FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aborginal Corporation/Western Australia - [2009] NNTTA 62

NATIONAL NATIVE TITLE TRIBUNAL

FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aborginal Corporation/Western Australia, [2009] NNTTA 62 (23 June 2009)

Application No: WF08/32 and WF08/33

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

FMG Pilbara Pty Ltd and Flinders Mines Ltd (grantee parties)

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Wintawari Guruma Aboriginal Corporation WC97/89 (native title party)

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The State of Western Australia (Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal: Daniel O’Dea, Member

Place: Perth
Date: 23 June 2009

Catchwords: Native title – future acts – applications for a determination in relation to mining leases – power – jurisdiction – whether Government party and grantee parties have negotiated in good faith – scope of the obligation to negotiate in good faith (s 31(2)) – conduct to be judged from the negotiations overall – native title party has not negotiated in good faith – Government party and grantee parties have negotiated in good faith.

Legislation:Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA)
Native Title Act 1993 (Cth) ss 29, 30, 31, 35, 36(2), 38, 39, 238

Cases:Cox v Western Australia (2008), NNTTA 90, 219 FLR 72
Cameron v Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland) (2005), NNTTA 84, 196 FLR 37
FMG Pilbara Pty Ltd v Cox, [2009] FCAFC 49 (30 April 2009)
FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, NNTT WF08/31, [2009] NNTTA 38 (24 April 2009), Daniel O’Dea, Member
Griffin Coal Mining Co Pty Ltd v Nyungar People (Gnaala Karla Booja)/Western Australia, (2005) 196 FLR 319
Gulliver Productions Pty Ltd/ Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia, NNTT WF05/1, [2005] NNTTA 88 (30 November 2005), Hon C J Sumner, Deputy President
Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 (1 March 2007)
Minister for Mines, State of Western Australia/Kevin Peter Walley on behalf of the Ngoonooru Wadjari People, NNTT WF97/5, [1998] NNTTA 4 (25 March 1998), Hon C J Sumner, Member
Placer (Granny Smith) Pty Ltd & Anor v Western Australia/Ron Harrington Smith & Others on behalf of the Wongatha People, (1999) 163 FLR 87
Risk v Williamson, (1998) 87 FCR 202
Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farms Pty Ltd & Anor/Western Australia, NNTT WF99/1, [1999] NNTA 235 (27 August 1999), Hon E M Franklyn QC, Deputy President
Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People/June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003), Hon C J Sumner
Walley & Ors v Western Australia (1996) 67 FCR 366
Western Australia v Dimer (2000) 163 FLR 426
Western Australia v Taylor (1996) 134 FLR 211
Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Leslie Hayes, Glenys Hayes, Judy Hayes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji People (WC99/45), NNTT WF00/7, [2001] NNTTA 18 (9 March 2001), Hon C J Sumner

Hearing dates:                 n/a
Representatives for        Mr Ronald Bower, Corser & Corser Lawyers
the native title party:      Mr Jerome Frewen, Desert Management Ltd
Representatives for        Mr Ken Green, Green Legal Pty Ltd
the grantee parties:         Mr Sukhpal Singh, FMG Pilbara Pty Ltd
Representatives for        Mr Matthew Pudovskis and Barry King, State Solicitor’s Office
the Government party:  Ms Paola O’Neill, Department of Mines and Petroleum

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

Background

On the following dates, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of future acts, namely the grant of the following mining leases (‘the proposed leases’) under the Mining Act 1978 (WA) to the following grantee parties:
·10 October 2007 - M47/1407, 1769.7 hectares, to Flinders Diamonds Ltd
(‘second grantee party’)
·10 October 2007 - M47/1408, 5773.98 hectares, to FMG Pilbara Pty Ltd
(‘first grantee party’)
·17 January 2008 - M47/1410, 312.39 hectares to FMG Pilbara Pty Ltd
(‘first grantee party’)
On 5 May 2008, Flinders Diamonds Ltd registered a change of name to Flinders Mines Ltd.
The proposed leases are located between 62 and 64 kilometres north west of Tom Price in the Shire of Ashburton and are overlapped at 99.42, 99.51 and 100 percent respectively by the Wintawari Guruma Aboriginal Corporation prescribed body corporate (established following the Federal Court making a determination of native title in favour of the Eastern Guruma People WC97/89 on 1 March 2007 – Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365). Accordingly, the native title party in respect of these proceedings is the Wintawari Guruma Aboriginal Corporation.
The proposed leases are 100 percent overlapped by Department of Environment and Conservation threatened ecological community buffer zones. For the main, the underlying tenure is vacant crown land with the exception of General Lease I123646 which overlaps M47/1407 at 0.6 percent and M47/1408 at 0.5 percent and Hamersley Pastoral Lease 3114/1277 which overlaps M47/1408 at 19.9 percent. There is no prior history of any mining or exploration activity over the area other than the following active licences:
·Exploration licence E47/1306 held by Flinders Mines Ltd since 17 November 2005 – overlapping M47/1407 at 100 percent;
·Exploration licence E47/1372 held by FMG Pilbara Pty Ltd since 16 May 2007 – overlapping M47/1408 at 51.4 percent;
·Exploration licence E47/1524 held by FMG Pilbara Pty Ltd since 15 June 2007 – overlapping M47/1408 at 48.6 percent;
·Exploration licence E47/1333 held by FMG Pilbara Pty Ltd since 28 July 2007 – overlapping M47/1410 at 100 percent; and
·Miscellaneous licence L47/48 held by Cape Lambert Iron Associates since 5 September 2000 to conduct all activities for the design, planning, construction, operation and maintenance of a railway and all associated infrastructure in connection with mining operations to be carried out pursuant to the Iron Ore (Robe River) Agreement Act 1964 – overlapping M47/1410 at 61.9 percent.
On 19 December 2008, being a date more than six months after the s 29 notice was given, the grantee parties made applications pursuant to s 35 of the Act for a future act determination under s 38 (‘the s 35 Applications’). The s 35 Applications were made on the basis that the negotiation parties had not been able to reach agreement within six months of the Government party giving notice of its intention to do the act.
At the preliminary conference on 19 January 2009 the native title party advised the Tribunal it intended to allege the grantee and Government parties had not negotiated in good faith with the native title party in accordance with s 31(1)(b) of the Act and accordingly, pursuant to s 36(2), the Tribunal did not have power to make the determination requested in the s 35 Applications. In consequence, and with the consent of all the parties, a series of orders were made relating to the lodging of materials relevant to the conduct of the negotiations in order that the Tribunal might determine the issue. Those orders required the native title party to lodge its submissions by 16 February 2009, the Government and grantee parties by 23 February 2009 with the native title party right to reply by 3 March 2009.
No submissions were received from the native title party by the due date of Monday 16 February 2009, nor any request for an extension. A number of telephone calls from Tribunal Officers were made between Monday 16 February 2009 and Friday 20 February 2009 in an attempt to contact the native title party representative Mr Ronald Bower, leaving messages with his voicemail service and with his assistant, who later confirmed the messages had been conveyed to Mr Bower. On 18 February 2009 the Government party submitted via email (copied to all the parties) that in the absence of any communication from the native title party, the directions relating to an inquiry into good faith be vacated. On the same day, the representative for the grantee parties made the same submission (copied to all the parties). On Thursday 19 February 2009 the Tribunal sent the following correspondence all parties:
“At the preliminary conference held on 19 January 2009 the native title party asserted that it takes issue with the grantee and/or Government party’s negotiations in good faith and requested that Directions be made to include the good faith issue (Directions 1-4 issued on 19 January 2009). Despite such, the native title party has failed to lodge evidence and contentions in compliance with Direction 1, nor has their representative communicated with the parties or the Tribunal as to whether it still intends to do so.
With reference to s36(2) of the Native Title Act 1993 (Cth), there is no evidence before the Tribunal for it to consider whether it must not make a determination on the above applications, nor any communication from the native title party on the issue. Therefore it appears that the native title party no longer takes issue with the grantee and/or Government party’s negotiations in good faith. The grantee and the Government parties have both submitted that directions 1-4 be vacated.
The native title party is requested to respond by COB today on whether the Tribunal can vacate Directions 1-4 and proceed to a substantive inquiry or whether it still takes issue with the grantee and/or Government party’s negotiations in good faith. If the latter, the native title party is encouraged to contact the other parties to attempt to confer on any request for an extension to directions which is to be submitted by COB tomorrow.”
On Monday 23 February 2009, no communication had been made by the native title party representative and the directions for an inquiry into good faith were vacated, with the remaining directions for the s 38 inquiry brought forward, requiring the grantee and Government parties’ submissions on 9 March 2009, and the native title party’s submissions by 14 April 2009.
On Wednesday 25 February 2009, with no prior communication, the native title party lodged submissions regarding the grantee and Government parties’ good faith conduct. A covering letter apologized for the apparent discourtesy of non-compliance and lack of communication which was said to be “a result of a combination of difficulties which were beyond our control”. A directions hearing was held on 5 March 2009 to discuss how to proceed with the matter. At the Directions hearing, the native title party representative provided no satisfactory reasons for the discourtesy in not communicating with the Tribunal or the other parties about delays in compliance with directions.

Lack of good faith

The Tribunal must be satisfied as a pre-condition to determining a s 35 application that the Government and grantee parties have negotiated in good faith as required by s 31(1)(b) of the Act and has ruled that the effect of s 36(2) is to place an “evidential burden” on the party alleging lack of good faith in negotiations which would normally require that party to adduce evidence to support its allegations. The Tribunal is not required to adopt strict rules on the burden of proof but any party alleging a lack of good faith in negotiations must provide contentions and documents which specify in detail the matters it relies on (Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farms Pty Ltd & Anor/Western Australia, NNTT WF99/1, [1999] NNTTA 235 (27 August 1999) Hon E M Franklyn QC, Deputy President (at pps 4, 21); Placer (Granny Smith) Pty Ltd & Anor v Western Australia/Ron Harrington Smith & Others on behalf of the Wongatha People, 163 FLR 87, (‘Placer’) at [21]-[28]).
Once the issue of good faith has been raised, the Tribunal must deal with it in order to satisfy itself that it has the power to proceed to make a determination under s 38. This is so, even if the issue is raised belatedly (Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People/June Ashwin & Ors on behalf of the Wutha People/Western Australia, [2003] NNTT WF03/2, NNTTA 82 (9 July 2003), Hon C J Sumner (at 12-16) ). Consequently, despite the behavior of the native title party representative, the Tribunal must deal with the submissions regarding the conduct of the grantee and Government parties. The grantee and Government parties were given opportunity to lodge responsive submissions, and following the filing of those submissions, the parties requested the matter be dealt with on the papers. I believe it appropriate to do so in the circumstances.

