John William Withers v Ewamian People Aboriginal Corporation RNTBC
[2023] NNTTA 34
•6 October 2023
NATIONAL NATIVE TITLE TRIBUNAL
John William Withers and Others v Ewamian People Aboriginal Corporation RNTBC and Another [2023] NNTTA 34 (6 October 2023)
Application No’s:
QF2023/0001; QF2023/0002
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
John William Withers
(grantee party)
- and -
Hamish William Bergerson
(grantee party)
- and -
Jillian Vilma Withers
(grantee party)
- and -
Ewamian People Aboriginal Corporation RNTBC (QCD2013/007)
(native title party)
- and –
State of Queensland
(Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal:
Ms Nerida Cooley
Place:
Brisbane
Date:
6 October 2023
Catchwords:
Native title – future acts – s 35 application for determination – mining lease applications – power to make determination – whether grantee parties have negotiated in good faith – grantee parties have not negotiated in good faith – future act determination application dismissed
Legislation:
Aboriginal Cultural Heritage Act (Qld) s 23, pt 7
Native Title Legislation Amendment Act 2021 (Cth) sch 6
Native Title Act 1993 (Cth) ss 24OA, 28, 31, 36, 38, 39, 60AB, 148, 233
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Cases:
Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152 ('Brownley’)
Doxford/Janice Barnes, Jessie Diver, Owen McEvoy, Deree King, Patrick Fisher (Wangan and Jagalingou) v State of Queensland [2008] NNTTA 54; (2008) 218 FLR 414 ('Doxford’)
Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249 (‘Ewamian Determination’)
FMG Pilbara Pty Ltd v Cox and Others [2009] FCAFC 49; (2009) 175 FCR 141 (‘Cox’)
Kevin Alfred De Roma v Western Yalanji Aboriginal Corporation RNTBC and Another [2022] NNTTA 40 (‘De Roma’)
Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1 (‘Griffiths’)
Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli [2018] NNTTA 81 (‘Rusa Resources v Gnulli’)
Western Australia v Taylor and Another [1996] NNTTA 34; (1996) 134 FLR 211 (‘Njamal’)
Representatives of the native title party: Patricia Lane of Counsel; Julia Taylor, North Queensland Land Council
Representative of the grantee parties: John Withers
Representatives of the Government party: Emma Brunello, Crown Law; Chris Rawlings, Department of Resources REASONS FOR DECISION
[1]This is a decision about whether Mr John William Withers, Mr Hamish William Bergerson and Ms Jillian Vilma Withers (collectively the grantee parties) have negotiated in good faith in accordance with s 31(1)(b) of the Native Title Act 1993 (Cth).
[2]The grantee parties have applied for the grant of two alluvial mining leases (ML 100019 and ML 100104) located north-westerly of Mt Surprise township in North Queensland. Ewamian People Aboriginal Corporation RNTBC holds non-exclusive native title in relation to the area of the leases as agent for the Ewamian People (see Ewamian Determination).
[3]The grant of each lease is a future act as defined in s 233 of the Native Title Act, meaning it will affect the Ewamian People’s native title rights and interests. Consequently, in order to validly affect native title, the grant of each lease must be done in accordance with the future act provisions of the Native Title Act: s 24OA Native Title Act.
[4]In late 2016, the State of Queensland notified the proposed grant of the leases under the right to negotiate provisions of the Native Title Act, specifying a notification day of 4 January 2017. The negotiation parties, being the grantee parties, Ewamian and the State, were then obliged to negotiate in good faith with a view to obtaining Ewamian’s agreement to the grant of the leases.
[5]No agreement has been reached and Mr Withers has applied to the Tribunal for a determination about whether the leases may be granted. I have been directed to constitute the Tribunal for that purpose, but I must not make a determination if any negotiation party satisfies me that another negotiation party (other than the native title party) did not negotiate in good faith as required by s 31: s 36(2) Native Title Act.
[6]The State has not played an active role but as set out in the chronology in Annexure 1, Ewamian and the grantee parties have been negotiating since early 2017. Mr Withers has represented the grantee parties throughout the negotiations.
[7]Ewamian contends that the grantee parties have not negotiated in good faith, in part, because they adopted a rigid, non-negotiable position and failed to take reasonable steps to facilitate and engage in discussions between the parties. Ewamian relies on what it calls the grantee parties’ intransigent conduct in relation to matters essential to reaching agreement. In that regard, it contends that Mr Withers has adopted the same approach to the negotiations in this matter as he did in De Roma, where the Tribunal found that the grantee party, represented by Mr Withers, did not negotiate in good faith.
[8]The grantee parties dispute this position and say they offered amounts that were more than fair and negotiated in good faith. They also complain about particular aspects of Ewamian’s conduct.
[9]For the reasons outlined below, I am satisfied that the grantee parties have not negotiated in good faith. Accordingly, I must not proceed to make a determination on the application and the application is dismissed under s 148(a) of the Native Title Act. I have recommended that the parties seek mediation by the Tribunal.
The leases
[10]Both leases are intended for alluvial mining. ML 100019 is 26.83 hectares in size and is mostly located in Parallel Creek. ML 100104, located about 5 kilometres away, comprises 49.99 hectares along Dickson Creek. The land tenure underlying both leases is a rolling term lease for pastoral purposes (originally a preferential pastoral holding). The grantee parties say they have entered into a compensation agreement with the pastoral lessee for $1 per annum, although that agreement is not in evidence.
[11]ML 100019 is to be granted for an initial term of 23 years and ML 100104 for an initial term of 21 years.
[12]According to the State’s resource authority public reports, the minerals specified for each lease are gold and tin ore. However, Mr Withers says the focus is alluvial tin mining and makes it clear in the correspondence that he will be doing the mining and bearing all costs. In that same vein, the work plan provided by the grantee parties seems to be written by Mr Withers in the first person.
[13]The State’s Cultural Heritage Database and Register search reports identify one engraving site in the area of ML 100019 and two engraving sites and one artefact scatter in the area of ML 100104. According to those reports, these sites were recorded in 2020. The grantee parties have copied into their contentions correspondence from the Site Registrar of the Cultural Heritage Unit in the Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts which states that the sites were entered in the State’s database in 2020 but were recorded by Ewamian in 2019 following an inspection of the leases. That correspondence also states that the sites entered as ‘Engraving’ should in fact be ‘Stone Feature (Grinding Grooves)’. Further, one of the items identified, being an isolated artefact, was collected and should therefore be shown in the database as mitigated.
What does it mean to negotiate in good faith?
