Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area - [2009] NNTTA 133

NATIONAL NATIVE TITLE TRIBUNAL

Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area, [2009] NNTTA 133 (19 October 2009)

Application No: NF09/1

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

Coalpac Pty Ltd (Applicant/grantee party)

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The State of New South Wales (Government party)

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North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area (NC09/1) (native title party)

FUTURE ACT DETERMINATION – PRELIMINARY DECISIONS RELATING TO NEGOTIATION IN GOOD FAITH AND REPRESENTATION OF NATIVE TITLE PARTY

Tribunal:  Hon C J Sumner, Deputy President
Place:  Sydney
Date of decision:              9 September 2009
Date of reasons:              19 October 2009

Catchwords: Native title – future act – application for determination for the grant of mining lease – preliminary issues – native title party split into two factions – whether to re-open the issue of whether or not the grantee party had negotiated in good faith – applicant for native title (registered native title claimant and native title party) is all persons named acting jointly – individual persons comprising the native title party not usually entitled to separate legal representation in the inquiry – procedural fairness issues considered – no case for an adjournment or stay of proceedings.

Legislation:Native Title Act1993 (Cth), ss 29, 30, 31(1)(b), 35, 36, 61, 62, 66B, 151(2), 190

Cases:Ward v Northern Territory of Australia [2002] NNTTA 104; (2002) 169 FLR 303
Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WF07/40, [2009] NNTTA 57 (15 June 2009), John Sosso
FMG Pilbara Pty Ltd v Cox and Ors [2009] FCAFC 49; (2009) 255 ALR 229
Monkey Mia Dolphin Resort Pty Ltd v Western Australia; [2001] NNTTA 50; (2001) 164 FLR 361
Mt Gingee Munjie Resources Pty Ltd v State of Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375
Placer (Granny Smith) Pty Ltd v Western Australia (2000) 170 FLR 469
Summons v Victoria and Others [2003] NNTTA 66; (2003) 176 FLR 1
Victoria Gold Mines NL v Victoria and Others [2002] NNTTA 130; (2002) 170 FLR 1
Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu)/Western Australia/ Holocene Pty Ltd, NNTT WF08/27, [2009] NNTTA 49 (27 May 2009), Hon C J Sumner
Yarran and Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34

Hearing date: 9 September 2009

Solicitor for the
grantee party: Ms Georgia Denisenko, Just Outcomes

Solicitors for the Mr Peter Gore, Gore & Associates
native title party: Mr Philip Teitzel, Teitzel & Partners

Solicitor for the
Government party: Ms Sophia Illiadis, NSW Crown Solicitor’s Office

Counsel for the
Government Party: Mr John Waters, Windeyer Chambers

REASONS RE NEGOTIATION IN GOOD FAITH AND REPRESENTATION OF APPLICANT

Background

On 18 December 2008 the State of NSW (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of a future act, namely the proposed granting of mining lease application MLA324 (‘the proposed lease’) under the Mining Act 1992 (NSW) to Coalpac Pty Ltd (‘the grantee party’). The proposed lease covers an area of 418 hectares situated approximately 7 kilometres east north-east of Portland in the Lithgow Local Government area. The notice specifies that the lease would authorise the mining of coal by open cut and highwall mining methods and be granted for a term of 21 years.
The original s 29 notice was subsequently amended on two occasions. The grantee party informed the Tribunal that on 13 January 2009 they wrote to the Government party requesting that a variation to the proposed mining lease area be made. The variation involved the excision of 11 hectares from the south east corner of MLA324 and the grantee party identifying the following as reasons for the excision.

It was an area controlled by the Sydney Catchment Authority and would have required unnecessary administration complications.
It was subject to NSD6060/1998 Gundungurra Tribal Council Aboriginal Corporation #6, a registered native title determination application.
No mining operations were proposed over any of the area.