Good faith negotiations – legal principles

The obligation to negotiate in good faith is contained in s 31 of the Act:
‘31 Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with the view to obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any of the parties.
Note:The native title parties are set out in paragraphs 29(2)(a) and (b) and s 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Negotiation in good faith
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.’
The Tribunal considered the applicable legal principles to the issue of negotiation in good faith in Gulliver Productions Pty Ltd/Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia, NNTT WF05/1, [2005] NNTTA 88 (30 November 2005), Hon C J Sumner, Deputy President, (‘Gulliver’) at [8]-[20] and in Griffin Coal Mining Co Pty Ltd v Nyungar People (Gnaala Karla Booja)/Western Australia, (2005) 196 FLR 319, (‘Griffin’) at 328-329/[31]-[35] and 331-334/[39]-[47]. Recently the Full Court of the Federal Court of Australia expounded on the principles that apply when considering if a party has negotiated in good faith (FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 (30 April 2009)(‘Cox’) which set aside the Tribunal’s decision Cox v Western Australia (2008), NNTTA 90, 219 FLR 72) and I am, of course, bound by the findings of that Court.
In its submissions the grantee parties argued that Cox relevantly stated the law in relation to good faith in native title negotiations in the following terms:
1)There is no requirement that negotiations for the purposes of section 31(1)(b) of the Native Title Act 1993 (Cth) must reach any stage. In particular there is no requirement that negotiations for the purposes of that section must reach beyond an embryonic stage, (Cox at [23]).
2)The requirement of good faith in section 31(1)(b) of the Act is directed to the quality of the party’s conduct, not to the quality of the negotiations themselves (Cox at [20]).
3)There is no prescribed content and manner for negotiations for the purpose of section 31(1)(b) other than that negotiations must be conducted in good faith and with a view to obtaining agreement about the doing of the future act (Cox at [38]).
4)If a grantee party or a Government party have negotiated in good faith, then (provided the relevant six month period has expired) there is nothing further required of the party (Cox at [19]).
I accept that that is now an accurate and complete statement of the law in relation to the question of negotiation in good faith pursuant to section 31(1)(b) of the Act.
In Gulliver and Griffin the Tribunal refers approvingly to earlier decisions of the Tribunal as to what was said to constitute the obligation to negotiate in good faith in relation to a future act pursuant to s 31(1)(b). Those cases included Western Australia v Taylor (1996) 134 FLR 211 (‘Njamal’) where the so called Njamal indicia are outlined and discussed and Placer and Western Australia v Dimer (2000) 163 FLR 426. Those cases essentially discuss the kind of conduct which is required of the parties in order to meet the obligation to negotiate in good faith and the kind of conduct that may be indicative of a failure to negotiate in good faith.
In Cox, the Full Court emphasised that it had been repeatedly recognised that the inquiry into the question of good faith is directed to the quality of the party’s conduct. That conduct is to be assessed by reference to what a party has done or failed to do in the course of negotiations. The assessment is directed to, and is concerned with, a party’s state of mind, as manifested by its conduct in the negotiations (at 20).
The Court also accepted that if a grantee party had merely “gone through the motions” with a closed mind or a rigid or predetermined position, it would not have negotiated in good faith. In Cox v Western Australia, the Tribunal found no such behaviour and, consequently, the Court came to the conclusion that there was no basis for the Tribunal to find that there was a failure to negotiate in good faith, merely because the negotiations had only reached a preliminary stage before the expiry of the six month period (Cox at 30). The Full Court acknowledged that good faith must be construed contextually and that if the failure of the negotiations to reach or pass an embryonic stage could be attributed to an absence of good faith, such as “deliberate delay, sharp practice, misleading negotiation or other unsatisfactory or unconscionable conduct” the obligation had not been met (Cox at 27).
The behaviour identified in the earlier cases before the Tribunal, referred to above, which was said to be indicative of a failure to negotiate in good faith is still highly relevant to the inquiry that the Tribunal is required to undertake into the conduct of the parties in making the contextual assessment required. In light of the finding of the Full Court in Cox, that statement, of course, needs to be qualified by the fact that the occasion for such behaviour, or the avoidance thereof, may not have arisen. If the conduct of the parties in the negotiation is such as does not give rise to any suggestion of a lack of good faith, the simple fact that they have failed to undertake a number of the tasks identified in the indicia, which would normally arise in the course of substantive negotiation, will not be relevant. Again, it goes back to the point made by the Full Court that the conduct must be construed contextually (Cox at 27).
A further issue which arises from the decision made by the Full Court in Cox relates to the question of the requirement to negotiate in good faith, subsequent to the date, six months after the notification date, at which point a party might bring an application under s35. The Full Court addresses that issue at paragraph 22:
‘There are two obligations, therefore, spelt out in the statutory scheme. The first is that the negotiations which are directed to reaching an agreement are to be carried out in good faith and the second is that a period of not less than six months has passed since the date on which the s 29 notice is given.’

In my view that means that a negotiation party may bring a s 35 application six months after the notification date, if they have negotiated in good faith in the period prior to that. At that point, there is no further obligation on a party to continue to negotiate, however, if a party chooses to continue the process of negotiation after that date, it is not absolved of the obligation to continue to conduct itself in good faith. Consequently, in my view, the Tribunal is entitled to take into account the whole of the conduct of the negotiating parties from the notification date to the point at which an application under s 35 is made. That account, of course, would include conduct in the period subsequent to the end of the six month period. I believe this view is reinforced by the wording of s 35(1)(a) which makes reference to a negotiation period of “at least six months”, similarly, at paragraph 20 in the Full Court’s decision, the wording relates to “not less than” six months. Any other interpretation which suggested that a negotiating party is, indeed, absolved from the requirement of good faith immediately on the passing of the six month period would seem to be somewhat peculiar.

Contentions and evidence

The native title party has provided the following submissions and evidence supporting its contention that the Government and grantee parties did not negotiate in good faith regarding the doing of the act:
·Native title party’s submissions for good faith decision and annexures ‘NTP1’ to ‘NTP10’, lodged 26 February 2009
·Native title party’s response to grantee parties’ and Government party’s submissions, lodged 1 April 2009
The grantee parties’ evidence and submissions in relation to the good faith issue comprise the following documents:
·Grantee parties’ statement of contentions, lodged 23 March 2009
·Grantee parties’ statement of facts, lodged 23 March 2009, comprising a history of negotiations over a whole of claim land access agreement from 30 March 2006 until 19 December 2008 (lodgement of the s. 35 Applications) and supporting documents ‘GP1’ to ‘GP60’
·Affidavit of Sukhpal Singh, sworn 23 March 2009, dealing with some of the issues raised in the native title party’s submissions for good faith and annexures ‘SS1’ to ‘SS4’
·Grantee parties’ further submissions on the issue of good faith, lodged 11 May 2009 in response to the Tribunal’s 4 May 2009 invitation to parties to lodge further submissions in light of Cox
The Government party’s evidence and submissions in relation to the good faith issue comprise the following documents:
·Government party’s statement of contentions, lodged 23 March 2009
·Affidavit of Paola O’Neill, sworn 23 March 2009, providing an overview of negotiations, and attaching correspondence and other documents dated between 13 September 2007 and 18 December 2008 and annexures ‘PON1’ to ‘PON29’
·Government party’s further contentions regarding negotiations in good faith – effect of Decision in Cox, lodged 11 May 2009 in response to the Tribunal’s 4 May 2009 invitation to parties to lodge further submissions in light of Cox

History of negotiations

Before addressing the history of negotiations, it is worth noting the grantee parties have submitted an extensive “Statement of Facts” and evidence of correspondence and negotiations between the parties from 30 March 2006 to the lodgement of the s 35 Applications on 19 December 2008. The native title party has provided no evidence relating to the negotiations which took place between the parties prior to 5 September 2008 other than a reference to the negation protocol between the grantee and native title parties dated 6 November 2006. Given the native title party has not contested the “Statement of Facts” and supporting documents (GP1 to GP60) lodged by the grantee parties, I take these submissions to be a true, accurate and complete record of the history of negotiations between the grantee parties and the native title party.

Can negotiations conducted before s 29 notification satisfy the requirement of s31(1)(b)?

At para 4.6 of its contentions, the grantee parties contend “all of its negotiations since 30 March 2006 have been, “with a view” to obtaining the agreement of the native title party to the grant of the Tenements and accordingly satisfy the requirement of s 31(1)(b) of the NTA”. It states the first grantee party made the same contention to the Full Federal Court in Cox. Whilst it may be correct to say that for the grantee parties, all of its negotiations since 30 March 2006 were conducted “with a view” to obtaining the agreement of the native title party in respect of the proposed leases, in my view it is not correct to say that all of its negotiations since 20 March 2006 satisfy the requirements of s 31(1)(b) of the Act. Nor is such a contention supported by the Court in Cox. At [20], their Honours said:
‘It has been repeatedly recognised that the requirement for good faith is directed to the quality of a party’s conduct. It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in the negotiations.’
In that case, their Honours saw as critical the “quality” of that grantee party’s conduct (as found by the Tribunal on the facts) during the six-month period that must elapse from the s 29 notification day specified in the relevant s 29 notice before a future act determination application can be made under ss 35 and 75 and clearly the focus of consideration must be on the negotiations conducted, with a view to obtaining the agreement of those native title parties to the grant of the tenement concerned, during the relevant six-month period in determining whether the requirements of s 31(1)(b) have been satisfied (see also [28]-[30]).
Consequently, in my view it is the quality of a grantee party’s conduct subsequent to the relevant s 29 notification days that the Tribunal must assess for the purposes of s 31(1)(b). Negotiations which occurred prior to those dates are relevant to that assessment only as background information which may assist in understanding the nature of the subsequent behavior of the parties. As Member Sosso has observed (Cameron v Hoolihan (2005) 196 FLR 37 at 47):
‘There is no restriction on the Tribunal to receive into evidence past conduct of a negotiation party, if it is relevant to the issue of good faith. It would be wholly artificial to limit material to conduct arising after the commencement of good faith negotiations. Clearly parties engaged in such negotiations are influenced by a range of factors, and past negotiations and conduct may well be relevant not only to assessing the negotiations but also the overall tenor of the proceedings. The Tribunal and Federal Court have recognized that relationships do change once negotiations start, and if a party was so influenced by past negotiations that they did not approach the new negotiations with an open mind and a preparedness to reach a reasonable accord, they would be the party failing to negotiate in good faith [47].’
In this matter the relevant s 29 notification days are 10 October 2007 for M47/1407 and M47/1408 and 17 January 2008 for M47/1410. Consequently I have only had regard to the material prior to s 29 notification, being GP1 to GP23 for the limited purposes discussed above.

