Austmin Platinum Mines Pty Ltd and Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji - [2010] NNTTA 212

NATIONAL NATIVE TITLE TRIBUNAL

Austmin Platinum Mines Pty Ltd and Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2010] NNTTA 212 (19 December 2010)

Application No: WF10/26

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

Austmin Platinum Mines Pty Ltd and Weld Range Metals Limited (Applicant/grantee party)

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The State of Western Australia (Government party)

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Ike Simpson & Others on behalf of Wajarri Yamatji (WC04/10) (native title party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 19 December 2010

Catchwords: Native title – future acts - proposed mining leases – right to negotiate - negotiating parties unable to reach agreement - power to conduct an inquiry and make a determination – whether grantee party has negotiated in good faith – obligation to negotiate in good faith does not include grantee party funding native title party – Communications between the parties in person are not a prerequisite to negotiate in good faith – native title party failed to negotiate in good faith – observations on the scope of negotiate in good faith and assistance policies of native title representative bodies – grantee party has negotiated in good faith.

Legislation:Native Title Act 1993 (Cth) ss 3, 29, 31, 35, 38, 39, 75
Mining Act 1978 (WA)

Cases:Angelina Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WF07/40, [2008] NNTTA 90 (11 July 2008), John Sosso
Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152
Doxford/Janice Barnes, Jessie Diver, Owen McEvoy, Deree King, Patrick Fisher (Wangan and Jagalingou)/State of Queensland [2008] NNTTA 54 (28 April 2008), John Sosso

FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141
Gulliver Productions Pty Ltd and Others v Western Desert Lands Aboriginal Corporation and Others NNTT WF05/1 [2005] NNTTA 88; (2005) 196 FLR 52
Magnesium Resources Pty Ltd and Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People, Puutu Kunti Kurrama and Pinikura People #2/Western Australia, NNTT WF10/25, [2010] NNTTA 211 (19 December 2010), Hon C J Sumner
Strickland & Anor v Minister for Lands for Western Australia [1998] FCA 868; (1998) 85 FCR 303
Walley v Western Australian & Ors [1999] FCA 3; (1999) 87 FCR 565
Western Australia v Taylor [1996] NNTTA 34; (1996) 134 FLR 211

Representatives for the
grantee party: Mr Kenneth Green, Green Legal

Solicitor for the Mr David Anderson
Government party: State Solicitor’s Office

Representatives of the Ms Janice Goodwin
Government party: Department of Mines and Petroleum

Solicitor for the Mr Akmal Raea Khan,

native title party: Yamatji Marlpa Aboriginal Corporation

REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Background

On 24 September 1997, the State of Western Australia (Government party) gave notice of the following future acts under s 29 of the Native Title Act1993 (Cth) (the Act/NTA) being the grant of mining leases M51/543 (863.4 hectares), M51/544 (880.8 hectares), M51/545 (851.07 hectares) and M51/546 (559.6 hectares) (the Tenements) to Austmin Platinum Mines Pty Ltd (the grantee party) under the Mining Act1978 (WA) all located 85 kilometres south westerly of Meekatharra in the Shire of Meekatharra.
The registered native title claimant and native title party in these proceedings is Ike Simpson and Others on behalf of the Wajarri Yamatji (WC04/10) registered from 5 December 2005.
On 8 September 2010, being a date more than six months after the s 29 notices were given, the grantee party made an application pursuant to ss 35 and 75 of the Act for a future act determination under s 38. The application is made on the basis that the negotiation parties (Government party, grantee party and native title party) have not reached an agreement of the kind mentioned in s 31(1)(b) of the Act as to the doing of the future act.
On 22 September 2010, the Tribunal made directions for the conduct of an inquiry into the application, including directions for contentions and evidence to be provided in relation to the native title party’s contention that the grantee party had not negotiated in good faith as required by s 31(1)(b) of the Act. No such contention was made in relation to the Government party. With the consent of the parties I considered it appropriate to decide the matter on the papers. Although there were some conflicts in the evidence there was no need to resolve them by oral evidence in order to make a decision.

The grantee party’s proposal with respect to the proposed mining leases

There were a number of issues relating to changes to the ownership of the grantee party and with associated joint venturers following the giving of the s 29 notice and during early negotiations with the native title party. Since December 2009 the grantee party has been owned by Weld Range Metals Limited in which Dragon Mining Limited holds 40 per cent of the issued capital.
The four mining leases are part of Weld Range Metals’ plans to evaluate and develop mining and processing of chromium resources for production of refined stainless alloys as feed stock for stainless steel mills in Asia, Europe and the United States known as the Weld Range Stainless Project. The exploration phase of the evaluation will involve an extensive drilling program. The scope of the project being evaluated comprises low cut, open cut mining of 600,000 tonnes per annum of high grade ore within the chromium resources and transportation of that ore for processing at a facility at or near Oakajee Port, 25 kilometres north of Geraldton, to produce 305,000 tonnes of refined stainless alloy per annum. Over $10 million has already been spent identifying large areas of mineralisation containing chromium, iron, nickel and platinum group metals in the project area.

