Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People

[2010] NNTTA 53

NATIONAL NATIVE TITLE TRIBUNAL

Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, [2010] NNTTA 53 (16 April 2010)

Application No:            WF09/30

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

Australian Manganese Pty Ltd (grantee party/Applicant)

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The State of Western Australia (Government party)

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David Stock and Others on behalf of the Nyiyaparli People (WC05/6) (native title party)

TRIBUNAL POWER TO CONDUCT AN INQUIRY AND DETERMINE MATTER

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  16 April 2010

Catchwords: Native title – future act - proposed mining lease – 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 – power to conduct an inquiry and make a determination – negotiations in relation to previous tenements conducted in good faith relevant – grantee party seeking broader project-wide agreement – proposed mining lease part of broader discussions – grantee party has negotiated in good faith.

Legislation:Native Title Act 1993 (Cth) ss 29, 26, 25-44, 35, 38, 30A, 31(1)(b), 36(2)

Mining Act 1978 (WA) s 24(7)

Aboriginal Affairs Planning Authority Act1972 (WA), s 31, Regulation 8

Cases:Gulliver Productions Pty Ltd and Other v Western Desert Lands Aboriginal Corporation and Others NNTT WF05/1 [2005] NNTTAA 88; (2005) 196 FLR 52

FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141

Australian Manganese Pty Ltd v State of Western Australia and Others [2008] NNTTA 38; (2008) 218 FLR 387

Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People NNTT WF 08/30, [2008] NNTTA 16, 19 December 2008, Member O’Dea

Solicitor for the             

native title party:          Ms Kate Holloman, Pilbara Native Title Service

Representatives of the  

Government party:      Ms Sophia Woodrow, State Solicitors Office

Ms Paola O’Neill, Department of Mines and Petroleum

Solicitor for the

grantee party:               Mr Ken Green, Green Legal Pty Ltd

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

Background

1. On 7 May 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act/NTA) of a future act, namely the grant of mining lease M52/1043 (the proposed mining lease) under the Mining Act 1978 (WA) to Australian Manganese Pty Ltd (the grantee party/AM).

2. The proposed lease comprises 998.77 hectares located 30 kilometres southerly of Newman in the Shire of East Pilbara and is 100 per cent overlapped by the registered claim of the Nyiyaparli People (WC05/6, registered from 29 November 2005).

3. The proposed lease is a future act covered by s 26(1)(c)(i) of the Act and unless the right to negotiate provisions of the Act are complied with (Part 2, Division 3, Subdivision P (ss 25-44)) will be invalid to the extent that it affects native title.

4. The native title party (NTP) in respect of these proceedings is Mr David Stock, Mr Gordon Yuline, Mr Raymond Drage, Mr Brian Samson, Mr Victor Parker and Mr Richard Yuline on behalf of the Nyiyaparli People (WC05/6).

5. On 14 December 2009, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application was made on the basis that the negotiation parties had not been able to reach agreement within six months of the Government party giving notice of intention to do the act.

The obligation to negotiate in good faith

1. 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.’

2. I adopt relevant legal principles from Gulliver Productions Pty Ltd and Ors v Western Desert Lands Aboriginal Corporation and Ors [2005] 196 FLR 52 (2005) NNTTA 88 at 55-60 for the purposes of this inquiry unless in conflict with the Full Federal Court decision in FMG Pilbara Pty Ltd v Cox [2009] 175 FRC 141 (2009) 255 ALR 229 (2009) FCAFC 49 (Cox).

3. The negotiation parties under the right to negotiate provisions are the Government party, grantee party and native title party (s 30A NTA). 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) NTA). The practical effect of s 36(2) is to place an ‘evidential burden’ on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on.

4. The NTP contends that the grantee party did not fulfil its obligation to negotiate in good faith.  No such contention is made in respect of the Government party.

5. On 11 January 2010, I made directions for the conduct of the inquiry including that parties provide contentions and evidence in relation to the good faith issue. Final submissions on the good faith issue were received on 30 March 2010. All parties submitted that a decision on this issue could be made on the papers. The parties were advised that the Tribunal proposed to deal with the matter in this way unless during consideration of the issues it became necessary to seek further information or an oral hearing became necessary on certain aspects of the matter. The Tribunal is satisfied that it is appropriate to decide the good faith issue on the papers. The Government Party made no contentions on the good faith issue.