The variation was accepted by the Government party on 15 January 2009. The s 29 notice was not reissued as the excision patently amounted to a reduction in the area of the proposed mining lease.
On 16 June 2009 the Tribunal advised the grantee party that a small overlap between MLA324 and NSD6060/1998 remained. On 24 June 2009 the grantee party requested a further excision to MLA324. On 29 June 2009 the further variation was accepted by the Government party.
On 17 March 2009 the North Eastern Wiradjuri People of the Bathurst/ Lithgow/Mudgee area (‘the native title party’) filed a native title determination application in the Federal Court in response to the s 29 notice. The application, NSD216/2009 (NC09/1), is what has become known as a ‘polygon’ application or claim which solely covers the proposed mining lease area and was filed within a three month period of the future act notice being given as required by s 30(1)(a)(i) of the Act.
The applicant in the matter jointly comprises Mr William (Bill) Allen, Ms Ester Cutmore, Ms Wendy Lewis, Ms Lynette Syme, Ms Elaine Bugg and Mr Martin De Launey.
The application is made on behalf of the North Eastern Wiradjuri People of the Bathurst/Lithgow/Mudgee area being all the descendents of Thomas Governor, Aaron, Phillips Rayner, Windradyne, Dianna Mudgee, Sophia Allsopp, Peggy Lambert, Jimmy Lambert, John Bloodsworth, Thullagumaulli, Penagraa (also known as Penaguin). The solicitor on record is Gore & Associates (Mr Peter Gore).
On 17 April 2009 a delegate of the Native Title Registrar (‘the delegate’) accepted the application for registration. The native title application was registered within the four month period of the future act notice being given and so the registered native title claimant is a ‘native title party’ within the meaning of s 30(1) of the Act with status as a negotiation party under the right to negotiate provisions of the Act.
On 14 July 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 indicated that the negotiation parties had not been able to reach agreement to that date and therefore Coalpac was initiating proceedings within the Tribunal for a determination in relation to the grant of the mining lease. The application states that MLA324 is part of the Invincible Colliery open cut extension project, which is located within the established Western Coalfields area and that there are more than seven other tenements within or immediately proximate to MLA324. Further the application states that the Invincible Colliery mine has been in existence for over 100 years, operating predominately as an underground mine until 1998 and as an open cut mine since that time. The application then lists a number of large resource areas and mines within the immediate vicinity of the Invincible Colliery open cut project.
On 3 August 2009 a preliminary conference was held to consider whether the native title party wished to allege that either the Government or grantee parties had failed to negotiate in good faith (ss 31(1)(b), 36(2) NTA) and to set directions for the inquiry. The preliminary conference was attended by representatives of the Government and grantee parties and the following appearances were made for the native title party: Mr Peter Gore, Ms Lynette Syme and Mr Bill Allen. Mr Gore advised that he could no longer obtain proper instructions from the native title party. A split had formed in the native title claim group that was reflected in a split of those persons who form the applicant for native title, (and registered native title claimant and native title party). Ms Syme, Ms Lewis and Mr De Launey where aligned with one faction and continued to rely on the legal representation of Mr Gore. Mr Allen, Ms Cutmore and Ms Bugg were aligned to a second faction and no longer wished Mr Gore to represent their interests.
In the practical interests of progressing the matter all parties and the Tribunal agreed to a proposition put forward by Mr Gore to inquire of Ms Syme and Mr Allen, as representative of the two factions, as to whether there was any challenge to good faith negotiations. I explained to Ms Syme and Mr Allen the principles underpinning requirements for good faith negotiations. Ms Syme indicated that in her view negotiations had been conducted in good faith. Mr Allen also indicated that, despite the split in the claim group, he was of the view that negotiations had been conducted by the grantee party in good faith. On this basis Mr Gore was satisfied and advised the Tribunal that the position of the native title party was that negotiations had been conducted in good faith. No issue was raised in relation to whether or not the Government party had negotiated in good faith.
Both the Government party and the grantee party asserted that negotiations had been conducted in good faith. On this basis I made directions setting out timeframes for the filing of contentions and evidence by the various parties prior to an inquiry hearing on the substantive application which was set for the week of 26 October 2009.
By letter of 5 August 2009, the Tribunal was advised that Mr Philip Teitzel of Teitzel and Partners Solicitors was acting for William Allen, Esther Cutmore and Elaine Bugg in relation to aspects of the future act the subject of these proceedings.
The Tribunal was also advised by Mr Tony Hanrahan, Community Liaison Manager for Coalpac of a meeting of North Eastern Wiradjuri People to be held at Lithgow on 15 August 2009. The purpose of this meeting was for the North Eastern Wiradjuri People to consider settlement of the proceedings by an Ancillary Deed between the grantee and native title parties that had been proposed by the grantee party. It is considered in more detail below. No agreement was reached in relation to the Ancillary Agreement at that meeting.
On 28 August 2009 Mr Gore advised the Tribunal of the following.

There are now two distinct factions in the North Eastern Wiradjuri applicant group being:
- Lynette Syme, Wendy Lewis and Martin de Launey (‘the Syme faction’); and
- Bill Allen Elaine Bugg and Esther Cutmore (‘the Allen faction’).
The claim group is generally split into two groups, each of which follows one of the respective factions of the applicant group.
The applicant group and the claim group are now unable to function as Parliament had intended when passing the Native Title Act1993 (Cth) and in consequence it was not possible for him to obtain instructions from either the applicant group (native title party) or the claim group.
The Syme faction supports his continuing representation of the native title party and the Allen faction is being advised by Philip Teitzel.
There was no hope of reconciliation of the two factions. The breakdown in the relationship is complete and irretrievable as the two factions have diametrically opposed positions in relation to certain issues central to the arbitral process.
The general principle is that the applicant and native title party is entitled to one legal representative at an inquiry. However in Summons v Victoria and Others [2003] NNTTA 66; (2003) 176 FLR 1 (at [19]–[22]) I held that the requirements of procedural fairness may in some cases mean that separate representation of individuals comprising the native title party is permitted. Mr Gore submitted that this is a case where the Tribunal in the exercise of its discretion should grant leave for Mr Gore to represent the Syme faction and Mr Teitzel to represent the Allen faction.

