Apex Gold Pty Ltd/WF (Deceased) & Ors on behalf of Wiluna/Western Australia

Case •

[2013] NNTTA 60

•

21 May 2013

NATIONAL NATIVE TITLE TRIBUNAL

Apex Gold Pty Ltd/WF (Deceased) & Ors on behalf of Wiluna/Western Australia,
[2013] NNTTA 60 (21 May 2013)

Application No:         WF2012/0027

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

Apex Gold Pty Ltd (grantee party)

- and -

WF (Deceased) & Ors on behalf of Wiluna (WC1999/024) (native title party)

- and -

The State of Western Australia (Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  21 May 2013

Catchwords:   Native title – future acts – application for a determination in relation to  general purpose lease applications  – jurisdiction – power – whether grantee party has negotiated in good faith – scope of the obligation to negotiate in good faith (s 31(2)) – grantee party has negotiated in good faith – Tribunal has power to proceed with future act determination inquiry.

Legislation:Native Title Act 1993 (Cth), ss 29, 29(2)(b)(i), 30(1)(a), 30A, 31, 31(1)(b), 35, 35(1)(b), 36(2), 37(a), 38, 39(4), 143

Cases:

FMG Pilbara Pty Ltd v Cox and others (2009) 175 FCR 141 (‘Cox’)

Fredrick Taylor Senior & Others on behalf of the Amangu People/Western Australia/Tronox Western Australia Pty Ltd and Yalgoo Minerals Pty Ltd, [2012] NNTTA 86 (‘Tronox’)

Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52 (‘Gulliver’)

Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia [2010] NNTTA 211 (‘Magnesium Resources’)

Mt Gingee Munjie Resources Pty Ltd v Victoria (2003) 182 FLR 375 (‘Mt Gingee Munjie Resources’)

Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 (‘Granny Smith’)

WA/Dimer and Ors (Ngadju People, WC95/17); Barnes and Ors (Central East Goldfields People, WC99/30)/Equs Ltd [2000] NNTTA 290 (‘Equs’)

Western Australia v Taylor (1996) 134 FLR 211 (‘Njamal’)

Representatives of the     Dr Michael Ruane, Intermin Resources Ltd
grantee party:                  Ms Bianca Taveira, Intermin Resources Ltd

Representative of the     Mr Ken Green, Green Legal Lawyers
grantee party
representatives:

Representatives of the     Mr Mike Allbrook, Central Desert Native Title Services Limited

native title party:             Ms Irene Assumpter Akumu, Central Desert Native Title Services Limited

Representatives of the     Mr Rod Wahl, State Solicitor’s Office
Government party:          Ms Cobey Taggart, State Solicitor’s Office
Ms Janice Goodwin, Department of Mines and Petroleum

REASONS FOR DECISION

Background to the Future acts

  1. On 11 January 2012, the Government party, through the Department of Mines and Petroleum (DMP), gave notice (‘the notice’) under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of two future acts, namely the grant of general purpose lease (‘GPL’) applications G53/18 and G53/19 (‘the proposed licences’) to Apex Gold Pty Ltd (‘Apex Gold’). Intermin Resources Ltd (‘Intermin’) had entered into an agreement with Apex Gold in relation to these proposed licences, and the status of that agreement and who is the grantee party is discussed further in this decision below. That discussion centres around the native title party’s contention that Apex Gold is the grantee party and did not negotiate in good faith. No allegations of lack of good faith were made by the native title party against the Government party.

  2. The proposed licences are located 59 kilometres west of Wiluna, in the Shire of Wiluna. According to the notice, G53/18 is 6.38 hectares in size, and G53/19 is 8.45 hectares in size.

  3. The notice allows any person who, four months after the notification day is a registered native title claimant in relation to any of the land or waters that will be affected by the future act, to a procedural right to negotiate in relation to the future act (see s 30(1)(a) and s 31 of the Act). The Wiluna native title claimant ((WC1999/024) – registered from 24 September 1999) falls into this category and is the native title party in respect of these proceedings (see s 29(2)(b)(i) of the Act).

The future act determination application

  1. On 11 October 2012, Intermin Resources Ltd made an application for the Tribunal to make a future act determination under s 38 of the Act, because the negotiation parties had not been able to reach agreement of the kind mentioned in s 31(1)(b) and at least six months had passed since the notification day specified in the s 29 notice of the Government’s intention to do the acts. On 26 October 2012, I was appointed as Member to conduct an inquiry into the future act determination application. The status of the application and the status of the party which made the application is discussed further in detail below.

  2. Apex Gold had provided a letter to DMP on 7 February 2012 stating that ‘Apex Gold Pty Ltd hereby authorises the following nominated grantee party representative to act in these negotiations: Intermin Resources Ltd PO Box 1104 Nedlands WA 6909’. On 2 November 2012, following lodgement of the future act determination application, the Tribunal sought clarification in relation to whether Intermin was also authorised to make this future act determination application and not just to ‘act in these negotiations’. On 6 November 2012, the Tribunal received a letter from the executive chairman of Apex Minerals NL stating that ‘Apex Gold Pty Ltd hereby authorises Intermin Resources Ltd to apply for a future act determination in respect to general purpose leases G53/18 and G53/19 on behalf of Apex Minerals NL/Apex Gold Pty Ltd’. That letter noted ‘Bianca Taveira and Michael Ruane’ as the authorised representatives of Intermin Resources Ltd, and a copy of the letter was provided to all parties by the Tribunal.  The Tribunal was satisfied in relation to the letter sent on 6 November that Intermin did have the authority to make the future act determination application on behalf of Apex Gold.

  3. Pursuant to s 36(2), if the native title party satisfies the Tribunal that a grantee party did not negotiate in good faith ‘as mentioned’ in s 31(1)(b), the Tribunal must not make a future act determination. However, before the good faith inquiry could be commenced, technical and legal issues raised by the native title party needed to be resolved and a preliminary conference was called on 19 November 2012.

  4. At that conference, a number of issues were raised by the native title party which had also been provided by letter on 7 November 2012, including:

  • that Intermin Resources Ltd did not have the authority to apply for a future act determination in respect of the proposed licences;

  • that an agreement between the native title party and grantee party, namely the Agincourt Land Access Agreement 2004 (‘the Agincourt Agreement’), which was attached to the future act determination application, should be covered by a confidentiality order; and

  • a number of other technical and legal issues.

Each of these issues was discussed at the preliminary conference and further issues were raised. I made directions so that those matters could be resolved and a draft s 155 confidentiality order was put before parties in relation to the Agincourt Agreement.

