Doxford/Janice Barnes, Jessie Diver, Owen McEvoy, Deree King, Patrick Fisher (Wangan and Jagalingou)/State of Queensland
[2008] NNTTA 54
•28 April 2008
NATIONAL NATIVE TITLE TRIBUNAL
Doxford/Janice Barnes, Jessie Diver, Owen McEvoy, Deree King, Patrick Fisher (Wangan and Jagalingou)/State of Queensland [2008] NNTTA 54 (28 April 2008)
Application No: QF08/1
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an Inquiry into a Future Act Determination Application
Clyde Ian Doxford (grantee party)
- and -
Janice Barnes, Jessie Diver, Owen McEvoy, Deree King, Patrick Fisher on behalf of the
Wangan and Jagalingou People (native title party)
- and -
State of Queensland (government party)
FUTURE ACT DETERMINATION - TRIBUNAL JURISDICTION TO DETERMINE MATTER
Tribunal: John Sosso
Place: Brisbane
Date: 28 April 2008
Hearing dates: 13 February 2008, 4 April 2008
Representatives:-
Grantee Party: Self-represented
Native Title Party: Mr. Bernard Beston, Gurang Land Council Aboriginal Corporation
Mr. David Mailman, Queensland Cultural Heritage and Native Title Management Services Pty Ltd
Government Party: Ms. Eve Fraser, Crown Law, Queensland
Catchwords: Native title – future act determination application – proposed mining lease – jurisdiction – whether parties have negotiated in good faith – evidentiary onus – no challenge to good faith negotiations of government party – grantee fulfilled his obligations to negotiate in good faith.
Legislation: Native Title Act 1993 (Cth) ss 29, 30A, 30(1), 31, 33, 35, 36(2), 37, 38, 39, 41A, 82, 109, 150, 151
Cases:Down/Barnes & Ors on behalf of the Wongatha People/Western Australia [2004] NNTTA 91 (1 October 2004) Deputy President Franklyn
Placer (Granny Smith) v Western Australia (1999) 163 FLR 87
Re Clyde Ian Doxford [2006] QLRT 34
Re Minister of Lands, State of Western Australia (1998) 3 AILR 261
Walley v Western Australia (1996) 67 FCR 366
Western Australia v Daniel (2002) 172 FLR 168
Western Australia v Dimer (2000) 163 FLR 426
Western Australia v Taylor (1996) 134 FLR 211
REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY
On 9 February 2005 Clyde Ian Doxford (“the grantee party”) applied to the State of Queensland (“the government party”) for the grant of a mining lease under section 245 of the Mineral Resources Act 1989 (Qld) for the purpose of mining gold. The mining lease applied for was designated as Mining Lease (ML) 70341 (“the proposed tenement”). No objections were lodged against the application before the closing date for objections under the Mineral Resources Act 1989, which was 3 April 2006. On 28 April 2006 Mr. Windridge MR of the Land and Resources Tribunal recommended to the Minister for Natural Resources, Mines and Water that ML 70341 be granted over the whole of the application area for the purpose of mining gold for a term of 10 years – Re Clyde Ian Doxford [2006] QLRT 34. On 12 July 2007, the government party gave notice under section 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant the proposed tenement to the grantee party. There was one registered native title determination application covering the area of the proposed tenement at this time and no further native title claimant applications were filed within three months of the notification date (12 July 2007) specified in the section 29 notice over the area comprising the proposed tenement.
The section 29 notice stated that the Mining Lease would authorise the grantee to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld), for a term of ten (10) years with the possibility of renewal for a term not exceeding ten (10) years.
The proposed tenement comprises 51.7301 hectares, is located approximately 6.5 km north west of Blair Athol and lies completely within the boundaries of the Wangan and Jagalingou native title determination application (QUD85/04). The Wangan and Jagalingou Peoples native title determination application was filed with the Federal Court on 27 May 2004 and was entered on the Register of Native Title Claims on 5 July 2004. The persons collectively comprising the applicant are Janice Barnes, Jessie Diver, Owen McEvoy, Deree King and Patrick Fisher. As the names of these persons appeared on the Register of Native Title claims as the applicant at the time that the section 29 notice was given, they automatically became a native title party (section 29(2)(b)), and a negotiation party (section 30A) for the purpose of the right to negotiate.
On 4 February 2008, the grantee party applied to the National Native Title Tribunal (the Tribunal), pursuant to sections 35 and 75, for a determination under section 38. As at least six months had passed since the notification day, the grantee party was entitled to make this application – section 35(1)(a).