On 2 September 2009 the Tribunal’s Case Manager responded to Mr Gore’s email correspondence with a copy to Mr Teitzel in the following terms.
‘I have referred your email of 28 August 2009 to DP Sumner. He has advised that there is a very strong and consistent line of authority which establishes that a native title party is not each individual person named as part of the applicant for native title but the applicant acting collectively. Reference is made in particular to Mt Gingee Munjie Resources Pty Ltd v State of Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375 and the cases cited therein. Consequently, there is no legal basis for factions of a native title party to be separately represented before the Tribunal in a right to negotiate inquiry.
In the most relevant previous matters the Tribunal permitted individual members of the native title party to give evidence (see Summons v Victoria and Others [2003] NNTTA 66; (2003) 176 FLR 1 and Victoria Gold Mines NL v Victoria and Others [2002] NNTTA 130; (2002) 170 FLR 1) because there was no legal representative appearing for them. In Victoria Gold the Representative Body in Victoria (Mirimbiak) was given leave to appear to assist the Tribunal. In Mt Gingee Munjie counsel for one of the factions of the native title party (Kurnai) was given leave to appear to submit an argument that a native title party was each person named as part of an applicant for native title. This argument was rejected by the Tribunal as it had been in the previous matters.
In the current matter the Tribunal’s present view is that it is not possible for it to hear separate factions in the inquiry. You say that the factions have diametrically opposed positions in relation to certain issues central to the arbitral process. This places the Tribunal in an impossible position in the conduct of the inquiry. The Tribunal cannot be expected to adjudicate on the dispute between the factions in a right to negotiate inquiry. The Tribunal’s present view is that you are the solicitor on record, directions have been made for an inquiry and the native title party (as defined by the Native Title Act) needs to comply with the directions. If they are not complied with the Tribunal will proceed on the basis of the contentions and evidence before it from the other parties.
If you wish to make submissions of the kind outlined in your email you will need to formally advise the Tribunal and other parties of your application. The Tribunal will give other parties the opportunity to be heard either by way of written submissions or a directions hearing if this is requested and regarded as necessary by the Tribunal.’
While the issue of representation of the native title party was being considered the Government and grantee parties had substantially complied with the directions of the Tribunal made on 3 August 2009 by filing their contentions and documentary evidence (due date 31 August 2009).
On 4 September 2009, Mr Gore advised that in his view it was clear that he could not comply with the directions of the Tribunal as he could not obtain instructions from the applicant. He advised the Government and grantee parties of his position and suggested the Tribunal convene a directions hearing to consider the issues which had arisen.
On 4 September 2009, Mr Teitzel advised the Tribunal that he agreed that Mr Gore now had a conflict and suggested that he immediately resign as legal representative; that the North Eastern Wiradjuri People hold a community meeting in the near future to appoint a new solicitor and obtain instructions to proceed in accordance with resolutions which were passed at a community meeting held on 15 August 2009.
On 7 September 2009, Ms Denisenko (for the grantee party) submitted the native title party is not entitled to be separately represented in right to negotiate hearings and that Mr Gore is the legal representative of the native title party. She further submitted that Mr Teitzel had no standing in the proceedings to put any submissions to the Tribunal in relation to s 31(1)(b) of the Act or any other issue.
All parties agreed that the Tribunal should convene a directions hearing to consider the future conduct of the matter. The Tribunal reaffirmed the views expressed in its letter of 2 September 2009 but agreed that both Mr Gore and Mr Teitzel could appear at the directions hearing representing the individuals in the respective factions for the purpose of making submissions as to the proper future conduct of the matter.
Prior to the directions hearing written submissions were made by Mr Teitzel (letter to the Tribunal of 7 September 2009) with a response from Mr Gore (8 September 2009) which can be summarised as follows.