6. The Tribunal has had regard to the following contentions and documentary evidence submitted by the parties in relation to the good faith issue.

7. The native title party provided the following submissions supporting its contention that the grantee party did not negotiate in good faith regarding the doing of the act:

   • The Contentions of the Native Title Party as to Lack of Good Faith (‘native title party contentions’), dated 26 February 2010 and supporting documents:

   -     affidavit of Katherine Anne Holloman, solicitor, employed by Yamatji Marlpa Aboriginal Corporation, in support of the native title party contentions, affirmed on 2 March 2010, annexing supporting documents dated between 29 April 2009 and 11 December 2009 labelled as KAH 1 to 9.

   • The native title party’s Statement of Reply to the grantee party’s Statement of Contentions, dated 26 March 2010.

8. The grantee party’s submissions in relation to the good faith issue comprise the following documents:

   • Statement of Contentions dated 15 March 2010
   • Statement of Facts dated 15 March 2010
   • List of Documents dated 15 March 2010 which are filed in support of the Statement of Contentions and Statement of Facts comprising of emails, letters, proposals and other correspondence between the parties dated between 30 January 2008 and 15 March 2009. These documents include the affidavit of Eddie Fry, a consultant to AM, sworn on 15 March 2010
   • Grantee Party’s Response to NTP’s Reply date 26 March 2010, dated 30 March 2010

Background to the negotiations

1. The proposed mining lease M52/1043 forms part of the Davidson Creek Iron Ore Project and is not on Jigalong Reserve land.

2. There have already been considerable negotiations between AM and the NTP in respect to a closely related project – the Robertson Range Iron Ore Project – the mining lease area for which is located some 20 kilometres to the south-east of the proposed lease area. The Robertson Range Project involves exploration licences E52/1630 and E52/1901, mining lease M52/1034, general purpose lease G52/281 and three miscellaneous licences L52/103-105. Details of this project are contained in the Tribunal’s determination made on 3 April 2008, Australian Manganese Pty Ltd v Western Australia and Others [2008] 218 FLR 387 (2008) NNTTA 38; (2008) at [6] and [7] (Australian Manganese 1).

3. The following is a summary of the previous negotiations and dealings between AM and the NTP in relation to the Robertson Range Project which provide background context for the present dispute. The area of M52/1034 is entirely covered by the Nyiyaparli native title claim and Reserve 41265 (Jigalong Reserve) for the use and benefit of Aborigines which is vested in the Aboriginal Lands Trust (ALT). The Jigalong Community is also located on the Reserve area. The Jigalong Community Inc (JCI) (Jigalong Council) is the organisation that represents the Jigalong Community. Some members of the Jigalong Community (but not a majority) are also part of the Nyiyaparli native title claim group.

4. As a consequence of this situation, not only did the right to negotiate provisions of the Act have to be followed with respect to the Nyiyaparli claim but as a matter of Government policy and practice, AM is also required to reach agreement with the JCI to gain access to the Jigalong Reserve and for the Minister for Mines and Petroleum to grant approval to mine (see Australian Manganese No 1 at [14] – [16]). Where a Reserve is vested in the ALT and the subject of Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA) (s 31 and Regulation 8), the authorisation of the Minister for Indigenous Affairs is necessary before access can be granted. The Minister will obtain the views of the ALT who in turn will seek the views of the relevant Aboriginal Community (in this case, the JCI). As a matter of practice, the Minister does not grant a mining company access unless there is agreement between the mining company and the Aboriginal Community. Further, the written consent of the Minister for Mines and Petroleum is necessary before mining can commence over such Reserve land (a condition to this effect is imposed on the mining lease) and the Minister for Mines and Petroleum must consult with and obtain the recommendation of the Minister for Indigenous Affairs before the consent can be given (s 24(7) Mining Act 1978).  In practice the Minister for Mines and Petroleum will not give written consent for mining until the Minister for Indigenous Affairs has consented to it.

5. There have been successful negotiations between the NTP, JCI and AM in relation to exploration licences for both the Robertson Range Project (E52/1630) and the Davidson Creek Project (E52/1658). In these negotiations the Pilbara Native Title Services (PNTS) - a service arm of Yamatji Marlpa Aboriginal Corporation, the native title representative body for the area - acted for both the native title party and JCI. On 1 August 2005 a ‘tripartite agreement’ (i.e. one involving Australian Manganese Pty Ltd, the native title party and JCI) was entered into in relation to these exploration licences (see Australian Manganese 1 at [8]).