The negotiations

Between 30 March 2006 and the s 29 notification of M47/1407 and M47/1408 on 10 October 2007 and of M47/1410 on 17 January 2008, the evidence before the Tribunal demonstrates that, rather than specifically discussing any existing or proposed tenement applications, both the native title party and the grantee parties were negotiating a Whole of Claim Land Access Agreement (WOCLAA) pursuant to a negotiation protocol signed on 6 November 2006 (NTP1 and GP12). The correspondence following s 29 notification of the proposed leases appears to indicate that parties continued to pursue a WOCLAA in which the proposed leases were included (see GP 24, 25, 26, 32).
On 11 October 2007, being the day following s 29 notification of M47/1407 and M47/1408, Jerome Frewen, a representative for the native title party, wrote to Blair McGlew, a representative for the first grantee party, regarding M47/1408 (also copied to Mr Bower, the legal representative for the native title party):
‘This matter will be joined to the negotiations currently taking place between the parties.’ (GP24)

And to the second grantee party regarding M47/1407 (also copied to Mr Bower):

‘... the group is able to forward you a Negotiation Protocol to ensure that the negotiations are able to be conducted in good faith, and with appropriate support. This would enable the commencement of the negotiation process.’ (GP25)

On 19 October 2007, the second grantee party confirmed via email that the first grantee party was authorised to negotiate on its behalf (GP26).
On 16 January 2008, following section 29 notification of M47/1410, Mr Frewen wrote to the first grantee party (copied to Mr Bower):
‘It is noted that parties have a Negotiation Protocol in place, and unless we are advised otherwise, this particular matter is assumed to be included within the current negotiation proceeding between the parties.’ (GP32)
On 28 April 2008 a meeting was held between the grantee parties’ representatives and the native title parties’ representatives to discuss the WOCLAA. The grantee parties’ supporting documents includes a file note of that meeting and follow up letter dated 27 May 2008 in which it was noted that most aspects of the WOCLAA could be agreed upon and that the outstanding issue between the parties was the level of monetary compensation for iron ore mined. As two outcomes of the meeting, the negotiation team for the grantee parties agreed to commission an independent economist to “develop a formula that may offer a way forward” on the monetary compensation and to confer with their executive “to examine whether there exists any suitable alternative approach or room for movement” on their offer (GP33 and 37).
On 13 May 2008, in anticipation of the Government party’s standard initial negotiation letter (sent 20 May 2008), the first grantee party provided the native title party (via Mr Bower) with the material that would be required of it by that letter for the proposed leases and for other mining leases M47/1409 and M47/1411 (GP34).
On 23 May 2008, Jerome Frewen wrote to Sara Johnsson, representative for the grantee parties, regarding a number mining lease applications (M47/1407-11) which included the proposed leases (copied to Mr Bower):
‘To this date, no negotiations have taken place in respect of the above Mining Lease applications; it is suggested that a Negotiation Protocol be entered into between the parties, to allow for the negotiations to proceed.... Once this has been executed, negotiations on the above Mining Leases can then commence’ (GP35)

On 26 May 2008, Briony McGinty, representative for the grantee parties, replied:
‘EASTERN GURUMA PEOPLE (WC97/89) & FORTESUCE M47/1404, M47/1407, M47/1408-11
....You are aware that on 6 November 2006, Eastern Guruma and Fortescue Metals Group (“Fortescue”) entered into a negotiation protocol for a Regional Commercial Agreement (“2006 Protocol”). The purpose of the 2006 Protocol was to set out the agreed manner of negotiations regarding the grant of “tenements and other interests in, and access to land for the purpose of the Project and associated infrastructure”.
Since that time, and pursuant to the 2006 Protocol, there have been extensive negotiations between the parties towards reaching a “whole of claim” agreement.... However, your letter of 23 May 2006 to Sara Johnsson makes no mention of the 2006 Protocol and suggests that a new negotiation protocol should be entered into.
I would be grateful of you could advise whether Eastern Guruma resile from the 2006 Protocol.
For its part, Fortescue is happy with the 2006 Protocol and wishes to continue negotiations with a view to the parties entering into a Regional Commercial Agreement.
I would be grateful if you could advise whether Eastern Guruma wish to continue negotiations with a view to parties entering into a Regional Commercial Agreement or no longer wish to pursue that course.
Fortescue has to date assumed that the abovementioned tenements are within current negotiations conducted under the umbrella of the 2006 Protocol and has to date proceeded on that basis. Your clarification if that is not the case would be greatly appreciated.’ (GP36)

On 26 May 2008, a negotiation meeting, funded by the grantee parties was held between the grantee parties’ representatives and the native title party representatives being Ronald Bower, Ronald Vilaflor, Jerome Frewen and five members of the native title party negotiating team. The grantee parties’ supporting documents include minutes of that meeting and a follow up letter to the native title party dated 27 May 2008 which provides a detailed overview of the meeting (GP38 and GP37). These documents note that as agreed at the meeting on 28 April 2008, the grantee parties’ negotiating team had discussed and revised the position with the first grantee party’s executive. The parties’ positions at the start of the meeting were detailed as follows:

Concept FMG EG

Up-front $300,000 $300,000

Annual $10,000 until
$70,000 JORC reserve
$100,000 Mining Proposals $400,000 annual
($200,000 deferred from royalties)

Royalty Free 3 yrs None

Mining 17c tonne
Capped at $3.5m
(11c mine, 4c VTEC, 2c Rail)
1% of revenue

(GP 38)

At the start of the meeting the representatives for the grantee parties noted their above revised position, revised since the previous meeting on 28 April 2008. They requested the native title party revise their position of an uncapped “free-on-board” royalty of 1% with no royalty free period. The native title party declined, noting it had not yet received the report from the independent economist (identified as Murray Meaton) which had been commissioned by the first grantee party to assist the parties in negotiations. Mr McGlew advised the report (“the Meaton Report”) had been received, however the first grantee party had not yet had an opportunity to consider it, given the short notice of the meeting. Despite the native title party not revising its position, the representatives for the grantee parties then offered to modify their mining royalty offer to a flat “free-on-board” royalty of 0.17% with no royalty free period and CPI indexation on the cap of $3.5 million. The native title party again declined to revise its position, unless the grantee parties removed the cap, and the meeting was concluded.
The follow up letter of 27 May 2008 from Mr McGlew to Mr Bower attaches the Meaton Report and notes:
‘Fortescue is concerned about the lack of progress in reaching agreement. Despite Fortescue making several significant attempts to resolve key concerns held by Eastern Guruma, Fortescue considers that Eastern Guruma is not making sufficient efforts to progress the negotiations in a positive way. This is evidenced by the absence of any movement in the major issue of the negotiations – the mining royalty.’(GP37)
On 12 June 2008, Mr Frewen wrote to Sara Johnsson regarding a number mining lease applications (M47/1407-11) including the proposed leases (copied to Mr Bower). The letter is similar in content to that sent on 23 May 2008:
‘To date, no negotiations have taken place in respect of the above specific Mining Lease applications; it is suggested that a Negotiation Protocol be entered into between the parties in respect of the above Mining Lease applications, to allow for the negotiations to proceed.... Once this has been executed, negotiations on the above Mining Leases can then commence’ (GP39)
On 13 June 2008, Ms McGinty replied, the reply also being similar in content to that sent on 26 May 2008:
‘EASTERN GURUMA PEOPLE (WC97/89) & FORTESUCE M47/1404, M47/1407, M47/1408-11
I refer to your letter dated 12 June 2008 and in particular tenements M47/1407, M47/1408-11. I also refer to my letter dated 26 May 2008 to which I have not yet received a response.
You are aware that on 6 November 2006, Eastern Guruma and Fortescue Metals Group (“Fortescue”) entered into a negotiation protocol for a Regional Commercial Agreement (“2006 Protocol”). The purpose of the 2006 Protocol was to set out the agreed manner of negotiations regarding the grant of “tenements and other interests in, and access to land for the purpose of the Project and associated infrastructure”.
Since that time, and pursuant to the 2006 Protocol, there have been extensive negotiations between the parties towards reaching a “whole of claim” agreement. I refer to previous correspondence from you which confirms the existence of the 2006 Protocol and that negotiations would be conducted pursuant to that protocol.
I would be grateful of you could advise whether Eastern Guruma resile from the 2006 Protocol.
For its part, Fortescue is happy with the 2006 Protocol and wishes to continue negotiations with a view to the parties entering into a Regional Commercial Agreement.
I would be grateful if you could advise whether Eastern Guruma wish to continue negotiations with a view to parties entering into a Regional Commercial Agreement or no longer wish to pursue that course.
Fortescue has to date assumed that the abovementioned tenements are within current negotiations conducted under the umbrella of the 2006 Protocol and has to date proceeded on that basis. Indeed, given that the negotiations have centred on a “whole of claim” agreement, it is difficult to see how these tenements would not be included in the current negotiations. Your clarification if that is not the case would be greatly appreciated.’ (GP40)
On 18 June 2008, at the request of the native title party, a meeting was held between the grantee parties’ negotiation team and Mr Bower, Mr Vilaflor and two members of the native title party’s negotiating team. The grantee parties’ supporting documents includes minutes of that meeting (GP41). Mr McGlew for the grantee parties noted a “competitive offer” had been put to the native title party at the last meeting on 26 May 2008, and that the native title party had still not provided a counter offer. He noted he was of the understanding that the purpose of the native title party calling the 18 June 2008 meeting was for the native title party to provide a response. The native title party advised they were “not here to offer” but “to see if negotiations can progress” and requested the grantee parties fund another large negotiation meeting between the parties. Mr McGlew advised that in the absence of any counter offer from the native title party, the grantee parties’ felt they had “exhausted resources” and would not fund another large negotiation meeting. Towards the conclusion of the meeting, the parties again confirmed the main impediment to the agreement was the financial component which was considered “too modest” by the native title party. As an outcome to the meeting, the native title party confirmed it would provide a counter proposal in writing by the following week.
Following the meeting of 18 June 2008, there is no evidence before the Tribunal of any other communication between the native title party and the grantee parties until 5 September 2008 in which Mr Ken Green, solicitor for the grantee parties wrote to Mr Bower:
‘NEGOTIATIONS FOR GRANT OF E47/1533, L47/293, L47/294, M47/1404, M47/1407, M47/1408, M47/1409, M47/1410, M47/1411, M47/1417, P47/1287
On 18 June 2008, representatives of Wintawari Guruma Aboriginal Corporation (“Wintawari”) met with representatives of Fortescue Metals Group Ltd and its subsidiaries (collectively “FMG’) and discussed, among other things, how the parties might further their endeavours to finalise the Land Access Agreement (“LAA”) which had been the subject of discussions since at least July 2006.
The meeting on 18 June 2008 concluded with an undertaking by the representatives of Wintawari to provide a proposal for the financial component of the LAA. That proposal has not been provided.
On 11 July 2008, the Tribunal delivered its decision in NNTT Matter WF07/40 (“Decision”).
In short, the Decision concluded that FMG’s endeavour to agree a Land Access Agreement with Wintawari did not, of itself, constitute negotiation “in good faith with the view to obtaining the agreement of each of the native title parties to the [grant of M47/1404]” as required by s31(1)(b) of the Native Title Act 1993 (Cth) (“NTA”).
From FMG’s perspective, the Decision gives rise to a number of concerns. These concerns have motivated FMG to appeal the Decision to the Federal Court (“Appeal”). Wintawari has been served with a copy of FMG’s Notice of Appeal and is accordingly aware of the issues which FMG seeks to raise in the Appeal.
Notwithstanding the Appeal, FMG recognises the Decision represents the current statement of the law concerning its subject matter and that the parties are bound by the Decision. FMG therefore intends to continue its endeavours to satisfy the requirements of s31(1)(b) of the NTA and to do so notwithstanding the Appeal and otherwise in a manner which accords with the Decision....
FMG recognises that LAA negotiations with Wintawari are stalled.
In referring to stalled LAA negotiations, the Decision states (in part) as follows
“[81] When negotiations stalled on the LAA, no attempt was made by the grantee party to then separate from those stalled discussions a process for negotiating in good faith about the proposed tenement. The grantee party seeks to rely on those broader discussions to discharge its obligation to negotiate in good faith with respect to the proposed tenement. However, those broader discussions were focused on basically one issue and were not productive.
[82] However, there was an obligation placed on the grantee party if it believed that the broader LAA process was stalled or incapable of being resolved, to then revive the negotiations about the proposed tenement. it would be unreasonable and contrary to the requirements ofs.31(1)(b) for the grantee party to claim that it had fulfilled its duty to negotiate in good faith to obtain the doing of the future act, when it relied upon failed general negotiations which never even substantively addressed the proposed tenement.”
FMG accordingly recognises the requirement of s31(1)(b) of the NTA to:
1.‘separate from those stalled discussions a process for negotiating in good faith about the proposed tenement’; and
2.substantially address .. . the proposed tenement’.
Currently the tenements which FMG and Wintawari are obliged to negotiation in good faith about are those described in the reference line of this letter (“NIGF Tenements”).
For the avoidance of doubt, Flinders Mines Ltd (“Flinders”) is the applicant for M4711407. FMG has a contractual relationship with Flinders in respect of M47/1407 and, among other things, has been appointed as the agent of Flinders for the purpose of negotiations with Wintawari pursuant to s31(1)(b) of the NTA. In negotiations with Wintawari, any reference to FMG in respect of M4711407 is a reference to FMG in its capacity as agent for Flinders.
FMG now finds itself in a position where the following NIGF Tenements have become ‘a high priority’ for FMG:
1. M47/1404;
2. M47/1407;
3. M47/1408;
4. M47/1409;
5. M47/1410; and
6. M47/1411,
(collectively “Priority Tenements”).
FMG wishes to energetically advance negotiations for the grant of the Priority Tenements. FMG has discussed this desire with the Government Party, who has confirmed:
1.the Government Party is happy to similarly advance negotiations for the grant of the Priority Tenements; and
2.stands ready, willing and able to further negotiations with Wintawari, should it similarly wish to do so.
....FMG would be grateful if Wintawari could, as a matter of priority, advise any effect on registered native title rights and interests which Wintawari is concerned might arise from the grant of the Priority Tenements (“Wintawari Concerns”).
It would greatly assist FMG if Wintawari could in relation to those Wintawari Concerns:
1.clearly identify each relevant native title right and interest;
2.describe the manner in which, frequency with which, and area within which, those rights and interests are actually enjoyed or exercised on or about the Priority Tenements; and
3.describe the manner in which, and extend to which, the exercise of those rights and interests might be affected.
As you will appreciate, FMG wishes to advance negotiations for the grant of the Priority Tenements as expeditiously as is reasonable and sensible.
One of the contentions presented by Wintawari during the hearing leading to the Decision was that contrary to s33(1) of the NTA, FMG had not negotiated in good faith because the “financial package” proposed by FMG was limited to tonnages of “things produced” which excluded any role for profits made and income derived....
In the circumstances, FMG has prepared the accompanying proposed agreement which it believes will likely address many (if not all) of the Wintawari Concerns.
The accompanying proposed agreement includes a financial compensation component element based on “things produced”. If Wintawari wishes to negotiate about a financial compensation component element on some other basis, FMG is happy to receive and consider fairly any proposal which may be put by Wintawari. However, FMG believes the compensation component outlined in the accompanying proposed agreement is generous.
If Wintawari identifies any Wintawari Concerns which are not addressed by the accompanying proposed agreement, FMG invites Wintawari to:
1. identify those Wintawari Concerns and the manner in which the accompanying proposed agreement is inadequate; and
2.propose (including in the alternate) how those Wintawari Concerns might be addressed.
Ideally, any such proposal should be by way of an amendment or addition to the accompanying proposed agreement.’ (NTP 2 and GP42)