Teitzel written submissions

The Teitzel submissions appended a letter from Coalpac of 31 July 2009 addressed to each claim group member giving ‘Notice of Authorisation Meeting for Native Title Claim NSD216/09 over MLA324 – Invincible Colliery Coal Project Lithgow’. The letter stated:
‘Persons who are members of the native title claim group are invited to attend the Meeting. The native title claim group consists of all of the descendants of Thomas Governor, Windradyne, Peggy Lambert, Thullagumaulli, Aaron, Dianna Mudgee, Jimmy Lambert, Penagraa (also known as Penaguin), Phillips Rayner, Sophia Allsopp, John Bloodsworth.’
The letter advised that the authorisation meeting was to be held on 15 August 2009 at the Lithgow Workman’s Club, 3-7 Tank Street, Lithgow NSW. Ms Denisenko objected to the Tribunal having regard to this letter on the basis that it contained details of confidential and without prejudice negotiations which had taken place between Coalpac and the native title party. I agree that the detailed proposal put by Coalpac for the resolution of this matter should not be made public and accordingly have not referred to them (Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu)/Western Australia/ Holocene Pty Ltd, NNTT WF08/27, [2009] NNTTA 49 (27 May 2009), Hon C J Sumner at [58]-[60]). However, I consider the following to be relevant to the issues raised at the directions hearing:
‘Coalpac conducted meetings with Claim Group Members on 9^th May 2009 in Lithgow and 27^th June 2009 in Bathurst. Coalpac representatives also held further meetings with the Applicants on 16^th and 27^th July 2009 in Lithgow to discuss the final content of a proposed Ancillary Deed between Coalpac and the North Eastern Wiradjuri Claim Group.

At the 27^th July 2009 meeting in Lithgow the Applicants and the Coalpac representatives agreed that the proposed Ancillary Deed should be formally placed before the Claim Group Members as a whole for their consideration and approval. This action is consistent with a decision at a meeting held by the Claimant Group on 14^th March 2009 where the Applicants were given authority to negotiate an Ancillary Agreement with Coalpac however finalisation of any agreement would require the authorisation of the Group as a whole.
At the meeting, the Claim Group will be presented with a final draft of the proposed Ancillary Agreement.’

The letter also advised that consistent with prior arrangements Coalpac was prepared to meet the reasonable travel and accommodation cost of claim group members who wished to attend the authorisation meeting.

Mr Teitzel’s Submissions provided information about the meeting of 15 August 2009, the key points of which are:

approximately 38 claim group members attended;
the meeting was initially conducted by Mr Tony Hanrahan (of Coalpac);
that at a very early stage of the meeting the division between the groups of applicants and respective supporters which had been previously been identified in Mr Gore’s correspondence of 28 August 2009 became apparent;
the Tribunal (Nicole Maher, Case Manager, Sydney) attempted to provide an overview of the future act process including information on the requirements for negotiations to be conducted in good faith;

the meeting was not prepared to consider the Ancillary Deed in detail; and
that the meeting had decided that the appropriate decision making process was by show of hands.

Mr Teitzel further advised that two resolutions were considered. Resolution One: ‘The Coalpac and North Eastern Wiradjuri negotiations in respect to the Ancillary Deed have not been conducted in good faith.’ The motion was moved by Bill Allen seconded by Elaine Bugg and carried 29 votes to 9 with one member of the group Robyn Williams requesting that her vote against the motion be included in the recorded minutes of the meeting. Resolution Two: ‘The Ancillary Deed as currently proposed by Coalpac with the North Eastern Wiradjuri be accepted.’ The motion was moved by Wendy Lewis, seconded by Martin de Launey and lost 12 votes to 24 with Robyn Williams requesting her vote in favour of the motion being included in the recorded minutes.
Mr Teitzel also advised that the meeting instructed him to act on the resolutions and that he was directed to advise the Tribunal that negotiations with Coalpac had not taken place in good faith as required by s 31(1)(b) of the Act. He was also requested to take such further instructions (if any) as may be required from time to time on the matter directly from the North Eastern Wiradjuri claim group.
Mr Teitzel’s submission then raised a number of issues in support of the allegation that the grantee party had not negotiated in good faith which it is not necessary to consider in detail given my decision that the good faith issue should not be re-opened.
With respect to the preliminary conference on 3 August 2009 Mr Teitzel advised that he was instructed that Mr Gore, solicitor for the applicant, failed to provide Mr William Allen and the other two members of his faction with any advice during the course of negotiations and in particular did not provide any advice on the issue of good faith to Mr Allen prior to 3 August 2009.
Mr Teitzel agreed with Mr Gore’s assertion contained in his email to the Tribunal of 28 August 2009 about the division within the claim group but did not agree with the subsequent comments and information. In particular, Mr Teitzel pointed out that the minutes of the meeting of 9 May 2009 indicate that members of the Syme faction were questioned by other members of the claim group about (among other things) the connection of the Syme faction to the named apical ancestors Peggy and Jimmy Lambert who they relied on as the basis for their biological descent and their membership of the claim group. Mr Teitzel says that the Syme faction refused to provide any information to validate their historical, traditional or contemporary connection to the claim area and their biological descent from any apical ancestor. He says that the three persons in the Syme faction refused to answer questions and left the meeting early.
On the question of representation of the native title party and the Tribunal’s letter of 2 September 2009, Mr Teitzel acknowledged that Mr Gore was not in a position to obtain instructions from the native title party and said that this would mean that the claimant group would not be represented and that this would result in only the Government and grantee parties’ contentions being argued which would be a breach of natural justice or procedural fairness and that any decision reached without the benefit of the claimant groups views would be invalid. Mr Teitzel submitted that the matter could be resolved in one of two ways. The first was based on the Tribunal’s decision in Mt Gingee Munjie Resources Pty Ltd v State of Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375 (‘Mt Gingee’) at [17] where I agreed with the decision of Member Sosso in the case of Ward v Northern Territory of Australia [2002] NNTTA 104; (2002) 169 FLR 303, 12 June 2002 (‘Ben Ward’) at [21]-[23]:
‘... in which he (Member Sosso) generally agreed with previous Tribunal’s rulings that separate representation of individual named applicants was not permissible but acknowledged that there may be circumstances where principles of procedural fairness require it but only as an exception rather than the rule.’
Mr Teitzel’s second submission and described by him as the better option is based on Yarran and Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34 (‘Ballardong’) at [30]:
‘... Once an issue has been resolved collectively no member of the claim group is entitled to take a contrary position in the claim application or any right to negotiate proceedings.’
Mr Teitzel said it was clear from the resolutions from the community meeting of 15 August 2009 as to the basis on which the claim group had collectively agreed to proceed and the manner in which it wished to proceed. Mr Teitzel submitted that a directions hearing should be held to clarify representation of the claim group, to consider the question of good faith negotiations raised by him, provide appropriate orders to enable that issue to be heard and to vacate orders made by the Tribunal on 3 August 2009. He said that the contents of his letter which contained these submissions were unanimously endorsed by senior representatives of the North Eastern Wiradjuri claim group on Saturday, 5 September 2009 and that he was expressly directed to proceed with the matter as previously instructed at the meeting of 15 August 2009.

