Gregory Wayne Down/Cyril Barnes and Others on behalf of Wongatha People/ Western Australia
[2004] NNTTA 91
•1 October 2004
NATIONAL NATIVE TITLE TRIBUNAL
Gregory Wayne Down/Cyril Barnes and Others on behalf of Wongatha People/ Western Australia, [2004] NNTTA 91 (1 October 2004)
Application No: WF04/9
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Gregory Wayne Down (Applicant/Grantee party)
- and -
Cyril Barnes and Others on behalf of Wongatha People (WC99/1)
(Native Title party)
- and -
The State of Western Australia
(Government party)
FUTURE ACT DETERMINATION - TRIBUNAL JURISDICTION TO DETERMINE MATTER
Tribunal:Deputy President The Hon EM Franklyn QC
Place:Perth
Date:1 October 2004
Catchwords: Native Title – Future Act – preliminary issue going to jurisdiction – Whether grantee has negotiated in good faith – grantee has negotiated in good faith
Legislation:Native Title Act 1993 (Cth) s 29, s31(1)(b), s 35, s 38
Cases:Evans and Ors/Western Australia/Anaconda Nickel, NNTT WF98/267 [1999] NNTTA 203 (15 July 1999) Hon CJ Sumner
Rita Dempster and Ors/Bayside Abalone Farm Pty Ltd and Anor/Western Australia, NNTT WF99/1 [1999] NNTTA 235 (27 August 1999)
Hearing Date: 3 September 2004
Representative of the Mr Dion Meredith, North East Independent Body
Native Title party: Mr Ian Miller, Geotask Pty Ltd
Representative of the
Grantee party: Mr Matthew Clohessy, Emerald Tenement Services
Counsel for the
Grantee party: Ms Christine Lovitt, Blakiston & Crabb
REASONS FOR FUTURE ACT DETERMINATION – WHETHER GRANTEE HAS NEGOTIATED IN GOOD FAITH
On 26 March 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the grant of Mining Lease M37/1164 (‘the proposed lease’) under the Mining Act 1978 (WA) to Gregory Wayne Down (‘the grantee party’). The proposed lease comprises an area of some 103.84 hectares, 18 km east of Leonora, in the Shire of Leonora.
The Native Title party in respect of these proceedings is:
Aubrey Lynch, Cyril Barnes, Dimple Sullivan, Elvis Stokes, Leo Thomas, Les Tucker, Murray Stubbs, Pearlier Wells, Ron Harrington-Smith, Sadie Canning, Thelma O’Loughlin and Tomashisha Passmore on behalf of the Wongatha People .
The Wongatha native title claim was entered onto the Register of Native Title Claims on 10 February 2000, has remained on the Register since that date, and entirely overlaps the area subject to the proposed lease. As a registered native title party, the Wongatha People have the right to negotiate pursuant to Part 2 Division 3 Subdivision P of the Act.
On 12 May 2004, being a date more than six months after the s 29 notice was given, Gregory Wayne Down made an application pursuant to s 35 of the Act for a future act determination under s 38, alleging inability to reach agreement with the native title party despite negotiations to reach agreement during a period from 19 September 2003 to 5 May 2004 which included mediation requested by the Government party at the grantee party’s request.
I was appointed the Member to conduct the s 35 inquiry on 19 May 2004 and accepted the s 35 determination application on 3 June 2004.
On 3 June 2004 I convened a Preliminary Conference at which I inquired whether there was a good faith issue. There was no suggestion from any party that there was any such issue and consequently on the same date I issued Directions for the conduct of the Inquiry on the basis that all parties accepted that the Tribunal had jurisdiction to hear and determine the matter.
On 10 June 2004 the Government party lodged with the Tribunal the material required by Direction (1) of Directions made 3 June 2004. The Native Title party was required by the Directions to comply therewith on or before 15 July 2004.
On 14 July 2004 the Tribunal received by email, a letter from Mr Ian Miller writing, in the absence of Mr Dion Meredith, as Technical Consultant to North East Independent Body (‘NEIB’), which represents the Native Title party, and on its behalf. The letter sought an extension of time for compliance with the Directions of 3 June 2004 but also contained a statement that the native title party believed the Grantee had not negotiated in good faith, asserting failures on its part to comply with paragraphs 2, 8, 9, 13, 14 and 19 of a document entitled ‘Summary of How to Negotiate in Good Faith’, issued in September 2001 by the Department of Mineral and Petroleum Resources (now the Department of Industry and Resources). A copy of that document, together with a copy of a “Powerpoint presentation” entitled ‘Wongatha Initiative Proposal – Native Title Negotiations’, dated 14 July 2004 was received with the letter. The same allegations, accompanied by the same and other documents, are repeated in a letter from NEIB dated 10 August 2004 (which contained, also, further allegations) expressed as being from Mr Dion Meredith, received by the Tribunal electronically and considered in paragraph [12] hereof.
On 15 July 2004 the Grantee’s representative wrote to the Tribunal agreeing to the Native Title party’s request for an extension of time with the following additional comments:
‘..The NEIB correspondence also raises the issue of “Negotiations in good faith”.
The Grantee Party notes that at the pre-inquiry in respect to the Section 35 application held before you on the 3 June 04 it was agreed between the attendees that the matter of “Negotiations in good faith” was not an issue.
The matter of “Negotiations in good faith” has been addressed and determined at the pre-inquiry and it is submitted that the matters raised in the NEIB letter regarding this matter are not relevant.’