6. Negotiations in relation to the Robertson Range Project (including mining lease M52/1034) began in 2006 but were not successful. The negotiations were initially conducted on the basis that a tripartite agreement could be entered into. Issues arose about whether PNTS should continue to act for both JCI and the NTP. More importantly, the final package was not acceptable to JCI. AM made a 35 application in relation to M52/1034 and the Tribunal decided that AM had negotiated in good faith and made a determination that the grant of M52/1034 to AM may be done (see Australian Manganese No 1).

7. Following the determination of the Tribunal in Australian Manganese No 1, the parties continued to negotiate about the Robertson Range Project and particularly general purpose lease G52/281.  The Tribunal provided mediation assistance. On 20 August 2008 the native title party agreed to a consent determination in respect of G52/281 and to withdraw the objection to the expedited procedure objection in respect of E52/1901.  On 19 December 2008 the Tribunal made a determination by consent that the grant of general purpose lease G52/281 to Australian Manganese Pty Ltd may be done (Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, [2008] NNTTA 163 (19 December 2008)). During these negotiations, there was also discussion about obtaining consent to mine on the Jigalong Reserve. AM consulted and prepared a detailed submission to the ALT for consideration at a meeting to be held 7-9 October 2008. The ALT did not recommend approval for mining on Jigalong Reserve.

1. The situation at the end of 2008 appears to be that AM had either reached agreement with the NTP or were confident that they could do so in respect of the Robertson Range tenements but the consent to mine on Jigalong Reserve was still outstanding. AM was unable to obtain the necessary consents from the responsible Ministers. As a consequence, the Government party (through the Department of Indigenous Affairs) proposed a mediation meeting to involve AM and JCI to be conducted by Mr Cedric Wyatt. This mediation took place at Jigalong on 8 April 2009. AM agreed to pay sitting fees for appropriate attendees. The Minutes record the following attendees: Jigalong Community Council - Peggy Peterson (Acting Chair), Pamela Jefferies, Brenda Sailor and Baker Lane; Jigalong Community – Brian Samson, Njaberu Landy, Lizzie Sailor, Billy Cadigan, Mark Jefferies, Fred Taylor (CEO JCI) and Noel Dunn and FerrAus Ltd (of which AM is a wholly owned subsidiary) – John Nyvlt (Chair), David Turvey (Managing Director), Eddie Fry (Consultant) and John Berry (Project Director) (see grantee party document 26).

Details of the Term Sheet agreement

1. The mediation appeared to be successful and an agreement was reached the key terms of which were contained in the following Term Sheet signed on behalf of the parties.

“Term Sheet

The Jigalong Community for and on Behalf of Nyiyaparli Native Title Claimant Group have negotiated with Australian Manganese Pty Ltd (“AML”) the following terms in consideration of:

A.Supporting and not objecting to the granting of all necessary licences and approvals to allow Resource Developments to proceed on the Jigalong Reserve Area;

B.Supporting and not objecting to all Future Acts in relation to Nyiyaparli Native Title Claim Area;

C.A commitment between the parties towards a long and mutually beneficial relationship which supports community development and resource development (“Exploration & Mining”); and

D.The parties agree to develop, construct and execute a Formal Agreement within 2 months of this date;

The Commercial Terms agreed are as follows:

1. 4 million options at the exercise price A$0.50 issued on execution of Agreement with a 4 year maturity period from date of issue;

2. 3 million options at the exercise price of A$1.00 issued 12 mths after execution of Agreement with a 4 year maturity period from the date of issue;

3. Production Payment or Royalty equivalent of 0.55% of Gross Revenue

4. A$500K Upfront Cash Payment with the first instalment of A$200K payable granting of licences by the WA Government”

1. The Term Sheet was signed for and on behalf of JCI and Nyiyaparli Native Title Claimant Group (the native title party) by Peggy Peterson (Acting Chairperson), Pamela Jefferies (Council Member), Baker Lane (Council Member) and Brian Samson (Community Elder) and for and on behalf of AM by John Nyvlt (Chairman of FerrAus Limited), David Turvey (Managing Director) and John Berry (Project Director) (see grantee party document 25).