Summary of negotiations

On 13 September 2007, the Government party (in accordance with its normal practice) sent a letter to both the native title party and the grantee party requesting the grantee party to provide to the native title party certain information about the grantee party and its proposals relating to the mining leases as well as inviting the native title party to make a submission as contemplated by s 31(1)(a) of the Act. Both these requests were complied with respectively by the grantee party on 27 September 2007 and the native title party on 25 October 2007.
Nothing substantive happened until 15 April 2008 when the Government party (Department of Mines and Petroleum (DMP)) referred the matter to mediation by the Tribunal (s 31(3) NTA). The Tribunal’s Synopsis and Outcomes of the mediation meeting held on 10 July 2008 note that Yamatji Marlpa Aboriginal Corporation (YMAC), whose representatives (including legal practitioners) have acted for the native title party throughout advised that it had ‘standing instructions’ that the grantee party is required to meet with the Wajarri Yamatji Working Group (the Working Group) to negotiate a heritage agreement and that the next meeting was scheduled for August or September 2008. The parties agreed that the grantee party would consider the heritage agreement and that it would be included on the agenda for the next Working Group meeting.
On 18 August 2008, YMAC wrote to the grantee party and among other things invited it ‘to fund a negotiation meeting’ with the native title party and begin negotiations towards an agreement to cover the grantee party’s proposed operations.
At a mediation conference on 22 September 2008, YMAC confirmed the standing instructions for the grantee party to attend a Working Group meeting following which an agreement would be developed. It was agreed that there would be further discussions about attendance at a Working Group meeting or an alternative arrangement and that the grantee party would provide information on the issue of ownership of the mining lease applications.
On 23 September 2008, YMAC emailed the grantee party representative again suggesting their attendance at a Working Group meeting which it was trying to organise for 10 October 2008. The email said: ‘Due to the limited nature of our Federal funding, your attendance at a working group meeting may be expedited if your client were to agree to make a contribution to the cost of holding such a meeting. These costs involve travel, catering and professional costs, among other things’ ... ‘If your client were to agree to contribute to the costs of this meeting we would be in a position to ensure that these matters were given some priority.’
At a mediation conference on 17 October 2008, the grantee party representative said that it was willing to attend a Working Group meeting when a date is known. The parties agreed that YMAC would ‘discuss possible dates for a grantee funded or partially funded WGM at the next community meeting and provide feedback to parties by 27 October 2008’.
The mediation conference of 12 November 2008 discussed revision of the joint venture arrangements involving various companies with interests in the Tenements and the grantee party representative said: ‘Dragon Resources are prepared to negotiate the funding of a Working Group meeting in the new year’.
The mediation was terminated on 18 May 2009 by the Tribunal because there had still been no final resolution of the joint venture arrangements.
During the remainder of 2009 there were no negotiations and they were formally suspended by DMP in November 2009. By December 2009 the ownership issues had been resolved with Weld Range Metals being in control of the proposed mining leases.
On 1 February 2010, DMP sent a letter to both the native title party and grantee party in the usual form and in substantially the same terms as its letter of 13 September 2007 requesting that the same information be provided. The letter said the Government party was ‘recommencing’ the negotiations in accordance with its Negotiation Protocol.
The grantee party provided the information requested to YMAC by letter dated 10 February 2010 and the native title party provided its s 31(1)(a) submission to the Government and grantee parties on 31 March 2010.
On 7 May 2010, Green Legal (Mr Ken Green) sent to YMAC a letter which enclosed a ‘Draft Agreement’. The letter invited the native title party to identify its concerns about the grant of the Tenements and particularly the effect on any registered native title rights and interests. The letter invited the native title party to identify the manner in which the Draft Agreement was inadequate in addressing their concerns and propose any alternative, ideally by way of amendment or addition to the Draft Agreement.
The Draft Agreement was confined to the grant of the Tenements and dealt with some of the issues customarily found in mining agreements negotiated under the right to negotiate scheme. It covered compensation, Aboriginal Cultural Heritage and provision for site surveys, cross cultural awareness training for the grantee party’s employees or its contractors and environmental protection. The compensation clause provided for $35,000 to be paid to the native title party within 30 days following the grant of each tenement. There was no provision for any compensation to be provided by payment in the nature of a royalty which in my experience has become a common feature of agreements of this kind.
Negotiations between the parties continued until the grantee party made the s 35 application on 8 September 2010 and there have been some meetings since. All these negotiations were principally about the possible attendance of the grantee party at a meeting of the Working Group and whether the grantee party should fund the cost of it and is the issue about which the contentions and evidence principally related.
The facts and issues raised in this matter have some similarities to those considered in Magnesium Resources Pty Ltd and Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People, Puutu Kunti Kurrama and Pinikura People #2/Western Australia, NNTT WF10/25 [2010] NNTTA 211 (19 December 2010) (WF10/25). The representatives of the native title party (YMAC) and the grantee party (Green Legal) are the same, negotiations followed a similar but not identical pattern and some of the same issues of dispute arose. I have adopted findings from WF10/25 (s 146 NTA) where appropriate.

Obligation to negotiate in good faith

The obligation to negotiate in good faith is contained in s 31 of the Act:
‘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.
Note:The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Negotiation in good faith
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3)If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.’
I adopt relevant legal principles from Gulliver Productions Pty Ltd and Ors v Western Desert Lands Aboriginal Corporation and Others [2005] NNTTA 88; (2005) 196 FLR 52 (Gulliver) at 55-60 [8]-[20] unless in conflict with the Full Federal Court decision in FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141 (Cox). An application by the native title party in Cox for leave to appeal to the High Court was refused. In Cox the Federal Court described the obligation to negotiate in good faith as (at [20]):
‘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: see, for example, Brownleyv Western Australia (No 1) (1999) 95 FCR 152 at [24]-[25] per Lee J, Strickland 85 FCR 303 at 319-320 and Western Australia/Thomas on behalf of the Walgen People/Anaconda Nickel Ltd [1998] NNTTA 8 at [7]-[18].’
I adopt the findings in WF10/25 at paras [8]-[13].
The native title party made a number of contentions about the law relating to negotiation in good faith which in the Tribunal’s respectful view are not correct.
First, the native title party says that the provision of the Draft Agreement on 7 May 2010 ‘unilaterally’ by the grantee party prior to negotiations commencing by way of a face to face meeting between the native title party and grantee party and the parties having discussions about the doing of the future act was indicative of bad faith. YMAC says that it consistently informed the grantee party of the native title party’s policy and position on this issue but the grantee party proceeded to provide the Draft Agreement anyhow. Further, the native title party says that the provisions of the Draft Agreement can only be viewed as a severance of negotiations by the grantee party and demonstrated its lack of reasonableness in the negotiations.
I adopt my findings in WF10/25 at [51]-[53] on the issue of when negotiations can be said to have commenced. The insistence by the native title party on the precondition of a face to face meeting before it will commence negotiations is not consistent with the obligation to negotiate in good faith. There is no requirement that a grantee party meet personally with a native title party before negotiations can begin. In my view the preparation of a proposal in the form of a draft agreement is perfectly consistent with the obligation on a grantee party to negotiate in good faith. If a grantee party were to refuse to discuss or negotiate about the terms of its draft then a question of lack of good faith might arise. In this matter the grantee party requested the native title party to provide information about how their native title rights and interests might be affected and to identify the manner in which the Draft Agreement was inadequate and propose any alternatives. Unfortunately, for similar reasons as occurred in WF10/25 the negotiations did not proceed to discussing the substance of the Draft Agreement because of a failure to resolve issues surrounding a face to face meeting and whether the grantee party should provide funds for such a meeting.
The Federal Court has recognised that negotiations can commence by a proposal from a Government or grantee party (see cases cited in WF10/25 (at [52]-[53])). One of the Njamal indicia (No. (ii)) of not negotiating in good faith (Western Australia v Taylor [1996] NNTTA 34; (1996) 134 FLR 211) is the failure to make proposals in the first place. Normally, the making of proposals by a party is consistent with the obligation to negotiate in good faith. It is difficult to imagine circumstances where this would not be the case unless the proposals were so unreasonable or inappropriate to the subject matter of the negotiations that it would call into question whether a party was genuine in their desire to negotiate and reach agreement. There are no factors of this kind in this case and nothing to suggest that the grantee party had some improper or ulterior motive in submitting the Draft Agreement for the native title party’s consideration. The Draft Agreement was prepared with a view to obtaining the native title party’s agreement to the grant of the Tenements.
Second, the native title party refers to a number of statements by Deputy President Sosso in the Tribunal decision Angelina Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WF07/40, [2008] NNTTA 90 (11 July 2008) in which the Tribunal found that the grantee party had not negotiated in good faith but which was overturned by the Federal Court in Cox. The native title party’s contentions are as follows:
‘17.In Cox and Others v FMG Pilbara Pty Ltd [2008] NNTTA 90 at [61], Member Sosso noted that “in order for a grantee party to satisfy the obligation to negotiate in good faith, there must be some evidence that there have been at least some substantial discussions about the doing of the future act”. At [86] Sosso confirmed that “in no circumstances will the requirements of s.31(1)(b) be met when...there have been no substantive negotiations on the relevant future act”.
18.The conduct of the Grantee party in unilaterally submitting a Draft Agreement does not evidence that any substantial discussions have taken place about the doing of the future act. Accordingly, the Grantee Party has not satisfied the duty to negotiate in good faith: Cox and Others v FMG Pilbara Pty Ltd [2008] NNTTA 90 at [61].
19.The Native Title Party further submits that the submissions exchanged between the parties in relation to section 31 does not constitute substantial discussions between the parties about the doing of the future act. Without the Grantee Party having met with the Native Title Party to discuss their work plans and proposed future act activity, the Native Title Party is unable to particularise in detail what effect such acts will have on their registered native title rights and interests.

