the native title party’s ‘considerable concern’ about the grantee party’s intention to take the draft ILUA to an authorisation meeting on 1 December 2012. It requested the grantee party’s advice, and copies of specified documents, in relation to the proposed authorisation meeting. It also took issue with a range of statements in the letter from Clayton Utz dated 31 October 2012, and particularised ‘unsatisfactory’ aspects of the grantee party’s approach to the negotiations. It concluded by suggesting that the grantee party’s approach appeared to ‘occasion a very high level of risk for all parties’.
A letter dated 14 November 2012 addressed to both Clayton Utz and the Government party from Chalk & Fitzgerald (referring to their letter dated 13 November 2012), the response from Clayton Utz by email on 15 November 2012, and the reply by email on that date from Chalk & Fitzgerald, all relate to aspects of the present proceedings and contain no information relevant to the good faith issue..
In a letter to Clayton Utz dated 19 November 2012, Chalk & Fitzgerald set out the reasons for the native title party objecting ‘in the strongest terms’ to the role of the WJ Corporation and Just Us Lawyers in relation to the authorisation meetings called on 1 December 2012, including the grantee party’s requested assistance. It noted, for example, that the WJ Corporation was engaged in a dispute with the native title party in relation to this matter and stated that the WJ Corporation was ‘plainly interested in the outcome of both authorisation meetings’ as each has the potential to affect its future income and service provision. The letter contended that certain assertions made by the WJ Corporation were ‘plainly misleading’. The letter raised issues about the involvement of two partners of Just Us Lawyers, and stated that there would ‘clearly be a contest’ between the native title party and the WJ Corporation (or those individuals it is assisting) about such things as the conduct of the authorisation meetings, including the role of Just Us lawyers in relation to them. Having noted the advice that the grantee party had no role in relation to the WJ Corporation’s s 66B authorisation meeting, the letter sought advice in relation to the grantee party’s proposed authorisation meeting and the preceding information sessions. Chalk & Fitzgerald asked Clayton Utz to provide the information requested in this letter, and previously, by 21 November 2012.
In a detailed six page letter to Chalk & Fitzgerald dated 20 November 2012, Clayton Utz referred to letters to them from Chalk & Fitzgerald dated 13, 14 and 19 November 2012 which raised a number of matters concerning the native title and cultural heritage negotiation process between the grantee party and the Wangan and Jagalingou People. The letter from Clayton Utz described most, if not all, of the matters raised in the 19 November 2012 letter relating to the role of the WJ Corporation as either inaccurate or irrelevant to both the arbitration process that had been commenced and the parallel ILUA process. The letter drew a clear distinction between:
(a)the right to negotiate process in relation to the grant of the proposed tenement, in which the native title party is involved, and
(b)the ILUA negotiations in relation to the giving of consent by the Wangan and Jagalingou People to, among other things, the doing of all future acts that might be required for the Carmichael Project.
The letter set out what were described as the legal principles in relation to the proposed ILUA, including that the Wangan and Jagalingou People be given a reasonable opportunity to decide to authorise the making of the ILUA (see s 251A). It stated that all the principles set out in that part of the letter were posited by Reeves J in QGC v Bygrave (No 2) [2010] FCA 1019, which it considered to be good law. The grantee party sought to speak directly to the Wangan and Jagalingou People as a whole because, it said, the native title party had decided to ‘reset’ the course of the negotiations ‘at this late stage.’ Given that the Wangan and Jagalingou People were gathering on the morning of 1 December 2012, the grantee party wanted to give them the opportunity to consider whether or not (and ‘notwithstanding the stance now being taken’ by the native title party) they would like to accept the ‘very generous benefits package’ being offered by the grantee party.
The letter set out the measures being implemented by the grantee party to ensure that all members of the Wangan and Jagalingou People were given a reasonable opportunity to consider whether or not to authorise the ILUA. These included:
(a)publication of the public notice of the meeting in the Courier Mail, National Indigenous Times, Townsville Bulletin, South Burnett Times, Koori Mail and Central Queensland News on various dates between 3 and 16 November 2013
(b)radio advertising on 4US Rockhampton, 4UM Cherbourg and 4KIG Townsville
(c)an information brochure posted to more than 300 members of the Wangan and Jagalingou People
(d)proposed information sessions for these people to be held at Townsville, Brisbane, Cherbourg and Bundaberg between 19 and 30 November 2012
(e)the grantee party providing travel and accommodation assistance to people attending the ILUA authorisation meeting.