Attached to the letter is a draft agreement for the “priority tenements” which includes the proposed leases. The draft agreement includes a heritage protocol which addresses the processes for notifying and undertaking any proposed mining activities subject to Aboriginal heritage surveys and clearances, and also includes provisions for a cross cultural awareness programme for the grantee parties’ employees, rehabilitation of land and “Compensation” as follows:

·$5,000 upfront payment for each tenement the subject of the agreement
·$2,500 anniversary payment for each tenement the subject of the agreement, payable on each anniversary of the agreement (CPI indexed)
·Royalty of 8 cents per Dry Metric Tonne of iron ore mined from any tenement the subject of the agreement and transported for sale on a commercial basis (CPI indexed) payable each year from the third anniversary of date on which ore mined from the Tenement Area is first shipped from Western Australia for sale on a commercial basis.
·Royalty to be capped at $2 million per year (CPI indexed)
(NTP3 and GP 42)

I have set the letter of 5 September 2008 almost verbatim for two reasons. Firstly, it gives a clear outline of how the parties approached negotiations after 11 July 2008 when the Tribunal made its decision in Cox v Western Australia. From that time both the parties consciously negotiated in the shadow of that decision. Secondly, it clearly sets out the structure and approach the negotiations took after its receipt.

On 8 October 2008, Mr Bower responded via email to Mr Green’s letter:
‘I have been requested by Wintawari Guruma AC to ask whether FMG and you could meet with WG and me and Jerome, during 23 October 2008 in Perth, to revive the negotiations. (I should say, to advance the revived negotiations recently enlivened by your last letter and draft deed.)
We have your detailed new proposal, and would be in a position to respond to it on 23 October. The response would not be in the nature of a diametrically-opposed proposal based on a different approach; rather, it would attempt to follow and develop the present FMG approach.’ (GP43)
On 13 October 2008 Mr Green responded via letter:
‘NEGOTIATIONS FOR GRANT OF E47/1533, L47/293, L47/294, M47/1404, M47/1407, M47/1408, M47/1409, M47/1410, M47/1411, M47/1417, P47/1287
Thankyou for your email sent Wednesday, 8 October 2008 (a copy of which is attached).
As my letter dated 5 September 2008 (“5 Sept Letter”) had been couriered to your office over a month ago, I was becoming concerned at not having received a response, let alone a substantive response to the various matters raised in my letter.
I note your email:
1.requests a meeting on 23 October 2008 in Perth between my client and representative of Wintawari Guruma Aboriginal Corporation (“Wintawari”);
2.advises that Wintawari will be in a position to respond to the matters raised in my 5 Sept Letter at the meeting on 23 October 2008; and
3.advises that the nature of Wintawari response will be to “follow and develop the present FMG approach.”
.... The position of FMG remains unaltered from that expressed in my 5 Sept Letter, that is, FMG wishes to energetically advance negotiations for the grant of the Priority Tenements.
As you will appreciate, FMG is disappointed that Wintawari:
1.has not provided a substantive response to the matters raised in my 5 Sept Letter; and
2.does not intend providing a substantive response to the matters raised in my 5 Sept Letter until 23 October 2008, being some six weeks after receipt of my 5 Sept Letter.
However, in the interests of reaching agreement with Wintawari on the grant of the Priority Tenements as expeditiously as possible, FMG is, of course, willing to meet with representatives of Wintawari as invited.
To ensure there is no misunderstanding, it is FMG’s expectation that Wintawari will at the proposed meeting in [sic] detail all of the matters raised in my 5 Sept letter.’ (GP44)
Via letter on 17 October 2008, Mr Bower confirmed the proposed meeting for 23 October 2008:
‘The people attending on behalf of WGAC will be: Sue Boyd, Samantha Connors, Jocelyn Hicks, Judith Hughes and Tanya Stevens, and Ronald Vilaflor (Ochre Innovation), Jerome Frewen (Desert management) and Ronald Bower (Corser & Corser).
Please let us know who will be present representing FMG.
We enclose a draft agenda for your consideration.
We agree that the meeting should commence at 10.00 AM at your office. We have allowed two hours for the meeting. If you think this could be insufficient time, please advise us so that we can attempt to rearrange other appointments.
As soon as possible prior to 23 October we will send you a draft negotiation protocol.’ (NTP8 and GP45)
Mr Green responded via email on the morning of 23 October 2008:
‘Thankyou for your letter dated 17 October 2008. I look forward to meeting with you and your clients at 10.00 am at my office later today.... [M]yself and Sukhpal Singh will [be] attending for the Grantee Party and Paola O’Neill will be attending for the Government Party.
I suggest we discuss the proposed agenda at the commencement of the meeting.
The Grantee Party does not see the need for a Negotiation Protocol.
My client’s expectation is that Wintawari will at the meeting address in detail all of the matters raised in my letter dated 5 September 2008.’ (GP46)
Less than fifteen minutes before the beginning of the 23 October 2008 meeting, Mr Bower’s assistant forwarded a draft negotiation protocol to Mr Green via email (NTP9 and GP47).
Both the grantee parties’ and native title party’s submissions include notes of the 23 October 2008 meeting (NTP10 and GP48). Messrs Bower, Vilaflor and Frewen and five members of the native title party negotiating team being Sue Boyd, Samantha Connors, Jocelyn Hicks, Judith Hughes and Tanya Steven attended for the native title party. Messrs Ken Green and Sukhpal Singh attended for the grantee parties and Ms Paola O’Neill for the government party. At the start of the meeting, Mr Bower on behalf of the native title party requested “an agreed basis for negotiations settled first, i.e. a Negotiation Protocol and an agreed agenda” (GP48). Mr Green for the grantee parties “declined the opportunity” to discuss the negotiation protocol (GP48 and NTP10) and expressed disappointment that the 5 September 2008 draft agreement had not been considered by the native title party (GP48). It appears the parties briefly talked about the agenda for the meeting (NTP10) and following this, the grantee and Government parties left the room to enable a brief private meeting amongst the native title party negotiators and representatives. Upon their return, Mr Frewen for the native title party requested Mr Green “go through the major clauses of the agreement” (GP48). Following Mr Green’s presentation, Mr Frewen noted “the document was a standard one” (GP48) and that whilst the native title party wished to address the “Compensation” component, the negotiation team would need to undertake discussions with the larger native title group before responding. Mr Frewen observed the compensation package offered addressed only financial compensation, and asked whether it could also include business assistance, employment and training. Mr Green advised any written proposal would be considered by the company but that “time is of the essence” (GP48 and NTP10). Mr Frewen on behalf of the native title party acknowledged that “time [was] of critical importance” to the grantee parties (NTP10). Following another brief private meeting amongst the native title party negotiators and representatives, Mr Frewen advised the native title party negotiators and representatives “will meet later this afternoon about it [the draft agreement]. They will outsource the Heritage provisions to Eddie McDonald and/or Fiona Hook, the [wider native title] group will then meet in early November after which they will provide written comments and proposals with what they feel are a fair counter-offer” (GP48 and also noted in similar terms in NTP10). At the conclusion of the meeting, Mr Frewen again encouraged the grantee parties to reconsider the use of a negotiation protocol and agenda for future meetings, and Mr Green requested that any response to the draft agreement be provided in writing and in the form of a “marked-up” version of the draft agreement (GP48 and NTP10).
The native title party’s submissions also include a file note by Mr Bower of the meeting between himself and members of the native title party negotiating team later in the afternoon of 23 October 2008. It appears from the notes that Mr Bower agreed to obtain advice on the heritage provisions of the draft agreement from Mr McDonald and Ms Hook within 30 days and “address [the] heritage section” of the agreement within 30 days. It also appears some discussion occurred regarding a counter offer on the compensation provisions, which would be discussed with Mr Meaton. Finally, it appears it was agreed to hold a meeting with the wider native title group in Karratha “after hearing from Fiona, Eddy & Murray [Meaton] (or at least Murray)” (NTP10).
On the morning of 24 October 2008, Mr Frewen emailed Mr Singh (copied to Messrs Bower and Vilaflor) requesting a Microsoft Word version of the 5 September 2008 draft agreement “to enable me to forward this to the professional anthropological consultants for Eastern Guruma, Dr Fiona Hook and Dr Edward McDonald, to enable them to provide my clients with advice on the operations of the proposed heritage protocol contained within the agreement”. Mr Green emailed a Microsoft Word version of the draft agreement later that morning (GP49).
On 30 October 2008, Mr Frewen emailed Mr Singh (copied to Messrs Bower and Vilaflor) to the effect that the 5 September 2008 draft agreement had been forwarded to the anthropologists and archaeologists of the group for their comment and advice and that it was intended that when such advice was received, it would be provided to the meeting with the broader native title party group in Karratha. Mr Frewen also indicated that, because of a death in the community, the meeting that had been arranged in Karratha had now been deferred and he did not have a date on which the meeting would take place as yet. He further advised that it was possible if a company regarded any matter as a priority, for it to fund a special meeting which would specifically deal with the matters of that company. Mr Frewen noted that this arrangement was usually entered into in accordance with a negotiation protocol, but he noted, in this instance, FMG had declined to enter into such a protocol (GP51).
Mr Singh wrote to Mr Bower on 3 November 2008, making reference to Mr Frewen’s email of 30 October 2008 and expressing the grantee parties’ great concern over the delay in the broader native title party group meeting and the consequent delay in the provision of a response to the draft agreement that had been provided to the native title party on 5 September 2008 (GP52).
On 20 November 2008, Mr Singh again wrote to Mr Bower, seeking a response to his letter of 3 November 2008 and expressing the grantee parties’ wish that the matter be dealt with “as expeditiously as possible” (GP53).
On 2 December 2008, Mr Frewen emailed Mr Singh seeking to confirm that the applicant for M47/1407 was Flinders Diamonds Ltd and not FMG Pilbara Pty Ltd. Mr Frewen sought clarification on the matter and proposed that if Flinders Diamonds was the applicant, it should be included in the draft agreement and if not the tenement should be removed from the “Priority List”. (GP54)
On the same day Mr Singh responded via email, confirming that Flinders Diamonds Ltd which was now Flinders Mines Ltd, was indeed the applicant for M47/1407 but that it was a legal technical issue which he would be addressing with Mr Bower. He confirmed that the fact that Flinders was the applicant had no impact whatsoever on the content of the draft agreement which had been proposed to the native title party. He went on to reiterate the company’s concern that they still had not had a response to the draft agreement forwarded on 5 September 2008. He further indicated that in the grantee parties’ view, the fact that they had only received a response to “a technical legal issue” was, in their view “not indicative of good faith negotiations”. (GP55)
On 3 December 2008, Mr Singh wrote to Mr Bower on a number of issues, including the Flinders matter. He went on to indicate that the grantee parties were greatly concerned that despite the claims in Mr Bower’s email of 8 October 2008 that it would be able to respond to the new proposal at the meeting on 23 October 2008, the native title party had failed to do so and that since that meeting, no further response had been received by the grantee parties. Mr Singh concluded by suggesting that the grantee parties were now
‘actively considering seeking an arbitral determination of the section 35 of the Native Title Act 1993 (Cth)’.