[14]The notion of good faith in the context of s 31 negotiations has been considered by Courts and the Tribunal on many occasions. For the purposes of this matter, I adopt the summary in Rusa Resources v Gnulli at [12]–[16] and have also had regard to the detailed discussion in De Roma at [16]–[31]. Ewamian must satisfy me that the grantee parties did not negotiate in good faith. That issue must be viewed objectively having regard to the negotiations as a whole. Ewamian’s conduct during the negotiations is also relevant.
[15]Overall, as Ewamian contends, the requirement for good faith is concerned with the quality of a party’s conduct. It is directed to and is concerned with a party’s state of mind as manifested by its conduct in the negotiations: Cox at [20].
[16]In Njamal, the Tribunal outlined a number of what it called “useful indicia” of whether a party has negotiated in good faith. Those indicia are not exhaustive and do not comprise a checklist of actions for parties to follow, but they can be helpful in considering the parties’ conduct. Ewamian has referred to the Njamal indicia in its contentions.
What happened during the negotiations?
[17]The negotiations between the grantee parties and Ewamian occurred over a period of about 6 years from the notification day on 4 January 2017 until 6 April 2023, when the Tribunal accepted Mr Withers’ application, although the correspondence indicates that not much occurred during 2019. As noted, Mr Withers negotiated on behalf of the grantee parties and my references to Mr Withers should be read in that context.
[18]The steps in the negotiations are summarised in Annexure 1 and I do not propose to recount what occurred in detail here. I have had regard to the contentions, correspondence and supporting documents provided by the parties and, where necessary, I will refer to specific exchanges or correspondence.
[19]However, there are several aspects of the negotiations worth mentioning by way of background or context and those matters, together with an overview of the key issues in the negotiations, are set out below.
[20]As is common practice, Ewamian and the grantee parties were negotiating the terms of an agreement (Ancillary Agreement), designed to be ancillary to a deed to be entered into between all three negotiation parties in accordance with s 31(1)(b) (s 31 Deed), which would enable the leases to be validly granted: s 28(1)(f) Native Title Act. The draft s 31 Deed for this matter is in evidence, having been provided by the grantee parties. Clause 10.2 requires Ewamian to accept that any compensation provided under the Ancillary Agreement is in full and final settlement of any claim Ewamian may have for compensation.
[21]As noted, the State did not take an active role in the negotiations, which is in line with common practice. However, its conduct did have an impact on the negotiations, and I have made some observations about the State’s role from [105] below.
[22]Ewamian was initially represented by HWL Ebsworth Lawyers but has been represented by North Queensland Land Council (NQLC) since December 2017. The first communication in evidence between Mr Withers and Ewamian is an email dated 24 April 2017 from HWL Ebsworth to Mr Withers, which responded to earlier emails from Mr Withers in February and April 2017. I am not clear why that earlier correspondence has not been provided by any party. In any event, Ewamian’s initial response seems to be the email from HWL Ebsworth on 24 April 2017 and that is the first correspondence in evidence.
[23]Ewamian says all negotiations occurred in writing, although there is evidence of at least one phone conversation between Mr Withers and a lawyer from HWL Ebsworth. The material does show, however, that Mr Withers asked for negotiations to be undertaken by email to minimise costs, and NQLC was content to agree to that approach. In his early exchanges with HWL Ebsworth, Mr Withers makes it clear that he will not, and is not required to, fund Ewamian’s legal representatives or negotiation costs. He suggests NQLC’s dedicated Future Acts Mining and Exploration Unit could assist. Thereafter, Ewamian is represented by NQLC.
[24]The terms of the Ewamian People Small Scale Miners Indigenous Land Use Agreement (QI2013/087) (SSM ILUA) featured in the negotiations. According to the Register of Indigenous Land Use Agreements, the SSM ILUA was registered on 24 April 2014 for a term of five years but could be extended by agreement. Ewamian says the SSM ILUA expired on 23 April 2019. It seems to be uncontested that both leases fell within the area of the SSM ILUA and could, prior to its expiry, have been validly granted under the SSM ILUA, if the grantee parties had elected to “opt in”.
[25]Throughout the negotiations, but especially in the early stages, Ewamian stated that it would not accept terms less favourable than the SSM ILUA. This proved to be a significant point of contention for Mr Withers, who repeatedly expressed his dissatisfaction with the terms of the SSM ILUA and the reasons why he considered the terms were not suitable for the leases. Mr Withers explained that he elected to go through the right to negotiate process instead and did not want to discuss the SSM ILUA.
[26]However, in his letter of 30 May 2017, Mr Withers did say that he was willing to negotiate on three items which formed part of the SSM ILUA, namely compensation, cultural heritage inspection costs and a windfall clause but “[nowhere] at the level that is in the [SSM] ILUA”. Those three issues, together with the question of Ewamian’s costs, were the focus of most of the negotiations. Only the windfall clause was agreed by the time Mr Withers lodged his application.
Compensation
[27]Between 2017 and early 2021, Ewamian’s compensation offers continued to reflect the terms of the SSM ILUA. This was resisted by Mr Withers, who repeatedly stated his view that no compensation was payable because there was no evidence Ewamian exercised its native title rights in the area of the leases, and he did not believe his activities would have any impact on native title. Despite these views, Mr Withers initially offered $15 per annum per lease in February 2018 and, by June 2020, increased his offer to $54 per annum for ML 100019 and $100 per annum for ML 100104.
[28]In September 2020, NQLC wrote to Mr Withers asking for the basis on which his offers were made and whether he had knowledge of any similar agreements because Ewamian was not aware of such small amounts for mining lease agreements.
[29]Mr Withers responded in October 2020 to say that it is clear Ewamian has been “financially spoilt” in the past and is used to receiving very high payments under the now expired SSM ILUA (original emphasis). He says that “[n]ow that the ILUA[s] have expired, then any sensible Miner should use any satisfactory reason to keep as much of their hard earned Cash in their pocket rather than otherwise” (original emphasis). Mr Withers goes on to say there is no “set” financial requirement, each lease should be judged on its own merits and he does not have information on other ancillary agreements. Although, Mr Withers did offer a prescient story about a native title party which increased its offer during the negotiations and concluded by saying that the grantee parties consider their “offers [meet] more than what could be required”, again noting that the payments were voluntary, not mandatory (original emphasis).