On the same date a Tribunal case manager contacted the Government party which advised verbally that it agreed to the Native Title party’s request for an extension of time with Directions and had nothing to add in relation to the issue of negotiations in good faith.
On 21 July 2004 the Tribunal advised each party that, the issue of lack of good faith on the part of the Grantee having been raised, it goes to the jurisdiction of the Tribunal to entertain the s 35 application, and must be dealt with prior to the application and that consequently compliance with the Directions of the 3 June 2004 was suspended.
On 29 July I made the following Directions in respect of the good faith issue:
‘1. On or before 11 August 2004 any native title party, that does not agree or takes issue whether the Government party and/or the grantee party have negotiated in good faith, is to provide to the Tribunal and each of the other parties a statement of contentions and supporting documentary evidence in relation to whether the Government party and the grantee party have negotiated in good faith and specify in detail in respect of each of the Government party and the grantee party the matters it relies on as leading to the conclusion of lack of good faith negotiations.
On or before 18 August 2004 the Government party and/or the grantee party will each provide to the Tribunal and to the native title party a statement of contentions and supporting documentary evidence in relation to whether they have negotiated in good faith.
On or before 25 August 2004 the native title party is to provide to the Tribunal and the Government party and the grantee party a statement of contentions and documents in reply.
A hearing in relation to whether the Government party and the grantee party have negotiated in good faith (if necessary) will be listed in the week commencing 30 August 2004 at which the parties will be required to:
(a)make submissions on whether the Tribunal should hear the matter on the papers (s 151(2)(b));
(b)identify the facts which are in dispute and outline how a finding on these issues will be critical to the Tribunal’s decision; and
(c)attempt to clarify any facts in dispute by consultation or correspondence.
The parties’ attention is drawn to Paragraph 5.10 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal on 20 April 2000, and in particular to Paragraph 5.10.8. As far as practicable the parties are to provide evidence (including witness statements) in documentary form. Witness statements where possible are to be verified by affidavit.
Liberty is given to apply to vary these directions or for a re-listing of this hearing.’
Native Title party contentions and evidence
On 12 August 2004 the Native Title party lodged with the Tribunal, in the form of a CD-ROM, contentions and other material addressing the issue of whether the grantee had negotiated in good faith with the Native Title party. The CD-ROM contained copies of the following documents referred to in the footnote to a letter dated 10 August 2004 as appendices (a), (b), (c), (d), (e) and (f) respectively:
Appendix (a) The VALMIN Code (Code and Guidelines for the Technical Assessment and/or Valuation of Mineral and Petroleum Assets and Mineral and Petroleum Securities for Independent Expert Reports)
Appendix (b) Prospectus for Liberty Gold NL dated 2 January 2004
Appendix (c) Summary of How to Negotiate in Good Faith – published by the Dept of Mineral and Petroleum Resources (DMPR)
Negotiation Protocol for Petroleum Titles in the Right to Negotiate Process (this document also appears to be authored by DMPR)
Appendix (d) Tenement Summary, dated 11 August 2004, issued by the Department of Industry & Resources providing particulars of M37/1164
Appendix (e) Powerpoint presentation entitled ‘Wongatha Initiative Proposal – Native Title Negotiations’, dated 12 August 2004.
Appendix (f) (i) Heritage and Land Access Agreement – Wongatha and Gregory Downs, Draft v1
(ii) Letter to Deputy President Franklyn on NEIB letterhead, dated 14 July 2004, entitled ‘WF04/9: Section 35/Future Act Determination Application Inquiry: Wongatha People (WC99/1) & Gregory Wayne Down (M37/1164)’ (this being the letter of 14 July referred to in paragraph [7] herein)
(iii)Letter to Gregory Down on NEIB letterhead, dated 12 September 2003, entitled ‘Wongatha Native Title claim – Heritage and Land Access Negotiations’.
It also included a document entitled ‘Mineral Project – Generation and Management’, written by Ian Miller, dated 9 August 2004, not said to be appended. A number of other files were present on the CD-ROM submissions which appear to be drafts of documents detailed above or files which have been corrupted in the electronic copying process. Enquiries by a Tribunal case manager of Mr Meredith confirmed this to be so.
The contentions are contained in the letter dated 10 August 2004 referred to in paragraph [7] herein, the contents of which I summarise hereunder:
[12.1] The VALMIN Code
Under the heading ‘Correspondence dated 29 July 2004’ the letter sets out Direction (1) of the Directions of 29 July and then refers to the “Valmin Code” (‘the Code’), a copy of which is included in the CD-ROM, quoting paragraphs C45 and G143 thereof, contending that the “grantee has not met the requirements of Section C45 and G143 of the Valmin Code, in particular in accounting for the provisions of Compensation and thus has not negotiated in good faith”. The contention alleges that the Code applies to “all relevant Reports required under the Corporations Law issued on or after 1 April 1988.” Paragraphs C45 and G143 are set out hereunder:
‘C45. The Expert or Specialist must review and report upon environmental, land access, Native Title or rehabilitation matters, which may impact on a Technical Assessment or Valuation Report. The identification of those factors, which could lead to delays in project development, curtailment of operations, and any resulting higher cost of debt or equity or compensation payments or which may otherwise have a significant cost are particularly important.
G143. A Report should consider and comment on the likely impact of planning controls, restrictive zoning, Native Title or other land rights, and other administrative matters.’