The public notice (a copy of which was provided to Chalk & Fitzgerald in relation to these proceedings) included a map showing the ILUA area located within the north western boundary of the Wangan and Jagalingou People native title claim area. The notice stated, among other things:
The ILUA provides for the consent of the parties to certain Agreed Acts set out in the ILUA, including the grant of all approvals and land tenure for, and the undertaking of, the ILUA Project. While generally the non-extinguishment principle will apply to the proposed Agreed Acts, the ILUA will also provide for the possible surrender of native title to the State and/or taking of native title by the State, where these are required in order for ILUA Project approvals to be granted.
It listed the people who are Wangan and Jagalingou ancestors and invited descendants of one of the listed ancestors and who intended to attend the ILUA authorisation meeting to register with ELH no later than Friday 23 November 2012. The notice also invited any other persons who considered that they hold or may hold native title in relation to the ILUA Area and who would like to attend the ILUA authorisation meeting to contact ELH giving their name and contact details and the ‘basis upon which you assert native title over the ILUA Area’.
The letter from Clayton Utz on 20 November 2012 described the reason for, and proposed extent of, the involvement of the WJ Corporation and Just Us Lawyers. In summary:
(a)their assistance had been sought and received to ensure that notice of the authorisation meeting and the information sessions reached as many members of the Wangan and Jagalingou People as practicable
(b)the grantee party considered that the objectives and membership of the WJ Corporation were such that it was an entity that represents and could speak for Wangan and Jagalingou People generally
(c)Just Us Lawyers had provided legal advice to the WJ Corporation (‘and therefore to representatives of the WJ People generally’) with respect to the ILUA and the ancillary agreement and to the authorisation process for the same
(d)Just Us Lawyers were also attending the information sessions for the purpose of providing advice
(e)the involvement of Just Us Lawyers in the ILUA process was a matter for them, but the grantee party was comfortable with one of that firm’s lawyers being involved in efforts to ensure that as many Wangan and Jagalingou People as practicable were given the opportunity on 1 December 2012 to consider whether or not to authorise the ILUA.
The letter noted the grantee party’s understanding that there appeared to be ‘some internal divisions within’ the Wangan and Jagalingou People, but the grantee party did not believe that it was exacerbating those divisions. According to the letter:
(a)the meeting on 1 December 2012 to discuss s 66B proceedings and other matters was organised while the grantee party was in negotiations with the native title party
(b)the grantee party did not propose to involve itself in developments relating to the mooted s 66B proceedings
(c)the grantee party was merely seeking to use the opportunity provided by that meeting to take the ILUA to the Wangan and Jagalingou People, and
(d)in relation to the ILUA authorisation meeting, there would be an independent chairperson, a code of conduct and security, appropriate resolutions would be prepared beforehand, and the grantee party would arrange the recording of minutes.
A letter dated 23 November 2012 from Chalk & Fitzgerald was sent in reply to the 20 November 2012 letter. The reply concerned the previous request for documents, asked questions about the proposed ILUA authorisation meeting, and reiterated concerns about the involvement of Just Us Lawyers as representatives of the WJ Corporation and the grantee party at the ILUA authorisation meeting.
On the same day, Kevin Smith (in his capacity as CEO of Queensland South Native Title Services (QSNTS) and Deputy Chair of the National Native Title Council) wrote to Mr Mishra expressing concerns about the convening and other aspects of the proposed ILUA authorisation meeting, as well as the native title claim authorisation meeting to precede it on 1 December 2012.
By letter dated 26 November 2012, Clayton Utz responded in detail to Mr Smith. A copy of the correspondence was sent to Chalk & Fitzgerald by email that day. The letter took ‘very serious issue with virtually every matter raised’ in Mr Smith’s letter to Mr Mishra. With reference to the proposed ILUA authorisation meeting, it stated:
In any event, Adani will not be excluding from the authorisation meeting representatives either of QSNTS or C&F and members of the WJ Applicant are free to address the meeting in respect of their views as to whether or not the WJ People should authorise the ILUA. Adani welcomes the scrutiny of the proposed ILUA by all members of the WJ People, not just by the advocates of the arrangement described above.