In my view these statements and any contentions based on previous Tribunal decisions (including as contended for by the native title party the Tribunal’s decision in Gulliver) that there is a requirement for there to be negotiations about substantive matters related to the effect of the future act on registered native title rights and interests before it can be said that negotiation in good faith has occurred no longer represent good law. In Cox the Federal Court said:
‘23The Tribunal concluded, as PKKP asserted, that there cannot be negotiation for the purpose of s 31(1)(b) of the Act if the negotiations are only embryonic. We do not agree that there is a requirement for negotiations to have reached a certain stage. The Act makes no reference to the parties reaching any particular stage in their negotiations. The interpretation adopted by the Tribunal and contended for by PKKP is an additional requirement which is not to be found in the Act. It puts a gloss on the statutory provisions and places a fetter on a negotiation party’s entitlement to make an application under s 35 in order to obtain an arbitral determination. ...
27‘Good faith’ is to be construed contextually (that is, it is necessary to identify what the ‘good faith’ obligation is intended to achieve). That obligation is made obvious by the wording of the provision in which it is found within the context of the statutory scheme. There is no reason to think that the ordinary meaning of ‘good faith’ should not apply. In the present circumstances there could only be a conclusion of lack of good faith within the meaning of s 31(1)(b) of the Act where the fact that the negotiations had not passed an ‘embryonic’ stage was, in turn, caused by some breach of or absence of good faith such as deliberate delay, sharp practice, misleading negotiating or other unsatisfactory or unconscionable conduct. ...
30The Tribunal made it clear that in the conventional sense there was no finding of an absence of good faith on the part of FMG. In those circumstances the fact that the negotiations had reached only a preliminary stage before expiry of the six month period and before it proceeded with an application under s 35 of the Act could not constitute a failure to negotiate in good faith for the purposes of s 31(1)(b). ...
37In Thomas [1998] NNTTA 8 it was observed that the act referred to in s 31(1)(b) of the Act comprises not only, for example, the grant of a mining lease but also rights attaching to it and the exercise of those rights by the lessees. Accordingly, treating a series of related acts which are part of a project ‘as single events to be negotiated and arbitrated about separately or in isolation’ does not fit well with the criteria to be taken into account in an arbitrated determination. In particular, the criteria relating to native title rights and interests; the way of life, culture and traditions; the development of social, cultural and economic structures of the native title parties are best considered not by approaching single acts as individual events but by considering the series of related acts taken together.’
The fact that negotiations were in an embryonic stage and dealt only with procedural issues is not necessarily an impediment to a grantee party negotiating in good faith provided there were negotiations (i.e. communicating, having discussions, conferring) and they were with a view to obtaining the agreement of the native title party to the doing of the act (s 31(1)(b) NTA).
Following Cox the critical words in s 31(1)(b) are whether the parties have negotiated 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. An argument could be made (as was done unsuccessfully by the native title party in Cox) that unless there is some negotiation about the substance of issues between the parties including the effect of the future act on native title rights and interests (and other factors referred to in s 39 of the Act) the negotiations could not be with a view to obtaining a native title party’s agreement because such issues are likely to be central to a native title party’s concern about the future act being done and are the factors to which the NTA specifically directs the negotiation parties attention to as part of the overall scheme and purpose of the legislation to protect native title (ss 3(a) and (b)) and where in the words of the Preamble ‘every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate’. (NOTE: The Tribunal acknowledges that the reference to ‘reasonable effort’ is to the right to negotiate system overall and not specifically directed to a grantee party (Strickland & Anor v Western Australia [1998] 868 FCA; (1998) 85 FCR 303 at 321; Walley v Western Australian & Ors [1999] FCA 3; (1999) 87 FCR 565 at 578-579 [16]))
However, I do not think that post Cox this is the current state of law. Provided the negotiations are with a view to obtaining the native title party’s agreement to the doing of the future act the fact, that virtually all the negotiations are devoted to procedural issues (for instance the development of a negotiation protocol) and do not reach the stage of discussion on substantive topics is not necessarily an impediment to a finding that a grantee party has negotiated in good faith. Of course, the Tribunal would still need to be satisfied on the facts of particular matters that the grantee was genuinely negotiating with a view to obtaining the agreement of the native title party to the doing of the particular future act the subject of the negotiations but the failure to reach a point where there are discussions on the substantive issues (or about the effect of the future act on native title rights and interests) does not automatically lead (as the native title party has argued ) to a failure to negotiate in good faith.
Section 31(2) of the NTA says that refusal or failure to negotiate in good faith about matters unrelated to the affect of the future act on registered native title rights and interests does not mean that a negotiation party has not negotiated in good faith but contrary to earlier Tribunal authority the obverse is not the case and a failure to negotiate about matters related to the effect of the future act on native title does not necessarily lead to a finding that a party has not negotiated in good faith. The Federal Court did not regard the words of ss 31(1) and 31(2) as importing an obligation necessarily to negotiate in good faith about the affect of the act on registered native title rights (and other matters related to them in s 39 of the Act).
In Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152 (162 [24]) the Federal Court said that the matters in s 39 of the Act indicate the scope of matters in respect of which negotiations may be conducted and alerts the Government (and grantee) party to the various interests in respect of which a native title party may seek to reach agreement for the doing of a proposed future act that respects those interests and this remains the case. However, if for some reason the negotiations do not get to this point prior to a s 35 application being made, the failure to discuss and negotiate about the issues in s 39 is no basis on its own for a finding that the required negotiation in good faith has not occurred.