The document referred to as the Valmin Code is entitled ‘Code and Guidelines for Technical Assessment and/or Valuation of Mineral and Petroleum Assets and Mineral and Petroleum Securities for Independent Expert Reports (The Valmin Code)’. It bears the crest of the Australasian Institute of Metallurgy and contains statements advising that it was adopted by the Australasian Institute of Mining and Metallurgy and is binding on its members. It lists other bodies said to support its use. It is not a statutory document and clearly does not have the force of law. It is not a document directed to negotiations between parties but to the preparation of a comprehensive report of the nature mentioned by independent experts in general. There is no suggestion that the Grantee is an independent expert to that he had proposed or was preparing a report to which the code applies. In my opinion it imposes no obligation on the Grantee to provide to the Native Title party or any member a review or report as referred to in paragraph C45 or any commentary on the matters referred to in paragraph G143 as there provided, and his failure to do so cannot reasonably be regarded as a failure to negotiate in good faith.
[12.2] Liberty Gold Prospectus
Geologist’s Report
Under the heading “Liberty Gold Prospectus” there are contentions under sub-headings the first of which is: “P15 (sic) - Independent Geologists Report”. The following extract from page 13 of the prospectus, of which the report which forms part, is then quoted without any further comment:
“It is assumed for the purpose of this report that all tenements and agreement are and will remain in good standing in the immediate future. Investigations relating to native title claims, and consequences of exploration and mining on flora and fauna, have been reported on in the Solicitors Report in Section 7 and have not been reviewed by Kirkdale. Final draft of this report was provided to Liberty accompanied by a written request to identify and material errors or omissions prior to lodgement. Liberty has confirmed that no subsequent data or information have been received that materially alter the descriptions or prospectivity of the tenements at the time of this report.”
Solicitor’s Report
The letter then refers to page 49 of the “Solicitor’s Report on Tenements” forming part of this prospectus and, without reference to any passage therein, makes the comment, “Prior to issue of the Liberty Gold Prospectus, there was no legal representation from Liberty’s Solicitors to the Naïve (sic) Title party.” There is nothing in my opinion in the quoted passage from the Geologist’s Report or in the Solicitor’s report which imposes any requirement or obligation on Liberty Gold NL or the Grantee to make any legal representation to the Native Title party in respect of any matter referred to in the quoted passage, either as a matter of good faith negotiations or otherwise. The Solicitor’s report at page 48-49 contains an explanation of what is native title and discusses extinguishment and partial extinguishment and the procedure for making native title claims. I can find no evidence of failure by the Grantee to negotiate in good faith arising out of the matters referred to above in this paragraph.
[12.3] Aboriginal Heritage
The letter then has a sub-heading “page 50 - Aboriginal Heritage” and quotes from the Solicitor’s report at page 50 of the Prospectus which contains a summary of effects of the Aboriginal Heritage Act in relation to Aboriginal sites. Following the quotation the letter contends that “there is a requirement to undertake an Aboriginal Heritage Survey of the tenement, and the cost of this survey to be met by the grantee party. Such a survey has not yet been undertaken.” The letter states that the Native Title party has offered to undertake the same at the cost of the Grantee, which offer was not agreed to by the Grantee. It contends that by refusing to meet the costs of the survey the Grantee is not acting in good faith and that the survey must be undertaken prior to completion of the negotiation process. In the absence of an agreement to the contrary there is no requirement at law or otherwise for an Aboriginal heritage survey to be carried out by and/or at the cost of the Grantee. Nor is there any requirement that such a survey must be undertaken prior to the completion of the negotiation process. The carrying out of an Aboriginal heritage survey is, however a common issue often agreed upon in the negotiation process, but there is no obligation on one party to agree to the same or to terms imposed in respect thereof by the other with which it has reasonably based concerns, which may include the cost of such a survey. Lack of such agreement is not of itself evidence of lack of good faith. The Native Title party does not allege any facts from which an inference of lack of good faith can be drawn.
[12.4] Native Title Validation of Titles
The letter, under the sub-heading “Page 52 - Native Title Validation of Titles” then follows with an opening quote set out hereunder, being an extract from the Solicitor’s Report at page 50 of the Prospectus under the heading ‘Native Title Validation of Titles’:
“The right to negotiate process involves the publishing of a notice of the proposed grant of a tenement followed by a minimum 6 month period of negotiation between the relevant State Government, the tenement applicant and the relevant registered native title claimant. If agreement is not reached to enable to grant to occur, the matter may be referred to arbitration before the NNTT, which has a further 6 months to reach a decision. The relevant Federal Minister may review the decision of the NNTT.”
The letter then proceeds:
“The original letter sent to the grantee party from the Native Title party was dated 12th September 2003 (Appendix F).
There is provision for negotiations to undertake a minimum of 6 months. It was suggested to the grantee party that negotiations could have been completed during a half-day negotiation sitting. The proposal was
The Neib/Wongatha People has the “Right to Negotiate”, and as such have made a proposal to Mr. Down for the granting of tenement M37/1164:
–Upfront fee … AU$467.04
–Administration fee … AU$467.04 pa
–Land Access fee … AU$2,335.2 pa
–Production fee ... 1% of Gross production pa
The grantee party has, in our opinion, stalled the negotiation process, and hence has not acted in good faith. We believe that this proposal to be fair and reason (sic) in compensation.”
A copy of the letter of 12 September 2003 there referred to was part of the CD-ROM material lodged with the Tribunal. It appears to have been signed by Mr Dion Meredith in his capacity as Convenor for the negotiating sub-committee. It does not refer to the “proposal” from the Wongatha people referred to above, and in Schedule 1 thereof contains other costs to be met by the Grantee. The letter is as follows:
‘Wongatha Native Title claim – Heritage and Land Access Negotiations
NEGOTIATE IN GOOD FAITH
I refer to your tenement application, M37/1164, in the North-eastern Goldfields.