  1. The confidentiality order was finalised and made on 30 November 2012 to cover the Agincourt Agreement. Because of that non-disclosure direction, I will not refer to the Agincourt Agreement in any particular detail, only to the extent that it needs to be mentioned to clarify my reasons for decision.

  2. Draft directions were issued on 20 November 2012 in relation to the good faith inquiry and parties were advised those directions would only apply in the event the Tribunal determined there is no agreement of the kind mentioned in s 31(1)(b). Parties were also advised ‘if the Tribunal determines that the Agincourt Land Access Agreement is such an agreement, then, as per s 37(a) of the Act, the Tribunal has no jurisdiction to determine the matter, and the application can be dismissed under s 148(a) of the Act’.

Jurisdictional issue – nature of Agincourt Agreement

  1. On Monday 19 November 2012, parties were directed to provide submissions regarding the jurisdictional issue of whether the Agincourt Agreement is an agreement of the kind contemplated by s 31(1)(b).

  2. Intermin provided a submission on 20 November 2012 which outlined the relationship between itself and Apex Gold and provided some background to the use of the two general purpose leases G53/18 and G53/19. The submission did not specifically address whether or not the Agincourt Agreement was an agreement of the kind mentioned in s 31(1)(b). Intermin did note that a heritage survey had been commissioned in 2010 over the land applied for under the proposed licences using Central Desert Native Title Services (CDNTS) ‘to ensure that any future operations within the area would not affect the rights of the claimants’. This survey was performed on 8 October 2010, and the area was cleared for the activities proposed. In support of that they provided a letter dated 26 October 2010 from the heritage anthropologist at CDNTS to the ‘Environmental Consultant at Apex Minerals NL’. That letter confirmed the survey was conducted in accordance with the Agincourt Agreement. It also noted a deed of assignment and assumption between the Wiluna native title claimants and Apex Gold had been executed on 11 October 2007. The letter confirms that the Apex Minerals NL proposed works within the cleared area ‘will NOT disturb any registered DIA [Department of Indigenous Affairs] Aboriginal site’ and ‘would NOT impact or encroach on any other areas of cultural significance or sensitivity.’ As I understand it, the native title party took issue with the extent to which this survey applies to G53/18 and G53/19, and this was one of the stumbling blocks to parties reaching agreement.

  3. The native title party provided submissions relating to the jurisdictional issues on 5 December 2012. Those submissions outlined some of the history between the CDNTS, Apex Gold, and Intermin. The submissions also stated that:

  • on 1 August 2012, DMP referred the matter to mediation pursuant to s 31(3) of the Native Title Act and that mediation was terminated on the basis that the native title party had ‘failed to engage in the process’.

  • the future act determination application ‘was the first express notice that Apex Gold had authorised Intermin to negotiate on its behalf’.

  • the native title party concluded that Intermin did not have standing to bring an application for a future act determination and also that Apex Gold is the negotiation party for the purposes of s 31(1)(b) and there was no agreement of the kind contemplated in s 31(1)(b).

  1. On 12 December 2012, the Government Party provided their submissions in relation to the jurisdictional issues. The Government party summarised the issues as being:

    a)   Whether the grantee party had made the future act determination application, and

    b) Whether the Agincourt Agreement is an agreement of the kind contemplated by s 31(1)(b) of the Act.

  2. In relation to (a) the Government party contended that the grantee party was Apex Gold and that it had made the s 35 application through its representative, Intermin. The Government party also noted that s 143 of the Act provides that a party, including the grantee party, can be represented by another person, that Apex Gold is represented by Intermin, and Intermin have authority from Apex Gold to make the future act determination application on behalf of Apex Gold. As to whether Intermin could negotiate on Apex Gold’s behalf, I note that the letter dated 7 February 2012 advising that Apex Gold authorised Intermin to act in these ‘negotiations’ was provided only to the Government party – it appears it was not provided to the native title party initially. However, on 20 February 2012 the Government party provided the native title party with the contact details of the grantee party as being ‘care of Intermin’ as outlined at [5] above, and the Government party does not, and did not, during the negotiations, take any issue as to the standing of the grantee party or their authorised representative as Intermin. This is evidenced by DMP sending all correspondence, from 7 February 2012 onwards, to Apex Gold care of Intermin. The native title party were copied into such correspondence – for example, the letter of 9 March 2012 requesting Apex Gold make submissions in relation to the proposed licences, and the letter of 16 April 2012 to the native title party noting DMP had not received submissions in relation to the native title party views about the grant of the proposed licences. That Intermin was the representative of the grantee party from an early stage in this matter was also reinforced in the grantee party Mining Proposal dated 23 March 2012, which was sent to the native title party on 27 April 2012 by Intermin, which clearly states Intermin are the ‘management contacts’ for the project. In addition, CDNTS wrote to Intermin directly on 30 April 2012, stating CDNTS ‘have sent a response to Apex Gold Pty Ltd in relation to your letter dated 27 April 2012 regarding the General Purpose Lease Applications for G53/18 and G63/19. Intermin have been copied into this correspondence and should receive this letter in the coming days’. Intermin responded to this letter on 18 May 2012 with an offer and also provided some information to clarify CDNTS questions. As such, I agree with Government party submissions that the grantee party, through their representative Intermin, had lodged the future act determination application. I also take the view that Intermin were the authorised representative of the grantee party for the purposes of the negotiations, and that it was reasonable for all parties to accept that representation. The nature of the relationship between Intermin and Apex Gold for good faith purposes is further explored later in this determination, as is the status of the Agincourt Agreement.

In relation to (b), that is more complex and the Government party made a series of arguments and submissions in relation to whether or not there was a s 31(1)(b) agreement. The Tribunal then undertook to assess submissions from each of the parties and on 18 December 2012, after assessing submissions from all parties, the Tribunal wrote to all parties asking for further clarification on ‘whether or not the Agincourt Agreement 2004 is an agreement of the kind mentioned in s 31(1)(b)’ and issued directions for brief final submissions.

  1. According to the directions, the Government party provided supplementary submissions on 21 December 2012. Those submissions outlined the matter in more detail and concluded (at 46) that ‘the NNTT is not precluded from considering this application on the grounds that it does not have jurisdiction as a result of ss 35(1)(b) and 37(a) of the Act and can take the Agincourt Agreement into account in accordance with s 39(4) of the Act’.

  1. The native title party provided their supplementary submissions on 24 December 2012, which also stated that the Agincourt Agreement is not an agreement of the kind mentioned in s 31(1)(b) of the Act. They submitted that the Tribunal is not prevented from making a s 35 future act determination.