Gore written submissions

Mr Gore’s submission can be summarised as follows.

The meeting of 15 August 2009 was not a properly constituted meeting of the claim group as a consequence of certain irregularities, including that no public notice was given in the newspapers or over Aboriginal radio stations; an invitation was sent to Stephen Riley who was not a member of the claim group; participation in the meeting by persons who were not members of the claim group; and that no proper attendance lists were compiled.
The meeting was called by Coalpac, not by the applicant, and the purpose of the meeting was to consider ‘a final draft to the proposed Ancillary Agreement’.
The meeting was not called to consider any unrelated issues.
That, contrary to the assertions made by Mr Teitzel, he did provide advice on the good faith issue to the persons who constitute the applicant. He provided evidence of advice given by letters of 14 May 2009 and 18 May 2009 in which he advised that Coalpac would be able to establish that (among other things) it had negotiated in good faith and that the Tribunal would decide that the mining lease be granted without any compensation to the native title party. Mr Gore’s letter of 14 May 2009 to the six persons named as part of the native title party records a resolution passed at the meeting of 9 May 2009 advising Coalpac of the internal disputes within the claim group which must be resolved before any discussions could occur and that the group did not wish to continue negotiations with Coalpac at this stage. The resolution also acknowledged that Coalpac had come to the meeting to negotiate in good faith and that if agreement could not be reached by 18 June 2009 Coalpac would seek arbitration in relation to the proposed mining lease. Mr Gore also provided advice by email to Mr Allen on 22 May 2009 and 23 July 2009. Mr Gore’s email of 23 July 2009 referred to the meeting of 9 May 2009. Mr Gore advised that in light of the views expressed by the Allen faction at the meeting of 9 May 2009 it would be difficult to establish a failure of the grantee party to negotiate in good faith.

I am satisfied that Mr Gore advised the native title party, and Mr Allen in particular, about the negotiation in good faith issue prior to the preliminary conference on 3 August 2009.

Submissions made at the directions hearing on 9 September 2009

At the directions hearing Mr Teitzel made the following further submissions.

He acknowledged that Stephen Riley and others were not part of the claim group and repeated the Allen faction’s view that the Syme faction were also not part of the claim group.
He queried whether the meeting of 14 March 2009 had given proper authorisation to the claim and said it was always envisaged that the list of apical ancestors would be reviewed. In particular he said there was no specific resolution instructing Mr Gore to act for the applicant.
Mr Teitzel confirmed that the meeting of 15 August 2009 was a meeting of the claim group even though he had referred to it as a community meeting in his written submissions.
He said that the voting recorded at the 15 August 2009 meeting was ‘overwhelming’ in favour of the Allen faction position.
He agreed that the challenge to good faith negotiations may extend to the Government party if it could be shown that the Government party had failed to address the native title party’s environmental concerns.

At the directions hearing Mr Gore made the following submissions.

His instructions from the Syme faction were that the grantee party had negotiated in good faith.
Although there was no specific resolution appointing him to act as solicitor for the applicant at the meeting on 15 March 2009, it was clear he had instructions as he lodged the claim, arranged for the six named persons to swear affidavits, attended to amending the claim and providing further information to the Tribunal about the registration test.
He acknowledged that the meeting of 15 August 2009 was intended to be a claim group meeting called for a limited purpose (i.e. to consider the Ancillary Agreement) but that the attendance of persons who were not part of the claim group (i.e. Stephen Riley group) vitiated any resolution passed.
He asserted that following the meeting of 9 May 2009, when the split in the claim group became apparent, good faith negotiations with Coalpac could not occur because of the position of the Allen faction in relation to the intra-Indigenous issue.