If a native title party made proposals about reaching agreement on the future act’s effect on native title or on sites of particular significance to them but a grantee party declined to consider the proposals or flatly refused to negotiate about them the question of whether it was negotiating in good faith would arise. In my view a consequence of the decision in Cox is that there is now (in the Western Australian context) a greater responsibility on native title parties once they have before them a grantee party’s proposal (which under the Government party’s Negotiation Protocol is usually at least in general terms outlined in correspondence from a grantee party to a native title party at the outset of negotiations at the request of the Government party - see correspondence of 27 September 2007 and 10 February 2010).
If the native title party genuinely considers that the details of the proposal are not clear as to its nature or extent or location a native title party may seek clarification of the proposal. For instance, they could request detailed topographical maps of the relevant tenement area and proposed mining footprint in order to more readily assess the likely impact of the mine and identify any sites of particular significance that may be affected which may already be identified on the sites Register or of which the claim group is aware. A native title party could seek more information about or make proposals (including ones tailored to specific circumstances of a case) for dealing with the effect of the future act on native title. If a grantee party refused genuinely to consider these requests or negotiate about them then an issue about its good faith in the negotiations could arise. In the present case the grantee responded to the native title party’s concern about the effect of the act on native title (conveyed to the grantee party by correspondence on 25 October 2007 and 31 March 2010) by proposing the Draft Agreement which for reasons already given is not an act of bad faith.
Third, the question of whether there is an obligation on a grantee party to negotiate about the provision of funding for a native title party to engage in negotiations including funding to attend meetings arose in this matter. I adopt my findings in Gulliver at [62]-[97] and WF10/25 (at [57]-[59]) to confirm that any contention adverse to the grantee party based on the existence of an obligation to negotiate about funding a native title party for the negotiations is rejected.
The contentions of the native title party dated 15 November 2010, refer to what it says are the considerable resources available to the grantee party including the ability to organise and attend meetings (para 26). It then says that it is unreasonable on the part of a grantee party to refuse to consider providing ‘any form of assistance’ to the native title party to facilitate the convening of a negotiation meeting (paras 30 and 40). In my view the inference from these statements and the conduct of the negotiations generally is that YMAC were of the view that an obligation existed on the grantee party to provide resources to the native title party to assist in the negotiations including by funding negotiation meetings, although this view was modified during the exchange of contentions.
In its contentions (dated 1 December 2010 (para 8)) the grantee party (correctly in my view) said that based on the Tribunal’s decision in Gulliver there is no obligation on a grantee party to fund a native title party for negotiations under s 31(1)(b). In its reply of 8 December 2010 (paras 1.13, 1.14) the native title party conceded that there is no obligation on a grantee party to fund negotiations under s 31(1)(b) but that the grantee party particularly, taking into consideration its resources, capacity and ability to organise meetings in comparison to the native title party, has not taken all reasonable steps to obtain the agreement of the native title party to the grant of the Tenements and have not reasonably satisfied the requirements of s 31(1)(b) of the Act.
The native title party relies on the Tribunal’s decision in Doxford/Janice Barnes, Jessie Diver, Owen McEvoy, Deree King, Patrick Fisher (Wangan and Jagalingou)/State of Queensland [2008] NNTTA 54 (28 April 2008), Deputy President John Sosso (at [37]) (Doxford):
‘When the Tribunal has to determine if a grantee party has negotiated in good faith it is incumbent on the Tribunal to assess the overall conduct of that party in the context of that party’s capacity to negotiate, the attitude and actions of the other parties and the general negotiating environment faced by each of the negotiation parties. In short a contextual evaluation is required. In this matter it is relevant to consider the financial circumstances of the grantee party and his overall capacity to engage in negotiations. A negotiation party with considerable resources, access to professional advice and the ability to organize and attend meetings will be required to act reasonably having regard to its ability to negotiate. Conversely the conduct of a negotiation party with limited resources, little or no access to professional services and difficulties in attending, let alone organising meetings, will be evaluated in that context. Reasonableness does not connote an inflexible and static standard of negotiating conduct.’
While the native title party’s initial contentions implied that there was an obligation on the grantee party to act reasonably by considering assistance to a native title party in the negotiations because it had the capacity to do so, their reply seems to make the point that the grantee party had the capacity to organise a meeting themselves but did not do so.