On 5 February 2008 I was appointed the presiding Member to constitute the Tribunal for the purposes of conducting the inquiry into the future act determination application.
On 13 February 2008 I convened a preliminary conference in order to determine if agreement could be reached on any issues and to sensibly prepare this matter for hearing. At the preliminary conference a threshold issue which necessarily arose was whether there were any jurisdictional issues which needed to be addressed.
The native title party informed the Tribunal at the conference that it intended to raise a jurisdictional issue that in its opinion, the grantee party had not negotiated in good faith. No allegation was made by either the native title party or the grantee party that the government party had not negotiated in good faith.
Paragraph 31(1)(b) of the Act requires that each of the negotiation parties must negotiate in good faith with a view to obtaining the agreement of, in this case the native title party, to the doing of the future act or the doing of the future act subject to conditions to be complied with by any of the parties.
Section 36(2) provides that if any negotiation parties, other than the native title party, did not negotiate in good faith, the Tribunal must not make a determination pursuant to section 38. This subsection was inserted in 1998 and basically gives statutory force to the interpretation of the pre-1998 provisions by Carr J in Walley v Western Australia (1996) 67 FCR 366. As such it is a condition precedent for the Tribunal making a determination under section 38 that the government and the grantee parties have negotiated in good faith with the native title party. If the issue of good faith is contested, the Tribunal must deal with the challenge at the outset and until it is determined that there have been good faith negotiations, it cannot proceed to make a section 38 determination.
[10] Directions were made by the Tribunal on 13 February, 17 March, 25 March and 8 April 2008. Each of the parties, in accordance with the Directions, lodged with the Tribunal contentions on the issue of good faith. At the outset the native title party was represented by Gurang Land Council (Aboriginal Corporation) Native Title Representative Body (“Gurang Land Council”). Mr. Beston appeared for the native title party at the Preliminary Conference convened on 13 February 2008. Further, in compliance with the Directions made that day, Gurang Land Council lodged the contentions of the native title party with the Tribunal on 26 February 2008.
[11] On 31 March 2008 the Tribunal was emailed by Mr. Juergen Kaehne of Gurang Land Council that: “Janice Barnes, the only applicant for the native title party who has been in contact with me regarding this matter has instructed that she does not wish Gurang Land Council to represent or assist in this matter.” Formal correspondence, dated 4 April 2008, received from Gurang Land Council confirmed the email and advised that Gurang Land Council would not be representing the native title party in this matter. I convened a Conference on 8 April 2008 where all but one of the persons comprising the applicant participated by telephone as did Mr. Juergen Kaehne as well as Mr. Doxford and Ms. Fraser. It was confirmed by the persons comprising the applicant that they had withdrawn instructions from Gurang Land Council, and on that basis I excused Gurang Land Council from further participation in these proceedings. During those proceedings Mr. David Mailman, Director and Principal Consultant of Queensland Cultural Heritage and Native Title Management Services Pty Ltd spoke on behalf of the native title party and informed the Tribunal that he would be representing the native title party in lieu of Gurang Land Council in these proceedings.
I amended the Directions previously made to give the native title party a further seven days to provide the Tribunal, the government and grantee parties, with any further statement of contentions or documentary material. The native title party was also informed that if they wished to adopt and rely upon the contentions previously lodged on their behalf by Gurang Land Council, they were at liberty to do so. On 16 April 2008 Mr. Mailman wrote to the Tribunal and advised as follows:
“In compliance with your directions handed down on Tuesday 8th 2008, my client (Wangan and Jagalingou People Applicant) wish to provide notice they will not be making any additional submissions in relation to the QF08/1 Doxford/Wangan and Jangalingou matter.”
A further issue which also arose at this Conference was the agreement previously reached by the parties that the jurisdictional issue be determined “on the papers”. This took the form of a “Minute of Consent” signed by each of the parties and provided to the Tribunal on 27 March 2008. The Tribunal can make a determination “on the papers” if the issues required to be determined can be adequately determined in the absence of the parties and on the basis of the documents lodged with the Tribunal. Indeed, as Deputy President Sumner explained in Western Australia v Daniel (2002) 172 FLR 168 at 177, it comports with the thrust of section 109 of the Act: “Hearing a matter on the papers will assist the objectives of economy, informality and promptness and is appropriate provided the process is fair and just to all parties and is not inappropriate because of any cultural or customary concerns of the native title party (s109(2)).” At the 8 April 2008 Conference the persons comprising the applicant confirmed that they did not wish the Tribunal to convene a hearing, and likewise wanted the jurisdictional challenge to be determined “on the papers”. I formed the view, having considered the material lodged with the Tribunal, that it was appropriate to determine the jurisdictional challenge on the basis of the documentary material lodged by the parties.