  1. The grantee party did not provide any further submissions in relation to this matter.

  1. The supplementary submissions were considered and on 9 January 2013, parties were notified that:

    Member Shurven has now considered all submissions made regarding whether or not the Agincourt Land Access Agreement 2004 (attachment 6 to the form 5) is an agreement mentioned in s 31(1)(b) of the Native Title Act (the Act) and notes that the native title party and the state agree, albeit for slightly different reasons, that the Agincourt Land Access Agreement is not an agreement of the kind mentioned in s 31(1)(b) of the Act. Member Shurven agrees with that approach, and specifically adopts paragraphs [42]-[46] of the Government party’s supplementary submissions in relation to the jurisdiction of the National Native Title Tribunal (dated 21 December 2012). Accordingly, the Tribunal has jurisdiction to determine the matter. Reasons will be published in the negotiation in good faith determination.

  2. Those reasons are now published here by adopting principles outlined in ‘Tronox’ and by restating paragraphs [42]-[46] of the Government party’s supplementary submission in the current matter, which the Tribunal adopts, as noted in its communication to the parties on 9 January 2013:

    42. Significantly, cl 5.1 of the agreement contains a specific statement that the Native Title Party will consent to a future act being granted. That is distinct from a statement that the Native Title Party does consent to the doing of a future act.

    43. Although the Native Title Party is bound to provide that consent, the agreement frames the consent to be given in a future tense and at a point in time after a relevant notice has been issued under the Act (among other things).

    44. It would therefore appear open to construe the Agincourt Agreement as an agreement between the parties which codifies their obligations and entitlements in the event a future act notice is provided. What it does not do, strictly speaking, is provide the consent of the Native Title Party to the doing of a particular future act prior to that notice being given.

    45. Where the interpretation outlined at [44] above is open on the terms of that agreement and, so it seems, would give effect to the requirements and intentions of the parties to the agreement, the government party respectfully submits that the NNTT ought to prefer that interpretation of the Agincourt Agreement.

    46. If that interpretation is accepted, the consequence is that the NNTT is not precluded from considering this application on the grounds that it does not have jurisdiction as a result of ss 35(1)(b) and 37(a) of the Act and can take the Agincourt Agreement into account in accordance with s 39(4) of the Act.

In Tronox, an agreement between the grantee party and native title party existed which provided that the native title party would agree to the grant of any mining leases to the grantee party and do everything necessary to enable the mining leases to be granted in relation to the project area as defined in the agreement. In that matter, parties were invited to lodge submissions in relation to the nature of the agreement between the grantee party and the native title party.  

  1. In Tronox, the grantee party agreed that the provisions of the agreement included the native title party’s agreement to the grant of the lease applications that were the subject of the future act determination application. In the current matter, the Agincourt Agreement does not clearly provide the native title party’s agreement to the doing of these particular future acts (G53/18 and G53/19) but, rather, the Agincourt Agreement provides a process which leads to the agreement of the native title party in relation to these proposed licences. The Agincourt Agreement goes so far as to attach a template future act determination application which the native title party is bound to lodge in relation to proposed licences which fall under this agreement. The Agincourt Agreement also has a series of dispute resolution clauses. These clauses allow that, where the native title party has not lodged a future act consent determination application and a minute of consent orders, then the grantee party can seek urgent injunctive relief to compel the native title party ‘to lodge immediately the document required to be lodged by clause 5’ of the Agincourt Agreement.  In relation to these clauses, and while it does not affect the processes or jurisdiction of the Tribunal, I do note there is nothing in the materials before me to indicate why Apex Gold, either in its own right or through its representative, Intermin, has not sought to enforce the requirement that the native title party lodge a consent determination. 

  1. In summary, I concluded that the Agincourt Agreement was not an agreement of the native title party to the doing of these future acts and that the Tribunal had jurisdiction to proceed. Parties were advised that directions issued on 18 December 2012 in relation to the hearing of the good faith matter had now been activated.

Good Faith Obligations

The obligation to negotiate in good faith

  1. The obligation to negotiate in good faith is set out in s 31 of the Act:

    s 31 Normal negotiation procedure

    (1)Unless the notice includes a statement that the Government party considers the 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 the view to obtaining the agreement of each of the native title parties to:

    (i)     the doing of the act; or

    (ii)    the doing of the act subject to conditions to be complied with by any of the parties.

    ...

  2. On the interpretation of s 31, I adopt relevant legal principles from ‘Gulliver’ (at 55-60) for the purposes of this inquiry, unless in conflict with the Full Federal Court decision in ‘Cox’ (see also ‘Mt Gingee Munjie Resources’; ‘Njamal’).  I also note, from Cox (at [20]), that it:

    has been repeatedly recognised that the requirement for good faith is directed to the quality of a party’s conduct.  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 the negotiations. 

The quality of the conduct of the parties is important in this current matter.

  1. Section 30A of the Act outlines that, the ‘negotiation parties’ are the Government party, the grantee party and the native title party. In this matter, the native title party alleged the grantee party had not negotiated in good faith. As noted earlier, there were no allegations against the Government party.

  2. As noted at [6] above, 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 paragraph 31(1)(b)’ of the Act, the Tribunal must not make a determination (s 36(2) of the Act). That is, all parties should act in good faith but the question of whether or not the Tribunal is empowered to make the determination sought is only triggered when allegations are made that the grantee party or the Government party did not negotiate in good faith. The Tribunal has also held, in previous decisions, that the approach of one party may influence the approach taken by another party. For example, if a native title party refuses to negotiate, then a lesser standard may be required of the other parties.

  3. No burden of proof, nor any evidential burden of a legal nature, lies on any party to proceedings before the Tribunal inquiring into such matters (‘Ward’).  Granny Smith helpfully outlined the meaning of ‘good faith negotiations’ (at [93]-[94] – note that this obligation now applies to the grantee party, so reference to ‘Government party’ can be read as also being to a ‘grantee party’):

    Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’ (Western Australia v Taylor [1996] NNTTA 34; at 219 (‘Njamal’). 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 Njamal 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 it 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 other parties have fulfilled their obligation and may impose a lesser standard on them.

  4. Njamal outlined the  ‘Njamal indicia’ (at [224]-[225]) which provides a guide to the applicable threshold for negotiation in good faith, and the following actions are said to fall under that threshold:

    (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 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 party grantee parties;

    (vii)Failure to take reasonable steps to facilitate and engage in discussions between the parties;

    (viii)Failure 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, refusal to incorporate statutory provisions into an agreement;

    (xiii)Shifting position just as an 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, issuing inappropriate press releases;

    (xvii)Refusal to sign a written agreement in respect of the negotiation process or otherwise; and

    (xviii)Failure to do what a reasonable person would do in the circumstances.