In a letter to Clayton Utz dated 28 November 2012, Chalk & Fitzgerald referred to the letter of 26 November 2012 and stated that it contained a number of ‘important inaccuracies and misrepresentations’ which were then addressed. The letter from Chalk & Fitzgerald stated, among other things, that:
(a)the persons who comprise the native title party had express authority, as provided by the Wangan and Jagalingou People in the authorisation meeting on 6 February 2010, to ‘negotiate and reach agreement with proponents of Future Act matters’
(b)in giving that authority, the Wangan and Jagalingou People did not differentiate between agreements which were reached under a right to negotiate process or by ILUA
(c)the terms of the native title party’s authorisation expressly provides for decision-making by majority where consensus cannot be reached, and hence it was clear that the decision by a majority of the native title party to appoint Chalk & Fitzgerald as the Wangan and Jagalingou People’s representative in relation to future acts was valid
(d)while an ILUA (area agreement) is made with all persons claiming to hold native title, it must include the registered native title claimants
(e)the notices for the proposed ILUA authorisation meeting made no attempt to advise people that the draft ILUA had not been negotiated with either the native title party or the State
(f)the fact that the grantee party’s meeting had been arranged with the assistance of certain members of the WJ Corporation and its advisers when those persons are in dispute with the native title party, and that at least one of those persons had been engaged by the grantee party to present information about the ILUA, ‘inevitably supports a view that Adani’s approach, intentional or not, is exacerbating divisions within the group for its own purposes’
(g)only the native title party, acting with the authority of the Wangan and Jagalingou People, represents and can speak for the Wangan and Jagalingou People in relation to matters arising under the Act in relation to the native title determination application (including future acts)
(h)the membership of the WJ Corporation is ‘considerably more confined’ than the current Wangan and Jagalingou People native title claim group description or the description of the ‘native title party’ that the grantee party had provided in its advertisements, and any claim as to its representativeness is ‘demonstrably false’.
In his affidavit affirmed on 21 January 2013, Mr Malone states that he attended the meeting on 1 December 2012. Annexed to his affidavit is a copy of the resolution moved by Mr Malone and passed at the meeting. It states that ‘the Applicant is authorised to sign an Indigenous Land Use Agreement with Adani Mining Pty Ltd and State of Queensland if the ILUA itself contains terms that give effect to’ four specified conditions. The resolution continues:
Nothing in this authorisation obliges the applicant to enter an ILUA that contains these terms but which it otherwise believes is not in the best interests of the W&J People.
That evidence provides information that supplements Mr Carter’s statement that, although the ILUA was not authorised on 1 December 2012, a resolution was made authorising an ILUA subject to certain conditions. For completeness, I note that, at the first meeting on 1 December 2012, the Wangan and Jagalingou People native title claim group did not replace the applicant under s 66B of the Act.
I have reviewed the evidence in some detail, but for the limited purpose set out in [273] because of the significance of the contention to the native title party’s case.
The timing of these events is relevant because the future act determination application was made on 7 November 2012. Given that the grantee party was obliged to negotiate in good faith with the native title party until that date, the issue is whether its actions prior to that date in relation to the proposed authorisation meeting on 1 December 2012 indicate that it did not negotiate in good faith. The correspondence subsequent to 7 November 2012 is only relevant to provide evidence of what occurred before that date.
As noted earlier in these reasons, by letter dated 31 October 2012, Clayton Utz advised Chalk & Fitzgerald that, due to what the grantee party saw as a reopening of negotiations and timelines, Clayton Utz were instructed to make an application to the Tribunal in relation to the grant of the proposed tenement. The letter also indicated that the grantee party still considered a voluntary agreement to be preferable and attached a revised ILUA and ancillary agreement and indicated that the grantee party intended to seek authorisation of the ILUA at a meeting with the Wangan and Jagalingou People native title claim group on 1 December 2012.
Mr Carter also states and I accept that:
(a)neither the grantee party, ELH, nor to his knowledge any other entity connected in any way to the grantee party were in any way behind the holding of the meeting of the Wangan and Jagalingou People native title claim group meeting on the morning of 1 December 2012
(b)the grantee party funded only those costs associated with the events of 1 December 2012 in relation to the ILUA authorisation meeting and made it very clear to the representatives from the WJ Corporation and its advisers from its first involvement with that Corporation that the grantee party had no interest and wanted no involvement in the proceedings that were occurring in the first meeting in the morning of 1 December 2012.
Mr Carter acknowledges that he realised that the outcome of the first meeting on 1 December 2012 might have had an impact on whether the ILUA could be authorised. However, given that the end of the year was close and the native title claim group was meeting on that day, he considered that it was a reasonable opportunity to present the ILUA to the wider group.