[30]On 12 April 2021, Ewamian advised that the grantee parties’ offer was not acceptable and made a counteroffer of $5,000 per lease. It seems to have been understood by the parties that this amount was also payable per annum and that is reflected in Ewamian’s contentions, although not stated in the initial correspondence. Ewamian said that this proposal was made on Ewamian’s “revised position for these kinds of applications reflective [of] over a 3 year period since the initial offer was made and other commercial considerations”.
[31]Needless to say, this substantially increased proposal from Ewamian was not received well by the grantee parties and Mr Withers repeatedly questioned the good faith of this increase and sought further explanation, which was not forthcoming.
[32]In his response on 16 April 2021, Mr Withers says that, if he had known this would happen, he would not have offered more than what is “lawfully required” if the leases were judged on their merit, which he considers to be nil. He says he considers most monetary offers should be classed as a good will donation to Ewamian.
[33]Exchanges of this type proceeded for some time with the grantee parties increasing their offer to $135 per annum per lease by August 2021.
[34]On 17 May 2022, NQLC provided a revised Ancillary Agreement which included an offer of $2,000 per annum per lease. No reason was given for the change in compensation amount other than that this offer was in accordance with Ewamian’s instructions.
[35]On 31 May 2022, the Tribunal delivered its decision in De Roma, which also had a bearing on the negotiations because of Mr Withers’ role in that matter. As I have discussed in greater detail below, many of the views expressed and positions adopted by Mr Withers in negotiating this matter were similar to those in De Roma. Mr Withers did increase his offer to $350 per annum per lease following De Roma but Ewamian’s offer also reverted to $5,000 per annum per lease. Again, there does not appear to have been any substantive reasoning given for this increase. After De Roma, Mr Withers also wrote to NQLC asking to retract all past negotiations prior to De Roma (except for those related to costs), an approach which NQLC rejected.
Cultural Heritage Inspections
[36]Under s 23 of the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) a person who carries out an activity has a cultural heritage duty of care, which means they must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage. There are a number of prescribed ways by which a person will be taken to have met their cultural heritage duty of care.
[37]From the outset, Ewamian expressed its view of the importance of cultural heritage protection and the need for an inspection to be undertaken and funded by the grantee parties, in order to prevent harm to Ewamian’s cultural heritage. Its initial proposal was again based on the standards in the SSM ILUA, which Mr Withers rejected.
[38]In its initial efforts to engage with Mr Withers on the significance of cultural heritage protection and need for the grantee parties to comply with their cultural heritage duty of care, Ewamian provided a search of the Cultural Heritage Database and Register under the ACHA which identified a site near the leases by way of example of the sites in the area. It also explained to Mr Withers that most of the sites significant to the Ewamian People are not recorded in the database, meaning an inspection was needed.
[39]While consistently arguing that agreement to a cultural heritage inspection was voluntary, Mr Withers did not explain in any detail how the grantee parties would meet their duty of care. When this issue was raised by Ewamian on 13 August 2018, Mr Withers responded on 2 October 2018 and simply said that compliance with the conditions of the leases and statutory obligations would suffice. This is not surprising because in his application Mr Withers states that in the absence of recorded sites, the leases will not have any effect on Ewamian’s cultural heritage. Of course, that is not the case, and no doubt may be the source of some of Mr Withers’ misunderstanding. The grantee parties must comply with their duty of care regardless of the extent of known sites.
[40]After that advice, Ewamian undertook an inspection of the leases in 2019, which led to the recording of the sites noted above. This is a source of significant complaint for the grantee parties. In correspondence that followed, Mr Withers accused Ewamian of “tricking the pastoralist” into allowing entry to the leases, demanding provision of an inspection report from Ewamian, and has continued to intimate, including in the contentions in this matter, that the sites recorded are an invention.
[41]Ultimately, Mr Withers did agree to an inspection, but he continued to argue that an inspection was voluntary to support his position on costs. He expressed a number of views about how Ewamian might go about a cheaper inspection, for example by using local rangers. Mr Withers also made a range of comments which suggested either that Ewamian People should be happy to inspect the leases as an exercise of their native title rights (see email of 23 July 2017) or do not wish to exercise their native title rights unless paid to do so (see letter of 5 June 2018).
[42]Ewamian explained the basis for its inspection process and that it should not be out of pocket for any cultural heritage inspections. Ewamian also offered a range of alternatives for calculating inspection costs. However, similar to Member Kelly’s comments in De Roma at [148], Mr Withers did not engage on those points in any meaningful way.
Costs
[43]The grantee parties consistently resisted any request by Ewamian for the payment of costs. This included both costs relating to the negotiation process, such as legal costs, as well as any contribution towards the necessary consultation and consent process Ewamian would be required to undertake under the Native Title (Prescribed Bodies Corporate) Regulations1999 (PBC Regulations).
[44]Ewamian offered to consider, in due course, how the costs of that process could be minimised, for example by sharing costs with other proponents and eventually offered to cap the grantee parties’ contribution towards the consultation and consent process.
[45]Mr Withers resisted any requests for a contribution or proposals put by Ewamian. He said that, while he may contribute, he was, based on Tribunal decisions, not required to do so. Once again, this is similar to the approach taken by the grantee party in De Roma as discussed at [155]–[166].
What does Ewamian contend?
[46]By reference to the Njamal indicia, Ewamian contends that the grantee parties:
(a)adopted a rigid non-negotiable position;
(b)failed to do what is reasonable in the circumstances;
(c)failed to take reasonable steps to facilitate and engage in discussions between the parties; and
(d)harmed the negotiating process by refusing to acknowledge Ewamian’s native title rights in any real sense.
[47]Ewamian primarily relies on the grantee parties’ intransigent conduct in negotiations on essential matters as outlined below. Further, it argues that nothing materially changed following the decision in De Roma, saying no more meaningful offers were made on the critical matters of compensation and heritage protection and Mr Withers continued to advance incorrect assertions about the nature and extent of the Ewamian People’s native title rights.
Refusal to negotiate on compensation
[48]Ewamian says that it is entitled to compensation under the Native Title Act for the effect of the grant of the leases on native title, which includes components of economic and cultural loss. It says that it explained to the grantee parties that the areas of the leases are “culturally rich” and that it is not fanciful or remote to assert that compensation for cultural harm would be significant, having regard to the determined native title rights.
[49]Ewamian argues that, although now expired, the compensation set out in the SSM ILUA is not an unreasonable benchmark for compensation for the grant of the leases. However, it says that the grantee parties’ response was to dispute that the leases would have any impact on native title in the absence of satisfactory evidence that rights are exercised in the area, dispute the value of rights not exercised regularly and dispute that the lease areas are of cultural significance, suggesting that Ewamian is being “dishonest or tricky” in saying so.