It is envisaged that negotiations can be completed over half a day, on the 16 September 2003 at the office of Legend Mining NL.
1. The North East Independent Body Inc. (“NEIB”) represents the Wongatha native title claimant group which claims native title to land in the Goldfields area (“Claim area”). NEIB is authorised by the Wongathan native title claimant group to negotiate on its behalf in relation to access to the Claim Area.
2. NEIB’s governing committee has, with the consent of the registered Wongatha native title applicants, convened a sub-committee which it has authorised to undertake those negotiations. The sub-committee comprises myself, Sadie Canning, Elvis Stokes and Murray Stubbs.
3. If you would like further information about the structure of NEIB and its relationship with the Wongatha native title claim group, please feel free to contact NEIB’s chairman, Mr Fabian Tucker, or NEIB’s solicitor, Mr Chris Ryder of Corrs Chambers Westgarth.
4. I understand that you are interested in negotiating with the Wongatha native title claimant group on the terms of future act agreements in relation to M37/1164 mining tenement applications in the Claim Area.
5. NEIB seeks your commitment to pay NEIB’s legal and other costs associated directly with this negotiation. To this end, I include schedule 1 which sets out:
(a)NEIB’s solicitors’ commercial terms and rates; and
(b)Other costs to be covered by your commitment.
6. I also include schedule 2 which sets out the department of Industry and Resources draft negotiating protocol for native title negotiations. We propose the parties follow that protocol to the extent it is relevant to you.
7. We propose the parties aim to complete the commercial aspects of the negotiation over two meetings to take place in Perth during September 2003.
8. Once the parties can reach agreement in principle, the NEIB sub-committee is required to report to the NEIB governing committee and the registered Wongatha native title applicants. Thereafter, NEIB must comply with certain rules for the purpose of ensuring that the Wongatha native title claimants understand the purpose and nature of and consent to the agreement. Assuming the negotiation can be conducted efficiently and be completed by September 2003, we anticipate the prescribed procedure for completion of any agreement can occur by the end of September 2003.
We request that certain information be provided, relating to your tenement applications, including: Proposed exploration programmes, Mineral Asset Valuations, Resource Evaluation, Reserve Estimation, Notice of Intend, Open pit/Underground Design, Independent Technical Report, and Due Dilligence.
I would be grateful if you could respond to this letter as soon as possible and confirm your undertaking to meet NEIB’s costs.
If you have any questions please do not hesitate to contact me on 0438 583 394.’
‘Schedule 1
Costs for negotiation
Legal costs and terms
9 Partner - $350 per hour (excluding GST).
10 Solicitor - $260 per hour (excluding GST).
11 Actual disbursements at cost.
12 Payment terms 14 days from invoice.
Other costs
13 Negotiators’ costs - $500 per day for the convenor and $300 per day each for three additional negotiators (excluding legal advisers).
14 Actualy travel costs (including air fares and allowance for mileage at $0.55c per kilometre).
15 Actual accommodation costs.
16 Geological adviser’s costs - $800 per day, plus GST.
17 All costs to be paid prior to execution of the state deed.
We request that fees be made payable directly to Corrs Chambers Westgarth, Geotask Pty Ltd, and the individual negotiating team.’
That proposal was not accepted by the Grantee. The inference sought to be drawn from the contention under this paragraph appears to be that, in not agreeing to commit to the costs set out in Schedule 1 or to come to some other agreement in respect thereof in the “half a day” on 16 September 2003 or at the latest by the end of September 2003, the grantee stalled the negotiation process and so did not act in good faith. This in my view is an entirely unreasonable submission, particularly when the evidence of mediation meetings at the request of the grantee, to which I later refer, is taken into account. Indeed, a reasonable inference from the content of the letter is that it relies on the Grantee’s statutory obligation to negotiate in good faith to ground the claim for payment of costs, which objectively, may or may not be reasonable.
Comment
The next section of the letter is headed “Comment” and I set out the same:
‘The Native Title party has previously requested certain information relating to the project/tenement. This requested information included: The Exploration Program report, the Mineral Asset Valuation report, the Resource/Reserve report, the Open pit / underground design report, the Notice of Intent to mine report, and Current Environmental Impact statement report. (Specifications in Appendix H).
This information was requested by the Native Title party in order to be fully informed as to the status and nature of the proposed mine development, to assess a fair and reasonable compensation in the full Right to Negotiate process. This requested information has not been provided, and we therefore consider that the grantee party has not negotiated in good faith.’
The document there referred to as Appendix H appears under a cover headed “GEOTASK PTY LTD” (together with an address) is titled “Mineral Project – Generation and Management”, and dated 9 August 2004, its author being named as “Ian Miller, Principal Geologist”. In my opinion it does not assist in assessing the value of the contentions. I add that in my opinion the failure to agree on compensation in the negotiation process is not of itself evidence of a lack of good faith on the part of either party. The Act provides that compensation may be determined by the Federal Court which a party may prefer. This is of course not the main thrust of the contention. It is however relevant to the allegation of failure to provide information that, as the Grantee’s contentions state, the Grantee has no access to the ground until the proposed lease is granted, that it has entered into an agreement to sell the same if and when granted to Liberty Gold NL, that there is no current proposal to mine any part of the lease (if granted); that only exploration is intended and that for that reason the information sought does not yet exist. The failure to provide the same does not lead to a conclusion of lack of good faith on the Grantee’s part.