These are by no means a fixed or exhaustive list of indicia, but can provide a useful guide to the Tribunal of factors to take into account when making a decision about whether a party has negotiated in good faith.

Good Faith Contentions and Evidence

  1. For ease of reference, a chronology of documentation and a list of submissions has been provided at Attachment One of this decision.

Native Title Party’s submission and evidence

  1. The native title party submissions of 15 January 2013 relied on the factual background that they had provided in paragraphs 1.1-1.26 of their 5 December 2012 submissions, and they then outlined the general legislative framework for assessing the good faith requirement, including that negotiating parties must negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the future act. They refer to the Njamal indicia and state it is open to the Tribunal ‘to find that a negotiation party has not negotiated in good faith where one or more of the Njamal Indicia are observed in the conduct of the negotiation party’ (at 2.12).  They provide an affidavit of CDNTS Future Acts Officer, Ms Irene Assumpter Akumu, in support of their arguments.

  2. The native title party put forward three alternative arguments in relation to the good faith issue.

  3. The first one is outlined at paragraph 3.5 of their contentions. The native title party submits that the grantee party, being Apex Gold, failed to negotiate at all with the native title party because they did not initiate any communication with the native title party and failed to respond to correspondence or other communications from the native title party.

  4. Secondly, at paragraph 3.6, the native title party argues that in the alternative it is open to the Tribunal to find that Apex Gold as the grantee party has failed to negotiate in good faith by behaving contrary to the Njamal indicia  (as outlined at [27] of this decision) for the following reasons:

  • That Apex Gold:

    ·‘caused an unreasonable delay by failing to initiate communications at first instance or at all’;

    ·‘failed to make proposals in the first place’;

    ·‘has not explained its failure to communicate with the Native Title Party within a reasonable time’;

    ·‘failed to contact the Native Title Party’;

    ·‘failed to attempt to organise a meeting with the Native Title Party’;

    ·‘failed to take reasonable steps to facilitate and engage in discussions with the Native Title Party’;

    ·‘failed to respond to reasonable requests for relevant information within a reasonable time’; and

    ·‘failed to do what a reasonable person would do in the circumstances’.

  1. Thirdly, the native title party provided a further alternative conclusion for the matter which was that if the Tribunal determined that Intermin is the grantee party for the purposes of this matter, then Intermin failed to do what a reasonable person would do in the circumstances. They go on to explain that Intermin ‘failed to supply the native title party with a copy of any written authority demonstrating that it was authorised by Apex Gold Pty Ltd to conduct good faith negotiations on its behalf’. They state that ‘while it is now apparent that this authority had been given to Intermin Resources Ltd by Apex Gold Pty Ltd, this authority was not made known to the native title party until the current application pursuant to s 35 NTA had already been made’.

  2. I will deal with each of these in turn.

  3. In my view, the simple argument that Apex Gold failed to negotiate at all because they did not initiate any communication with the native title party or respond to correspondence or other communications from the native title party falls away as it was reasonable for the native title party to accept Intermin was the representative of Apex Gold, as detailed in this decision at [14]. Intermin did write to the native title party on a number of occasions, not only initiating communications, but also responding to questions the native title party had put to Apex Gold directly, presumably some of which had been passed on from Apex Gold to Intermin (as Intermin was only copied into the direct correspondence to Apex Gold on one occasion – the email of 30 April 2012). I deal more with this issue under the exploration of the native title party’s second argument, outlined below. Before I deal with that second argument, which is more complex, I turn to the native title party’s third argument.

  4. The third argument turns on the native title party suggesting that Intermin failed to do what a reasonable person would do in not supplying a copy of written authority demonstrating that it was authorised by Apex Gold to conduct good faith negotiations on its behalf.  Once again, this is a fairly simple argument which falls away for the reasons outlined in [14] of this decision, where I conclude it was reasonable for the native title party to accept that Intermin was the representative of the grantee party, Apex Gold.  According to information contained in the future act determination application, it appears the relationship between the native title party and Intermin is conflicted from a previous project interaction, which I can only assume would not have assisted parties in moving through their negotiations in this current matter. However, provided with the information from DMP including letters from DMP care of Intermin as the grantee party representative, a reasonable person would have concluded that Intermin was the authorised representative of the grantee party. 

  5. I turn now to the second argument raised by the native title party.

  6. Ms Akumu’s affidavit attaches a letter dated 27 April 2012 from CDNTS to Apex Gold requesting ‘that Apex provide further details as to whether the above applications fall within the [Agincourt] Agreement area and if so, whether a Deed of Assignment has been entered into by the parties. Please provide this information at your nearest convenience’. The addressee was of a Senior Project Geologist in Wiluna, but it is not clear why CDNTS wrote to that particular person, particularly as the head office of Apex Gold is in Perth.  I also note and the Agincourt Agreement states it is the Exploration Manager at the head office address that should be used as the addressee for any enquiries arising from disputes in relation to that Agreement. The author of the CDNTS communication then emailed to the same addressee at Apex Gold on 8 May 2012 following up a response and the addressee wrote back on the same day stating ‘this project has nothing to do with me, however I'll find who is Apex’s liaison with Intermin and get back to you. You should have received a letter with the supporting documentation you are after from Bianca Taveira of Intermin Resources dated 27 April 2012’. Again on 14 May 2012, the author of the Central Desert April letter wrote to the same addressee in Wiluna and stated ‘Have you had any luck tracking down the most appropriate person to deal with this [general purpose lease applications]?  I also need to speak to someone at Apex about their environmental sampling – would this be yourself or someone else?’ The addressee then wrote back on 17 May 2012 naming a person who ‘is the enviro you want to contact for the sampling, he might know more about GPL also’.  It is not clear if that person was then contacted by the native title party, but as outlined in [14] of this decision, an email had already been sent from CDNTS to Intermin on 30 April 2012.

  7. The native title party submissions contain a number of other attachments.  One is an email from Intermin to CDNTS dated 18 May 2012 in response to the issue about whether or not the proposed licences fall within the Agincourt Agreement.  It partially states: ‘I have had the geologist re-plot the Agreement Area and our General Purpose Lease applications do fall within the Agreement Area.  The GPL’s lie within M53/96 [the area over which the 2012 heritage survey had been conducted] which is not listed on Item 2 Tenement Schedule [of the Agincourt Agreement], can you please confirm that M53/96 and M53/200 is not listed because it was granted before Native Title came into effect’.  Intermin goes on to say ‘Nonetheless, Intermin is willing to pay the monetary compensation over the areas involved...at the rate either specified in the Agincourt Land Access Agreement 2004...’   It is not clear whether the native title party replied to this email.  Materials before the Tribunal suggest there was no response to that offer and no further requests from the native title party, either to Apex Gold, or to Intermin, to clarify any outstanding questions they had in relation to the proposed licences.