[50]Ewamian cites Mr Withers’ repeated statements that compensation should be “nil” and argues that when offers were made they were so low as to be derisory. Ewamian also relies on the conclusions in De Roma at [142] and [144] to the effect that the grantee party in that case deliberately engaged in terms he knew would not be acceptable.
Refusal to negotiate on cultural heritage monitoring
[51]Ewamian argues that s 31(2) of the Native Title Act makes it clear that the impact of the proposed leases on the registered native title rights and interests are central to the negotiations, because a grantee party is not obliged to negotiate about unrelated matters.
[52]It goes on to point out that agreement in relation to a cultural heritage inspection will satisfy the grantee parties’ cultural heritage duty of care, which would be of considerable advantage to the grantee parties. Instead, it says that the grantee parties refused to recognise the importance of the issue to Ewamian, with Mr Withers repeatedly refusing to pay transportation costs and appropriate allowances.
[53]Again, Ewamian points to the similarities with De Roma where the Tribunal's observations at [148]–[149] included that the grantee party disparaged the motivations of the native title holders and made offers based on calculations with unclear logic, which disregarded a variety of factors. Ewamian argues that the grantee parties’ approach underpins a course of conduct “antithetical to making an agreement”, citing Brownley at [25].
Refusal to contemplate payment to support the authorisation process
[54]Ewamian says it did not act unreasonably in seeking funds towards authorisation of the agreement, which it is entitled to do under s 60AB of the Native Title Act.
[55]It also says that it did not seek to recover any costs incurred in negotiating the agreement, only a fixed contribution to the consultation and consent process required under the PBC Regulations (although I note the payment of costs was sought earlier in the negotiations).
[56]Ewamian acknowledges that a refusal to fund negotiating costs might not of itself amount to an absence of good faith, but says when considered with other matters, may contribute to such a conclusion. It also refers to the discussion in De Roma at [165], which suggests earlier approaches to this issue might need to be reviewed in the light of the introduction of s 60AB. I do not disagree with those views, although it is not necessary to decide that question here.
[57]Ewamian argues that overall, the grantee parties’ approach to this issue reflects a rigid negotiating position, objectively inconsistent with a genuine desire to reach agreement.
Irrational positions and cultural disparagement
[58]Ewamian argues that the grantee parties’ correspondence is “replete with” “fixed and erroneous beliefs about the existence of native title rights and interests, and the enjoyment of cultural heritage”. It contends that these views undermined the possibility of reaching agreement.
[59]Ewamian also says it is a concern that the grantee parties apparently failed to inform themselves of the existence of any registered sites, although in his letter of 30 May 2017 to HWL Ebsworth, Mr Withers says that he has conducted a search for cultural sites but found none in or near the leases. Given the sites noted above were recorded in 2020, that conclusion in 2017 would appear to be correct.
[60]From Ewamian’s perspective, the grantee parties’ failure to acknowledge or respect the Ewamian People’s law and custom as recognised in the Ewamian Determination is a material matter because the grantee parties’ attitude was detrimental to any prospect that the parties would reach agreement.
[61]It is difficult to disagree with these contentions. As shown in Annexure 1 and discussed further below from [67], Mr Withers expressed a range of views about native title and his understanding of the process in which he was engaged, which ranged from offensive to ill-informed or misconceived. It is evident from the correspondence that Mr Withers’ views and attitudes were a significant barrier in the negotiations.
What do the grantee parties contend?
[62]The grantee parties have provided a summary of their arguments, as well as more detailed contentions which respond to a limited number of Ewamian’s contentions. They refer to the balance of Ewamian’s contentions as frivolous, which unfortunately leaves a number of significant arguments unanswered. They also seek to confine the conduct in issue to that following De Roma. However, I must consider the negotiations as a whole, including how the grantee parties took account of the decision in De Roma.
[63]Overall, the grantee parties seem to argue that, because offers were exchanged and agreement was reached on some (although very few) matters, it follows that the grantee parties negotiated in good faith. The grantee parties also seek to explain why their various offers and approaches were reasonable based on their understanding of the various authorities and statutory provisions. These are the issues I have discussed in more detail below from [67].
[64]The grantee parties also raise a number of specific complaints regarding Ewamian’s conduct in the negotiations, most particularly the increase in compensation and the conduct of the cultural heritage inspection of the leases as mentioned. I have addressed those issues below but, in light of the conclusions reached, it is not necessary for me to interrogate each minor point of contention raised in the parties’ submissions.
Have the grantee parties negotiated in good faith?
[65]In order to answer this question, I will endeavour to summarise the views which underpinned the grantee parties’ approach, many of which are interrelated or overlapping. Similar to De Roma, these views are fundamental to the way the negotiations proceeded.
[66]As mentioned, I am mindful that the grantee parties have raised complaints about the conduct of Ewamian in the negotiations, but I will address the import of those matters separately.
How did Mr Withers approach the negotiations?
[67]It is evident from both the correspondence and the grantee parties’ contentions that Mr Withers’ approach to the negotiations and his communications with Ewamian were informed by his understanding of native title, Tribunal decisions and relevant legislation, including the Native Title Act and the ACHA.
[68]Member Kelly observed in De Roma at [118] that Mr Withers held a series of misconceptions about native title.
[69]On 18 July 2022, after the De Roma decision, Mr Withers wrote a lengthy letter to Ewamian described by the grantee parties as their “most important letter”. In this letter Mr Withers summarised the history of the negotiations to that point and the reasons for his offers and approach. Most of the views and reasons given in that letter reflect the views stated in correspondence throughout the negotiations and in the grantee parties’ contentions. It is fair to say that there is little to differentiate the approach taken by Mr Withers here from that taken in De Roma.
[70]A consistent message from Mr Withers from the outset of the negotiations was that compensation should be ‘nil’. There are a number of different reasons given by Mr Withers to support this view.
[71]Relying on Doxford at [41], the grantee parties repeatedly state that the leases must be dealt with on their merits, which is no doubt correct. Mr Withers seeks to distinguish the leases from those which might be subject to the SSM ILUA. For example, in his email of 26 April 2022, Mr Withers refers to the SSM ILUA as being suitable for “a far larger mining operation that what [the grantee parties are] proposing”, although there is no meaningful explanation given for that assertion. In terms of the proposed activities, Mr Withers explained to Ewamian that he is only permitted to disturb five hectares at a time and subject to an additional ten hectare buffer was content for Ewamian to continue to access the leases post grant. The material indicates that Ewamian was open to taking this information into account, particularly in relation to how the cultural heritage inspections might be managed and in looking at alternatives for the consent and consultation process.