The Contentions
[14] The contentions of the native title party are scant, but to the point. Essentially the native title party contends that the grantee party has not negotiated in good faith because he has not attempted to seriously negotiate at all or, at the very best, has negotiated in a cursory and inadequate manner. The following appears in the statement of contentions lodged by Gurang Land Council on 26 February 2008:
“9. No communications regarding the grantees mining lease or any subsequent proposal regarding that mining lease has ever been received by the solicitor on the record for the Wangan and Jagalingou People native title claim (QC04/6).
10. To the knowledge of the Gurang Land Council (Aboriginal Corporation), no compensation proposal has been put directly to the native title party by the grantee party.
11. In so failing to act, the grantee party has failed to fulfill the obligation to negotiate in good faith on the basis that:
(a) there was unreasonable delay in initiating communications in the first instance
(b) there was a failure to make any proposals in the first place
(c) there was a failure to contact one or more of the other parties
(d) there was a failure to follow up a lack of response from the other parties
(e) failure to attempt to organize a meeting between the native title and grantee parties.”
[15] The grantee party, in contradistinction, provided a detailed response to each of the above allegations. This detailed response was in addition to the material which was included in the Form 5 lodged by the grantee party which initiated the arbitral proceedings. The information provided in paragraph 14 is of relevance and is set out below in full:
“The applicant is a small alluvial miner who has spent many years in this industry and has certificates from most landholders where previous mining leases were held expressing satisfaction with the operator and rehabilitation. Because of the extreme delay this has caused (native title issues) we are in a poor financial position yet in an effort to expedite a meeting we offered an exceedingly generous and precedent setting percentage of production to the native title parties. We have received no response at all.”
Attached to the Form 5 were a number of documents, including Attachments “D” and “E” which purport to set out various phone calls made by both Mr. Doxford and a Mr. Peter Shevill, on behalf of Mr. Doxford, in the period April 2006 and January 2008 in connection with the grant of the proposed tenement. Mr. Doxford alleges that he rang or attempted to ring a Mr. Jonathon Malone, the legal advisor for the native title party, on the following dates: 17 July 2006, 19 July 2006, 20 July 2006, 9 August 2006 and 10 August 2006. He further alleges that he also telephoned Andrew Preston, who he claims was then the legal representative of the native title party on 24 July 2007. This was in addition to alleged repeated attempts to contact each of the persons comprising the applicant but, apparently only actually speaking to Mr. Owen McEvoy on 24 July 2007. The grantee party also details what he claims are numerous telephone calls he made to various State public servants in an endeavor to engage in negotiations for the grant of the proposed tenement.
[16] The grantee party attached with his statement of contentions a copy of a letter which he sent to Mr. Andrew Preston who he identified as the Wangan and Jagalingou “legal advisor” on 24 July 2007. Essentially the grantee party indicated his frustration with the period of time it had taken for the government party to give notice under section 29, pointing out that he was a small miner and was least able economically to deal with delays and concluded by stating: “I would greatly appreciate any help you can give me with this matter.”
[17] The grantee party seeks to rely upon correspondence he received from Ms. Shenda Evans of the Department of Mines and Energy dated 17 December 2007 which is attachment “F” to the Form 5 application. In that letter Ms. Evans states, inter alia:
“The State understands that you have tried unsuccessfully from 2006 to engage with the Wangan and Jagalingou People to reach an agreement associated with ML 70341. I also understand that you now wish for the application to proceed to the NNTT for resolution. As stated in the teleconference on 26 November that in the event that negotiations do not result in an agreement you can seek the matter to be referred to the Tribunal, no sooner than six months after the notification date for a determination. The earliest date you could have the matter referred is the 12 January 2008, however you will need to provide evidence to the Tribunal that you have attempted to negotiate in good faith.
Additionally, I wish to advise the State has attempted unsuccessfully to contact the GLCAC, the legal representative for the Wangan and Jagalingou People since 2006 arranging a meeting with the applicants to further discuss your mining lease application. For your records a copy of the correspondence dated 26 November 2007 is attached.
To date, the GLCAC has verbally advised the State they intend to have a meeting with the Wangan and Jagalingou People in early January 2008 and they have indicated an opportunity to discuss your application. I understand that both you and Mr Peter Sheville have agreed to attend this meeting to present your project to the traditional owners.”
The grantee party wrote on the copy of the letter annexed to the Form 5 the following after the last quoted paragraph: “Informed they didn’t want us at this meeting.”