  8. According to the attachments to the native title party submission, DMP wrote to CDNTS on 7 June 2012 stating ‘I understand that there is an issue as to whether or not the above leases [G53/19 7 G53/19] are covered by the Agincourt Land Access Agreement 2004 between Apex Gold Pty Ltd and the Wiluna People.  Could you please advise accordingly’.

  9. CDNTS replied to DMP on 8 June 2012 stating, ‘please be advised that there are a number of issues regarding these lease applications and how they are dealt with pursuant to the [Agincourt] Agreement.  Central Desert is currently dealing directly with the Agreement party, this being Apex Gold Pty Ltd (Apex), in relation to these issues.  We will advise you of any relevant outcomes from these discussions in due course’. 

  10. In summary then, from these contentions and other information provided by the native title party in this matter (as outlined in the jurisdictional section of this decision), it appears the native title party was attempting to clarify a number of issues, including: whether the proposed licences fell under the 2010 heritage survey; the relationship between Apex Gold and Intermin (for example, was there a deed of assignment between Apex Gold and Intermin); and whether the proposed licences fell under the Agincourt Agreement.  Intermin had answered two of those questions in its correspondence to CDNTS, and the assignment question was not fully explored by either party.  I deal with this further below.

Government party submissions

  1. The Government party provided submissions regarding negotiation in good faith on 29 January 2013 and relied on paragraphs 8-13 of its 12 December 2012 submissions and confirmed its position that the grantee party is Apex Gold.

  2. The Government party highlights that ‘the conduct of each party must be examined in the light of the actual circumstances of each case. It is unrealistic to apply a standard based on an artificial or hypothetical negotiation model, because to do so would suggest that a party need only follow mechanically a series of steps in order to be in a position to invoke the Tribunal’s jurisdiction’ (as cited in ‘Equs’). In addition, the Government party also cite ‘White Mining’ as highlighting the importance of a contextual evaluation. The Government party suggests that negotiations between the grantee and native title parties were limited but that ‘there was an effort to negotiate, in good faith, with a view to securing the agreement of the Native Title Party to the doing of the future act’ (at 16).

  3. The Government party repeated and relied upon paragraphs 14-23 of its 12 December 2012 submissions as to why the Agincourt Agreement applies to the proposed licences in this matter (while not being an agreement of the kind contemplated in s 31(1)(b)). The Government party also suggests (at 19) that ‘the Tribunal has accepted that the [Agincourt] Agreement codifies the obligations and entitlements of the Grantee and Native Title parties in the event certain future act notices are provided’. The Government party lists four contentions they feel are supported by the evidence in this matter:

  • that a survey of the area to be covered by the future acts was undertaken with representatives of Apex and members of the native title group (at 20.1)

  • the native title party provided a clearance report in accordance with the Agincourt Agreement in relation to that survey (at 20.2)

  • the grantee party’s representative wrote to the native title party’s representative and confirmed the future acts are within the geographic area covered by the Agincourt Agreement (at 20.3), and

  • the grantee party’s representative confirmed that it was prepared to pay compensation in accordance with the rates specified in the Agincourt Agreement (at 20.4).

  1. The Government party states (at 21) that ‘those matters are not, ordinarily, what would be expected in robust or comprehensive negotiations for the purposes of s 31(1)(b) of the NTA. However, in the context of the Agincourt Agreement they do constitute negotiation for the purposes of s 31(1)(b) of the NTA’. I do note in relation to the confirmation of whether the proposed licences fell under the Agincourt Agreement, the question was not entirely resolved as Intermin posed a further clarifying question back to the native title party, which appears to have gone unanswered by CDNTS. As the Government party indicates, the Agincourt Agreement does provide assistance to parties on the steps which should be undertaken in relation to negotiations for the purposes of ensuring the valid grant of relevant mining licences. The Government party suggests the Tribunal should consider the context of the Agincourt Agreement when considering whether there was negotiation in good faith for the purposes of s 31(1)(b). I agree that the Agincourt Agreement provides context for consideration of what is negotiation in good faith; however, it does not override the statutory requirement under the Act to actually negotiate in good faith.

  1. It is in the context of the Agincourt Agreement that I turn to the Njamal indicia for guidance as to the nature and extent of negotiations in good faith, in relation to the proposed general purpose licences in this matter. The Government party asserts that ‘rather than meetings and proposals, that agreement [the Agincourt Agreement] required the exchange and filing of certain documents as already agreed between the parties. There was no other step which needed to be taken’ (at 40). I do not entirely agree with this statement as negotiations cannot always be codified or set out prior to the grant of a future act, and some account needs to be taken of circumstances which arise outside of any agreement, which means negotiations should be flexible and take into account those contingencies and circumstances.

  2. The Government party also outlines some of the discussions regarding assignment of interests in M53/96 from the grantee party to Intermin. In relation to the assignment issue, that also clouded communications. It is often not clear whether parties are referring to the assignment of the two general purpose licences in the current matter, or the assignment of interests over the broader M53/96 upon which the general purposes leases sit. I note the native title party say that they did not receive a response in relation to the assignment question and the Government party suggests that this ‘does not, of itself, amount to a failure to negotiate in good faith’. However, I note the assignment question itself put by the native title party, was somewhat vague and imprecise.  Where the native title party had doubts about the relationship between Intermin and Apex Gold, and were on notice that Intermin was the representative of Apex Gold, then the native title party could reasonably have written to one of these entities and copied in the other, as is a usual practice in negotiations.  The CDNTS did so on only one occasion, and that was on 30 April 2012.  There is no explanation as to why they did not address any outstanding questions to Apex Gold and Intermin in this way.

Grantee party’s submissions

  1. The grantee party provided submissions relating to good faith on 11 February 2013. The grantee party outlines some of the history of the project and states (at 5) ‘at the outset of involvement by Intermin, the company considered whether or not application for any new tenements was necessary. Its conclusion was that it could operate the project within the Apex tenements and under the Agincourt Land Access Agreement if necessary and that no new tenements were actually required. However, it was decided that to provide some independence for the Intermin/WCP [Wiluna Calcines Project] operation versus those of Apex and clearly define the operational area available to Intermin, two General Purpose Leases would be applied for and when granted would serve as the Intermin work area GPLs 53/18-19’. The submissions also note that ‘Intermin volunteered to take over the management of the GPL application process as Apex Gold Pty Ltd was under significant financial and operational pressure at the time. Apex was short staffed and did not have people available to handle tenement administrative matters effectively’.