[72]Another key argument put by Mr Withers as to why compensation should be ‘nil’ was a lack of evidence that Ewamian People currently access the lease areas to exercise their native title rights. Mr Withers repeatedly asks Ewamian for evidence or “convincing” of what rights are currently exercised in the lease areas. Even after Ewamian explains the nature of the rights recognised in the Ewamian Determination, Mr Withers’ requests persist.
[73]From the grantee parties’ correspondence and contentions, Mr Withers’ fixation on this point appears to stem from Tribunal decisions in relation to s 39(1)(a)(i) of the Native Title Act. He repeatedly refers to native title law being settled and reliance on previous judgments and agreements. In his 18 July 2022 letter, Mr Withers says that his review of determined cases and legislation suggests that compensation may be payable if Ewamian People were currently exercising their rights in the area of the leases.
[74]In his letter of 17 March 2023, Mr Withers cites ss 38 and 39 of the Native Title Act, which relate to determinations by the Tribunal. On this issue, Mr Withers states that the grantee parties consider that “the Tribunal may remark only on this issue if [t]he Member was led to believe that any affidavits that the [native title party] may have signed that suggests that the [native title party] are currently exercising and enjoying their [native title] [r]ights and [i]nterests in the [lease] areas on a regular basis (EG. 2 to 3 times a month) and that the water is permanently flowing through the [lease] areas and they go swimming, catch fish, turtles, and gather mussels and live nearby etc.” (original emphasis).
[75]It is the case that, where the Tribunal is required to make a determination about whether a future act may be done, the extent to which the registered native title rights and interests are currently enjoyed in the subject area is relevant to the Tribunal’s decision: s 39(1)(a)(i) Native Title Act. However, in this respect the grantee parties conflate the standard for determination by the Tribunal with the issues in the negotiation.
[76]The parties have an opportunity to negotiate an agreement on terms of their choosing. If they do not reach agreement but have negotiated in good faith, then the Tribunal may be called upon to make a determination about whether the future act may be done and whether it should be subject to any conditions based on specific criteria. The Tribunal’s determination is a separate pathway to the valid grant of the leases. Mr Withers appears to approach the negotiation as if the parties’ negotiations are inherently confined by the parameters for a decision by the Tribunal, which is incorrect.
[77]Mr Withers also fails to appreciate that the grant of the leases will affect native title regardless of the extent to which Ewamian’s native title rights may or may not be currently exercised. Native title exists. It has been recognised by the Federal Court and it will be affected by the grant of the leases, which extend for over 20 years and impair Ewamian’s ability to exercise their registered native title rights throughout that term. This is the same point addressed in De Roma at [128]. That is why the grants are in the right to negotiate process. There may be a legitimate discussion to be had between the parties about the extent of that effect based on the grantee parties’ proposed activities, but that is a matter for the negotiations. Further, according to the s 31 Deed, Ewamian is expected to forgo any further claims for compensation. That squarely makes compensation an issue for negotiation.
[78]In addition, as discussed in De Roma at [140], Mr Withers’ understanding of native title compensation also fails to take into account recent developments, such as the High Court’s decision in Griffiths.
[79]The grantee parties’ manifold misunderstandings about native title echo the issues considered in De Roma, notwithstanding that the native title party in that case held exclusive native title rights. For example, Mr Withers repeatedly states that, in the absence of an ILUA, Ewamian requires permission from the pastoral lessee to enter the property. There is no evidence to support that view. The pastoral lease has not extinguished native title, hence the Ewamian Determination. Clause 13 of the Ewamian Determination requires Ewamian People to give notice to the pastoral lessee before entry to the lease to exercise native title rights but there is no need for permission. Further, while many native title holders and pastoralists choose to enter into an ILUA to regulate the exercise of their co-existent rights, it is not essential.
[80]Similar misconceptions arise in relation to cultural heritage. The correspondence indicates that Mr Withers relies on s 39(1)(a)(v) to conclude that cultural heritage areas or sites must be known and identified for him to be concerned with them (see letter of 7 November 2022). Also in his letter of 17 March 2023, Mr Withers states that the s 39 criteria would only cause the grantee parties to pay for an inspection if Ewamian had knowledge about the sites “PRIOR to the [leases] being applied for, rather than AFTER” and “[to] save on the Tribunal to make a decision on this matter, then the [grantee parties] have offered more than a fair Cost offer to have the [inspection] done” (original emphasis). Again, Mr Withers’ approach confuses the criteria for a Tribunal determination with issues for negotiation. Ewamian tries to explain there may be other sites which are not recorded but Mr Withers is unmoved.
[81]Mr Withers also relies on decisions of the Tribunal in Western Australia which concluded that there was no obligation on a grantee party to fund a cultural heritage inspection and the fact that he is not required to have a cultural heritage management plan under Part 7 of the ACHA. None of those matters go to the question of how the grantee parties will meet their duty of care or why cultural heritage is of significant concern to Ewamian.
[82]However, even more fundamentally, Mr Withers appears to misunderstand the purpose of the negotiations, which is to obtain Ewamian’s agreement or consent to the grant of the leases. Again, in his letter dated 17 March 2023, Mr Withers writes, “[w]hat is this bit about consenting to these Future Acts? I am not asking [Ewamian] for consent at all to the Future Acts, as no one has objected to the [leases]. All we are asking for is an [Ancillary Agreement] to be agreed to ASAP so that we do not have to ask consent from others to give consent or not. We believe that the Minister for Resources is the one who will give the final consent” (original emphasis).
[83]Of course, that is exactly what the grantee parties require from Ewamian in negotiations under a right to negotiate agreement. Clause 8.4 of the s 31 Deed requires Ewamian to consent to the grant of the leases.
[84]Instead, the onus seemed to be on Ewamian to convince Mr Withers why the grantee parties should pay anything, and to the extent Mr Withers was willing to pay any amount of monies, he was in effect doing Ewamian a favour, hence the repeated references to his offers being a “donation” to Ewamian (see, for example, emails dated 16 and 27 April 2021), and the expectation that Ewamian should work for free in the exercise of native title (see email of 23 July 2017). To the contrary, it was the grantee parties who were seeking something from Ewamian, being its agreement (or consent) to the grant of the leases.