[18] In response to the allegation by the native title party that no compensation proposal was put forward by the grantee party, the following information was provided in the grantee party’s statement of contentions:
“Compensation proposals were given to Shenda Evans (DME) at her request on the 20.11.07 and 26.11.07 so they could be forwarded to the Gurang Land Council to present to the Wangan and Jagalingou People at an upcoming meeting. Whether the Gurang Land Council advised their clients of this proposal is unknown by this party.”
The government party lodged with the Tribunal an Affidavit of Ms. Evans sworn on 1 April 2008. In the Affidavit she confirms that she had a conversation with the grantee party on 20 November where she raised the issue of what compensation, if any, the grantee party would offer the native title party. She deposed: “During that telephone discussion the Grantee party explained the nature and basis of the compensation proposal.” Ms. Evans denies, however, that the grantee party gave her a copy of a written compensation proposal on either 20 or 26 November 2007, and that no proposals were forwarded by her to Gurang Land Council. For the purpose of this matter, and as the Affidavit of Ms. Evans has not been challenged by any of the parties, I accept her statement as an accurate account of events.
[19] The grantee party also made submissions aimed at refuting the contentions in paragraph 11 of the native title party’s statement of contentions outlined previously at [14]. The thrust of the grantee party’s submissions was that he had made ongoing, albeit unsuccessful attempts, to initiate negotiations with the native title party since 2006. Whilst acknowledging that meaningful negotiations did not take place, the grantee party contends that he acted throughout in good faith and to the best of his ability and capacity in trying to reach an accord with the native title party. He categorically denies that he failed to follow up or respond to other parties and that he failed to attempt to organise a meeting between the grantee and native title parties.
[20] The government party in its statement of contentions of 3 March 2008 disputed the allegations of the native title party outlined in paragraphs 9 to 11 of its statement of contentions which are set out at [14]. The government party relies on the Affidavit of Shenda Bonita Evans sworn 1 March 2008 which was attached to its statement of contentions.
Ms. Evans deposed that she is employed as a Senior Native Title Officer in the Native Title Unit of the Department of Mines and Energy and is involved in facilitating and managing native title processes in relation to mining and exploration (paras 1 and 2). She further deposed that since September 2007 she was the primary contact person in her Unit for Mining Lease 70341 and had contact with officers of Gurang Land Council in relation to the proposed tenement. On 4 September 2007 Ms. Evans deposed that she contacted Mr. Jonathan Malone a project officer with Gurang Land Council, to organize a meeting of the negotiation parties, however Mr. Malone informed her that due to his connections with the native title party he could not be involved, but instead would contact Mr. Timithy Auguston, the Native Title Unit Manger at Gurang Land Council (paras 4 and 5).
[22] Annexed to Ms. Evans’ Affidavit is a series of emails. First an email of 4 September 2007 from Ms. Evans to Mr. Malone where she writes:
“Per our conversation this morning I am trying to find a contact for the Wangan and Jagalingau (sic) People for ML70341 (Clive Doxford) as the ML traverses their country. ML 70345 (sic) notification period closes 12 October and to my knowledge no meeting has been held with the TO’s and Miner. The Department would like to assist with initiating a meeting with the TO’s and Miner. Any assistance you would be able to provide me with would greatly assist.”
On the same day Mr. Auguston responded as follows: “I am actually meeting with the Wangan and Jagalingou applicants tomorrow in Rockhampton. If you can email me with some details I can pass them on to them to contact you in regard to this matter.” Ms. Evans deposes that on receipt of this email she telephoned Mr. Auguston and informed him that she understood that the government and grantee parties had been trying for some time to organize a meeting with the native title party, and both were anxious that such a meeting be organised as soon as possible. She also deposed:
“I understood from our conversation that Mr Auguston was already aware of the State’s and Grantee Party’s anxiety in this regard. It was agreed in our conversation that Mr. Auguston would discuss ML 70341 with the NTP at the meeting in Rockhampton on 5 September 2007 with a view to contacting me with a proposed date for a meeting with the NTP.” (para 7)
[23] On 8 October 2007 Ms. Evans again emailed Mr. Auguston: “The application is about to come out of notification and we need to meet with the traditional owners as soon as possible. Can you advise when you are next meeting with the group? I will also forward to you a copy of the application and maps.” On 10 October 2007 Mr. Auguston replied: “There are no dates in concrete at the moment but there will be a meeting with applicants in regard to another process once a countewr (sic) offer is table (sic) which whould (sic) be in the next few weeks. I will let you know when I have a confirmed date.”