  2. Intermin indicated that they communicated with the native title party ‘regarding administrative matters relating to the GPL applications’ and also that it would meet any compensation payments due to the claimant group under the Agincourt Agreement. Intermin outlined that the way they would pay the annual fee due to the claimants would be over 60 times the amount due under the Agincourt Agreement and be additional to that paid by Apex Gold.  This was not contested by the native title party. Intermin stated they did not receive any response to that offer. In support of this, Intermin attaches a letter dated 27 April 2012 from Ms Bianca Taveira, Intermin Company Secretary to Ms Kate Fulton at CDNTS providing documents as requested by DMP on 9 March 2012, indicating that ‘an agreement is in place between Apex and Intermin Resources whereby Intermin will become the owner of the GPLs when granted’ and providing a copy of the mining proposal, the Intermin annual report and drawing attention to the ethnographic and archaeological survey done in 2010. They also provide an email dated 18 May 2012 from Intermin to CDNTS confirming the monetary compensation payment amounts.

Native Title Party reply

  1. On 26 February 2013, the native title party provided submissions in response to the Government and grantee party’s submissions. They contend the native title party did not fail to negotiate in good faith and, therefore, the normal negotiating standard is required from the grantee party. They also state that ‘the failure of Apex Gold Pty Ltd (Apex Gold) to respond to the native title party’s request for confirmation of the nature of the relationship with Intermin Resources Pty Ltd should be given significant contextual weight in evaluating whether the grantee party has negotiated in good faith’. I note the native title party do not point to particular correspondence in relation to that request, but presumably it is the letters around 27 April to 8 June 2012 to which they are referring.

  2. The native title party state that the issue of assignment and the interests of Intermin in relation to the proposed licences ‘was fundamental to resolve in order to obtain the native title party’s agreement to the doing of the act’ (at 2.1). They draw the Tribunal’s attention to clause 5.6 of the Agincourt Agreement which they say (at 2.2) states that ‘the parties will meet to discuss the alternative mechanism in place’. They state that Apex Gold should have arranged a meeting and no such meeting was arranged. I do note, however, that nothing in that clause, or associated clauses, suggests it is the grantee party who should organise such a meeting.

  3. The native title party states that the grantee party ‘did not take simple and obvious steps to clarify’ the interests of Intermin, and state the CDNTS did make inquiries of the grantee party (Apex Gold) but did not obtain a response. They state that being on notice from the Government party that contact details of the grantee party was care of Intermin ‘is neither relevant nor compelling in this matter’.

  4. However, looking at what a reasonable person might do, I suggest that once they were put on notice there was a representative for the grantee party, the simplest course of events would be for the native title party to communicate to that representative in order to make contact with the grantee party. The opportunity to clarify the status of the grantee party representative, and the assignment question, was also presented when the matter was referred to mediation by DMP on 1 August 2012, but the native title party refused to engage in that process. Further clarification was provided that Intermin had authority to lodge the s 35 application by the letter received on 6 November 2012 at the Tribunal, which was provided to all parties on 8 November 2012. To avoid any confusion it may have been preferable for the native title party to continue to communicate with Apex Gold through their nominated representative, Intermin, until the native title party inquiries had been satisfied. By continuing to write to people within Apex Gold, in Wiluna, who the native title party themselves confirm ‘was not a person with the authority required to answer the queries of the native title party’ in the April/May 2012 correspondence, confusion abounded.

  5. The native title party also indicate that documents purportedly sent by Intermin on 27 April 2012 were only received by the native title party as an annexure to an email dated 8 May 2012. I note this, but do not believe anything of significance turns on this point. The native title party did receive the document and attachments, whether it was on 27 April or 8 May 2012. The document clearly stated, after providing some details of the project and the relationship between Apex and Intermin ‘should you require any additional information we would be pleased to provide it.’ Yet the native title party continued to write to Apex Gold in Wiluna.

  6. The native title party indicate ‘the fact that the native title party chose not to engage in mediation before the Tribunal should not be read as meaning that the native title party did not negotiate in good faith. The native title party suggests that ‘Intermin made the application for mediation at a time when the native title party was awaiting confirmation as to the nature of the relationship between Apex Gold and Intermin’. As noted above [at 54], it was DMP who requested the mediation and not Intermin or Apex Gold.

  7. The native title party also suggest that Intermin’s submissions are not supported by affidavit evidence and so should not be given significant weight. However, all submissions in relation to this matter, apart from Ms Akumu’s affidavit, are made in terms of unsigned or unsworn contentions or submissions. As such, all unsigned and unsworn contentions will be given equal weight. Ms Akumu’s affidavit is given greater weight, by its nature being sworn evidence, but it does not significantly add to the information provided for consideration.

  8. The native title party raise an issue about the heritage survey (at 6.2) and suggests ‘the question of whether or not a heritage survey was carried out in relation to M53/96 is irrelevant in determining whether the parties have negotiated in good faith in relation to obtaining the agreement of the native title party to the doing of the future act, being the grant of G53/18 and G53/19 to Apex Gold’. The native title party say that the heritage survey is irrelevant because ‘in the current circumstances, the doing of the act... is contingent upon an agreement being in place that ensures ongoing heritage protection’. I do note that the Agincourt Agreement refers to an ‘Agincourt Heritage Agreement’, being an agreement signed between the native title party and the grantee party, in 2004.  While that agreement was not put before the Tribunal, the Agincourt Agreement states  ‘Parties agree that prior to the grant or renewal of any Tenement...the Company may require a Work Area Survey to be conducted’ pursuant to the Agincourt Heritage Agreement.

  9. The native title party state the offer of payments is not evidence of good will and does not satisfy requirements to negotiate in good faith in relation to s 31(1)(b) of the Act. The native title party say because the Tribunal has already made a determination that the Agincourt Agreement is not an agreement for the purposes of s 31(1)(b), then it is an irrelevant consideration in terms of demonstrating good faith negotiations. However, I do not entirely agree with that proposition, as the Agincourt Agreement is a factor in relation to the negotiation process to be used between parties in relation to the proposed acts.

Did the grantee party negotiate in good faith?

  1. Following a consideration of the good faith materials provided by all parties, I called a directions hearing for 19 April 2013.  The Tribunal provided parties with the timeline of documentation and submissions (as found at Attachment One of this decision) to assist them.  A discussion was held with all parties regarding whether it was possible for parties to reach an agreement in this matter, as an alternative to an arbitral decision now that it had been clarified that Intermin was the authorised representative for Apex Gold for the purposes of negotiations. A direction was issued that:

    If the native title party or the grantee party wish to make a brief submission on whether there is a possibility of agreement between themselves in this matter, to the extent that it disposes of the future act determination application, they may do so by noon on 10 May 2013. 