[85]Viewing the negotiations as a whole, Mr Withers was not working to that objective, but rather negotiating against his own assessment of what he expected he would end up paying in the event of a determination by the Tribunal, which was nil. There is very little to suggest that Mr Withers was remotely interested in what Ewamian considered was important or that he listened or took in the points that were raised by Ewamian because, in his view, he was not required to pay anything, nor would he be required to pay anything should the matter come before the Tribunal. On a number of occasions, when Mr Withers felt he had put a position consistent with his understanding of Tribunal decisions, he simply said that he considered the issue had been dealt with and that he would not discuss it any further (see, for example, letters of 28 August 2017 and 5 June 2018).
[86]In addition, the tone of Mr Withers’ correspondence descended from civility to hostility and was often rude or belligerent. Much of it was outright offensive and disrespectful of the Ewamian People and their native title rights. For the most part, as Ewamian contends, the offers made were insulting and unexplained, other than by reference to the nominal agreement with the pastoral lessee. None of that conduct is a reasonable basis from which to expect an agreement to be reached.
[87]Unfortunately, even to the extent some of the views expressed by Mr Withers were based on reasonable positions, they all became muddled with the irrational views and entrenched positions.
[88]The result was a very rigid and closed-minded approach and an unwillingness to listen to Ewamian. This resulted in a level of badgering and a dogmatic, combative approach to the negotiations that was difficult for Ewamian to navigate. It also made the negotiations fraught and probably doomed. Regrettably, I think it also led Ewamian to some questionable actions as discussed below.
[89]I can see that the grantee parties did try to change their approach after the decision in De Roma, by increasing their offer of compensation and accepting most terms of the Ancillary Agreement. However, because Mr Withers still held the same entrenched views and misconceptions, he found it difficult to move on and reverted to the familiar tactics in negotiating the key issues. This is also evident from the grantee parties’ contentions which continue to espouse the same views, despite the decision in De Roma.
[90]As a result, Mr Withers had a fixation with whether a particular issue was mandatory or voluntary, which is beside the point. An agreement requires a meeting of the minds. The parties may or may not agree on any number of things. Ewamian identified what was important from its perspective and Mr Withers was entitled to question and negotiate about those matters or propose alternatives (see also De Roma at [135]). Instead, he clung to his preconceived views and failed to meaningfully engage on the issues.
Conclusion
[91]The grantee parties elected not to opt in to the SSM ILUA. They wanted to negotiate their own terms. They were seeking an agreement more favourable to their circumstances. It is perfectly reasonable that the grantee parties would be subject to financial and other limitations which may affect the terms they could agree. Those are no doubt matters the parties could have discussed having regard to what was important to each of them. Perhaps they would have reached agreement, perhaps not. However, if your goal is to reach agreement, as Mr Withers consistently stated, then repeatedly asserting nothing is payable without any meaningful justification, questioning the honesty and bona fides of the other party and debating the legitimacy of their rights and concerns is not the best way to go about it.
[92]There is also nothing in the material to indicate that Mr Withers was concerned about his ongoing relationship with Ewamian, which is what an agreement would have likely entailed. Instead, Mr Withers appears to begrudge the fact that he is required to negotiate with Ewamian at all.
[93]In my view, while Mr Withers repeatedly stated that he wanted to reach agreement, his words and deeds indicated otherwise. Rather, his actions, on behalf of the grantee parties, suggest he was on a fixed path, endeavouring to say and do what he understood Tribunal decisions and the Native Title Act expected for negotiation in good faith, with the expectation that, if the Tribunal was to make a decision, he would not be required to pay any benefits to Ewamian, conduct a cultural heritage inspection or contribute to costs.
[94]
It follows from all of the above that I am satisfied the grantee parties did not negotiate in good faith. Mr Withers’ fixed and irrational approach meant that he did not meet the standard required under s 31(1)(b) of the Native Title Act. I encourage the parties to
re-engage with open minds and to avail themselves of the mediation resources available through the Tribunal.
[95]I must say I have found the evidence in this matter very troubling. It seems more may be required in the way of education and information for participants in the right to negotiate process. Mr Withers was opposed to mediation, but it is a shame that no party requested mediation by the Tribunal, which would have been a very low-cost option, usually conducted by phone or video conference. This matter may also have benefited from the State taking a more active role.
Does Ewamian’s conduct affect my conclusion?
[96]As mentioned, the grantee parties complain about certain aspects of Ewamian’s conduct, particularly the substantial increase in its offer of compensation in 2021 and the conduct of a cultural heritage inspection without informing the grantee parties.
[97]Ewamian accepts that I can have regard to its conduct in considering whether the grantee parties negotiated in good faith. However, it says that it sought to engage with the grantee parties and went to some lengths to explain the basis of its positions on compensation, cultural heritage monitoring and costs calculations.
[98]Ewamian says further that it made reasonable compromises on several issues in the draft Ancillary Agreement, right up until the end of communications in March 2023. In particular, Ewamian points to its agreement to cap administration costs for an authorisation meeting, agreeing to a revised windfall payment and agreeing to reduce certain costs associated with cultural heritage monitoring.
[99]Most of that is true and overall Ewamian was restrained and very professional in its dealings with Mr Withers.
[100]The most significant issue I see with Ewamian’s conduct is its largely unexplained increase in its compensation offer from amounts of about $550 based on the SSM ILUA to $5,000 per annum per lease, an unexplained reduction to $2,000 and a further increase back to $5,000.
[101]Ewamian argues here, and I do not disagree, that it was reasonable for it to make a proposal based on the SSM ILUA (although that is not to say I agree entirely with the way that position was put, which did appear rigid and non-negotiable). Why then Ewamian decided a near tenfold increase to $5,000 was appropriate is unclear. Perhaps it was simply a response to Mr Withers’ general intransigence and disrespectful approach. The initial increase followed a request to Mr Withers for comparable examples and none were forthcoming. Regardless, this type of conduct would ordinarily be viewed very poorly. There is also no meaningful reason given for changing the offer from $5,000 to $2,000 and back again. It all seems reactive.
[102]Similarly, while it is less than ideal that the inspection of the lease areas was done without transparency to the grantee parties, it appears to have been a response to Mr Withers’ attitudes and approach, which clearly implied that the grantee parties were not required to take any additional steps to ensure cultural heritage protection. Based on its exchanges with Mr Withers, Ewamian was entitled to be concerned about cultural heritage protection.
[103]This point is further illustrated in the grantee parties’ contentions which suggest that but for the recorded sites, no action would be required. This is clearly incorrect and fails to take adequate account of the grantee parties’ cultural heritage duty of care. Once again, these contentions illustrate significant misunderstandings on the part of the grantee parties.