I accept that Mr Gore was properly acting for the applicant in relation to both the application for native title and the right to negotiate until the split in the claim group became obvious on 9 May 2009.
Ms Denisenko’s submission relied on the submissions of Mr Gore of 8 September 2009 to say that Mr Teitzel had not been properly appointed and did not have standing to represent the native title party. She said that Mr Gore was still the legal representative on the record and his appointment had not been revoked and she relied on the clear line of authority (referred to in the Tribunal’s letter of 2 September 2009) on the issue of who constitutes a native title party in right to negotiate proceedings. She submitted that the good faith issue had been resolved at the preliminary conference of 3 August 2009 and that contrary to Mr Teitzel’s submissions advice had been tendered to the native title party by Mr Gore on this issue prior to the preliminary conference.
Mr Hanrahan of Coalpac advised that in relation to the meeting of 15 August 2009 he had received advice from 17 members of the claim group, who could not attend the meeting, in support of the Ancillary Agreement.
For the Government party, Mr Waters supported the view of the Tribunal that the native title party was only entitled to a single representative and opposed the re-opening of the good faith issue. He said that Mr Teitzel’s remedy is to take action to strike out the claim on the basis of its non-compliance with s 61 of the Act but it was a competent application for the purposes of the right to negotiate and the present proceedings. With respect to Mr Teitzel’s potential allegation of a lack of good faith by the Government party there was no defined allegation which provided a basis for re-opening the good faith issue.
The following issues arise for decision.
Should the Tribunal re-open the issue of whether the grantee party had negotiated in good faith? My answer to this question is no.
Does either Mr Gore or Mr Teitzel have standing to represent the native title party and if not should Mr Gore and Mr Teitzel be given leave to represent and provide contentions and evidence to the substantive inquiry on behalf of the individuals comprising the respective factions within the native title party and claim group? My answer to these questions is no.
Should the Tribunal adjourn or stay these proceedings to enable Mr Teitzel to take instructions to make application to the Federal Court to replace the Applicant pursuant to s 66B of the Act? My answer to this question is no.
What steps should the Tribunal take in the circumstances of this case to ensure that the rules of procedural fairness are complied with in respect of the native title party?

General issues

There are a number of general factors common to each of the above issues to which I have had regard.
The native title claim NC09/1 was a polygon claim lodged for the specific purpose of obtaining the right to negotiate in relation to the proposed mining lease MLA324. Although authorised at a meeting on 14 March 2009 and registered on 17 April 2009 it became apparent as early as the meeting of 9 May 2009 that there were significant differences of opinion within the native title party and claim group. The written submissions from Mr Teitzel (7 September 2009) refer to members of the Syme faction being questioned by others about their connection to named apical ancestors, Peggy and Jimmy Lambert and their biological descent from them to qualify as members of the claim group. The affidavit (14 March 2009) filed by Wendy Lewis for the purpose of the registration test asserts that she is a member of the claim group through her descent from three of the apical ancestors being Thullagumaulli, Peggy Lambert and Jimmy Lambert. Lynette Syme (affidavit of 3 April 2009) asserts membership of the claim group through descent from Peggy Lambert and Jimmy Lambert. The Allen faction no longer considers the Syme faction to be properly a part of the claim group or native title party.
The Registrar must accept a claim for registration if certain conditions are satisfied (s 190A(6)). Among these are that the Registrar must be satisfied that the application contains all details and information and is accompanied by any affidavit or other documents required by ss 61 and 62 of the Act (s 190C(2)).
Section 61(1) says that a native title determination application may be made by a person or persons authorised by all of the persons (the native title claim group) who according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed provided the persons or person are also included in the native title claim group. The Registrar’s delegate was satisfied that this requirement was met.
The application must be accompanied by an affidavit sworn by the applicant which among other things deposes that all of the statements made in the application are true (s 62(1)(a)(iii) NTA) and the applicant is authorised by all the persons in the native title claim group to make the application (s 62(1)(a)(iv) NTA). The delegate was satisfied that the application met the requirements under s 62(1)(a) of the Act.
Another requirement of the registration test is that the Registrar (where the application has not been certified by the relevant representative Aboriginal/Torres Strait Island Body) must be satisfied that the applicant is a member of the native title claim group and is authorised to make the application and deal with matters arising in relation to it by all the other persons in the native title claim group (s 190C(4) NTA). In relation to the first limb of this requirement the delegate was satisfied based on the affidavits filed by the six persons jointly comprising the applicant, that each of the six persons is a member of the native title claim group and define their membership through their descent from at least one apical ancestor.
Each of the persons jointly comprising the applicant deposed in individual affidavits to these and other relevant matters to support registration of the application.
It is difficult to see how Mr Allen and the other persons in his faction could have deposed to the matters in their affidavits when within less than two months from the authorisation meeting (on 9 March 2009) they are actively contesting (at the meeting of 9 May 2009) whether the Syme faction are properly members of the claim group. The Allen faction now says that some persons named as part of the applicant are not themselves part of the claim group. Self evidently, if this is the case then the application for native title does not comply with s 61 of the Act and if this had been known to the delegate, the claim would not have been registered and there would have been no obligation to negotiate in good faith or the current proceedings before the Tribunal.