  2. On 10 May 2013, the Tribunal was notified that Intermin had engaged a representative, and that representative provided brief submissions stating that:

    In the circumstances known to the Grantee Party and without prejudice to the Grantee Party’s existing rights, the Grantee Party does not believe that within a timeframe acceptable to the Tribunal there is a possibility of agreement being reached between the Grantee Party and the Native Title Party which would dispose of the future act determination application.

  3. The Tribunal then wrote to Intermin’s representative to clarify a) whether they were proposing to withdraw the future act determination application, and b) whether they did act for the grantee party as Apex Gold or Intermin or both entities.  That representative advised the Tribunal and all parties on 10 May 2013 that:

    The Grantee Party is not proposing to withdraw the Future Act Determination Application (FADA). The Grantee Party acknowledges the intention of the Tribunal to issue a decision in relation to the good faith issue....

and on 14 May 2013 that:

At this time I have a written engagement with Intermin Resources Ltd.  Last week, I forwarded a proposed written engagement to Apex Gold Pty Ltd for its consideration, and if appropriate, signing and return.  That has not occurred as yet.  For the present purposes you should regard Green Legal as the “representatives representative”.

  1. As all parties are aware the Tribunal is intending to hand down this decision, that decision will be issued accordingly.

  2. The threshold question which the Tribunal must address is whether or not the grantee party negotiated in good faith as required by s 31(1)(b). If they did not negotiate in good faith, the Tribunal must not make a determination. As outlined at [13]-[14] of this decision, the behaviour of other negotiating parties can also be relevant to this question.

  3. I agree with the native title party that failing to participate in mediation is of itself not necessarily an indicator of lack of good faith.  However, taking it into the context of this particular set of circumstances, I suggest that by failing to engage with or respond to Intermin, apart from the single email to Intermin on 30 April 2012, and failing to engage in the mediation process when it provided an opportunity to clarify the questions they had, the native title party has lowered the bar in terms of the level of good faith negotiation expected in relation to this matter.  For example, it would have been reasonable for CDNTS to request a relevant staff member of Apex Gold attend the mediation to clarify outstanding issues.  

  4. In that context I turn to the native title party’s second argument as outlined at [32] of this decision.  The native title party list 8 elements, along Njamal criteria lines, which they state are sustained and show lack of good faith on the part of the grantee party, or their representative.  In relation to the allegations that the grantee party:

  • ‘caused an unreasonable delay by failing to initiate communications at first instance or at all’

  • ‘failed to take reasonable steps to facilitate and engage in discussions with the Native Title Party’

  • ‘failed to contact the Native Title Party’

  • ‘failed to make proposals in the first place’

I do not find there is information or submissions to sustain such – Intermin, as Apex Gold’s representative did make contact with the native title party, including a proposal (in May 2012), did initiate communications by responding promptly to DMP’s request that information be sent to the native title party (in April 2012) and did provide other information to the native title party.  While the proposal may have been somewhat premature, as the native title party were still seeking clarification of issues such as the nature and extent of any assignment between Intermin and Apex Gold, there was ample opportunity for the native title party to respond to the proposal and seek further clarification of the assignment issue. 

  1. In relation to the allegation that the grantee party ‘failed to attempt to organise a meeting with the Native Title Party’, there is no onus on the grantee party to organise such a meeting, particularly in the context of the Agincourt Agreement.  In some matters, such a failure may be an indicator of lack of good faith, but I do not think it is so in this matter.  In addition, when the native title party did have the opportunity to meet in the form of mediation, where a request could have been made for a relevant Apex Gold staff member to attend, the native title party did not do so. In terms of the other allegations, namely that the grantee party:

  • ‘has not explained its failure to communicate with the Native Title Party within a reasonable time’

  • ‘failed to respond to reasonable requests for relevant information within a reasonable time’

  • ‘failed to do what a reasonable person would do in the circumstances’

I could not conclude that there were failures in this regard, for the reasons outlined above.  Intermin did provide clarifying information to CDNTS in relation to questions posed directly to Apex Gold, and overall, the grantee party and their representative could not be said to have failed to do what a reasonable person would do in the circumstances. 

  1. As was noted by Deputy President Sumner in ‘Magnesium Resources’ at [11]-[12]:

    Good faith negotiations mean that there must be negotiations, i.e. conduct which involves communicating, having discussions or conferring with a view to obtaining the agreement of native title parties to the doing of the act or doing of the act subject to conditions to be complied with by any of the parties (emphasis added).

In this matter, Intermin, as the representative of Apex Gold, did act in ways consistent with them wishing to obtain the agreement of the native title party. 

This is supported in the Granny Smith sense that the grantee party did facilitate negotiation, where negotiation involves ‘communicating, having discussions or conferring with a view to reaching and agreement’ (for example, as outlined at [14], [39] and [50] of this current determination).

  1. In the Cox sense, I believe the quality of the grantee party’s conduct in this matter was such that it turned its mind to negotiations with the native title party with a view to reaching agreement. I conclude there was ‘negotiation in good faith with a view to obtaining the agreement of each of the native title parties’ as required under s 31(1)(b) on the part of the grantee party.

Determination

  1. I am satisfied that the grantee party did negotiate in the manner required by s 31(1)(b) in this matter. According to s 36(2), the Tribunal, therefore, has the power to make a determination on this future act determination application.

Helen Shurven
Member
21 May 2012

Attachment One

Chronology of documentation and a list of submissions

Document date / date received

Author/provider/source

Title/description of document
8 Oct 2010 Native Title Party (NTP) Heritage survey done over area by Central Desert Native Title Services (CDNTS) (M53/96)
26 Oct 2010 NTP Provided heritage clearance over area to Apex
11 Jan 2012 Department of Mines and Petroleum (DMP) s 29 notice for lease applications G53/18 & G53/19
7 Feb 2012 Apex Gold (Apex) Letter to DMP advising Intermin Resources (Intermin) has authority to negotiate
20 Feb 2012 DMP Advised NTP that Grantee Party (GP) representative is Intermin
9 March 2012 DMP Requested usual information from GP and NTP
16 Apr 2012 DMP Requested information from NTP
27 Apr 2012 NTP Wrote to Apex for information and write to DMP
27 Apr 2012 Intermin Provide CDNTS with Apex Gold mining proposal
30 Apr 2012 NTP Write to Apex Gold and Intermin
8 May 2012 NTP Wrote follow up email to Apex
14 May 2012 NTP Another follow up email to Apex
18 May 2012 Intermin Wrote to CDNTS with ‘offer’ and clarifying information
7 June 2012 DMP Wrote to CDNTS to clarify progress
8 June 2012 NTP Wrote to DMP – currently clarifying information with Apex
1 Aug 2012 DMP Refers matter to mediation
13 Sept 2012 NTP won’t engage in mediation says Tribunal and NTP confirms in submissions
11 Oct 2012 Intermin Future act determination application (FADA)
30 Oct 2012 National Native Title Tribunal (NNTT) Acceptance minute
6 Nov 2012 Apex Letter authorising Intermin to make a FADA on behalf of Apex
6 Nov 2012