[104]Mr Withers was fixed in his views and approach well before these events and, when the negotiations are viewed as a whole, any unwise or questionable conduct on the part of Ewamian does not alter my view with respect to the grantee parties’ lack of good faith.
Some final comments about the State’s participation in the negotiations
[105]The State is an equal negotiation party and also has an obligation to negotiate in good faith. However, it tends to take a back seat, allowing native title parties and grantee parties to negotiate without its involvement. I expect many native title parties and grantee parties welcome that position so they can focus on commercial matters which do not concern the State. In line with that general approach, and as shown in Annexure 1, the State did not actively participate in the negotiations here.
[106]I note that this practice has been recognised, to some degree, in the Native Title Act with the insertion of s 31(1A) in 2021: sch 6 pt 2 item 5 Native Title Legislation Amendment Act 2021 (Cth). That section provides that, despite the obligation to negotiate in good faith, the Government party does not need to negotiate about matters that it determines do not affect it, if the other negotiation parties give written consent. The State would still need to be a party to the agreement under s 31. Section 31(1A) only took effect towards the latter part of the negotiations here and there is no evidence that the parties reached any agreement on the State’s role. In any event, it does not affect the import of my comments.
[107]Initially, as required by s 31(1)(a) of the Native Title Act, the State’s native title notification as sent to the negotiation parties invited Ewamian to make submissions to the State about the grant of the proposed leases. There is nothing in the evidence to indicate that Ewamian availed itself of that opportunity. The State does not appear to have taken any other part in the negotiations, other than to periodically ask Mr Withers or NQLC for an update.
[108]However, in a letter to NQLC dated 1 April 2019, Mr Withers states that the Department of Resources seems to be “threatening” him unless he advances an agreement or goes to mediation or arbitration in the near future.
[109]In March 2023, Mr Withers received a further ultimatum from the Department of Resources to enter into a s 31 Deed and provide evidence of an executed ancillary agreement or apply to the Tribunal for a future act determination by 28 March 2023. There is no mention in the correspondence of what else was in the Department’s letter or what consequences would ensue if the grantee parties did not take either of those actions.
[110]NQLC queried if the grantee parties could seek an “extension of time”, particularly given the need for a consultation and consent meeting of the common law holders. Mr Withers took the opportunity to say that an extension might be possible if NQLC accepted his last offer, but otherwise he agreed with the Department that the negotiations had gone on too long.
[111]Finally, on 23 March 2023 in concluding the negotiations, Mr Withers writes that “[i]t is too close to the [Department’s] time limits (28/3/2023) for things to progress any further in negotiations, so please do not waste any time in answering to the above mentioned, as [Ewamian] has [had] plenty of time to answer such in the past” (as per original).
[112]It is fair to say that the parties were still a long way apart on fundamental issues and it seems unlikely agreement would have been reached without some significant shifts in approach from either party or perhaps some separate intervention, such as mediation.
[113]However, there is no doubt that the State’s ultimatum at this time precipitated the conclusion of the negotiations. In his application to the Tribunal, Mr Withers states that the State advised him on 24 March 2023 that it may not “grant a further extension of time” and “threatens that [it] may reject the [lease] applications”.
[114]For the State to take such a step without apparently seeking to inform itself in any way about the status of the negotiations suggests a lack of good faith on the part of the State. Such action could have a damaging effect on the negotiations between the parties. In this case, the consequences were exaggerated because the relationship between the parties was already antagonistic, and the ultimatum was perhaps convenient for the grantee parties.
[115]Nonetheless, the State’s action appears to show a complete disregard for what might have been finely balanced negotiations between the parties. Perhaps there is more to the background which is not in evidence. However, if not, I question whether the State officers concerned understood or considered the State’s obligation in the process. To impose an artificial deadline without regard to the status of the negotiations and seemingly without consultation with all parties is of concern. The notion that the State is "granting” an extension of time also fails to appreciate the State’s role as a negotiation party with the same good faith obligation as the other parties. It is not just the mining regulator.
[116]Moreover, what the State’s ultimatum suggests is that it was not particularly concerned with whether agreement was reached or not. It simply thought the process was taking too long and wanted some action taken. This is a matter where earlier intervention by the State and possibly referral to mediation might have assisted. I would recommend that the State review its approach in these circumstances.
Decision
[117]I am satisfied that the grantee parties did not negotiate in good faith as required by s 31(1)(b) of the Native Title Act and, therefore, I must not proceed to make a determination under s 38. I dismiss the application under s 148(a) of the Native Title Act. It of course remains open to the grantee parties to make another application in the future.