Interpreted this way the native title party’s contention could potentially be sustained. If the native title party proposed that the grantee party organise a face to face meeting with it (by for instance identifying a location, providing technical aids such as maps, projector, whiteboard and including a power point presentation about its proposal) on the basis that the native title party would bear its own costs of the meeting and a grantee party with capacity refused to organise a meeting without genuine reason then an issue could arise as to whether the grantee party was negotiating in good faith. A flat refusal to attend or organise a meeting could be an indicia of bad faith (Njamal indicium (vi)). However, for the reasons more fully stated below this is not the factual situation in the present case as there was no request from the native title party for the grantee party to organise a face to face meeting itself as the negotiations were conducted on the basis that YMAC would organise it and wanted the grantee party to fund the cost of the meeting, including the cost of the native title party and YMAC’s participation in it.
In my view what Deputy President Sosso is saying in Doxford is that the negotiations must always be examined in their full context including both the capacity of a grantee party and a native title party to engage in negotiations. It is relevant to take into account the financial capacity of a native title party just as it is a grantee party. If it is evident that a native title party has no financial capacity or legal or other resources effectively to engage in the negotiations then a grantee party in order to fulfil its good faith obligation may need to have regard to and adapt its negotiating position to that circumstance. While in such a case there is no obligation to provide funding to a native title party a grantee party may need to consider organising a meeting with the native title party and/or establish other mechanisms which ensure that negotiations can actually occur. In doing this the capacity of both parties as DP Sosso has pointed out would be a relevant factor. In the present matter the native title party’s reliance on Doxford is not apposite. The native title party had legal representation throughout and some capacity through YMAC to engage in the negotiations. There was no question of the grantee party refusing to attend a meeting but the dispute was about whether the grantee party would fund the full cost of such a meeting or provide funding of a lesser kind based on the options outlined by YMAC.
Fourth, in their reply of the native title party conceded that the lodging of the s 35 application was not in itself an act of bad faith. However, the native title party then went on to seemingly contradict this concession by saying that the making of the s 35 application precisely six months after the Government party recommenced negotiations constitutes unreasonable conduct in the circumstances and was evidence of lack of good faith. The application was ‘premature’ in circumstances where the parties had not met or otherwise engaged in substantial discussions in relation to the doing of the act. Again, this contention must fail. In Strickland & Anor v Western Australia [1998] 868 FCA; (1998) 85 FCR 303 the Federal Court (per RD Nicholson J at 322) said:
‘(2) Failure to warn of cessation
For the applicants it is contended that in circumstances where the Tribunal found there was a stand-off concerning the proposal which would form the basis for discussions so that there was no effective engagement in negotiations, it was not open to the Tribunal to find good faith negotiations had been conducted where the Government party had given no prior warning of the intention to cease negotiations.
The relevant statutory regime was such that on the expiration of the six month time limit referred to in s 35(b) of the NT Act, which the Government party accepts did not effectively commence until after the two month period referred to in s 30 of the NT Act, the Government party was entitled to lodge a future act determination application. That entitlement is the reason why the obligation in s 31(1)(b) to negotiate in good faith cannot be interpreted as an obligation to continue negotiations until some particular point in negotiations has been reached. The statutory right to lodge the future act application has the consequence the act of lodgement cannot be relied upon to establish bad faith in the negotiating process.’
The statutory right to lodge a s 35 application (being six months after the s 29 notification day) arose on 25 March 1998. I can infer that no application was made then or in the ensuing years because the obligation to negotiate in good faith had not been fulfilled. The Government party ‘recommenced’ the negotiations with its letter of 1 February 2010 to the native title party and grantee party. I can infer that the action of lodging the s 35 application was taken six months after the date of recommencement of negotiations to assist in establishing that negotiation in good faith had occurred because in reality a six month period had been allowed for them. If a grantee party makes a s 35 application which is premature because the required negotiations in good faith have not occurred then the application will be dismissed. The fact of making the application cannot in itself be evidence of a failure to negotiate in good faith.

Failure of the grantee party to meet with the native title party

The native title party in its Statement of Contentions (paras 20, 21, 40 ) contends that the grantee party was aware of the standing instructions which YMAC had from the Working Group that the native title party required a face to face meeting in order to commence negotiations. The native title party contends (para 40) that a reasonable person in the grantee party’s position would have convened their own meeting with the native title party; or requested a meeting be convened by the native title party and provided reasonable resources towards facilitation of such meeting; or at the very least attended a meeting convened by the native title party. The grantee party failed to take any of these steps and has failed and/or refused to attend any meeting, the native title party says.
The grantee party in its Statement of Contentions (para 5.1(2)) says that the native title party adopted a policy not to enter into substantive negotiations with the grantee party unless the grantee party first met with the Working Group in circumstances where the Working Group was only willing to meet if their nominated costs were paid by the grantee party which costs were unreasonable. As I have already found there is no question that the native title party required the grantee party representatives to meet personally with the native title party through the Working Group before negotiations could commence. However the native title party otherwise contests the grantee party’s contention. The native title party says (Reply para 1.4) that at no time have the Working Group declined to meet with the proponents on the basis of not receiving remuneration for the meeting. It says the Working Group are willing to meet proponents by considering the circumstances of each matter and the capacity to negotiate due to resources and incidental concerns such as time constraints on the agenda from the high nature of future act activity in the Wajarri Yamitji claim area.