Ashleigh Freeman

NNTT

 Parties notified of FADA
7 Nov 2012 CDNTS Letter to all parties and Tribunal
8 Nov 2012

Ashleigh Freeman

NNTT

 Email to parties attaching Intermin / Apex authority
19 Nov 2012

Ashleigh Freeman

NNTT

 Email to parties advising directions for submissions re s 31(1)(b) agreement
20 Nov 2012

Helen Shurven

NNTT

 Initial NIGF directions
20 Nov 2012 Michael Ruane / Bianca Taveira, Intermin GP s 31(1)(b) submissions
22 Nov 2012

Ashleigh Freeman

NNTT

 Email providing GP submissions to parties
26 Nov 2012

Cobey Taggart

State Solicitor’s Office (SSO)

 Govt party comments re confidentiality order for agreement
30 Nov 2012

Helen Shurven

NNTT

 Confidentiality directions re agreement
3 Dec 2012

Ashleigh Freeman

NNTT

 Email to parties amending s31(1)(b) agreement direction dates for NTP and Gov’t party (GVP)
5 Dec 2012

Mike Allbrook

CDNTS

 NTP submissions re s 31(1)(b) agreement
7 Dec 2012

Mike Allbrook

CDNTS

Attachments to NTP

s 31(1)(b) submissions
12 Dec 2012

Cobey Taggart

SSO

 GVP s 31(1)(b) submissions
18 Dec 2012

Sally Wearne

NNTT

 Request for any further submission re s 31(1)(b)
21 Dec 2012

Cobey Taggart

SSO

 GVP additional submissions re s 31(1)(b) agreement
24 Dec 2012

Mike Allbrook

CDNTS

 NTP additional submissions re s 31(1)(b) agreement
9 Jan 2013

Alyshia Stiffle

NNTT

 Email to parties advising Member Shurven decision that the Tribunal does have jurisdiction
15 Jan 2013

Mike Allbrook

CDNTS

 NTP NIGF submissions
29 Jan 2013

Cobey Taggart

SSO

 Govt party NIGF submissions
11 Feb 2013

Bianca Taveira

Intermin

 GP NIGF submissions
11 Feb 2013

Bianca Taveira

Intermin

 Email providing all parties with GP NIGF submissions
26 Feb 2013

Irene Assumpter Akumu

CDNTS

 NTP reply to GVP and GP NIGF submissions

Submissions

s 31(1)(b) agreement / jurisdictional issue

GP submissions received on 20 November 2012 (emailed to all parties 21 November 2012)

  • Letter of submissions

  • Copy of letter from CDNTS to Apex regarding clearance survey, dated 26 October 2010

  • Copy of letter from Apex to DMP authorising Intermin to represent GP in negotiations, dated 7 February 2012

  • Copy of letter from Apex to NNTT authorising Intermin to apply for FADA, dated 2 November 2012

  • Copy of email from Intermin to CDNTS regarding lease locations and compensation, dated 18 May 2012

NTP submissions received on 5 December 2012, attachments received 7 December 2012

  • Submissions

  • Copy of DMP s 29 notice, dated 6 January 2012

  • Copy of lease application notification letter and attachments from DMP to CDNTS, dated 20 February 2012

  • Copy of lease application notification letter from DMP to Apex/Intermin, dated 20 February 2012

  • Copy of letter from DMP to CDNTS requesting submissions re grant of leases, dated 16 April 2012

  • Copy of letter from CDNTS to DMP advising yet to receive info from GP, dated 27 April 2012

  • Copy of letter and attachments from Intermin to CDNTS providing requested info, dated 27 April 2012

  • Copy of letter from CDNTS to Apex querying whether leases fall in Agincourt agreement area and whether deed of assignment entered into, dated 27 April 2012

  • Copy of email from CDNTS to Intermin advising above letter sent to Apex, dated 30 April 2012

  • Copy of email chain between CDNTS and Apex clarifying appropriate contact person, dated 27 April 2012 – 8 May 2012

  • Copy of email chain between CDNTS and Apex advising appropriate contact person, dated 27 April 2012 – 15 May 2012

  • Copy of email from Intermin to CDNTS regarding lease locations and compensation, dated 18 May 2012

  • Copy of email from DMP to CDNTS requesting info re whether leases covered by Agincourt agreement, dated 7 June 2012

  • Copy of letter from CDNTS to DMP advising issues around Agincourt agreement and ongoing discussions between CDNTS and Apex, dated 8 June 2012

  • Copy of email chain between DMP and CDNTS re DMP to follow up with GP re lack of progress, dated 5 July 2012 – 10 July 2012

  • Copy of email chain between DMP and CDNTS providing update on lack of progress, dated 5 July 2012 – 9 July 2012

GVP submissions received on 12 December 2012

  • Submissions

GVP supplementary submissions received 21 December 2012

  • Submissions

NTP further submissions received 24 December 2012

  • Submissions

Negotiation in Good Faith Submissions

NTP submissions received 15 January 2013

  • Submissions

  • Affidavit of Irene Assumpter Akumu, dated 14 January 2013

  • Copy of s 29 notice re G53/18 and G53/19

  • Copy of letter from CDNTS to Apex querying whether leases fall in Agincourt agreement area and whether deed of assignment entered into, dated 27 April 2012

  • Copy of email chain between CDNTS and Apex advising appropriate contact person, dated 27 April 2012 – 15 May 2012

GVP submissions received on 29 January 2013

  • Submissions

GP submissions received on 11 February 2013

  • Submissions

  • Copy of letter from Intermin to CDNTS providing requested info, dated 27 April 2012

  • Copy of email and attachment from CDNTS to Intermin advising response sent to Apex, dated 30 April 2012

  • Emails from Intermin to CDNTS regarding lease locations and compensation, dated 18 May 2012 and 6 June 2012

NTP reply to GVP and GP submissions received on 26 February 2013

  • Submissions

Actions
Download as PDF Download as Word Document
Cases Cited

0

Statutory Material Cited

0