He sought to be advised by Mr Bower by the close of business on Friday 5 December 2008 as to when he was likely to receive a response from the native title party to the company’s proposal (GP56).

On 11 December 2008, Mr Singh again wrote to Mr Bower suggesting that the grantee parties had done all in their power to attempt to engage the native title party in
‘actively and expeditiously advancing negotiations for the Priority Tenements’.

However, he concluded that a negotiated outcome was not likely, given the response of the native title party to date and in the circumstances the grantee parties were now inclined to seek an arbitral determination of the matter via a s 35 application to the Tribunal. He indicated that the grantee parties would refrain from seeking a determination if the native title party were

‘to confirm its willingness to actively and expeditiously pursue negotiations for the priority tenements’

and indicated that a preparedness to engage in such a way would involve the provision of a “substantive” response to the 5 September 2008 draft agreement, including by way of any proposed amendments or additions, by the identification of native title rights and interests which might be affected and seeking confirmation that despite the oncoming summer Law Business that the native title party acknowledge the previous commitments made to the grantee parties and the need to progress the matter as soon as possible. He concluded by indicating that unless the above matters were addressed by the 19 December 2008, the grantee parties would consider seeking an arbitral determination from the Tribunal (GP57).

Mr Bower replied to Mr Singh on 11 December 2008 in the following terms:
‘We are in receipt of your letter dated 11 December 2008. Our clients remain committed to acting in good faith in their negotiations with FMG in respect of the abovementioned tenements.
Flinders Mines Limited
An issue that need not delay progress, but in respect of which we seek further clarification, is the role of Flinders Mines Limited. Please may we have more information about how this company comes to be a party to the negotiations?
Arrangements for expedited negotiations
WGAC understands your advice that the Priority Tenements are required by FMG as soon as possible, without possessing the information or means of interpretation of the information which would particularise that urgency. On the assumption that FMG has its legitimate commercial reasons for wishing to obtain the tenements as soon as possible, WGAC is willing to be as accommodating as appropriate in participating in further negotiations. However, it has appeared to our clients and us from our dealings with FMG and its representatives in recent weeks that FMG’s position is that because in its opinion (perhaps commercially valid; we cannot judge) the Priority Tenements are required urgently, the necessary negotiations should not only be undertaken in haste, but also without the benefit of any agreed arrangements for how the negotiations will proceed, such as a negotiation protocol, and indeed, without even the simplest form of agreed agenda being prepared prior to meetings commencing.
Our clients’ position is that all good faith negotiations should proceed on the basis of agreed arrangements as to how the negotiations are to be conducted; and also on the basis of agendas being prepared and used for such meetings as may then occur. They maintain that these simple and well-accepted processes are of the greatest importance when one or more of the parties to the negotiations is in a hurry for commercial reasons of importance to that party; the risk being that in its haste to make progress, it will feel the need unilaterally to impose its will and ‘make rules on the run’ in the course of the negotiations, if the basic arrangements have not been agreed in advance.
It has always been our clients’ clearly-stated desire that there should be prior-agreed arrangements for the conduct of negotiations, and for agendas to be prepared and used in meetings. These are by no means new or novel requests by our clients.
Is it still FMG’s position that it will not accept that a negotiation protocol should be used, and that agendas should not be prepared or used in meetings?’ (GP58)
On 18 December 2008, Mr Singh replied to Mr Bower noting that the native title party had not confirmed its willingness to actively pursue negotiations and had not objected to the lodgement of a s 35 application. After addressing some of the matters relating to Flinders Mines Ltd, Mr Singh went on to take issue with some of the assertions made by Mr Bower in his letter. He concluded by noting that the determination process took many months to complete and indicated that FMG would explore all avenues which would allow the tenements to be granted as soon as is reasonable in the circumstances and
‘We accordingly invite your clients to provide a substantive response to the form of agreement enclosed with Green Legal’s letter dated 5 September 2008. We confirm we would be happy to consider any such response in good faith.’ (GP59)
On the following day, the s 35 Applications were lodged with the Tribunal.

Native title party’s statement of contentions

The substance of the native title party’s contentions are as follows:
1)   A negotiation protocol was executed by the grantee and native title parties on 6 November 2006 by which they agreed to negotiate a whole of claim agreement and that agreement did not absolve the obligation on the parties to negotiate in good faith (Native title party’s submissions for good faith decision (paras 2-8).
2)   Subsequent to 5 September 2008 the grantee parties unilaterally abandoned the negotiation protocol and refused to enter another (para 10).
3)   The Government party refused to enter into a negotiation protocol (para 26).
4)   “In all but the least important of future act negotiations, a negotiation protocol should be negotiated, agreed and executed at an early stage of negotiations for there to exist a sound basis from which the parties can hope to launch negotiations in good faith” (para 18).
5)   The grantee parties knew that in the absence of a negotiation protocol and any funding from the grantee parties the members of the native title party were in no position to deal with the draft agreement of 5 September 2008 until their next regular meeting (para 25).
6)   The grantee and the Government parties failed to agree to an agenda for the meeting of 23 October 2008 (para 27).
7)   By refusing to:
a)   Negotiate, agree, execute and work under a negotiation protocol of any kind for the proposed negotiations,
b)   Accommodate the … [native title party’s] reasonable requirements for time within which to prepare for and participate in the proposed negotiations , having due regard to
i.     its status as an incorporated entity
ii.   with a committee of several elected people with limited authority and
iii. a requirement to confer with the entity’s members and especially the elders within the membership and
iv.   there being aspects of the agreement proffered by the Grantee Party which required the … [native title party] to obtain advice from its anthropologist and archaeologist, and
c)   adopt an agenda of any kind for the meeting, and by inference, any subsequent meeting, the Grantee Party and the State of WA failed to negotiate in good faith in respect of the proposed negotiations. (para 31)
8)   “The proposed negotiations did not advance beyond that meeting of 23 October 2008 before the Grantee Party applied to this Tribunal for a determination in respect of the relevant mining lease applications. Consequently, there were no negotiations, whether in good faith or otherwise” (para 32).
9)   The grantee parties’ allegation that the native title party had failed to respond to the draft agreement of 5 September 2008 in a reasonable time was “baseless and contrary to known facts” (para 33).
10) The general failure of the grantee and Government parties to negotiate in good faith was “relatively extreme” because the grant of the proposed leases “would have the effect of extinguishing the Objector’s [sic] recently granted native title rights and interests” (para 30).
11) The urgency which the grantee parties asserted attended the grant of the proposed leases was completely unsupported by any factual basis and its use as a justification to refuse a negotiation protocol “was entirely inconsistent with the concept of good faith” (para 38).
12) The grantee and Government parties brought a “closed mind approach” to the negotiations by refusing to use a negotiation protocol or agendas for meetings (para 42).
13) The negotiations were at “an embryonic stage” at the time the s 35 Applications were made and that action “prevented the possibility of negotiations developing between the parties as demanded by the Native Title Act” (para 43)

The native title party subsequently filed submissions in response to the grantee and Government parties’ submissions. In substance, it asserted:
1)   The grantee parties failed to address the request for a negotiation protocol or how the existing protocol might be relevant to further negotiations which was contrary to the assurance given to the native title party by the grantee parties on 26 May 2008 to the effect that the existing protocol would apply (page 2, paras 1-5).
2)   The grantee parties provided no justification for the urgency associated with the “priority tenements” (page 3, paras 6-7).
3)   The Government party’s failure to act in good faith was demonstrated by their acquiescence to the grantee parties’ refusal to enter into a negotiation protocol (page 4, paras 1-5)
4)   The grantee parties were disingenuous in their assertion that the native title party showed an unwillingness to negotiate given it knew of the obligation on the native title party to attend to its procedural processes given it had no negotiation protocol and the time of the year (page 5, paras 1-5)
The native title party did not file any affidavit material in support of its contentions and no supporting documentation other than the negotiation protocol of 6 November 2006, the letter from the grantee parties of 5 September 2008 attaching the draft agreement, a fax of 17 October 2008 to the grantee parties attaching a draft agenda for the 23 October 2008 meeting, a fax of 23 October 2008 to the grantee parties attaching a draft negotiation protocol and Mr Bower’s notes of two meetings held on 23 October 2008; the first being between the grantee parties and the native title party, and the second being amongst members of the native title party and its representatives.