2. Unfortunately a significant disagreement between the NTP and AM arose about the meaning of the Term Sheet. The NTP contends that the Term Sheet agreement was confined to tenements on the Jigalong Reserve (in effect to the Robertson Range Project). AM contends that the Term Sheet (Point B) is clear in saying that the Jigalong Community have negotiated for and on behalf of the NTP certain agreed commercial terms in consideration of the native title party ‘supporting and not objecting to all future acts in relation to Nyiyaparli Native Title Claim Area’. The grantee party also says that its representatives at the meeting obtained confirmation from Mr Brian Samson (one of the Nyiyaparli applicants) that he had authority to negotiate on behalf of the NTP.

1. The NTP’s contention is that AM’s view that the Term Sheet had this effect meant that it subsequently adopted a rigid non-negotiable position in relation to negotiation about proposed lease M52/1043 which amounted to a failure to negotiate in good faith and in particular that it insisted on a whole of project agreement (ie both projects) and a tripartite agreement including the JCI, not a bipartite agreement only with the native title party which was specific to the project involving M52/1043. The NTP asserts that M52/1043 is entirely outside the Jigalong Reserve area and should not have involved the JCI.

1. Self evidently, if AM is correct in its interpretation of the Term Sheet, namely that there was agreement from the native title party to support and not object to all future acts in relation to the Nyiyaparli Native Title Claim Area (whether covered by the Jigalong Reserve or not), then there can be no question of it not having negotiated in good faith in relation to proposed mining lease M52/1043.

1. The NTP concedes that the JCI had authority to negotiate and sign documents on behalf of the native title party but only in relation to activities on Jigalong Reserve.

1. There is evidence in the form of a letter from Mr Wyatt to relevant Government Ministers and the minutes of the 8 April meeting (the final version of which is disputed by the grantee party) confirming that Point B in the Term Sheet only refers to activities on Jigalong Reserve. AM disputes this interpretation on the basis of evidence from Mr Eddie Fry, a consultant to AM, who was present at the meeting. He has provided sworn affidavit evidence that he and Mr John Berry ascertained that Mr Brian Samson had authority to negotiate and bind the NTP in respect of an agreement and that the intent of Point B of the Term Sheet (which he assisted in drafting) was that the NTP would support future acts in the Nyiyaparli claim area and not just the parts of the claim area which coincided with Jigalong Reserve.

2. Based on the words of the Term Sheet (i.e. without the minutes or letters from Mr Wyatt) it is certainly open to find that AM’s interpretation is correct. There is nothing specifically in Point B which limits the agreement to the area of the Nyiyaparli claim which is also part of the Jigalong Reserve. AM’s position is certainly arguable and was the position that its negotiators had thought had been agreed. On the other hand, the meeting appears to have been held for the principal purpose of dealing with the Robertson Range tenements which were on both the Jigalong Reserve and within the Nyiyaparli claim area.  Further, the mediator and Jigalong negotiators who accepted the final version of the minutes appear to support the NTP’s version of the agreement.

1. It is to say the least regrettable that the records of this meeting, which it was agreed should be conducted without lawyers, were ambiguous about what had actually been agreed. If resolution of this dispute had been critical to my decision then I would have needed to hear oral evidence about it. However it is not necessary to make findings about this dispute as I am satisfied that, despite the view it took of the scope of the Term Sheet, AM have negotiated in good faith in relation to the proposed lease M52/1043 in subsequent negotiations, even if the Term Sheet agreement did not apply to it.

1. Apart from finding that AM genuinely thought that the Term Sheet of 8 April 2009 included agreement about M52/1043, I do not regard the dispute which arose as of great importance to the decision on whether AM negotiated in good faith in the present matter. Further, the negotiations described hitherto demonstrate that the grantee party has made extensive, reasonable and genuine efforts to negotiate with the NTP with a view to obtaining their agreement to various other tenements subject to the right to negotiate and I am entitled to have regard to this context. For the reasons that follow, I find there is sufficient evidence to support a finding that AM negotiated in good faith with a view to obtaining the agreement of the native title party to the doing of the act the subject of these proceedings, that is, the grant of M52/1043.

1. On 23 April 2009, in accordance with the outcomes of the meeting on 8 April 2009, the Government party granted tenements M52/1034, G52/281 and E52/1901 to AM. On 29 April AM sought to make arrangements to pay $200,000 to the NTP and JCI as agreed in the Term Sheet.