[24] Ms. Evans deposes that she was contacted by Mr. Sheville, a representative of the grantee party on 11 October 2007 who was anxious to meet with the native title party (para 9). On 17 October 2007 Ms. Evans again emailed Mr. Auguston seeking information as to whether a meeting date had been agreed and suggesting he pass on her details to the native title party so they could contact her directly (para 10). On the same day Mr. Auguston emailed Ms. Evans as follows:
“We are looking at having a meeting with the applicants within the next two weeks. As you know we have been awaiting a response from RTCA in regards to the Clermont Coal Project and we are told that the applicants will receive one this Friday. When this is received a meeting will be organized to discuss this and this would be an excellent time to discuss ML 70345 (sic). If this is not soon enough we would be more than happy to give the details of the ML to the applicants for you to deal with.”
[25] On 26 November 2007 Ms. Julie Eylward, Administration Officer of the Rockhampton District Office of the Department of Mines and Energy wrote to Mr. Auguston formally asking for his assistance in establishing contact with the native title party and provided the contact details for Ms. Evans. The letter concluded with the following request: “It would be greatly appreciated if you would contact Ms Evans at your earliest convenience regarding her requested referral to the Wangan and Jagalingou People.” Of significance is the suggested background to this correspondence which is set out in paragraph 13 of Ms. Evans affidavit as follows:
“I discussed the letter with Mr. Auguston before it was sent to him. Mr. Auguston had advised me in a prior conversation that for privacy reasons he was unable to provide me with the contact details for the NTP. However, he told me that he was happy to forward on my contact details to each of the registered native title claimants. In the course of our discussions it was agreed that this would best be done by way of a letter to him. This was the reason why the letter dated 26 November 2007 was sent to Mr. Auguston.”
[26] The next event, from the viewpoint of the government party, was a telephone call Ms. Evans received on 3 December 2007 from Ms. Janice Barnes, one of the persons collectively comprising the applicant of the native title party. Annexed to the affidavit of Ms. Evans is a File Note of her conversation with Ms. Barnes. The File Note records that Ms. Barnes rang in response to the letter forwarded by Ms. Eylward of 26 November 2007. The following is part of the File Note: “I advised that GLC were planning to meet with the TO’s on the 14th of January 2008 and that this would be a good starting point. Ms Barnes indicated that she did not want the Land Council involved and that they had not been forwarding on documents to her and the other applicants ...” Despite the rather negative nature of the response the government party received from Ms. Barnes, Mr. Auguston emailed Ms. Evans on 18 December 2007 as follows: “I have confirmation finally for the meeting with the Wangan and Jagalingou Applicants. It will be on the Tuesday 29 January in Rockhampton. It will only take the morning so after there will be an opportunity to meet with them. At this stage no venue has been confirmed.”
[27] Ms. Evans, nonetheless, continued with a very proactive approach in an endeavour to facilitate an agreement between the native title and grantee parties. On 7 January 2008 she made direct contact with Ms. Barnes to obtain her permission to forward her contact details to the grantee party so they could discuss meeting later that month in Rockhampton. So far as is relevant the File Note states:
“I advised that Mr. Doxford was anxious to meet with the applicants ASAP to discuss the application and to finalise a 31 agreement and compensation as well as a windfall for the TO’s. I advised that after 12 January Mr. Doxford could proceed to the NNTT for a determination to grant his tenement and that we needed to meet ASAP to discuss a s31 agreement. Ms Barnes informed me that she would contact the Land Council as this was not acceptable. Ms Barnes gave her permission for her contact details to be forwarded to Mr. Doxford.”
Ms. Evans deposed that she subsequently provided the grantee party with Ms. Barnes’ contact details (para 16).
[28] On the same day Ms. Evans was contacted by a Mr. Simon Gall who claimed that he telephoned on behalf of Ms. Barnes. The File Note lodged with Ms. Evans’ affidavit identifies Mr. Gall as being from a company called “Archeo”, which company it is suggested represented the native title party in mining and cultural heritage issues. The File Note contains the following suggested outline of the telephone conversation:
“Simon has requested the applicants meet with the group to discuss his operations and the applicant had obligations under the Aboriginal Cultural Heritage Act. Simon put forward a plan for the applicant and the TO’s to finalise an s31 and ancillary agreement. The plan included
- At least 3 meetings and the applicants must meet all costs.
- Legal costs should be met by the explorer.
- TA/Sitting fees, travel and accommodation costs to be met by the explorer.
He advised that he must be at all meetings and the GLC need not be involved.
I informed Simon that I would raise this with the applicants and that the applicants had in the past tried to contact the TO’s and to date had no response. Simon is aware the application is out of notification and they can proceed to the NNTT for a determination.”