Following the provision of the draft agreement on 7 May 2010, the grantee party (Mr Neal Edwards the Chief Geologist with Dragon Mining Limited and Chief Geologist with Weld Range Metals) made approaches to Mr Anthony Dann of Wajarri Consulting Services (the heritage service provider for the native title party) on 6 May 2010, 4 June 2010 and 17 June 2010 about the conduct of a heritage survey over the tenements which included details of the proposed survey proposal. On 16 July 2010, Mr Dann advised Mr Edwards that the native title party would not undertake a heritage survey without a heritage agreement and that he should contact YMAC to obtain a copy of the standard agreement for review. On 19 July 2010, Mr Edwards requested of YMAC a copy of the heritage agreement.
On 19 July 2010, Mr Edwards was informed that YMAC’s position on the heritage survey was that a heritage agreement was required before a survey would be carried out. On 21 July 2010, YMAC (Ms Samantha Rosenfeld) advised Mr Edwards by email that the grantee party would be invited to a Working Group meeting on 19-20 August 2010 at which, among other things, potential heritage surveys could be discussed. The email said: ‘The agenda and logistics for the next working group meeting on 19-20 August are currently being finalized. You will be contacted by someone from this organisation with further details in due course’. On 3 September 2010, Mr Edwards emailed Ms Rosenfeld at YMAC seeking information about the status of the heritage agreement and asked why the grantee party did not receive an invitation to attend the Working Group meeting that was to be held on 20 August 2010. No reply was forthcoming during the negotiations to this specific question although discussions at a mediation meeting on 6 August 2010 resulted in YMAC agreeing to obtain instructions from the Working Group without the presence of the grantee party.
On 25 June 2010, Green Legal advised the Government party (DMP) that YMAC had not responded to the ‘Draft Agreement’ which led the Government party to refer the matter to the Tribunal for mediation pursuant to s 31(3) of the Act.
A mediation conference convened by the Tribunal was held on 6 August 2010, at which representatives of the parties (including Messrs Green and Edwards for the grantee party and Mr Raea Khan, a solicitor from YMAC for the native title party), were present. There is some dispute in the evidence about what precisely occurred on that day and about the Tribunal’s Synopsis and Outcomes of the meeting.
The Tribunal’s Synopsis and Outcomes of that meeting which were distributed to all parties on 13 August 2010, included the following:
‘Mr Green advised that the grantee party is willing to meet with the native title party but will not fully fund a meeting. Mr Khan advised Mr Green of three options: first to fully fund a whole day meeting, second to share the costs with another grantee party and have a ½ day meeting, or third to pay for time to be allocated to the grantee party at a working group meeting. Mr Khan advised what the grantee party funding covers at a meeting.
Mr Green advised that he would take instructions in relation to the meeting options, but expressed his concern about negotiations proceeding on the basis of the grantee party funding meetings, and mentioned his concerns regarding negotiation in good faith. Ms Culver questioned Mr Green as to whether it was a bit premature to be raising that issue.
Mr Green advised that the grantee parties reserve their position as to whether they wish to continue in mediation, and indicated that they are considering making a s35 application. Ms Culver asked whether Mr Green would provide a response one way or the other to Mr Khan after he advises Mr Green of his instructions.
Mr Green asked Mr Khan if the native title party would participate in a s150 conference should the grantee parties lodge a s35 application. Mr Khan advised that they would.
Outcomes:
The Tribunal notes the following to be the outcomes of the mediation conference:
•Mr Khan is to present the draft agreement at the native title party working group meeting and take instructions, then revert to Mr Green by close of business on 3 September 2010.
•Mr Green is to provide a response to Mr Khan by close of business on 17 September 2010.
In affidavit evidence sworn on 30 November 2010 Mr Edwards gives his view of this meeting.
‘5I attended the mediation conference convened by the National Native Title Tribunal on Friday, 6 August 2010 in relation to (“August Conference”).
6.Immediately prior to attending the August Conference, I met with Mr Ken Green of Green Legal, who had been instructed to act on behalf of Weld in respect of matters concerning the Native Title Act 1993 (Cth). During my meeting with Mr Green, he explained to me that during the forthcoming August Conference, I might be invited by the NTP to fund a meeting with the NTP and that the funding cost could be between $30,000 and $40,000 for a one day meeting. He asked by view whether Weld would be prepared to do so. I advised Mr Green that there was no way that Weld would be prepared to pay $30,000 to $40,000 for a one day meeting with the NTP as such a cost was simply unreasonable and certainly unreasonable if an agreement with the NTP was going to need more than one meeting.
7.I have reviewed the letter dated 13 August 2010 from the National Native Title Tribunal to Green Legal which sets out a synopsis of the August Conference (“August Tribunal Letter”). The synopsis fairly records what occurred at the August Conference, but it omits the following:
(1)     Mr Khan (who attended by telephone) confirmed that none of the NTP had been advised of the August Conference;
(2)     Mr Khan advised that he had “standing instructions” from the NTP although it was unclear to me what those “standing instructions” meant. It appeared to me that the NTP were not prepared to meet with any grantee party unless the grantee party first agreed to fully fund the meeting; and
(3)     Mr Khan initially advised that the cost of a half day meeting with the NTP would be in the order of $10,000 to $15,000, but shortly thereafter said he was reluctant to disclose any estimate of the costs of a meeting with the NTP;
(4)     Mr Green advised that the Grantee Party was willing to meet with the NTP and was willing to fund the whole of any “out of pocket” costs of such a meeting.
FOLLOWING AUGUST MEDIATION CONFERENCE
8.Following the August Conference, Mr Green provided me with a copy of the August Tribunal Letter. During our discussion concerning the August Tribunal Letter Mr Green and I agreed that the letter was deficient in that it did not address various matters including those set out above. Mr Green later advised me that the mediator, surprisingly, was not willing to provide a copy of the August Tribunal Letter in editable form to allow Mr Green and I to “mark up” suggested changes to the letter for comment by the other parties. As the mediator was unwilling to do so, I agreed with Mr Green’s suggestion that it may be better to swear this affidavit at a later time should it be necessary rather than pursue any amendment of the August Tribunal Letter.’
I acknowledge that on 15 August 2010, Mr Green sought to correct the Tribunal’s record of this meeting but that this did not happen. He sought a copy of the Synopsis and Outcomes in editable form (i.e. a Word document) to which he could have made suggested changes in tracking to obtain comment from the parties. The Tribunal’s response was that any comments should be provided directly to the Tribunal for consideration. Mr Edwards says that this course of action was not pursued because of the unwillingness of the Tribunal to provide a word document that could be amended by tracking and that it would be better to correct the record later by way of an affidavit if necessary. I observe that in his affidavit Mr Edwards makes no reference to the Tribunal’s invitation to Mr Green to provide comments on the Synopsis and Outcomes.
This issue is not of great moment in these proceedings or directly relevant to my decision but I make the following observations to inform future practice. First, this situation emphasises the importance of Tribunal’s records of mediation meetings being as accurate as possible, particularly in relation to key events in the negotiations or mediation. Second, I can personally see no reason why the Tribunal cannot assist the parties by allowing them to record their version of events by tracking on the Word document of Tribunal’s draft Outcomes in the way suggested by Mr Green. This has become a matter of common practice now that there is the technical capacity to do so. The proposed changes could then be considered by the other parties while recognising that the final version is for the Tribunal to record. On the other hand, I cannot accept Mr Green’s reasons for failing to provide his comments in the way suggested by the Tribunal. The request was not onerous and had he responded the Tribunal could have obtained the views of the other parties on his suggestions and corrected the record if necessary. Mr Green’s failure to adopt the Tribunal’s suggestion has resulted in a conflict in the evidence which may have been avoided.
With respect to the mediation meeting of 6 August 2010, I make the following observations and findings. First, I have not had regard to the evidence in paragraph 6 of Mr Edwards’ affidavit as it amounts to a communication between him and his solicitor which at least in the terms deposed to by him was not communicated to the parties in the mediation meeting.
Second, with respect to YMAC’s ‘standing instructions’ referred to in paragraph 7(2) there is ample evidence from earlier in the negotiations that these at least were that a face to face meeting was a prerequisite to the commencement of negotiations. What is less certain on the facts of this case (in contrast to WF10/25) is whether the standing instructions also involved the native title party insisting on the grantee party fully funding any meetings. Mr Edwards’ evidence is based on what the situation appeared to him to be not what he actually recalls being said and does not establish that a fully funded meeting was a pre-condition to negotiations imposed by the native title party.
The native title party does not directly contest the evidence in paragraph 7(3) of Mr Edwards’ affidavit and I accept that there was some discussion about costs of that magnitude to hold a meeting.
Mr Khan’s affidavit evidence (para 37) confirms the Tribunal’s Synopsis and Outcomes of the options available to the grantee party:
‘I further informed the Grantee Party of three meeting options to enable negotiations to commence:
i.To fully fund a whole day meeting; or
ii.To share the costs with another grantee party (with time equivalent to costs funded); or
iii.To pay for an allocated time slot at an ordinary working group meeting.’
My finding is that there was discussion about the cost of meeting as deposed to by Mr Edwards and that the native title party was imposing a funding precondition on their preparedness to attend a meeting but not a precondition that involved funding for a whole day meeting. During these negotiations the native title party did not adopt an inflexible stance that they would only participate in a meeting which was fully funded by the grantee party. However until this point in the negotiations the native title party’s position was that funding of some kind was needed in order for YMAC to arrange the face to face meeting but the options put forward did not all involve funding from the grantee party for a full day meeting at a cost referred to in paragraph 6 of Mr Edwards affidavit and which the grantee party contended were unreasonable.
In his affidavit, affirmed on 15 November 2010, Mr Khan (para 38) says that the grantee party did not offer to attend the Working Group meeting scheduled for 19 and 20 August 2010 during the mediation meeting of 6 August 2010 or at any stage leading up to the meeting. I do not think this is correct. While the evidence of the meeting does not reveal a specific offer from the grantee party to attend the meeting of 19-20 August I am satisfied that the grantee party did not adopt a stance that it would not meet with the native title party or the Working Group. The evidence of the grantee party throughout the negotiations, going back to 2008, reveals a willingness to meet with the native title party. The correspondence between Ms Rosenfeld of YMAC and Mr Edwards indicates that Mr Edwards was expecting an invitation which was not forthcoming. At the mediation meeting on 6 August 2010, the grantee party said it was prepared to meet with the native title party. I am satisfied that the grantee party was prepared to attend a face to face meeting but that this did not happen on 19-20 August as it appears that the grantee party was not invited and because the Outcomes of the 6 August mediation meeting were that YMAC would obtain instructions on the Draft Agreement at that meeting.
Mr Edwards’ evidence in paragraph 7(4) of his affidavit is that the grantee was willing to meet with the native title party and provide any ‘out of pocket’ costs of the meeting. The Tribunal’s record of the meeting (which is not contested in this respect) says that Mr Green advised that the grantee was willing to meet with the native title party but not fully fund a whole day meeting, the inference being that it would provide some funds towards it. This statement in the Tribunal’s Outcomes was not challenged at the time by the native title party despite them being made available to all parties. My finding in relation to what happened at the mediation meeting is that the grantee party was prepared to attend a Working Group meeting and prepared to provide some funding towards one.
Although the Outcomes of the 6 August mediation meeting indicate that Mr Khan was to get instructions on the Draft Agreement it appears that the substance of the Draft Agreement was not dealt with at the Working Group meeting. In a letter to Green Legal of 30 August 2010, about the Working Group meeting, YMAC confirmed the native title party’s standing instructions requiring each proponent to meet in person with the Working Group to commence all future act negotiations and reaffirmed instructions to invite the grantee party in this case which was seen as ‘an essential gesture of good faith in commencing negotiations’. The letter said; ‘As discussed at the mediation conference on 13 August 2010 [sic] your clients can attend an ordinary WJYWG meeting, or alternatively partly or wholly fund a separate WJYWG meeting’. The letter further said that if the first option was taken up then the next meeting was likely to be held in November 2010. YMAC expressed a willingness to discuss other options and provide budget estimates.
On 17 September 2010, Green Legal wrote to YMAC confirming that it had made a s 35 application and expressing a willingness to continue with the mediation conducted by the Tribunal. The letter also requested information about the cost of a meeting with the Working Group about which Green Legal would obtain instructions and asked for further details of the FaHCSIA funded meeting in November 2010 including how the proposed agreement could be discussed and/or finalised at or shortly following that meeting.

