NATIVE TITLE – future act – proposed mining lease – review of Tribunal finding that grantee party did not fulfil its obligation to ‘negotiate in good faith’ – scope of obligation to negotiate in good faith – whether stage of negotiations relevant – whether requirement to negotiate specifically about the future act – Tribunal’s power to make a determination under s 38 of the Native Title Act 1993 (Cth)
Held: The appeal be allowed and the decision of the National Native Title Tribunal made on 11 July 2008 be set aside.
Native Title Act 1993 (Cth) ss 29, 30A, 31(1)(b), 35, 35(1)(a), 36(2), 38, 39, 85
Western Australia/Thomas on behalf of the Walgen People/Anaconda Nickel Ltd [1998] NNTTA 8
FMG PILBARA PTY LTD v ANGELINA COX, HAROLD ASHBURTON, ANGIE COX, CHARLESTON COX, MAURICE DAUBLIN, MAUDIE DIOWTON, MITCHELL DRAGE, CHLOE HAYES, DARRYL HUGHES, GARY HUGHES, ARNESS JAMES, LILY MACKAY and ANNABELLE STEWART ON BEHALF OF THE PUUTU KUNTI KURRAMA PINIKURA PEOPLE, WINTAWARI GURUMA ABORIGINAL CORPORATION and THE STATE OF WESTERN AUSTRALIA
WAD 169 of 2008
SPENDER, SUNDBERG AND MCKERRACHER JJ 30 APRIL 2009 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 169 of 2008
ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL CONSTITUTED BY MR J SOSSO, DEPUTY PRESIDENT
BETWEEN:
FMG PILBARA PTY LTD Applicant
AND:
ANGELINA COX, HAROLD ASHBURTON, ANGIE COX, CHARLESTON COX, MAURICE DAUBLIN, MAUDIE DIOWTON, MITCHELL DRAGE, CHLOE HAYES, DARRYL HUGHES, GARY HUGHES, ARNESS JAMES, LILY MACKAY, ANNABELLE STEWART ON BEHALF OF THE PUUTU KUNTI KURRAMA PINIKURA PEOPLE First Respondents
WINTAWARI GURUMA ABORIGINAL CORPORATION Second Respondent
THE STATE OF WESTERN AUSTRALIA Third Respondent
JUDGES:
SPENDER, SUNDBERG AND MCKERRACHER JJ
DATE OF ORDER:
30 APRIL 2009
WHERE MADE:
PERTH
THE COURT DECLARES THAT:
On the facts found by the National Native Title Tribunal, the applicant fulfilled its obligation to negotiate in good faith and the Tribunal had the power to conduct an inquiry and make a determination under s 38 of the Native Title Act 1993 (Cth).
THE COURT ORDERS THAT:
1.The appeal be allowed and the decision of the National Native Title Tribunal made on 11 July 2008 be set aside.
2. There be no order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49
Case
[2009] FCAFC 49
Decision Date
CaseChat Overview and Summary
The matter before the court was an appeal by FMG Pilbara Pty Ltd against a decision of the National Native Title Tribunal (the Tribunal) that FMG had not negotiated in good faith in relation to a future act as required by section 31(1)(b) of the Native Title Act 1993 (Cth). The future act in question was the proposed grant of a mining lease (the Proposed Tenement) to FMG. The Tribunal had found that due to this failure, it lacked jurisdiction to conduct an inquiry and make an arbitral determination under section 38 of the Act. The appeal to the court was limited to questions of law, with no challenge to the facts found by the Tribunal.
The central legal issues the court had to address were whether FMG had fulfilled its obligation to negotiate in good faith and if the Tribunal was correct in concluding that FMG was required to negotiate specifically about the Proposed Tenement after broader negotiations failed. FMG argued that the negotiations were in good faith and that there was no obligation to continue negotiating beyond the six-month period specified in section 35 of the Act or to engage in specific negotiations about the Proposed Tenement after broader negotiations had broken down.
The court found that the Tribunal's conclusion that FMG had not negotiated in good faith was based on the Tribunal's view that FMG had not sufficiently advanced the negotiations before applying under section 35 of the Act. However, the court held that the requirement of good faith did not mandate that negotiations reach a certain stage or result in agreement before FMG could apply under section 35. Additionally, the court held that the Act does not prescribe the manner in which negotiations are to be conducted, provided they are in good faith. The Tribunal had erred in concluding that FMG's reliance on failed general negotiations, which did not specifically address the Proposed Tenement, was unreasonable and contrary to the requirements of section 31(1)(b) of the Act.