Good faith negotiations

In addition to the above general considerations there are other factors militating against re-opening the issue of good faith. For the reasons already given it is not now possible for the native title party collectively to challenge good faith because as presently constituted three of the current named applicants wish to challenge, the other three do not. Although by the time of the preliminary conference Mr Gore was aware of the difficulties within the native title party he took steps to ensure that a representative of each faction was present. Despite Mr Teitzels assertions that no proper advice had been given, I am satisfied that prior to the hearing Mr Gore had provided advice to the native title party on the good faith issue and particularly had provided it to Mr Allen. Both Mr Allen and Ms Syme were present representing the factions of the native title party and claim group and agreed that Coalpac had negotiated in good faith. There are no grounds for allowing them to resile from this position. I also have regard to the fact that by the time Mr Teitzel sought to re-open the issue the procedures for the substantive inquiry had reached the stage of the Government and grantee parties filing their contentions and documentary evidence. It is well established that the Tribunal must attempt to process future act determination applications in a timely manner (see below).
Mr Teitzel says that the meeting of 15 August 2009 gave the applicant and native title party the necessary authority to proceed in the way proposed by him. I cannot agree. I accept that the meeting was supposed to be a claim group meeting, however it was called by the grantee party for the specific purpose of considering the Ancillary Agreement prepared by Coalpac. No proper notice was given of the issues which were subsequently considered by the meeting, namely the good faith challenge, and Mr Teitzel’s representation of the native title party. This is not a case where the overwhelming majority of a claim group and persons comprising the applicant and native title party have determined on a course of action but are being thwarted in proceeding by a small minority (see Monkey Mia Dolphin Resort Pty Ltd v Western Australia; [2001] NNTTA 50; (2001) 164 FLR 361). The individuals comprising the native title party are evenly divided on the issues. While Mr Teitzel has attempted to down play the extent of the difference of opinion within the claim group itself I am of the view that there are deep seated differences and not confined to a small and irrelevant minority (see voting record of meeting on 15 August 2009). It is also not disputed by Mr Teitzel that some persons who voted in favour of the resolutions upon which he relies are not members of the claim group.
Although it has not been necessary to give consideration to Mr Teitzel’s allegations on good faith and the substantive question of whether the grantee party had negotiated in good faith I observe that some negotiations occurred which led to the drafting of the Ancillary Agreement (see letter from Coalpac of 31 July 2009, para [24] above). However, Mr Gore is also correct in saying that the view of the Allen faction of the native title party that it would not negotiate until the intra-Indigenous issues were resolved would be indicative of the native title party’s lack of good faith and a factor to which the Tribunal could have regard in deciding whether the grantee party had negotiated in good faith.

With respect to the possible challenge to the Government party, I agree with Mr Waters that there is no defined allegation which could form the basis for a native title party submission.
While not directly relevant as I have not had cause to look at the details of the parties negotiating conduct, I observe that as a result of the Full Federal Court decision in FMG Pilbara Pty Ltd v Cox and Ors [2009] FCAFC 49; (2009) 255 ALR 229 from which leave to appeal to the High Court was refused on 14 October 2009, requirements of the obligation to negotiate in good faith are significantly more limited than those envisaged by earlier decisions of the Tribunal.
Finally, I repeat that, even if the Tribunal acceded to Mr Teitzel’s requests it is difficult to see how a coherent, agreed position could be put on either the good faith or substantive issues.