Grantee parties’ statement of contentions and evidence

In response, the grantee parties contend in substance:
1)   The grantee parties:
‘rely on their conduct from 30 March 2006 until lodgement of the S35 Application as constituting negotiations for the purpose of s31(1)(b) of the NTA. As an observation, those negotiations occurred in three phases:
(1)Phase 1 – negotiations with a view to a “whole of claim” agreement from 30 March 2006 until approximately 11 July 2008;
(2)   Phase 2 – the period from 11 July 2008 until 4 September 2008 during which
(a)    the Grantee Parties awaited a proposal from the NTP...
(b)the Grantee Parties considered, and ultimately appealed, the Angelina Cox Decision;
(3)Phase 3 – Following the Angelina Cox Decision, the Grantee Party identified six mining leases (including the mining leases the subject of this matter) as being of high priority to the Grantee Parties, and sought to negotiate specifically about those mining leases. This phase commences on 5 Sept 2008 ... and continued until 19 December 2008 when the Grantee Party lodged the s35 Application....’ (para 4.1)
2)   In accordance with their submission in the appeal against Cox v Western Australia, the obligation under s 31(1)(b) of the NTA:
(i)does not require negotiations to pass a stage that exceeds ‘embryonic’
(ii)means that negotiations are simply to be ‘with a view’ to obtaining the agreement of the native title party to the doing of the future act as distinct from being ‘about’ the future ac
(iii)does not require disaggregation of specific future acts from broader negotiations in order to specifically discuss the proposed acts and in the alternative they had, in fact:
a)   negotiated about the future acts; and
b)   ‘disaggregated’ the specific future acts from the broader negotiations and did ‘endeavour in good faith to specifically discuss those current future acts’ (paras 4.5-4.7)
3)   The native title party provides no evidence to substantiate its assertions that:
a)It resolved to consider the draft agreement of 5 September 2008 at its next meeting (para 5.12)
b)No meeting was scheduled or possible before the commencement of these proceedings (para 5.13)
4)   The grantee parties deny any improper conduct in relation to the meeting of 23 October 2008 as it was obvious from the correspondence that all the parties were clear that at the meeting the native title party was expected to and was prepared to provide a response to the draft agreement of 5 September 2008 (para 5.17)
5)   The native title party contends that the grantee parties accused the native title party of failing to respond to the draft agreement within a reasonable time and that the accusation constituted a failure to negotiate in good faith. The contention cannot be sustained because the native tile party did, in fact, fail to respond to the draft agreement within a reasonable time (para 5.18).
6) The lodgement of the s 35 Applications did not demonstrate a lack of good faith because the native title party had ample time to respond and the Applications were lodged 14 months and 11 months respectively after s 29 notification (para 5.21)
7)   In any event, there was no failure to make reasonable substantive offers or concessions to the native title party, to the extent that is required. Such offers were made (paras 6.1-6.3)
8)   The failure of the native title party to respond to the grantee parties’ requests between 5 September and 19 December 2008 to respond to the draft agreement or indicate a timetable for such response, the failure to engage in negotiations at the meeting of 23 October 2008 and the failure to respond to correspondence in relation to the effect of the extant negotiation protocol amounted to a failure to negotiate in good faith on behalf of the native title party (paras 8.1-8.4)
Following the Full Court of the Federal Court’s decision in Cox, which set aside Cox v Western Australia, the grantee parties sought leave to file additional submissions which noted in particular:
‘2.2 The FMG Appeal Decision clarifies the following matters: ....
(2) There is no requirement that negotiations for the purpose of s31(1)(b) of the NTA must reach any stage. In particular ... [that they] must reach beyond an “embryonic” stage [citing para 23 in support]....
(3) the requirement for “good faith” s31(1)(b) of the NTA is directed to the “quality of a party’s conduct” not the quality fo the negotiations themselves [citing para 20 in support]....
(6) negotiations with a view to agreeing an ILUA which would authorise a future act constitute conduct within the requirements of s 31(1)(b) of the NTA in respect of the future act [citing para 42 in support]....’

Government party’s statement of contentions

In response to the native title party’s contention that the Government party failed to negotiate in good faith, the Government party contends:
1) Section 31 of the Act contains two obligations:
a)The Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the future act - s 31(1)(a); and
b)The negotiation parties must negotiate in good faith with a view to obtaining the agreement of the native title parties to the doing of the future act with or without conditions - s 31(1)(b) (para 6).
and that the “Government party’s obligation to negotiate in good faith does not extend to matters that are not related to or connected to the doing of the future act although such matters may be subject of negotiations if the parties see fit” (para 16) and it only obliged only to negotiate about the effect of the act on the registered native title rights and interests. It contends s 39 of the Act is a reasonable practical guide to what the Government party (and a grantee party) is required to negotiate about (para 17), citing in support Minister for Mines, State of Western Australia/Kevin Peter Walley on behalf of the Ngoonooru Wadjari People, NNTT WF97/5, [1998] NNTTA 4 (25 March 1998), Hon C J Sumner, Member, p.48)
2)   The Tribunal has found the “evidential burden” is on the party alleging lack of good faith negotiations (para 8, citing Risk v Williamson, (1998) 87 FCR 202.
3)   “There is no legal principle that dictates a Government party (or a grantee party) must always entertain the idea of a negotiation protocol proposed to be provided by a native title party. The only relevant principle is that the parties must not adopt ‘a rigid non-negotiable position’ Njamal indicium xiv. The Government party did not adopt a ‘rigid non-negotiable position’. This is because at no point was the Government party provided with a serious and substantive proposal for a negotiation protocol. If a proposal was in fact put (which is disputed), it was not refused, or alternatively, the Government Party’s response was reasonable in the circumstances” (para 26).
4)   At no point did the Native Title party request the Government Party for more time to prepare for negotiations or to assist in the negotiations (para 46).
5)   The native title party did not provide the Government Party with a copy of the agenda before the 23 October 2008 meeting, and lead negotiator Ms O’Neill was of the understanding that no agenda was necessary because the agreed purpose of the meeting was to discuss the 5 September 2008 draft agreement, in any event, all of the agenda items were addressed at the meeting, and Ms O’Neill’s response to the proposed agenda does not amount to a failure to negotiate in good faith (paras 47-49).
6) Any failure of the Government party to negotiate in good faith is not exacerbated by any extinguishment of native title or restriction of access to members of the native title party, because the native title party’s contention that the grant of the mining leases will extinguish native title is “erroneous” and the Government party’s condition of grant of the proposed leases states any right of the native title party (as defined in s 29 and 30 of the Act) to access or use the land is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities. (paras 50-53).
7)Addressing its conduct against all the Njamal indicia of failing to negotiate in good faith, it negotiated in good faith generally (paras 54-71).