The court allowed the appeal, set aside the Tribunal's decision, and made no order as to costs. The decision underscores that while negotiations must be in good faith, the Act does not dictate the specific manner or scope of those negotiations, provided they are directed towards achieving agreement.
Orders
Orders of the court
1. The appeal be allowed and the decision of the National Native Title Tribunal made on 11 July 2008 be set aside.
2. There be no order as to costs.
Note:
Background
Background to the litigation
The applicant (FMG) appeals from a decision of the National Native Title Tribunal (the Tribunal) given on 11 July 2008 (Angelina Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd [2008] NNTTA 90). The Tribunal determined that FMG had not fulfilled its obligation to negotiate in relation to a ‘future act’ in good faith. This obligation is imposed pursuant to s 31(1)(b) of the Native Title Act 1993 (Cth) (the Act). The Tribunal concluded that by reason of this failure, it had ‘no jurisdiction’ to conduct an inquiry and to make an arbitral determination pursuant to s 38 of the Act. BACKGROUND The relevant ‘future act’ was the proposed grant of a mining lease M47/4104 (the Proposed Tenement) to FMG. On 25 April 2007 the third respondent (the State) gave notice pursuant to s 29 of the Act of the future act. The first and second respondents are claimants of native title in the Pilbara region of Western Australia in which the Proposed Tenement would be situated. FMG and the first respondent (PKKP) negotiated in relation to a draft Land Access Agreement (the LAA) from February 2007 when a draft of the LAA was first forwarded by FMG to PKKP. The parties intended that the LAA, if agreed, would become an Indigenous Land Use Agreement (ILUA) within the meaning of Div 3, subdivision C of the Act. An ILUA is a voluntary but binding agreement as an alternative to more formal native title machinery. PKKP and the second respondent (WGAC) were each in the course of endeavouring to negotiate LAAs with FMG when FMG, in the absence of agreement being reached within at least six months from notification under s 29 of the Act, sought from the Tribunal a determination under s 35 of the Act in relation to the Proposed Tenement. The geographic location of the Proposed Tenement covers part of PKKP’s native title claim area and also the area subject to an approved determination in favour of WGAC. With WGAC, the negotiations commenced in late March of 2006. On 6 November 2006, a negotiation protocol was concluded. The aim of agreeing the protocol was to ensure the negotiation of the LAA would proceed pursuant to that protocol. The parties accepted that agreeing a protocol was a necessary ingredient in the process of negotiating in relation to possible agreement with respect to the future act. Under each of the draft LAAs, FMG negotiated with PKKP and WGAC on a ‘whole of claim’ basis. The initial draft LAAs with both PKKP and WGAC were in similar terms. Each provided that in return for compensation from FMG, the native title parties would agree to future activities that might be conducted. Those acts could not be specifically identified in advance. It was clear however and common ground that the breadth of the description of projects in each draft LAA as well as the geographic location, embraced the Proposed Tenement. STATUTORY FRAMEWORK Registered native title claimants or holders have the benefit of a negotiation procedure set out in ss 29-35 of the Act. It commences with the issuing of a notice, in this instance by the State, in a manner specified in s 29, of an intention to do a future act.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
SPENDER, SUNDBERG AND MCKERRACHER JJ
This appeal (under s 169 the Act) is restricted to questions of law. There is no challenge to any of the facts found by the Tribunal. THE TRIBUNAL DECISION AND THE BASIS OF APPEAL FMG contends, contrary to the determination of the Tribunal, it complied with s 31(1)(b) of the Act in relation to both native title respondents. It points to the fact that the Tribunal found that:(a)FMG had negotiated with PKKP in good faith throughout the period between the s 29 notification day and the making of FMG’s application under s 35 of the Act including diligently advancing negotiations over a draft LAA;(b)it was entirely appropriate for FMG to seek to negotiate a broader agreement involving all of its ‘projects’ in the relevant claim area (a ‘whole of claim’ agreement) as provided for in each draft LAA, as distinct from doing so on a proposed tenement by tenement basis; and(c)PKKP had agreed to the grant of the proposed tenement the subject of the future act determination (the Proposed Tenement) being covered by the draft LAA so that negotiations over the LAA would encompass those in respect of the Proposed Tenement. From these findings it follows, according to FMG, that the Tribunal erred in two ways. First it erred in concluding that FMG was obliged both to continue to negotiate with PKKP beyond the six month period specified in s 35 of the Act in order to satisfy the requirements of good faith negotiation under s 31(1)(b) of the