[29] Ms. Evans deposes that she received telephone calls on 9 January 2008 from Mr. Sheville and 11 January 2008 from the grantee party, Mr. Doxford. Both gentlemen inquired about the meeting of the native title party and were informed that it had been rescheduled from 14 January to 29 January. Both expressed their frustration at the delay and according to the File Note of Ms. Evans discussion with Mr. Sheville he: “advised that they no longer have the money to keep waiting and that they would need to look at their options and proceed to the NNTT to make a determination on the application.”
[30] Ms. Evans again emailed Mr. Auguston on 16 January 2008 confirming that the grantee party had made several unsuccessful attempts to contact the native title party in an endeavour to reach an agreement, and querying the relationship of Mr. Gall to the claim group. In his email reply of the same day, Mr. Auguston confirmed that Gurang Land Council was the legal representative of the native title party but that “Archaeo” represented the claim group for cultural heritage purposes.
[31] The final discussion Ms. Evans deposes to between herself and officers of Gurang Land Council occurred on 1 February 2008. Mr. Auguston was unable to discuss the grant of the proposed tenement for the next week and suggested she speak to Mr. Beston. According to Ms. Evans: “Bernie advised that he was not aware of the application.”
[32] Ms. Evans concludes her Affidavit with this observation:
“22. In my discussions with Mr. Auguston I often mentioned how anxious the State and the Grantee Party were to meet with the NTP to negotiate the grant of ML70341.”
[33] The native title party in its statement of contentions provides some support for at least some of the above account. The native title party submitted:
“12. Gurang Land Council (Aboriginal Corporation), being now aware of the matter through communications with the State of Queensland, put the grantees compensation offer to the native title party by way of written correspondence on 25 February 2008.
Conclusion
….Gurang Land Council (Aboriginal Corporation), upon learning of the offer by the grantee party, has put the offer to the native title party.”
The Law
[34] Section 36(2) of the Act provides: “If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make the determination on the application.” In Placer (Granny Smith) v Western Australia (1999) 163 FLR 87 (at 93) Deputy President Sumner found that the practical effect of this subsection was to place an “evidential burden” on the party alleging lack of good faith. Such an evidential burden requires, in the normal course, that party producing evidence to support its contentions. This interpretation is clearly correct. The subsection speaks of the negotiation party satisfying the arbitral body. To be satisfied that a negotiation party (or parties) has (have) not negotiated in good faith the Tribunal must be presented with material that substantiates such an allegation – Down/Barnes & Ors on behalf of the Wongatha People/Western Australia [2004] NNTTA 91 at [25]. It would be an extremely rare circumstance where the Tribunal would be satisfied simply on the basis of contentions by the legal representative without some primary evidence to substantiate those contentions. One instance where the Tribunal could be satisfied is where one of the remaining negotiation parties provides the Tribunal with primary material which supports the submissions of the party alleging lack of good faith. In the absence, however, of supporting material, it would, prima facie, not be open to the Tribunal to find it lacked jurisdiction solely on reliance on the documentary contentions produced. In such circumstances the Tribunal should hold a hearing because the issue of jurisdiction could be adequately determined in the absence of the parties. In this matter the native title party has not provided the Tribunal with any primary material which would support its version of events or the legal implications flowing from that suggested state of affairs.
[35] An excellent, and succinct, enunciation of what constitutes negotiating in good faith was provided by Deputy President Sumner in Placer (Granny Smith) v Western Australia (1999)163 FLR 87 at 93-94. I adopt the following statement of the law for the purpose of this inquiry:
“On the assumption that it is normally the native title party that will assert that the other negotiation parties have not negotiated in good faith the position, in summary, is that the Tribunal must be satisfied that the Government and grantee parties have negotiated in good faith with the native title parties with a view to obtaining the agreement of the native title parties to the granting of the mining leases with or without conditions. Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’: Western Australia v Taylor (1996) 134 FLR 211 at 219. Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Western Australia v Taylor as a guide to whether the obligation has been fulfilled. One of those indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour. Lack of good faith in the negotiations by the native title party will be relevant to whether the other parties have fulfilled their obligation and may impose a lesser standard on them.”