A further mediation meeting took place between representatives on 12 October 2010 including Ms Lisa Randall of YMAC. Although the meeting happened after the making of the s 35 application and cannot be relied on directly to establish that negotiation in good faith has taken place prior to it, I can have regard to the evidence if it assists in assessing whether the required negotiation in good faith did occur.
The Synopsis and Outcomes of the mediation meeting of 12 October 2010, includes the following:
‘Ms Randall advised that she is in a position to discuss the issues raised in the grantee party's letter today, but that there had been a delay due to the claim lawyer for this matter being on leave, and that she has also had to attend many on country meetings.
Ms Randall advised that due to the need to hold elections for a new working group, the next FAHCSIA funded working group meeting will be held in early December, likely 9 and 10 December 2010. However, if the grantee party wishes to fund a meeting then this could be held in the week of 22 November 2010. Ms Randall then estimated the cost of the grantee party funding a meeting either in full or in part. Ms Randall advised that if the grantee party wished to attend the FAHCSIA funded meeting then an hour is allocated for each proponent who wishes to meet with the group. Ms Randall indicated that if the grantee party wished to meet with the group longer at the FAHCSIA funded meeting then the grantee party could pay for a 3 hour slot.
Ms Green and Mr Edwards then broke away to confer privately.
Upon their return to the conference, Mr Green advised that the grantee party will accept an invitation to attend the next FAHCSIA funded meeting, and will need a minimum of an hour to negotiate with the native title party.’
It is not clear from the evidence whether attendance at the FaHCSIA funded meeting involved payment by the grantee party for its one hour slot, whether the native title party had withdrawn its request for payment or whether the grantee party by this time was not prepared to contribute to the cost of the meeting.
The outcome of the mediation meeting was that YMAC was to invite the grantee party to attend the next Working Group meeting once the dates had been confirmed. On 26 November 2010, YMAC advised Green Legal that the Working Group meeting was tentatively scheduled for 9 and 10 December 2010 would not take place but that a formal invitation would be issued for a meeting on 12 and 13 January 2011 once confirmed.
For the reasons given above there is no obligation on a grantee party to fund the native title party for negotiations or negotiate in good faith about it and hence a finding on this point is not necessary. The only way that negotiations about matters not covered by the obligation to negotiate in good faith could be relevant is if a grantee party’s behaviour in relation to them exhibited an attitude to the negotiations overall that was not in good faith.
However, even if I am wrong on the scope of the good faith negotiation obligation, I am satisfied that the grantee party was prepared to consider providing some funds to the native title party to assist with a face to face meeting with the Working Group and did not adopt an inflexible approach or fail to consider it in a way that suggests that it was not negotiating in good faith.
With respect to the native title party’s attitude to the funding of negotiations I do not consider that their approach to the funding of a meeting is indicative of bad faith on the facts of this case. Throughout the negotiations YMAC provided options to the grantee party about the funding of meetings and did not have only one position. The native title party was prepared to consider other options than a fully funded meeting and in the end agreed to the grantee party attending for one hour at the meeting originally scheduled for November and December 2010 although it is not clear whether this involved any payment by the grantee party. My finding in the present matter (in contrast to the position taken by the native title party in WF10/25) and contrary to the grantee party’s contentions is that the native title party did not insist on full funding from the grantee party before they would consider meeting with the grantee party. While at least until the final mediation meeting on 12 October 2010 their position was that some funding should be provided there was a degree of flexibility about their approach and willingness to compromise.