Good faith negotiations – Government party

The Government party’s evidence is contained in the affidavit of Paola O’Neill, the Government party’s lead negotiator. The negotiations between the Government party and the native title party were conducted by the native title party’s solicitor Mr Ronald Bower of Corser and Corser and Mr Jerome Frewen.
The Government party effectively commenced its negotiations on 20 May 2008 by sending its standard initial negotiation letters to the other parties in respect of the proposed leases.
The Government party’s letters emanate from the suggestions made by the Tribunal in Njamal (at 249) and the Tribunal is aware that is consistent with its normal practice in matters of this kind, the details of which have been listed in previous Tribunal decisions (for example Griffin at 325[20] and most recently FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, NNTT WF08/31, [2009] NNTTA 38 (24 April 2009), Daniel O’Dea at [27]-[32]).
On 3 July 2008, the Government party sent second letters to the native title party (cc’d to the grantee parties) enclosing copies of the draft conditions and endorsements for the tenements in accordance with the Mining Registrar’s recommendations; noting the submissions from the grantee parties had been sent to the Government party and native title party; reminding the native title party of the due date for their submission outlining the native title party’s views in relation to the effects the future act will have on their registered native title rights and interests (8 July 2008); and again offered the opportunity, at any stage, to make enquiries of the Government party, or to make suggestions as to how the Government party could assist in the negotiations.
On 18 July 2008 the native title party lodged a three page submission in response to the Government party’s letter in relation to M47/1410 only. In her affidavit, Ms O’Neill (at para 26) attests no submission was received in respect of M47/1407 or M47/1408. The submission for M47/1410 appears to be a pro-forma letter which did little to advance the negotiations and provided no information about the impact of the proposed future act on native title rights and interests or the other matters of interest to the native title party as specified in s 39 of the Act, other than the following general statements and aspirations:
‘The native title party continues to use the application area for traditional activities. These include, inter alia, hunting for food in the application area (on a seasonal basis), and gathering local flora, edible berries and seed; gathering honey ants; gathering ochre for ceremonial purposes; practising ceremonial activities; carrying out traditional law business each year; visiting the land to repair sites and waterholes and to commune with spirits; visiting the land to teach children their culture and traditions; teaching children the traditional names of features, flora, fauna and sites; visiting sites of significance; trading in resources from the area; visiting Dreaming sites....
The Wintawari Guruma people will require the applicant to enter into a mining, Exploration and Heritage agreement under the provisions of both the Native title Act 1993 and the Aboriginal Heritage Act 1972, and to include in the agreement right to negotiate provisions under the Native Title Act, allowing for:
·      Payments to be made to the Wintawari Guruma people based upon such things as may be included in negotiations;
·      Payments for administration of these matters through the RTN system
·      Such other payments and benefits as may be agreed’
In assessing whether or not a party has negotiated in good faith it is necessary to take into account the totality of their conduct in the context of the circumstances of each particular matter. In the negotiations the Government party generally acted reasonably. It reminded the native title party of the submissions due date by letters dated 3 July 2008. It is also apparent from Ms O’Neill’s affidavit and other evidence that bilateral negotiations were occurring directly between the grantee parties and the native title party, which the Government party was not invited to participate in, and, at times, was not aware of, given it was excluded from some correspondence. The evidence before the Tribunal indicates neither the grantee parties nor the native title party requested any assistance from the Government party nor made any written suggestions or proposals for how it might proceed in the negotiation process other than on 13 October 2008 when the grantee parties invited it to the 23 October 2008 meeting and requested a copy of the native title party’s three page submission on M47/1410, and on 3 November 2008 when the native title party requested a scanned copy of the s 29 notification for M47/1407 (Affidavit of Ms O’Neill, paras 30, 49-52). It complied with these requests within reasonable time frames, subject to resourcing and workloads within the Department of Mines and Petroleum.
In essence, the native title party raises three contentions regarding the Government Party’s negotiation in good faith. The first contention is the Government party refused to enter into a negotiation protocol or agenda at the 23 October 2008 meeting. Based on the evidence before the Tribunal, it appears the primary purpose of the meeting was to discuss the draft bilateral agreement between the grantee parties and the native title party. In her affidavit, Ms O’Neill attests the “prospect of a negotiation protocol” was raised at the meeting by Mr Bower for the native title party “though it was not clear to me at that time that he proposed that the Government Party enter into a negotiation protocol with the Native Title Party. In any event, at no time after the meeting did the native title party suggest to the Government Party that it should enter into a negotiation protocol” (para 51). It is clear from the correspondence following the 23 October 2008 meeting that the native title party’s and grantee parties’ focus was on the 5 September 2008 draft agreement between the two parties. The Government party was merely copied into the correspondence and no proposals were directly made to it.
The native title party’s second contention is the Government party refused to “[a]ccommodate the … [native title party’s] reasonable requirements for time within which to prepare for and participate in the proposed negotiations” (para 31). No evidence is provided by the native title party to support this contention. The evidence provided by the Government Party (via the affidavit of Paola O’Neill at para 49) shows no such request was ever made of the Government party.
What the Government party did was consistent with what has become common practice in Western Australia in the case of negotiations involving the grant of mining tenements (Griffin at 327[27]). The factual circumstances in particular cases and the nature of the future act can be taken into account in assessing what the Government party is obliged to do as part of good faith negotiations. The practice in Western Australia whereby substantive negotiations occur between the native title party and grantee party sometimes without the knowledge of the Government party which leads to an Ancillary Agreement between them is also relevant. Often the Government party’s substantive involvement is limited to finalising matters by way of a State Deed which is an agreement of the kind mentioned in s 31(1)(b) of the Act between all three negotiation parties. In this matter the Government party was aware the grantee parties and the native title party were engaged in serious negotiations, specifically focusing on the payment of royalties as the compensation component of a comprehensive agreement, as can be seen by reference to the attachments to Ms O’Neill’s affidavit.
Taking into account the overall circumstances of the negotiations, including the conditions offered and the Government party’s awareness of the bilateral native title/grantee parties negotiations, I find the Government party has negotiated in good faith.
Given the above finding, there is no need to address the native title party’s third contention that the Government party’s “departures from the requirement for them to negotiate … in good faith, was relatively extreme because the proposed future act was the granting of certain mining leases which would have the effect of extinguishing the … recently-granted native title rights and interests to the extent of the ground covered by the tenements” (para 39). Nonetheless, it is worth noting the non-extinguishment principle (s 238(2) of the Act) applies to the future acts the subject of this determination.

Good faith negotiations – grantee parties

In this matter it is indisputable that the grantee parties and native title party had been negotiating with a view to resolving all matters relating to future acts within the whole of the native title party’s claim determined area since 30 March 2006. It is also clear that the s 29 notification date for M47/1407 & M47/1408 was 10 October 2007, the six month period expired on 10 April 2008 and the s 35 Applications were lodged on 19 December 2008, some 14 months after the s 29 notification date and eight months after the expiry of the six month period. In relation to M47/1410, the s 29 notification date was 17 January 2008. The six month period expired on 17 July 2008 and the s 35 Applications were lodged on 19 December 2008, eleven months after the s 29 notification date and five months after the six month period had expired.
The native title party, in its contentions, has raised a number of issues which it alleges are indicative of a lack of good faith in the grantee parties’ conduct of negotiations. The primary grievance of the native title party is that the grantee parties, aided by the Government party, failed to enter into a negotiation protocol after it was requested to do so in the lead up to the meeting of 23 October or subsequently. As has been indicated earlier, the grantee parties and the native title party did enter into a negotiation protocol on 6 November 2006 in relation to the whole of the claim negotiation process. Subsequent to the s 29 notification dates for each of the proposed leases, the native title party’s adviser, Mr Frewen, wrote to the grantee parties seeking clarification as to how these matters would be dealt with. The company wrote back to Mr Frewen, to the effect that they would be dealt with globally under the terms of the existing negotiation protocol. Subsequently, Mr Frewen, on behalf of the native title party, wrote again to the company in relation to each of the proposed leases, in identical terms, again enquiring as to whether they would be dealt with under a negotiation protocol. In response to those letters, the grantee parties wrote to Mr Frewen, referring to their earlier letters and enquiring as to whether or not Mr Frewen sought to resile from the original negotiation protocol. There was no specific response to those letters by the native title party and subsequently the issue, as has been indicated, was raised in the lead up to the meeting of 23 October 2008 to discuss the 5 September 2008 draft agreement. At the time of the meeting on 23 October 2008, the status of the negotiation protocol, which had been agreed between the parties on 6 November 2006, was somewhat uncertain. It was clear from what was said at the meeting that the grantee parties did not envisage that it was necessary to enter into a negotiation protocol while the native title party insisted that a new protocol, in accordance with the draft that had been forwarded to the grantee parties on the morning of the meeting, ought to be entered into. Mr Sukhpal Singh, in his affidavit, paragraph 16, states that in his view the refusal by the grantee parties to discuss the negotiation protocol at the meeting of 23 October 2008, related to the grantee parties’ determination to discuss the 5 September 2008 draft agreement and seek a response from the native title party before any further steps were taken in relation to the progress of the negotiation process. Similarly, the unwillingness of the grantee parties to countenance an agenda related to the fact from the grantee parties’ perspective, the purpose of the meeting was to obtain the response of the native title party to the draft agreement, which had been promised in Mr Bower’s letter of 8 October 2008, in the following terms:
‘We have your detailed new proposal, and will be in a position to respond to it on the 23 October. The response would not be in the nature of a diametrically opposed proposal based upon a different approach; rather, it would attempt to follow and develop the present FMG approach.’(GP43)

The importance of the negotiation protocol to the native title party related, it would appear, to the provisions which required the grantee parties to fund professional advice to the native title party, the convening and conduct of native title party meetings for the purpose of obtaining instructions and the convening and conduct of meetings between the grantee parties and the native title party, which are set out in terms of both the negotiation protocol of 6 November 2006 and in the draft negotiation protocol forwarded to the grantee parties on 23 October 2008.
It is clearly the case that there is no obligation on any party to a negotiation under section 31(1)(b) of the Act to provide financial or other assistance to facilitate the engagement of one party in the process (see Gulliver at 95). It may be, that in some circumstances, a refusal by one party to assist another to engage, may be taken into account when assessing whether or not the party has acted reasonably in the circumstances. In this matter, there had been a lengthy period of negotiations and meetings between the native title party and the grantee parties in relation to the whole of area agreement and subsequently, meetings which dealt specifically with the proposed tenements, both in the context of whole of the claim agreement process, such as the meeting on 26 May 2008 funded by the grantee parties, and specifically relating to the six priority tenements, including the three proposed leases, in meetings and correspondence subsequent to that. The native title party promised to respond to the whole of claim agreement within a week of the meeting of 18 June 2008, but did not. On a number of occasions, the native title party indicated that it would respond to the grantee parties’ draft agreement proposed on 5 September 2008, notably, as has already been mentioned, on 8 October 2008, and subsequently in a letter from the native title party’s adviser, Mr Frewen, on 30 October 2008. In that letter, Mr Frewen indicated that contrary to what had been said at the meeting on 23 October 2008, as the result of a cancellation of a meeting due to a death, the native title party was not currently in a position to indicate when it would be able to respond to the grantee parties’ draft agreement. At no time, at that point, did the native title party suggest that it would not respond until such time as a negotiation protocol was put in place. Subsequent to that letter, there were repeated attempts by the grantee parties to seek advice from the native title party as to when it would be in a position to provide the promised response. At no time did they receive a clear answer to that question, or, indeed, was it addressed in the correspondence received by the grantee parties from the native title party. It appears clear to me, most apparent in the letter from Mr Bower to Mr Singh on 17 December 2008, that the position adopted by the native title party subsequent to 30 October 2008 was that they would not provide a response until such time as the company had entered into a negotiation protocol. That position was not directly articulated by the native title party, but the behaviour of the native title party points to no other reasonable conclusion.
The assertion by the native title party to the effect that “in all but the least important future act negotiations, a negotiation protocol should be negotiated, agreed and executed at an early stage of negotiations for there to exist a sound basis from which the parties can hope to launch negotiations in good faith” (native title party’s submissions, para 18), cannot be sustained. In its contentions, it makes reference to negotiation protocols which are discussed in the context of the mediation of native title claims before the Tribunal and under the supervision of the Federal Court. The reference to Franks, Fraser and other cases there, are of no assistance to the native title party in relation to the question of negotiation in good faith in future act negotiations.
In the circumstances, I cannot accept the native title party’s contention that the conduct of the grantee parties, in relation to the issue of the negotiation protocol, amounted to a failure to negotiate in good faith. As far as it goes, I prefer the uncontested evidence of Mr Singh in relation to the grantee parties’ motivation.
The assertion by the native title party that there had been no substantive negotiations in relation to the proposed leases prior to the lodgement of the s 35 application, simply has no basis in fact (native title party’s submissions, para 32). The WOCLAA discussed on 18 June 2008 and the draft agreement which had been forwarded to the native title party on 5 September 2008 and the continued enquiry from the grantee parties as to when a response to that proposal would be put, are all indicative of the fact that the negotiations had passed well beyond the embryonic stage. It is notable, even in the letter of 19 December 2008, when the grantee parties indicated it intended to lodge a s 35 application immediately, it stressed that it was prepared to forbear from that action if it was to receive some immediate advice from the native title party, as to its preparedness to negotiate and an indication as to timeframe within which such a substantive response to the proposed draft agreement would be received.
The native title party’s assertion of the purported aggravating factor which made the lack of good faith of the grantee parties, in the view of the native title party, “relatively extreme”, which was said to be the fact that the proposed leases
‘would have the effect of extinguishing the Objectors [sic] recently granted native title rights and interests.’ (native title party’s submissions, para 30)

is simply wrong in law as s 238 of the Act makes clear.