[36] Deputy President Sumner referred in the above quote to an earlier determination of the Tribunal in Western Australia v Taylor (1996) 134 FLR 211. In that matter Deputy President Sumner outlined a number of indicia that the Tribunal may have regard to in assessing whether a negotiation party, or parties, has or have negotiated in good faith: (224-225):
“(i) unreasonable delay in initiating communications in the first instance;
(ii) failure to make proposals in the first place;
(iii) the unexplained failure to communicate with the other parties within a reasonable time;
(iv) failure to contact one or more of the parties;
(v) failure to follow up a lack of response from the other parties;
(vi) failure to attempt to organize a meeting between the native title and grantee parties;
(vii) failure to take reasonable steps to facilitate and engage in discussions between the parties;
(viii) failing to respond to reasonable requests for relevant information within a reasonable time;
(ix) stalling negotiations by unexplained delays in responding to correspondence or telephone calls;
(x) unnecessary postponement of meetings;
(xi) sending negotiators without authority to do more than argue or listen;
(xii) refusing to agree on trivial matters, for example, a refusal to incorporate statutory provisions into an agreement;
(xiii) shifting position just as agreement seems in sight;
(xiv) adopting a rigid non-negotiable position;
(xv) failure to make counter proposals;
(xvi) refusal to sign a written agreement in respect of the negotiation process or otherwise;
(xvii) failure to do what a reasonable person would do in the circumstances.”
It should be noted that this determination was delivered prior to the 1998 amendments to the Act. Section 31 now requires all of the negotiation parties to negotiate in good faith as distinct from the situation when Taylor was decided when only the government party was so obliged. Further, while the indicia provide useful guidance on the content or scope of the obligation, they are guidelines only and each good faith jurisdictional challenge must be assessed on the basis of the evidence produced. In this regard I adopt the following statement of the law given by Member Lane in Western Australia v Dimer (2000) 163 FLR 426 at 446:
“To determine whether the grantee party and native title parties have negotiated to the required standard, the conduct of each party must be examined in the light of the actual circumstances in each case. It is unrealistic to apply a standard based on an artificial or hypothetical negotiation model, because to do so would suggest that a party need only follow mechanically a series of steps in order to be in a position to invoke the Tribunal’s jurisdiction.”
[37] 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.
[38] As Deputy President Sumner highlighted in Taylor (at 225) when assessing the reasonableness or otherwise of a negotiation party who it is alleged has not negotiated in good faith, the conduct and actions of the other negotiation parties is an essential component of such an assessment. The obligation to negotiate in good faith applies to all of the parties, and it is not sensible to ignore the actions of the other parties when assessing the negotiating conduct of the party being challenged. Indeed a lesser standard of negotiation is appropriate if one or more of the other negotiating parties has acted unreasonably or absented themselves from the process: Re Minister for Lands, State of Western Australia (1998) 3 AILR 261 at 265 per Deputy President Sumner. In that regard if a party refuses to negotiate or delays the commencement of negotiations, all that is required of the other negotiation parties is to periodically see if anything has changed: Re Minister for Lands, State of Western Australia at 265.
Findings
[39] The Tribunal has been presented by the native title party with no primary material which supports its contention that the grantee party has not negotiated in good faith. Instead the native title party presents the Tribunal with bald assertions that no communications from the grantee party were ever received by the solicitor on the record for the Wangan and Jagalingou People, that to its knowledge the grantee party did not directly put a compensation proposal to the native title party and that the grantee party has failed to negotiate in good faith because he did not, inter alia, put proposals, organise meetings or contact the relevant parties.
[40] The material lodged by both the grantee and government parties presents a different picture. This material suggests that both the grantee and government parties were diligent in attempting to negotiate with the native title party. It paints a picture of a government department constantly contacting and reminding the legal representative of the native title party of the need for negotiations and the desire of both the government and grantee parties to engage with members of the claim group. The emails and file notes annexed to the Affidavit of Ms. Evans, as well as the material directly deposed to, demonstrate that she directly contacted officers of Gurang Land Council on 4 September 2007 (three contacts), 8 October 2007, 17 October 2007, 26 November 2007 (approximately, as para 13 of Ms. Evans’ affidavit is not clear on the exact time), 7 January 2008, 16 January 2008 and 1 February 2008. In addition she spoke to Ms. Janice Barnes on 3 December 2007 and Mr. Simon Gall on 7 January 2008. The material lodged by the grantee party suggests that Mr. Doxford attempted telephone contact with Mr. Jonathan Malone of Gurang Land Council on 17 July 2006, 18 July 2006, 19 July 2006, 20 July 2006, 31 July 2006, 9 August 2006 and 10 August 2006. The grantee party also suggested that he spoke and wrote to Mr. Andrew Preston, who he claims was the legal advisor to the claim group on 24 July 2007, as well as Mr. Simon Gall on the same day as well as 14 August 2007 and 27 August 2007.