Act. Secondly, it is argued that the Tribunal erred in concluding that FMG was bound to negotiate with WGAC on the specific tenement the subject of the future act and the s 35 application, when negotiation on the ‘whole of claim’ basis failed. On the first issue, the Tribunal concluded (at [91]) that although FMG had approached negotiations with PKKP in relation to the LAA in a manner which was reasonable and honest, it had not advanced those negotiations to a stage where it could be said that it had discharged its duty to negotiate in good faith. The Tribunal concluded that the duty to negotiate in good faith was not discharged where one party unilaterally concluded the negotiations which were at an embryonic stage before agreement could be reached. On the second issue, (that FMG was in error in not also negotiating specifically about the grant of the Proposed Tenement), the Tribunal concluded the basis on which FMG formulated its offer was not unreasonable in relation to the financial package. Further, the Tribunal found that the evidence supported the contention that PKKP and WGAC had agreed to include negotiations about the Proposed Tenement in broader discussions. FMG points to the facts found by the Tribunal that the Proposed Tenement was contained within the LAA and that any terms of compensation expressed for the LAA would apply to the tenement. In attempting to negotiate those terms, FMG was found to have acted in good faith but without success. Financial offers and counter offers had been exchanged on three occasions between each of FMG and WGAC. FMG argued that there was no further obligation to revert to WGAC to negotiate specifically only in relation to the Proposed Tenement after negotiations in relation to the whole of claim covered by the draft LAA had broken down. QUESTIONS OF LAW ARISING
Ratio Decidendi
Legal Principle Established
Established by:
SPENDER, SUNDBERG AND MCKERRACHER JJ
The Tribunal made it clear that in the conventional sense there was no finding of an absence of good faith on the part of FMG. In those circumstances the fact that the negotiations had reached only a preliminary stage before expiry of the six month period and before it proceeded with an application under s 35 of the Act could not constitute a failure to negotiate in good faith for the purposes of s 31(1)(b). INCORPORATION OF NEGOTIATIONS FOR THE FUTURE ACT IN A BROADER RANGE OF DISCUSSIONS The Tribunal held (at [82]) that it would be unreasonable and contrary to the requirements of s 31(1)(b) of the Act for FMG to claim that it had fulfilled its duty to negotiate in good faith to obtain the doing of a future act when it relied upon failed general negotiations which never substantially addressed the specific Proposed Tenement. FMG submits that the Act does not prescribe the manner in which the negotiations are to be conducted other than in requiring ‘good faith’ directed to achieving agreement. In relation to WGAC, the Tribunal found that the negotiations had reached an impasse over compensation. It held that FMG should have revived limited and specific negotiations over the Proposed Tenement after that impasse. There were very limited findings as to the terms of the three offers made by FMG. However, in a detailed judgment, the Tribunal concluded that the offers were appropriate at least in the sense that there was nothing about them which would lead to a conclusion that they were not made in good faith. Specifically, the Tribunal considered but (understandably) rejected an argument that to the extent that the offers were based on a percentage of compensation for actual production rather than actual profit, they were inappropriately based. At the heart of FMG’s appeal is the submission that the Act does not circumscribe the subject matter of the s 31(1)(b) negotiations provided that they are conducted in good faith with a view to obtaining the agreement of the native title party to the doing of the future act. There is some guidance from the statute as to the matters which might be canvassed in negotiations. Section 39 lists a variety of matters which, it has been held, may provide some guidance as to those that may reasonably be expected to form part of the negotiations (see Brownley 95 FCR 152 at [24]-[25]. However, the manner in which they are dealt with (apart from a good faith obligation with a view to obtaining agreement), is not prescribed. It has not been suggested at any time that the native title parties were unaware that the negotiations in relation to each of the LAAs contemplated the grant of mining tenements. Nor is it suggested that they were unaware that amongst those possible tenements was the mining lease which is the Proposed Tenement. There was no doubt on the evidence that FMG provided information about the Proposed Tenement and made it clear that negotiations in relation to the Negotiation Protocol and the draft LAA with PKKP included negotiations for the proposed future act. The Proposed Tenement is included in the proposed future act. Neither of the native title parties raised any objection to the negotiations proceeding on a whole of claim or project wide basis pursuant to the LAA.