Other issues
The letter of 10 August 2004 next proceeds under a heading “Other Issues”, relying on the undermentioned paragraphs of a document issued by the Department of Mineral and Petroleum Resources (now the Department of Industry and Resources) entitled “Summary of How to Negotiate in Good Faith”:
Para‘2. Failure to make proposals in the first place;
The Neib/Wongatha People has the “Right to Negotiate”, and as such have made a proposal to Mr. Down for the granting of tenement M37/1164:
–Upfront fee … AU$467.04
–Administration fee … AU$467.04 pa
–Land Access fee … AU$2,335.2 pa
–Production fee ... 1% of Gross production pa
Para‘8. Failure to respond to reasonable requests for relevant information within a reasonable time;
We have previously request (sic) that certain information be provided, relating to Mr Down’s applications, including: Proposed exploration programmes, Mineral Asset Valuations, Resource Evaluation, Reserve Estimation, Notice of Intent, Open pit/Underground Design, Independent Technical Report, Due Diligence, the Notice of Intent to mines, and an Environmental Impact Statement prior to mining.
Mr. Downs has presented the prospectus of Liberty Gold, but has not provided the above information, in particular the Notice of Intent to Mine and an Environmental Impact Statement.
Without this information the Wongatha People are not informed as to the nature of the proposed mine development, and hence cannot make a judgement as to wether (sic) any compensation is “fair and reasonable”
Para‘9. Stalling of negotiations by unexplained delays in responding to correspondence or telephone calls;
Mr. Down has purposely stalled the negotiation process by not providing the requested information outlined in Section 8, and has then entered into Section 35.
Para‘13. Shifting of negotiating position just as agreement seems in sight;
The Neib/Wongatha People made a proposal, and Mr. Down made a counterproposal. The difference between the two parties was one of “gross” versus “net” value of production of 1%.
Mr. Down then shifted his position to a proposal of $2,000 pa compensation. Mr. Downs has failed to grasp the difference between “Compensation”, and his perception that this is a “Royalty” payment.In essence, Mr. Down has agreed to pay the land Access (now renamed the Heritage and environmental) fee, but does not wish to pay for any production fee as part of the compensation.
Para‘14. Adoption of a rigid non-negotiable position;
Mr. Downs has adopted this stance, and has entered into the Section 35 whilst the NEIB/Wongatha People wish to continue to negotiate in good faith.
Para‘19. Unreasonable failure to disclose facts or legal argument which a party intends to rely on in an arbitral enquiry.’
We have previously request that certain information be provided, relating to Mr Down’s tenement applications, including: Proposed exploration programmes, Mineral Asset Valuations, Resource Evaluation, Reserve Estimation, Notice of Intent, Open pit/Underground Design, Independent Technical Report, Due Diligence, the Notice of Intent to mines, and an Environmental Impact Statement prior to mining.
Mr. Downs has presented the prospectus of Liberty Gold, but has not provided the above information, in particular the Notice of Intent to Mine and an Environmental Impact Statement.
Without this information the Wongatha People are not informed as to the nature of the proposed mine development, and hence cannot make a judgement as to wether (sic) any compensation is “fair and reasonable”.
No Heritage clearance survey of tenement M37/1164 has yet been undertaken.’
Paragraphs 2, 8, 9 and 19 do not add to the contentions earlier made at paragraphs [12.1] – [12.4] hereof and do not lead to a conclusion of lack of good faith. Paragraph 13 provides no clear particulars the agreement said to be “in sight” or the proposals there mentioned, and does not lead to any inference or conclusion of a failure to negotiate in good faith. There is no evidence that any agreement was in sight or that the Grantee “shifted his position” as to the annual payment of “$2,000 pa compensation”. The contentions suggests that, being not prepared to accept a figure based on production, the grantee offered a fixed annual sum of $2,000. Presumably the counter proposal is that contained in the letter of 15 March 2004 annexed to the Grantee’s Witness Statement. Nor does the allegation in paragraph 14 suggest a failure to negotiate in good faith. It implies no more than that the Grantee is not prepared to agree to the Native Title party’s proposal for an annual “production fee” by way of compensation and has offered instead a fixed annual payment. It does not seem unreasonable to refuse to agree to an annual percentage based on production when the production potential of the area has not yet been assessed. In my opinion the contention does not led to a conclusion of a lack of good faith in the negotiation process.
Correspondence
The next heading of the letter is ‘Part 2 – Correspondence, dated 4th June 2004-08-11 (sic)”. It sets out Direction (1) of the Directions made 3 June 2004, requiring the Government party to provide information including any details of recorded sites on the Register under the provisions of the Aboriginal Heritage Act. The letter comments that “there has been no Heritage Survey for the tenement”. It repeats the assertion earlier made that there is a requirement that such a survey be undertaken at the cost of the Grantee before completion of the negotiation process and the Grantee’s failure to fund the same indicates a lack of good faith. There is no authority for this stated requirement and it is not suggested that the Grantee had agreed to complete a survey at its cost or at all. The clear inference from the evidence is that the Grantee was not prepared to enter into such an agreement. There is no requirement that the Grantee carry out such a survey. This allegation does not establish any lack of good faith.
Grantee party’s contentions and evidence
On 20 August 2004 the Grantee lodged with the Tribunal its Statement of Contentions in respect of the good faith issue dated 18 August 2004, together with signed statements of evidence from Matthew John Clohessy and Gregory Wayne Down. In the absence of evidence from the Native Title party the contentions and statements are reproduced below.