General discussion and conclusion

In this case it cannot be said that there were no negotiations, although as with WF10/25 they were of a quite limited and cursory kind and did not (apart from the proposals in the Draft Agreement) deal with substantive issues. There were some negotiations prior to the Government party deciding to ‘recommence’ the negotiations on 1 February 2010. Although they did not progress very far there is nothing in them that revealed a failure on the grantee party to negotiate in good faith.
At the request of the Government party, the grantee party provided information to the native title party about its proposal on two occasions and provided further information in the context of its proposal for a heritage survey including maps of the Tenement area. It made a proposal to conduct a heritage survey and proposed the Draft Agreement for discussion. The grantee party expressed a willingness to meet the native title party and attend a Working Group meeting and offered to provide some funding towards it. The grantee party’s actions were all taken with a view to obtaining the native title party’s agreement to the doing of the future act and were not in my view contaminated by bad faith of the kind identified by the Federal Court and Tribunal (see WF10/25 at [11]-[13]). There was no failure of the grantee party to act in accordance with the Njamal indicia or an unpreparedness to have discussions about its Draft Agreement or other improper or inappropriate conduct.
The native title party was uncompromising in insisting on not commencing negotiations until a face to face meeting was held which was indicative of their failure to negotiate in good faith because they appear not to have countenanced any other way of engaging in the negotiations. In my view it should have been possible to commence negotiations about the Draft Agreement prior to a face to face meeting of parties. I accept that such a meeting will in most cases be highly desirable at some stage of the process but do not accept that nothing can occur until such a meeting is held. In this case it would have been possible for YMAC to commence taking instructions about the Draft Agreement at the 20 August meeting as there was sufficient information available about the project and the grantee party’s proposed draft agreement to at least commence those discussions.

General comment on the requirement to negotiate in good faith

I cannot pretend that the outcome of this matter (or WF10/25) is entirely satisfactory given the importance of the right to negotiate in protecting native title.
This case once again demonstrates the lack of policy clarity between the provisions of the NTA where no obligation is imposed on a grantee party to negotiate about funding a native title party for the negotiations and the funding policies of the Federal Government (through the Department of Family, Housing, Community Services and Indigenous Affairs (FaHCSIA)) revealed in this case where funding to YMAC is given principally to deal with the resolution native title claim matters. According to YMAC the consequence of this is that future act negotiations at FaHCSIA funded Working Group meetings can only occur if there is time, unless the grantee party makes funds available. Alternatively, according to YMAC a grantee party can pay for a full day’s meeting at which its business is dealt with exclusively or it can cooperate with another grantee party which has business to transact and share the costs of meeting with it.
I accept Mr Khan’s evidence that YMAC are required to deal with large number of future act matters in the Wajarri Yamatji native title claim area and that there is generally a waiting list of interested parties seeking to meet and engage in future act negotiations with the native title party. I also accept that Working Group meetings are only held every two to three months because of limited resources which make it difficult to transact all the business. In a practical sense given the logistics involved it is difficult to see how the native title party could meet more often in any event. There is a considerable burden placed on YMAC and native title parties to meet to consider proposals covered by the right to negotiate procedures of the Act particularly in areas of high mining activity
The Tribunal has in various forums previously expressed its concern about problems with the right to negotiate system caused by the lack of resources which exist for native title representative bodies to deal with exploration and mining proposals in an environment of high activity. During a number of future act inquiries I have asked parties’ representatives to draw the problem to the attention of their clients and funding bodies (and particularly State and Federal Governments).
Because of the funding policies of FaHCSIA, as revealed in the evidence in this matter, YMAC (and other representative bodies) have developed the cost recovery policies described here and in WF10/25. Self evidently, there is potential for native title parties to be disadvantaged where there is inadequate funding to enable them to engage in negotiations. On the other hand I think YMAC (and other representative bodies) if they are properly cognisant of what is involved in negotiation in good faith under the NTA could adapt their processes and advice to their clients to make negotiations more constructive and meaningful. I intend to refer the issues raised by this case (and WF10/25) to the appropriate authorities.

Decision

The grantee party has negotiated in good faith with the native title party as required by s 31 of the Act and the Tribunal has power to conduct an inquiry and make a determination.

Hon C J Sumner
Deputy President
19 December 2010