Representation of the native title party

For the reasons already given I do not accept that Mr Teitzel has instructions to act for the native title party and Mr Gore accepts that he no longer does. Mr Gore and Mr Teitzel only act for the individual members of the factions. I do not regard this as an appropriate case for Mr Gore or Mr Teitzel to be given leave to appear in the substantive proceedings on behalf of their individual clients. The general principle is well established (see Tribunal’s letter of 2 September 2009 above). The issue here is whether there are any special circumstances to bring the matter within the exception to the general rule acknowledged by the Tribunal in the Summons, Mt Gingee and Ben Ward cases. In my view there is not. The fundamental issue here is not whether legal representation is available but a total incapacity of the native title party to act in the way anticipated by the right to negotiate provisions.
Mr Teitzel has also referred to the Ballardong case (Yarran and Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34) at [30] citing Placer (Granny Smith) Pty Ltd v Western Australia (2000) 170 FLR 469 (at 476) to the effect that while individual applicants or members of the claim group may obtain their own legal advice issues in dispute within the applicant or claim group need to be resolved according to their normal procedures and that once an issue has been resolved collectively no member of the claim group is entitled to take a contrary position.
The difficulty with this submission is that as already stated I am not satisfied that the resolutions passed at the meeting of 15 August 2009 properly authorise the native title party to challenge good faith negotiations or to appoint Mr Teitzel as its representative. In any event the native title party is technically the applicant for native title acting jointly or collectively. As presently constituted they are split down the middle and incapable of acting in a coherent and agreed way and agree on whether a good faith challenge should be made.
The Tribunal accepts that the Government and grantee parties would be faced with an untenable position by the prospect of having to negotiate separately with multiple members of the claim group or with different individuals who comprise the native title party or having to respond in a future act determination inquiry to what might be quite diverse and even contradictory positions adopted by such individuals.

Adjournment or stay of proceedings

Mr Teitzel said in his written submissions of 7 September 2009 that he intended to hold a community meeting, if necessary, to get instructions to amend the claim group description, (this would trigger the registration test but leave the current application and claim group in place until this happens) remove the current persons who constitute the applicant and replace them with new ones (s 66B NTA) and appoint a new legal representative. I did not interpret his submission to mean that the Tribunal should adjourn or stay the current proceedings until this happens as he considered that he had sufficient authority to deal with the current matter. However, in the light of my rejection of this submission I make the following observations. The authorities on dealing with future act determination applications in a prompt and timely manner are quite clear (see most recently the decision of Deputy President Sosso in Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WF07/40, [2009] NNTTA 57 (15 June 2009) at [19]-[20], [26])

The Tribunal must take all reasonable steps to make a determination as soon as practicable (s 36(1) NTA) and report to the Minister if it does not make a determination within six months of the application with reasons for the delay and provide an estimation of when a determination is likely to be made (s 36(3)).
It is not appropriate, particularly in the circumstances of this case, to delay determining the matter pending the results of any s 66B application, amendment of the application to redefine the claim group and for the registration test to be applied to the amended application.

Procedural fairness

At the directions hearing on 9 September 2009 and following my decision on the good faith issue I encouraged Mr Gore and Mr Teitzel to cooperate to see if an agreed position could be arrived at by the native title party in relation to the current proceedings. I note that the likelihood of this happening is slim as Mr Teitzel, at the conclusion of the directions hearing, advised that he proposed to move to strike out the application. On 16 September 2009 the Tribunal sent to all six persons named as part of the applicant and Mr Gore and Mr Teitzel all the contentions and documentary evidence filed by the Government and grantee parties with a reminder that native title party compliance was due on 28 September 2009. The letter gave the native title party an opportunity to respond to the Government and grantee parties and advised that if there was no compliance by the native title party the Tribunal may decide to proceed on the basis of the contentions and evidence already provided.
By the due date for compliance by the native title party the only material received was a submission from Ms Elaine Bugg which related to the issue of negotiation in good faith and contained no evidence of relevance to the substantive inquiry.
On 30 September 2009, the Tribunal wrote to the six persons named as the applicant, the other parties and Mr Teitzel and Mr Gore advising that it intended to proceed to consider its determination based on the material provided and vacated directions dealing with the need to confer to agree the relevant facts, setting a date for a listing hearing and the hearing proper. The Tribunal advised that it intended to deal with the matter ‘on the papers’ (s 151(2) NTA).
In the circumstances of this case, I am satisfied that the requirements of procedural fairness have been satisfied. The individuals comprising the native title party and the solicitors acting for them have been provided with all relevant material and have been given an opportunity to provide contentions and evidence about the matters covered in s 39 of the Act, whether any conditions should be imposed for an amount to be paid into trust on account of future compensation, witness statements and whether anyone proposes to give oral evidence (direction 2 made on 3 August 2009).
Apart from the statement from Ms Bugg no contentions or evidence have been received from the native title party. Indeed, given the level of disagreement within the native title party and the claim group it is wholly unsurprising that this is the situation.
The present matter is not a case where a s 29 notice has been given in relation to a mining lease within the area of an already registered native title claim where there is no dispute within the native title party but where for some reason the native title party cannot obtain legal representation. In such a case the Tribunal may need to take additional steps to ensure that the evidence of the native title party is heard.

Decision

The Tribunal’s decision (made on 9 September 2009) is that the issue of whether the Government and grantee parties had negotiated in good faith should not be re-opened and the Tribunal has power to conduct an inquiry into the future act determination application. These reasons have been provided at Mr Teitzel’s request.

Hon C J Sumner
Deputy President
19 October 2009