The native title party also asserts that the failure of the grantee parties to substantiate the reasons that there was urgency in relation to the “priority tenements” was
entirely inconsistent with the concept of good faith’ (native title party’s submissions, para 38)

In the overall context of negotiations that had been ongoing for some years and, given the publicly known facts about the matters relating to the grantee parties’ experience in the Pilbara region, it would be surprising if the native title party would not appreciate why certain tenements were of significance to it. In any event, the statutory period for negotiation at the time of the proposed offer on 5 September 2008, had already expired. There was no obligation on a grantee parties to explain to a native title party why one tenement was more significant to it than another.

The assertion that both the grantee parties and the Government party approached the negotiations with a “closed mind” because of a refusal to contemplate a negotiation protocol and agendas has implicitly been dealt with above in the sense that the grantee parties, in particular, had gone to some lengths to obtain a response from the native title party to its 5 September 2008 draft agreement. If that response had been received it may well have been that further discussions would have been had about the logistical needs of a further negotiation process which was implicit in all the grantee parties’ correspondence right up until its last letter of 19 December 2008. Further, it is apparent that the grantee parties altered its offer on several occasions during the course of the negotiation of the whole of claim negotiations and provided a further proposed offer on 5 September 2008 in respect of specific tenements including the proposed leases.
The final assertion which I wish to deal with, was raised by the native title party in its submissions (para 31) and its responsive submissions (pg 5, para 1-5). It asserts that the grantee parties were being disingenuous when they referred to the unwillingness of the native title party to negotiate because of the fact that they were aware of the native title party’s procedural obligations in obtaining instructions from the members of its Prescribed Body Corporate and the difficulties that attended that process during the Law Business season over the summer period. In my view that can be answered in two ways:
The request for the response was made at the beginning of September 2008 and promised at least up until 30 October 2008 to be forthcoming. At no time was it suggested by the native title party that the request for such a response was inappropriate.
In the letters of 11 December and 18 December 2008 from Mr Singh of the grantee parties to Mr Bower of the native title party these, difficulties were acknowledged. On both occasions the question of the difficulty of obtaining instructions from the native title party over the Law Business period was canvassed. There was a request in the letter of 11 December 2008 for the native title party to consider its commitment to Law Business in the context of its previous commitment to provide a response in a reasonably expeditious manner. In my view, that request was indicative of a sensitivity to the problems of obtaining instructions during the time and the legitimate commitment of the native title party to the pursuit of, and adherence to, its traditional practices and customs. The letter of 18 December 2008 did not demand a substantive response but a commitment to negotiate and a timetable.
I do not find that there is any foundation for the native title party’s assertions that the grantee parties have not negotiated in good faith in the conduct challenged by the native title party.

Good faith negotiations – native title party

It has always been accepted that the behaviour of a native title party is relevant to whether the other parties have negotiated in good faith (See Walley & Ors v Western Australia (1996) 67 FCR 366 at [381]; Western Australia v Taylor (1996) 134 FLR 211 at [250] (“Njamal”)). Furthermore, following the 1998 amendments of the Act, s31(1) was amended so that the obligation to negotiate in good faith was imposed upon all parties, including the native title party. The detection of behaviour, indicative of one or more of the Njamal indicia in a process of negotiation, is not necessarily determinative of the question of whether a party has acted in good faith or not. The particular circumstances of each matter are critical.
The grantee parties contend that the native title party did not negotiate in good faith and there is substantial evidence provided to support that contention.
If in the course of negotiation, a party receives a proposal in relation to the doing of the act, it should consider that proposal and respond without being required to accept such a proposal. (Western Australia/Arthur Dimer & Ors (Ngadju People); Cyril Barnes & Ors (Central East Goldfields People)/Eques Limited, NNTT WF99/10, Ms Patricia Lane, 9 August 2000 (at 40)). That obligation and caveat applies to all parties, including the native title party.
Following s 29 notification of the proposed leases, the grantee and native title parties met on 28 April 2008 to discuss the WOCLAA and it was noted that whilst agreement had been reached on most aspects, the outstanding issue was the compensation component and there is no doubt that up until the lodgment of the s 35 applications, the grantee parties provided a number of revised offers in relation to this component whilst the native title party did not shift its original position, despite twice undertaking to seek instructions to do so.
At the meeting of 28 April 2008 and at the request of the native title party, the grantee parties’ representatives undertook to commission an independent economist to provide a report to assist the native title party in negotiations over the compensation component of the draft WOCLAA. The grantee parties’ representatives also undertook to consult with their executive to provide a counter offer on the compensation component. On 26 May 2008, a negotiation meeting, funded by the grantee parties, was held between the grantee parties’ representatives and the native title party’s representatives and five members of the native title party negotiating team at which the grantee parties’ representatives provided a counter offer on the compensation component, and requested the native title party to revise its position and do the same. Despite the native title party declining to do so, the grantee parties’ representatives provided a second counter offer before the meeting was concluded as no further progress could be made. On 18 June 2008, a negotiation meeting was held at the request of the native title party, during which the native title party advised that, contrary to the understanding of the grantee parties’ representative, they were “not here to offer” but “to see if negotiations can progress” and requested the grantee parties fund a negotiation meeting between the parties. Mr McGlew for the grantee parties advised that in the absence of any counter offer from the native title party, the grantee parties’ felt they had “exhausted resources” and would not fund another large negotiation meeting. The grantee parties’ response is understandable given that the parties had previously agreed that the compensation component was the only major impediment to reaching agreement, and whilst the grantee parties had provided two subsequent counter offers, the native title party had not moved from its position. At the conclusion of the meeting on 18 June 2008 the native title party undertook to provide a counter offer on the WOCLAA within the week, but failed to do so. The native title party was afforded more than reasonable to time to respond as some three months passed before the grantee parties reopened communication and provided a third counter offer on 5 September 2008, in the form of a draft agreement covering only those tenement applications identified as “priority tenements” (including the proposed leases).
Despite requesting the 23 October 2008 meeting with the grantee parties’ representatives, and confirming beforehand that they “would be in a position to respond to it [the draft agreement] on 23 October” (GP43), this did not occur at the meeting. At the meeting, the native title party confirmed it would “meet in early November after which they will provide written comments and proposals with what they feel are a fair counter-offer” (GP48 and also noted in similar terms in NTP10). Whilst a funeral and other cultural obligations may have delayed the native title party meeting in early November, it is difficult to comprehend that, in the absence of any evidence to the contrary, such obligations could contribute to a delay so extensive that no meeting could be held (or at least a date confirmed) prior to the grantee parties lodging the s 35 Application on 19 December 2008. This is especially so, given there is evidence that as early as 30 October 2008, it was necessary for the native title party to convene a meeting as “a number of items already needed to be dealt with” (GP51). Again, for the second time in the history of negotiations, the native title party was afforded some three months to provide a counter offer to the grantee parties and failed to do so. At no time did the native title party state clearly that it was having difficulty obtaining instructions or offer to provide a response by a future date.
No evidence has been provided to the Tribunal which explains why the native title party did not provide a counter offer within the week following the meeting on 18 June 2008 (as agreed) nor at any time during the three months which passed before the grantee parties made a third counter offer on 5 September 2008. Nor is there evidence which explains the month delay in the native title party’s representative acknowledging that letter of 5 September 2008. Neither is there evidence which explains any reasons for the delay in responding to the grantee parties’ four letters of 3 November 2008, 20 November 2008, 3 December 2008 and 11 December 2008, a response which did not occur until 17 December 2008.
There is no doubt that, on 5 September 2008 and on several occasions following, the grantee parties requested the native title party provide submissions to indicate the effect of the grant of the proposed leases on their native title rights and interests which might assist the grantee parties in furthering negotiations. The Government’s initial negotiation letter of 20 May 2008, requested advice of such. However as noted above, the native title party provided no response in respect of M47/1407 and M47/1408 and what appears to be a pro-forma response in respect of M47/1410. At no stage during the negotiations did the native title party provide any information in response to these requests which was in a form that enabled the negotiations to proceed productively.
I note the correspondence from Jerome Frewen dated 23 May 2008 (GP35) and 12 June 2008 (GP39) twice alleging that “no negotiations have taken place” in respect of M47/1407-1411 and requesting a negotiation protocol be executed, to which the representative for the grantee parties twice responded that the mining leases were included in the WOCLAA negotiations covered by the 2006 negotiation protocol executed by the grantee parties. I also note the correspondence from Mr Frewen dated 2 December 2008 (GP54) requesting confirmation that the first grantee party was negotiating o behalf of the second grantee party in respect of M47/1407. It is clear from the evidence that immediately following s 29 notification of the proposed leases, Mr Frewen confirmed such with the grantee parties (GP24, GP25, GP26, and GP32). Furthermore during the time of this correspondence, a number negotiation meetings were held with the grantee parties’ representatives and the native title party. I am unable to find any purpose for Mr Frewen to raise matters that were clearly resolved immediately following s 29 notification of the proposed leases at this later point.

[100] In Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Leslie Hayes, Glenys Hayes, Judy Hayes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji People (WC99/45), NNTT WF00/7, [2001] NNTTA 18 (9 March 2001), at [48-49] Hon C J Sumner made comment on the expectations the Tribunal had of the behavior of native title parties and their professional advisers. The native title party has alluded to the fact that obtaining instructions from native title holders was difficult and that the regulations governing the decision-making processes of PBCs are onerous, particularly without ongoing financial assistance from a grantee party. Notwithstanding that, I find that the conduct of the native title party lacked candor, evaded the crucial issues and was generally uncooperative. The only conclusion I can reach is that conduct was designed to bring pressure to bear on the grantee parties to relent in its determination to elicit a response to the 5 September 2008 draft agreement before discussing a negotiation protocol. There is no evidence to suggest that the native title party had not negotiated in good faith prior to the meeting of 18 June 2008, despite a failure to respond to earlier proposals. However, I find the whole tenor of the approach taken after that meeting, and particularly after 30 October 2008, was suggestive of evasive and disingenuous behavior, which was designed to frustrate the advancement of negotiations. On that basis, I find the conduct of the native title party in the negotiations in relation to the proposed leases amounted to a failure to negotiate in good faith.

Decision

[101] The native title party has not negotiated in good faith with the grantee parties as required by s 31(1) of the Native Title Act 1993 (Cth). The Government party and the grantee parties have negotiated in good faith with the native title party as required by s 31(1) of the Native Title Act 1993 (Cth) and the Tribunal has power to conduct an inquiry and make a determination.

Daniel O’Dea
Member
23 June 2009

Concept	FMG	EG
Up-front	$300,000	$300,000
Annual	$10,000 until $70,000 JORC reserve $100,000 Mining Proposals	$400,000 annual ($200,000 deferred from royalties)
Royalty Free	3 yrs	None
Mining	17c tonne Capped at $3.5m (11c mine, 4c VTEC, 2c Rail)	1% of revenue (GP 38)