‘Statement of Contentions on the issue of Negotiations in Good Faith by the Grantee Party
1. This determination relates to application for mining lease 37/1164 by Gregory Wayne Down. As the subject ground is not currently the subject of any other mining tenure, the grantee party will not have access to the ground until the mining lease application is granted.
2. By Sale Agreement dated 8 December 2003 the grantee party sold the mining lease application to Liberty Gold NL and the mining lease application is referred to as the Malcolm Project in the Prospectus of Liberty Gold NL dated 2 January 2004. This Prospectus is described as being “Annexure B” to the letter of contentions dated 10 August 2004 by the Native Title Party. As stated in that Prospectus, Gregory Wayne Down is a director of Liberty Gold NL.
3. The Native Title Party has contended that the Grantee Party has not negotiated in good faith in respect of mining lease application 37/1164 based primarily on an assertion that the Grantee Party has failed provide certain information including “Proposed exploration programmes, Mineral Asset Valuations, Resource Evaluation, Reserve Estimation, Notice of Intent, Open Pit/Undeground Design, independent Technical Report, Due Dilligence and Environmental Impact Statement”. The Grantee Party has provided to the Native Title Party a copy of the Liberty Gold NL Prospectus which, at page 30, summarises the proposal of the Company to carry out an exploration programme that includes geological mapping, drilling and mapping of underground workings.
4. As detailed in the Witness Statements of Matthew Clohessy and the Grantee party, annexed as Annexures “A” and “B” respectively, negotiations between the Native Title Party and the Grantee Party commenced in September 2003 and continued, despite the matter being referred to mediation in November 2003 and several mediation meetings taking place between December 2003 and May 2004. Mediation was terminated by Deputy President Sumner in June 2004.
5. At those meetings it was explained by the grantee Party to the Native Title Party that there is no current proposal to mine any part of the tenement (once granted) and that only exploration is intended to be carried out. For that reason the information requested by the Native Title Party, as set out in its letter of Contentions and repeated above in paragraph 3 of these Contentions, does not yet exist, as this is information which is only generated if a resource has been identified and it is intended to develop that resource. Accordingly, the Grantee Party cannot provide such information.
6. The Native Title Party asserts in Part 1.1 of its Letter of Contentions that “the Grantee Party has not met the requirements of Section C45 and G143 of the Valmin Code, and thus has not negotiated in good faith”. The Valmin Code (as annexed to the Native Title Party’s Letter of Contentions – Annexure “A”) applies to Independent Expert Reports, and not to the Grantee Party as is suggested. The Independent Expert’s Report contained in the Liberty Gold NL Prospectus was prepared by Kirkdale Holdings Pty Ltd, being an independent third party, and is stated at page 12 of the Prospectus to be fully compliant with the Valmin Code. Compliance with the Valmin Code is not one of the indicia for “good faith” identified in Western Australia v Taylor (1996) 134 FLR 211 (“Njamal”) and, even if it can be demonstrated that the Valmin Code applies to the grantee Party (which is denied), it is contended that there is no valid basis for the Native Title Party’s assertion that failure to comply constitutes failure to negotiate in good faith.
7. It is not one of the Njamal indicia that a heritage clearance survey be carried out prior to completion of negotiations or as part of the negotiation process, nor is it a requirement of the Aboriginal Heritage Act 1972 that such a survey be carried out as a matter of course. The Grantee Party does not yet have access to the area as the mining lease had not yet been granted.
8. The Tribunal has said that the practical effect of section 36(2) of the Native Title Act 1993 is to place an “evidential burden” on the party alleging lack of good faith negotiations which would normally requite it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on. (Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor v Western Australia NNTT WF99/1 Hon EM Franklyn QC, 27 August 1999). The Grantee party contends that the evidence produced by the Native Title Party does not support its allegations either sufficiently or at all.’
Witness Statement of Matthew John Clohessy:
‘Background
1. I am principal of Emerald Tenement Service, which is a tenement management business, and I am duly authorised to manage tenements, including MLA 37/1164, on behalf of Gregory Wayne Down and Liberty Gold NL.
2. MLA 37/1164 was lodged on 16/12/02 (over the area of prior M37/207 which had been surrendered on 5/12/02)
3. The Affidavit of compliance with Mining Act 1978 requirements was forwarded by me to the Department of Industry and Resources on 18/12/02.
4. The objection period under the Mining Act closed 20/1/03 (no objections were received).
5. MLA 37/1164 was advertised under section 29 of the Native title Act 1993 with a Notification date of 26 March 2003. A copy of that advertisement was annexed to the form 5 – Future Act Determination Application.
Negotiations and Mediation
1. The first meeting with the Native Title Party was held with the NEIB in West Perth on 18/09/03. I was present at that meeting.
2. Email was then sent to Ian Miller (assisting NEIB) on 19/9/03 seeking a further meeting.
3. A meeting was held with Ian Miller, Dion Meredith, Elvis Stokes (one of the Native Title Claimants) on 23/9/03 in West Perth, a letter from the NEIB seeking negotiations having been received by email on 22/9/03.
4. A proposal was sent to NEIB by facsimile on 1/10/03
5. Payment of $2,500 was made by Gregory Wayne Down to NEIB for negotiation fee (copy receipt attached)
6. Due to lack of progress with negotiations a request was made by Gregory Wayne Down to the Department of Industry and Resources in October 03 for MLA 37/1164 to commence formal negotiations in accordance with the right to negotiate provisions of the Native Title Act and that mediation be sought.