Negotiations in relation to proposed mining lease M52/1043

1. On 16 December 2008 the Government party (i.e. the then Department of Industry and Resources (DoIR)) in accordance with its usual practice wrote to both AM and the NTP enclosing certain information about the proposed lease, pointing to the obligation to negotiate in good faith under the NTA, inviting the native title party to make a submissions under s 31(1)(a) of the Act and requesting AM to provide to the NTP details of its work program and other information about the proposed lease, copies of AM’s last annual report and other information.

2. On 20 January 2009, Green Legal, acting for AM, sent a letter to the NTP which contained detailed information about M52/1043 and requested advice whether the NTP intended providing a submission as contemplated by s 31 of the Act.

3. On 20 January 2009 Green Legal, provided to the Government party’s representative, Ms Paola O’Neill of the Department of Mines and Petroleum (DMP) (formerly DoIR) and the native title party (c/- PNTS) details relating to the proposed lease M52/1043 and the Davidson Creek Project.

4. On 8 June 2009 the NTP provided to the Government party and AM the submission requested by the Government party on 16 December 2008.

5. On 15 and 16 June 2009 a meeting was held between AM, JCI and the NTP at the Assured Ascot Quays Apartment Hotel, Ascot, Perth. The NTP was represented by all six of the Nyiparyli named applicants, Billy Cadigan and Kate Holloman of PNTS; the JCI by Melvin Farmer (Chairperson) Margaret Samson (Deputy Chairperson), Billy Landy (Council Member), Fred Jefferies (Jigalong Community Member) and Fred Taylor (Council Coordinator); and AM by John Berry, Eddie Fry and Ken Green.  I am satisfied that funds for the attendance at this meeting were provided by AM and that one of the purposes of this meeting was to discuss an agreement which included M52/1043.

1. The purpose of the meeting, as reflected in the Agenda prepared by AM, was to finalise a Land Access Agreement (LAA). Prior to the meeting Mr Green provided to Ms Holloman a draft LAA which was of a tripartite nature involving AM, JCI and the NTP and covered all tenements sought by AM for both projects. I can safely infer that AM had prepared the agreement in this form based on its view that this was what was envisaged by the Term Sheet. The draft LAA was a comprehensive agreement covering matters customarily found in mining agreements of this kind and would have incorporated the commercial terms from the Term Sheet.

1. Although there are no formal minutes or outcomes of this meeting the evidence establishes that it was agreed that Mr Green would make some amendments to the LAA , that Ms Holloman would review the LAA and provide marked up comments and that another meeting would be held at Newman on 15 July 2009.

2. The sworn evidence of Mr Fry in relation to this meeting is that: AM explained the current state of AM’s iron ore projects and presented an outline of the draft LAA; the grant of M52/1043 (the Davidson Creek Project) was specifically discussed; AM’s representatives repeatedly asked the Nyiyaparli claimants and JCI representatives what form of agreement they wanted; and that at no time did the Nyiyaparli claimants or JCI representatives say they did not want a tripartite agreement. The NTP contends that it made it clear at that meeting that the Nyiyaparli would only contemplate a project-specific agreement (i.e. confined to mining lease M52/1043 - the Davidson Creek Project). While there is some dispute about precisely what was said at the 15-16 June 2009 meeting, I am satisfied at least that the discussions encompassed the proposed mining lease M52/1043 whether as part of the LAA or otherwise.

1. Correspondence from Green Legal to PNTS of 14 July 2009 reaffirmed AM’s view of the Term Sheet and requested the NTP comply with it. It also requested that a State Deed relating to M52/1043 should be executed by the NTP and returned to Green Legal. The correspondence also reveals that the dispute which had arisen over the Term Sheet was discussed at the 15-16 June meeting. AM wished to proceed with the LAA but sought information about the basis for the NTP’s objection to the Term Sheet and what agreement the NTP were seeking to negotiate with AM. This letter specifically asked whether the NTP wished to negotiate in respect to the proposed lease M52/1043. Ms Holloman was also asked to provide the marked up copy of the LAA which was agreed at the meeting to be done by 3 July 2009. Mr Green also provided a further draft of the LAA to Ms Holloman. The letter also gave notice that M52/1043 would be referred to the Tribunal if no satisfactory agreement was reached.