[41] The statement of contentions of the native title party is carefully worded. It does not suggest that the grantee party failed to contact Gurang Land Council, the legal representative of the native title party at the relevant time; rather it alleges that no communications were received by “the solicitor on the record”. The immediate response to this contention is that it does not assist the native title party. How Gurang Land Council manages its internal communications is a matter for it. There is no suggestion that all communications to Gurang Land Council regarding proposed future acts have to be communicated to the solicitor on the record. The Tribunal was presented with no communications protocol which was provided to the other negotiation parties by Gurang Land Council about who and by what means communications should be directed. In any event when the grantee party lodged the Form 5 with the Tribunal he annexed to that Form a number of documents. Annexure “D” was a document purporting to outline various telephone calls and contacts the grantee party had made since 28 April 2006 (the day the Queensland Land and Resources Tribunal recommended that the proposed tenement be granted), including those to Gurang Land Council. Gurang Land Council was put on notice from the commencement of these proceedings of the suggested contacts the grantee party had claimed he had made with officers of that organisation. Yet despite this, Gurang Land Council did not lodge with the contentions of the native title party any Affidavits from any of their officers that contact had not been made, and the contentions are careful in only suggesting that the “solicitor on the record” was not contacted. The obligation placed on a grantee party to negotiate in good faith does not require that party to ascertain who is the solicitor on the record or who has the authority to negotiate in an organisation the size of a representative body. The obligation is to use best endeavours to make contact with the native title party and to evince a desire to negotiate, and then to negotiate with an open mind in an endeavour to reach an accord, if possible. There is a professional duty imposed on a representative body who is the legal representative of a native title party requiring that body to inform a negotiation party seeking to negotiate whom to contact, and to be proactive in advancing the negotiation process. The fact that the proponent is a small miner, and that the benefits that may flow to the native title party from any accord may be minimal, is not relevant. Each proposed future act has to be dealt with on its merits, otherwise most time and negotiating effort would be expended on large scale mining.
[42] I find, based on the material before the Tribunal, that the grantee party did make contact with Gurang Land Council.
[43] The standard of negotiation conduct expected of the grantee party in this matter is impacted significantly by the following key factors:
(a) the native title party failed consistently to engage with the government and grantee parties despite persistent requests for meetings and engagement;
(b)the native title party showed no enthusiasm for engaging with either the grantee or government parties;
(c) the government party took on the role of contacting the legal representative of the native title party and putting to Gurang Land Council the views and desires of both the government and the grantee parties;
(d) the grantee party has few financial resources, and his ability to engage in negotiations was and is severely limited. Material provided by the grantee party when he first lodged his Form 5 indicate that he is a man of few means and has few resources to call upon;
(e) despite the severe financial restrictions faced by the grantee party, he and his associate, Mr. Sheville, were regularly seeking to make contact with the key players;
(f) at no stage, until the very end of the negotiation period, did the grantee party express anything other than a strong desire to work with the native title party and to reach an accord which realistically could meet both their expectations and aspirations and his capacity to profitably engage in small scale mining activities; and
(g) the Tribunal accepts the contention of the government party (para 4.4) that “the conduct of the Native Title Party affected the Grantee Party’s ability to negotiate in good faith.”
[44] The material before the Tribunal, a summary of which has been set out previously, speaks for itself. I have been particularly impressed by the material lodged by the government party. Despite criticisms by the grantee party of alleged delays and other deficiencies with the relevant Government Departments, the primary material before the Tribunal highlights the proactive and professional way in which the relevant public servants undertook their duties. Indeed, it is clear that Ms. Evans went out of her way to constantly communicate with Gurang Land Council reminding officers of key times, emphasising the need for engagement, highlighting the risks that the effluxion of time would have, emphasising the keenness of the grantee party to reach an accord and, finally, that time was running out and that if agreement could not be reached then a request for arbitration may be made. I also find that the grantee party attempted to do everything within his capacity to contact key people and put forward proposals. Much of the criticism raised by the grantee party is born of frustration of the slowness of the process, the inability of the native title party to reach an accord with him and of the financial problems he faced which were compounding with the passage of time.
[45] I find that there is no material before the Tribunal which would substantiate the contentions of the native title party that the grantee party failed to negotiate in good faith. In short, the native title party has failed to meet the evidential burden of substantiating its jurisdictional challenge.
Decision
The grantee party has fulfilled his obligation to negotiate in good faith as required by paragraph 31(1)(b) of the Native Title Act 1993 (Cth) and the Tribunal has jurisdiction to conduct an inquiry and make a determination pursuant to section 38.
John Sosso
Deputy President
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