It is clear that from at least 26 October 2012 the grantee party took an active and directive role in relation to the convening of the 1 December 2012 ILUA authorisation meeting. A copy of the authorisation action plan (updated as at 20 November 2012) specifies the roles to be played by each of the grantee party, the WJ Corporation, Just Us Lawyers, Cultural Pathways, ELH and others in relation to one or more of the following:
(a)preparing, reviewing, placing and paying for notices in print media regarding the proposed authorisation meeting
(b)preparing and settling radio announcements
(c)maintaining the register of all persons who identify as persons who hold or may hold native title in the ILUA area, and assessing such persons
(d)preparing and reviewing project and ILUA summaries, settling covering letters advising of community information meetings and authorisation meetings (separate from the s ‘66B mail out’), sending documents to WJ Corporation members and Wangan and Jagalingou People native title claim group members
(e)making presentations at, attending, and arranging attendance sheets and minutes/meeting summaries for the information sessions
(f)making and implementing logistical arrangements for venues, catering and travel
(g)preparing, reviewing and settling the draft agenda and resolutions for the authorisation meeting
(h)preparing, reviewing, settling and distributing letters to registered attendees for the authorisation meeting
(i)preparing and settling the brief to the facilitator
(j)meeting logistics and assistance on the day
(k)preparing, settling and sending of the post-authorisation information pack, and
(l)providing and settling budgets for each stage in the process.
I note that the only references to the possible involvement of the native title party were in relation to the information sessions (‘Query – attendance of WJ applicant? TBC’) and the ILUA authorisation meeting logistics (‘WJ applicants to receive meeting fee? TBC’).
The grantee party acknowledges that negotiations for a s 31(1)(b) agreement with the native title party with respect to the grant of the proposed tenement were included within the wider negotiations for a whole of project ILUA with the Wangan and Jagalingou People.
The grantee party submits that, while the grantee party's statutory counter-party with respect to the negotiations for the s 31(1)(b) agreement was the native title party, the proposed ILUA was properly to be considered an agreement with all of the Wangan and Jagalingou People, notwithstanding the legal requirement for the persons who comprise the native title party to be named as parties to the ILUA. Therefore, once it became clear that voluntary agreement would not be reached with the native title party within the previously agreed time frames and previously agreed parameters, the grantee party sought to utilise the opportunity provided by the convening of the authorisation meeting by the Wangan and Jagalingou People on the morning of 1 December 2012 to convene a further authorisation meeting for the purpose of seeking directly from the Wangan and Jagalingou People their views with respect to the grantee party's best offer.
I find that the grantee party’s efforts to secure the authorisation of its draft ILUA were:
(a) opportunistic (in the sense that the grantee party sought to take advantage of the opportunity presented by previously arranged s 66B meeting on 1 December 2012), and
(b) based on their lawyer’s understanding of relevant case law.
It has not been contended that the approach was illegal and hence potentially of no legal effect. Indeed, I infer from the letter from Chalk & Fitzgerald dated 28 November 2012 that this point was conceded when it stated:
While we do not dispute that an ILUA (area agreement) is made with all persons claiming to hold native title, it is equally clear that it must include the registered native title claimants.
The native title party had been authorised by the native title claim group to negotiate future acts, and had proceeded to negotiate with the grantee party accordingly for more than a year. The grantee party acknowledged that the native title party would be named as a party to the ILUA, and was careful not to exclude the native title party. The letter from Clayton Utz to Chalk & Fitzgerald dated 31 October 2012 expressed the hope that the native title party would attend the meeting in support of the authorisation of the ILUA. As noted earlier, Mr Malone was present at the meeting and he moved the motion that was adopted in relation to the ILUA.
The grantee party was heavily involved in organising the authorisation meeting and invested resources in it. The unusual approach taken by it effectively sidelined the native title party from the organisation of the ILUA authorisation meeting but did not, and could not, preclude the native title party from participating in that meeting.
The significance of such as approach for the purposes of meeting the obligation under s 31(1)(b) has to be assessed in light of the circumstances of this case. The grantee party decided to seek a determination from the Tribunal in relation to the grant of the proposed tenement. It was entitled to do so and could not be accused of failing to negotiate in good faith if it had done nothing else. The fact that it decided opportunistically to pursue another approach concurrently with its future act determination application exposed it to understandable criticism from the native title party.
However, having regard to:
(a) the stage the negotiations with the native title party had reached
(b) the circumstances governing the timing of the ILUA authorisation meeting
(c) the timing of the future act determination application, and
(d) the fact that the grant of the proposed tenement is only one part of the Carmichael Project that the grantee party wants to be covered by the proposed ILUA
I am not satisfied that the grantee party failed to negotiate in good faith.
