Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/Queensland

In the case before the court, Drake Coal Pty Ltd and Byerwen Coal Pty Ltd sought a future act determination regarding the proposed grant of mining leases. The applicants were the Birri People, represented by Grace Smallwood and others, and the respondent was the State of Queensland. The applicants contended that the grantee parties had not negotiated in good faith, alleging various instances of bad faith conduct, including failure to respond to reasonable requests, stalling negotiations, sending negotiators without authority, and adopting a non-negotiable position. The central issue for the court was to determine whether the grantee parties had indeed negotiated in bad faith under the Native Title Act 1993.

The court examined the conduct of the grantee parties in detail, assessing whether their actions were consistent with the standard of good faith negotiation. The applicants argued that the grantee parties had engaged in conduct that demonstrated bad faith, such as failing to respond to requests for information and negotiations, sending negotiators without the authority to make decisions, and refusing to agree on trivial matters. The court considered whether these actions, individually and collectively, indicated a failure to negotiate in good faith. Ultimately, the court found that the grantee parties had not acted in bad faith, as they had engaged in the negotiation process, albeit imperfectly, and had taken steps to reach an agreement, even if the process was protracted.

The court concluded that, while there were shortcomings in the negotiation process, these did not reach the threshold of bad faith. The grantee parties had participated in negotiations, albeit with some delays and procedural issues, and had made efforts to reach an agreement. The court found that the conduct of the grantee parties, although not ideal, did not amount to bad faith as defined by the legislation. Consequently, the court ruled that the grantee parties had negotiated in good faith.

The court ordered that the future act determination be made in favour of the respondent, the State of Queensland, as the grantee parties had not negotiated in bad faith. The applicants' applications for a future act determination were dismissed. The court's decision underscores the importance of good faith in native title negotiations and highlights the threshold for determining bad faith under the Native Title Act.