7. A discussion between myself, Alan Toogood of the National Native Title Tribunal and Faye Mitchell of the Department of Industry and Resources in relation to how to progress the matter took place on 26/11/03
8. The mediation session planned for 11/12/03 was adjourned as no mediator was available, however informal discussions were undertaken by the parties in attendance.
9. Mediation was undertaken on 18/12/03
10. Mediation was again undertaken on 24/02/04
11. An offer by Gregory Wayne Down and Liberty Gold NL to Wongatha was forwarded on 15/3/04 (copy attached)
12. Mediation was undertaken on 25/3/04
13. Mediation was undertaken on 15/4/04
14. Mediation was undertaken on 5/5/04
15. Mediation was undertaken on 14/5/04
16. Mediation was undertaken on 26/5/04
17. Mediation terminated by Deputy President Sumner on 8/6/04
18. I was present at all of these mediation sessions
Summary
The Grantee Party has negotiated at all times in good faith as evidenced by the numerous meetings and mediation attendances both at the Native Title Tribunal and other locations.
The written offer to the Wongatha included payment for negotiations, payment for site clearances, annual payments during the life of the tenement, an assurance that any assignee would complete a deed of assignment and comply with the terms of the agreement and NEIB being notified of any opportunities for the undertaking of rehabilitation works.
The Native Title Party would not accept the Grantee Parties (sic) proposal that the agreement would terminate upon the finding of the Federal Court that the Wongatha applicants are not entitled to a determination of native title in respect to the claim area or upon the withdrawal of the Wongatha Claim.
All relevant documentation in the possession of the Grantee Party, including the Liberty Gold NL Prospectus, requested by the Native Title Party has been provided to them and all requests for meetings have been agreed to.’
The Witness Statement is signed by Matthew John Clohessy and dated 19 August 2004.
Witness Statement of Gregory Wayne Down:
‘Background
1. I Gregory Wayne Down am the applicant and Grantee Party in respect to MLA 37/1164
2. I am a director of Liberty Gold NL
3. MLA 37/1164 is subject to a sale agreement with Liberty Gold NL
4. MLA 37/1164 was lodged in 16/12/02 (over the area of prior M37/207 which had been surrendered on 5/12/02)
5. The Affidavit of compliance with Mining Act 1978 requirements was forwarded on my behalf by Emerald Tenement Services to the Department of Industry and Resources on 18/12/02.
6. The objection period under the Mining Act closed 20.1.03 (I was advised by Emerald Tenement Services that no objections were received).
7. MLA 37/1164 was advertised under Section 29 of the Native Title Act 1993 with a Notification date of 26 March 2003. A copy of that advertisement was annexed to the Form 5 – Future Act Determination Application.
Negotiations and Mediation
1. The first meeting with the Native Title Party was held with the NEIB in West Perth on 18/09/03. I was present at that meeting.
2. An email was then sent to Ian Miller (assisting NEIB) on 19/9/03 seeking a further meeting.
3. A meeting was held with Ian Miller, Dion Meredith, Elvis Stokes (one of the Native Title Claimants) on 23/9/03 in West Perth, a letter from the NEIB seeking negotiations having been received by email on 22/9/03.
4. A proposal was sent to NEIB by facsimile on 1/10/03
5. Payment of $2,500 was made by Gregory Wayne Down to NEIB for negotiation fee (copy receipt annexed marked “A”)
6. Due to lack of progress with negotiations a request was made by me to the Department of Industry and Resources in October 2003 for MLA 37/1164 to commence formal negotiations in accordance with the right to negotiate provisions of the Native Title Act and that mediation be sought.
7. The mediation session planned for 11/12/03 was adjourned as no mediator was available, however informal discussions were undertaken by the parties in attendance.
8. Mediation was undertaken on 18/12/03
9. Mediation was again undertaken on 24/02/04
10. An offer by myself and Liberty Gold NL to Wongatha was forwarded to the Grantee Party on my behalf by Emerald Tenement Services on 15/3/04 (a copy is annexed marked “B”)
11. Mediation was undertaken on 25/3/04
12. Mediation was undertaken on 15/4/04
13. Mediation was undertaken on 5/5/04
14. Mediation was undertaken on 14/5/04
15. Mediation was undertaken on 26/5/04
16. Mediation terminated by Deputy President Sumner on 8/6/04
17. I was present at all of these mediation sessions
Summary
The Grantee Party has negotiated at all times in good faith as evidenced by the numerous meetings and mediation attendances both at the Native Title Tribunal and other locations.
The written offer to the Wongatha dated 15 March 2004 as referred to above included payment for negotiations, payment for site clearances, annual payments during the life of the tenement, an assurance that any assignee would complete a deed of assignment and comply with the terms of the agreement and NEIB being notified of any opportunities for the undertaking of rehabilitation works.
The Native Title Party would not accept the Grantee Party’s proposal that the agreement would terminate upon the finding of the Federal Court that the Wongatha applicants are not entitled to a determination of native title in respect to the claim area or upon the withdrawal of the Wongatha Claim.
All relevant documentation in the possession of the Grantee Party, including the Liberty Gold NL Prospectus, requested by the Native Title Party has been provided to them and all requests for meetings have been agreed to.’
The Witness Statement is signed by Gregory Wayne Down and dated 19 August 2004.