1. On 17 July 2009 Ms Holloman replied setting out the NTP’s case on why the Term Sheet was not intended to cover tenements outside the Jigalong Reserve and in particular that it did not deal with M52/1043 which was wholly outside the Reserve and in relation to which JCI had no formal involvement. She asserted that there had been no negotiations in relation to M52/1043. Ms Holloman’s letter also advised that she had not produced comments on the draft LAA due to the absence of formal instructions on the preferred agreement for M52/1043 and that instructions would be sought ‘on the negotiation of an agreement for M52/1043 (and/or whole of claim) in the week commencing 27 July 2009’.

1. On 23 July 2009 Green Legal responded to Ms Holloman refuting the assertion that there had been no negotiations about M52/1043, reaffirming its view of the Term Sheet and reserving all rights in respect of it and, among other things, asking the NTP to specifically advise if it wished to negotiate about M52/1043 and to make an offer to AM.

1. Following this correspondence there was further correspondence and discussions including with DMP about attempting to resolve the matter and a mediation conference convened by the Tribunal on 14 December 2009 was organised. Some of this correspondence related specifically to M52/1043.

1. The NTP complaint is that AM’s draft LAA was claim-wide and tripartite and that because AM thought this reflected the Term Sheet agreement, it was not prepared to negotiate specifically about the proposed mining lease. The evidence does not bear out this complaint.

1. In the period following the 15-16 June meeting, AM made requests for the NTP to advise its position in relation to the draft LAA and M52/1043 and to provide proposals in relation to it. I am satisfied that AM was prepared to consider a separate agreement in respect of M52/1043.

2. At the mediation conference it was agreed that there could be a bipartite agreement between the parties in relation to M52/1043. Prior to the mediation conference, the NTP representatives had provided a proposal for settlement (which was subject to instructions) including a precedent mining agreement based on an agreement specific to the Davidson Creek Project. At the mediation conference it was agreed that there could be a bipartite agreement and that the precedent mining agreement would be amended to fit the specifics of the M52/1043 project. It was agreed that PNTS would convene a meeting of the NTP for 19 February 2010 and seek instructions on funding of future meetings and on an agreement to be proposed to AM. Mr Green also said that it would be possible to amend the tripartite agreement currently on offer from AM to make it a bipartite agreement. I can have regard to the readiness of AM to enter into a bipartite agreement at this conference as evidence of its good faith during the negotiations. That is, once it received a specific proposal for a bipartite agreement it was prepared to agree to it.

1. Although there is no obligation to do so, the Tribunal is entitled to have regard to the reasonableness or otherwise of offers made by a grantee party in deciding whether it has negotiated in good faith. Suffice it to say in this case that the draft agreement (LAA) provided by AM covered matters which the Tribunal is aware are often dealt with in mining agreements, namely pre-production payments, production payments based on the value of mineral products, share options, cultural heritage surveys, employment, training and business development opportunities and cross-cultural education and the establishment of a Coordinating Committee comprising representatives of the parties.

2. While there was a difference of opinion about the scope of the Term Sheet agreement and there is no dispute that AM would have preferred a comprehensive agreement covering all its projects and the NTP as well as the JCI (Australian Manganese 1), there is no doubt that a substantial agreement was put on the table for negotiation, that mining lease M52/1043 was the subject of negotiations and that AM was prepared to enter into an agreement with the NTP in relation, specifically, to mining lease M52/1043 once it had received a counter-proposal from the NTP. Since the Full Federal Court decision in Cox (at [31] – [38]) it is clear that there is no impediment to making a finding that negotiations in good faith have occurred in relation to a particular tenement even though negotiations about it were conducted in the context of a broader project.

1. There is no basis for a finding that there was a lack of good faith in AM’s negotiations with the NTP in relation to the proposed mining lease. There was no ‘breach of or absence of good faith such as deliberate delay, sharp practice, misleading negotiating or other unsatisfactory or unconscionable conduct’ (Cox at [27]) on the part of AM. The Tribunal has power to conduct an inquiry and make a determination.

Decision

1. The grantee party has negotiated in good faith as required by s 31(1) of the Native Title Act 1993 (Cth) and the Tribunal has power to conduct an inquiry and make a determination

Hon C J Sumner
Deputy President
16 April 2010