Grantee party failed to meet accepted standards of good faith negotiation
Contentions: In addition to the contentions dealt with above, the native title party contends that, in its behaviour, the grantee party failed to meet accepted standards of good faith negotiation, which include:
(a) meaningful participation in meetings of the parties
(b) disclosing relevant information
(c) responding to proposals made by another party in a timely manner
(d) giving genuine consideration to the proposals of another party
(e) refraining from unfair or unreasonable conduct, or unilateral conduct that harms the negotiation process
(f) recognising and bargaining with the authorised negotiating representatives in relation to a particular agreement, and
(g) an overarching obligation to act honestly and reasonably with a view to reaching an agreement.
In making that submission, the native title party refers to and draws on decisions of the Tribunal and the Federal Court considering the Njamal indicia, as well as broader legislative and judicial descriptions of the content of the obligation to negotiate or bargain in good faith.
Consideration: As noted early in these reasons, s 36(2) of the Act provides that if any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith, the Tribunal must not make a determination pursuant to s 38. The practical effect of s 36(2) is to place an evidential burden on the party alleging that another party did not negotiate in good faith which would normally require it to produce evidence to support its contentions.
In these proceedings, the native title party has sought to satisfy the Tribunal that the grantee party did not negotiate with the native title party in good faith as mentioned in s 31(1)(b) of the Act. The native title party has identified those aspects of the grantee party’s behaviour which, it contends, demonstrate that the grantee party did not negotiate in good faith, and has provided affidavit and other evidence in support of those contentions. The grantee party has responded to the contentions and has provided affidavit and other evidence which, it submits, rebuts the native title party’s contentions.
But the grantee party goes further. It has made submissions and has referred to evidence which, it contends, demonstrate that it negotiated in good faith.
In response to the grantee party’s contentions that (by reference to the Njamal indicia) it had negotiated in good faith, the native title party contends that the grantee party has sought to make a positive case against a checklist consisting largely of indicia that the native title party did not allege were breached. The native title party submits that, because they did not complain about a failure to meet each of these indicia, much of what is said by the grantee party in proceeding this way is ‘irrelevant and merely self serving distraction’.
The relevance of the Njamal indicia to these and similar proceedings was considered at [30]–[34] of these reasons. As noted there, when determining whether the parties have negotiated in good faith, a contextual evaluation is required. The obligation to negotiate in good faith applies to all parties. The approach taken by one party is normally influenced by the approach taken, or the conduct and actions of, another. When assessing whether a party has negotiated in good faith, the Tribunal will consider all the material before it and not make a decision mechanistically on the basis that a party has not met all of the indicia or even most of them.
The statutory requirements will be satisfied so long as the parties have negotiated in good faith ‘with a view to’ obtaining the native title party’s agreement. The negotiations need not have reached a particular stage in order to satisfy the statutory requirements at the time at which an application is made to the Tribunal (see Cox at [23]). Nor is there an obligation on the parties to be consistently engaged in negotiations throughout the negotiation period (see FMG Pilbara at [67]; also Drake Coal at [79]; White Mining at [32]–[33]). The period of negotiation which needs to have occurred to establish that the parties negotiated in good faith is not necessarily related to the length of time spent negotiating. Rather it is the quality of the process undertaken by the parties that will determine whether the parties have negotiated in good faith as mentioned in s 31(1)(b).
The native title party submits that specific conduct by the grantee party, when considered as ‘as a whole’, demonstrates that the grantee party was not negotiating in good faith as required by s 31(1)(b) of the Act.
It should be apparent from the chronology and the evidence considered in relation to specific issues earlier in these reasons that these allegations in [301] cannot be sustained. They are addressed by the grantee party both in its submissions in reply and in its submissions by reference to the Njamal indicia seeking to establish that it negotiated in good faith.
I am satisfied that having regard to the nature, conduct and resourcing of the various meetings and the content of the correspondence and documents exchanged between the two negotiation parties that what was discussed and proposed was conducted in good faith and was with a view to obtaining agreement about the grant of the proposed tenement. Accordingly, the requirements of s 31(1)(b) were satisfied.
Conclusion
For the reasons set out above I am not satisfied that the grantee party did not negotiate in good faith with the native title party as required by s 31(1)(b) of the Act. Consequently, the Tribunal has power to exercise its jurisdiction in relation to the future act determination application brought by the grantee party on 7 November 2012.
Graeme Neate
President
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