Also appended to the Grantee’s contentions is a letter dated 15 March 2004 on Emerald Tenement Services letterhead signed by Mr Clohessy addressed to Wongatha Native Title Claimants and expressed to be copied to the Department of Industry and Resources (‘DoIR’), Mr Ian Miller, the Tribunal’s mediation case managers and the Directors of Liberty Gold NL. The letter sets out the terms under which Liberty Gold NL is prepared to enter into an agreement with the Native Title party, and advises that if agreement cannot be reached on these terms then the Grantee Party ‘intends to seek a section 35 determination’. The terms offered include, inter alia, the following payments: the already paid negotiation fee of $2,500; a one off payment to Wongatha of $2500 upon completion of a full site clearance survey over the entire area of the proposed tenement and execution of a State Deed to enable the grant of the application; an annual payment of $2000 to Wongatha payable on the anniversary of the grant of the application; an undertaking that exploration, mining and rehabilitation will be carried out according to conditions imposed by DoIR; and an undertaking that the grantee will ensure that ‘any assignee will complete a deed of assignment and undertake to comply with the terms of the Agreement’. The letter further states that the agreement may only be terminated by mutual agreement, expiry or termination of the tenement, upon withdrawal of the Wongatha Claim, or a finding by the Federal Court or other Court or body with appropriate jurisdiction that Wongatha are not entitled to native title ‘in respect of the Wongatha Claim area as a whole or alternatively in respect of that part in respect of which the Mining Tenement has been granted’. The Native Title party’s contentions and material are silent as to this offer but it seems most probable that it was the subject of at least discussions and consideration at the subsequent mediation meetings of which the Grantee has adduced evidence. It strongly supports a conclusion that the Grantee negotiated in good faith.
By letter on NEIB letterhead dated 3 September 2004, copied to the Tribunal, Mr Meredith, in reply to the Grantee’s contentions, asserted that as the proposed lease had been sold on 8 December 2003 to Liberty Gold NL “which now owned the tenement” it wished to negotiate with that Company which had not negotiated in good faith with it and that, as the Grantee did not own the “tenement”, he had not acted in good faith. At a preliminary hearing convened by me the same day, Mr Meredith conceded that the proper negotiation party was the Grantee as no grant of the proposed lease had been made, and the sale to Liberty Gold NL was conditional on the grant being made and Ministerial approval being given to the sale (Liberty Gold Prospectus, 2 January 2004, page 60). At that same meeting the parties agreed that the good faith issue be determined on the papers. I am satisfied that the issues can be adequately determined on the papers.
Findings
I accept as correct statements of objective fact contained in the contentions of the respective parties and the Grantees’ s35 application to the extent that they are credible, relevant, not disputed or contradicted and not factually challenged by any other party. The determination of the “good faith” issue is essentially one to be made on the facts.
I find the Native Title party’s contention that the Grantee has not negotiated in good faith to be not made out. I accept the Grantee’s evidence as to the progress of negotiations and the fact that there were numerous mediation meetings held at the request of the Grantee, the mediation being ultimately terminated by the mediator. I find the failure of the parties to reach agreement was neither unexpected nor unreasonable having regard to the issues raised and the evidence relating to them. I also find the Native Title party’s allegations of lack of good faith to be generally based on a misunderstanding of the proper application of some of the documents on which it relied, and in other cases on a misunderstanding of the effect of the law – eg: as it relates to heritage surveys. It is clear that on 3 June 2004 when Directions for a determination on the evidence were made, the Native Title party held no belief that the Grantee had not negotiated in good faith, and that the claim that it did so was the result of subsequent consideration inappropriately based on the documents referred to in the appendices to its letter of 10 August 2004 and a misconception of how they should be applied.
Evidence led by the grantee party and not disputed by the Native Title party clearly leads to the conclusion that both independent meetings and Tribunal assisted mediation meetings occurred throughout the period of time between September 2003 and May 2004. A request for mediation assistance does not necessarily demonstrate that negotiations in good faith have occurred because the party attempting to prove good faith may simply be progressing through a series of steps in order to invoke the Tribunal’s jurisdiction (Evans and Ors/Western Australia/Anaconda Nickel, NNTT WF98/267 [1999] NNTTA 203 (15 July 1999) Hon CJ Sumner). However, taken in the context of additional external discussions between the parties, the lack of specific evidence from the Native Title party and the evidence produced by the Grantee, it is not realistic to refute that good faith negotiations occurred in this instance.
With respect to the submissions made by the native title party I agree with the submission of the grantee party in its statement of contentions (at [8]) and conclude as I did in Rita Dempster and Ors/Bayside Abalone Farm Pty Ltd and Anor/Western Australia, NNTT WF99/1 [1999] NNTTA 235 (27 August 1999) that while the Tribunal is not required to adopt strict rules on burden of proof, there is a requirement for the party alleging lack of good faith to provide evidence in support its contentions. The paucity of evidence in this case is notable.
In my opinion the evidence as a whole does not lead to the conclusion that the grantee has refused or failed to negotiate in good faith with the native title party. The evidence is clear that, from the outset, the grantee has sought to achieve agreement through a series of independent meetings with representatives of the native title party since 18 September 2003, and via Tribunal assisted mediation under s 31(3) of the Act since the request for mediation lodged by the Department of Industry and Resources at the grantee party’s request. I do not find the fact that the native title party initiated communication with the grantee indicative of any lack of good faith on the part of the grantee.
Determination
I am satisfied on the evidence that Grantee did negotiate in good faith with the Native Title party with a view to obtaining its agreement that the act may be done as required by s 31((1)(b) of the Act, and that the Tribunal has jurisdiction to make a determination under s 38 in respect of the grantee’s said s 35 application.
The Hon EM Franklyn QC
Deputy President
1 October 2004
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