Ms Nerida Cooley
Member
6 October 2023
Annexure 1: Chronology
| Date | Description | Source Document | |
| Ewamian’s ref. | Grantee parties’ ref. | ||
| 3 November 2016 | State issues notice of proposed grant of ML 100019 and ML 100104 under s 29 of the Native Title Act, stipulating the notification day as 4 January 2017. | 5 | |
| 9 November 2016 | State sends s 29 notice to negotiation parties, inviting Ewamian to make submissions to the State about the proposal. | 5 | |
| 24 April 2017 | HWL Ebsworth corresponds with Mr Withers outlining that Ewamian is not prepared to agree to terms less favourable than the existing SSM ILUA and noting the costs of negotiating a new agreement would need to be met by the grantee parties. | D3 | |
| 1 May 2017 | Mr Withers acknowledges receipt of the above email. | D3 | |
| 23 May 2017 | Telephone discussion between Mr Withers and HWL Ebsworth. | Referenced in D5 | |
| 30 May 2017 | Mr Withers corresponds with HWL Ebsworth, setting out the topics discussed in the telephone conversation. Mr Withers outlines his concerns with the SSM ILUA and says that he “totally blame[s] the [North Queensland Miners Association] for the contents of the [SSM ILUA]”. Mr Withers says that he considers it unsuitable because it does not deal with each lease on its own merits and that it is his “legal choice” to go through the right to negotiate process. Mr Withers says he is not obliged to fund the negotiations but is prepared to negotiate on compensation, cultural heritage inspection costs and the windfall clause. Mr Withers also outlines that he has “made a search of the Register for pinpointed cultural areas but have found none within or nearby [the leases]” and that he has reached an agreement with the pastoral lessee for compensation of $1.00 per annum. He notes that the State has asked for a progress report, which he has provided. | D5 | |
| 26 June 2017 | HWL Ebsworth responds to Mr Withers, advising that Ewamian are not willing to negotiate on terms that are less favourable than those contained in the SSM ILUA so any new agreement will at least need to contain the same compensation and cultural heritage provisions. HWL Ebsworth also calculates the compensation which, based on the area of the leases, would be payable under the SSM ILUA. The costs for a cultural heritage inspection are also noted. Ewamian seeks the payment of reasonable costs involved in negotiating a new agreement and notes that, without Mr Withers reconsidering his position, the matter will be difficult to progress. | D6 | |
| 23 July 2017 | Mr Withers corresponds with HWL Ebsworth, responding to the above and confirming he would like to proceed with negotiating a new agreement. Some of the calculations are disputed by Mr Withers, who notes that he is only permitted to disturb about 5ha at any one time and says that “Ewamian Rangers … may have a bit of spare time whilst working for the government” to conduct an inspection. Mr Withers also questions why Ewamian consider the SSM ILUA as “market” and notes that other ILUA’s (outside the NQLC area) “have been quite different in costs”. Mr Withers makes it clear that he will be paying all of the costs. | D6 | |
| 4 August 2017 | HWL Ebsworth responds asking Mr Withers to reconsider and noting that Ewamian’s position remains as advised on 26 June 2017. | D7 | |
| Undated (possibly 28 August 2017) | Mr Withers responds to HWL Ebsworth and states that as the issue of costs has not been agreed, he considers it has been dealt with. Mr Withers also suggests progressing the matter by email to limit costs and that Ewamian could negotiate through NQLC’s dedicated future act unit. He says that he is not obliged to fund Ewamian and if Ewamian want to negotiate in a more expensive way, it is not for him to pay the difference. Mr Withers also states that as much of native title law has been settled, the matter can be resolved having regard to “the large number of Judgements and other agreements, unless one of the Parties rather argue about monetary benefits to the [native title party] rather than listen to the other parties point of view”. | D7 | |
| 8 December 2017 | NQLC emails Mr Withers enclosing an introductory letter (not provided) and draft Ancillary Agreements (only one provided). The terms of the agreement propose: · compensation of $553.05 p/a for each lease; · windfall payment of 2.5% of gross proceeds over $750,000 for one lease or $1.5M for two or more leases in a single integrated project (increased in accordance with CPI); and · cultural heritage inspection: $1,659.16 up to the first 15ha, plus $88.49 for each additional hectare, plus mileage/accommodation costs, meals and inspection report/administration costs. | D8 and D9 | 24 |
| 8 December 2017 | Mr Withers responds to NQLC, noting he had tried to call, and does not agree with the proposed agreements. He requests that any differences between the Ancillary Agreements and the SSM ILUA be outlined before he reviews the entire agreement. | D9 | |
| 10 December 2017 | Mr Withers writes again to ask that NQLC disregard his 8 December 2017 email. He apologises as he had not read the letter from NQLC, but now understands NQLC is representing Ewamian. Mr Withers asks if NQLC has all his correspondence with HWL Ebsworth and requests reasons for the calculations behind the proposed costs. He proposes that all aspects of costs be agreed to before reviewing the Ancillary Agreement. | D9 | |
| 19 December 2017 | NQLC corresponds with Mr Withers, requesting his correspondence to HWL Ebsworth on 30 May 2017 and 23 July 2017. | D9 | |
| 3 January 2018 | NQLC corresponds with Mr Withers, confirming Ewamian’s position remains as previously communicated by HWL Ebsworth, and confirms that any counteroffers that are less than the terms proposed in the draft Ancillary Agreement will not be accepted on the basis that it is accepted as a minimum standard for a mine of this type. NQLC advises it is happy to undertake most of the negotiations by email as suggested but explains the need for the consultation and consent process under the PBC Regulations and s 60AB of the Native Title Act. NQLC says those costs can be minimised by grouping matters. In relation to the cost of cultural heritage inspections, NQLC notes Mr Withers’ comments about only mining 5ha at a time and says that they can look at ways of inspecting a broader area to minimise the number of inspections needed. | D10 | |
| 5 February 2018 | Mr Withers corresponds with NQLC, responding to the above and details his view on the cultural heritage inspections being optional and that if the leases were “judged on their own merits” the compensation and windfall payments would be nil, but he is prepared to negotiate. Mr Withers repeats his earlier statement that the negotiations can be adequately resolved having regard to the “large number of Judgements made” and requests reasons for the terms proposed by Ewamian and why they are a “minimum standard”. | 34 | |
| 10 February 2018 | NQLC responds to Mr Withers to explain the reasons for the terms proposed, inviting Mr Withers to propose any alternatives, and asking for any amendments and counteroffers to be outlined in the draft Ancillary Agreement provided. | D11 | |
| 27 February 2018 | Mr Withers corresponds with NQLC, responding to the above and notes he would prefer to agree to all costs before making amendments in the draft Ancillary Agreement and counteroffers: · compensation of $15 p/a for each lease; · windfall payment of 2.5% of net profits over $85,000; and · cultural heritage inspection costs of $710 to cover both leases. Mr Withers also says that he does not wish to capitulate to Ewamian’s demands for costs, noting he has given good reasons for his costs, which he says are fair and should probably be nil. | D12 | |
| 25 April 2018 | NQLC rejects Mr Withers’ counteroffer and suggests Mr Withers speak to the North Queensland Miner’s Association (which negotiated the SSM ILUA) about why NQLC’s offer is reasonable. Mr Withers is also put on notice about potentially breaching the ACHA and is referred to the Ewamian Determination in relation to the nature of Ewamian’s native title rights and interests. | D13 | |
| 5 June 2018 | Mr Withers responds with a counteroffer of: · compensation of $30 p/a for ML 100019 and $60 p/a for ML 100104; · windfall payment of 2.5% of net profits over $75,000 p/a; and · cultural heritage inspection offer remains unchanged. Mr Withers repeats his request for information about Ewamian’s “present enjoyment” (original emphasis) of native title in or near the leases. He also says that he ceases to further argue or negotiate on the cultural heritage inspection costs and says that a request to pay for the inspectors’ travel time suggests “they do not wish to exercise their Rights and Interests in the area unless they are paid to do so”. Mr Withers says he now ceases to negotiate or argue on the inspection costs and his offer of $710 for both leases stands. | D14 | |
| 13 August 2018 | NQLC advises Mr Withers that his counteroffer has not been well received by Ewamian and is not accepted. NQLC says that Mr Withers should be dealing earnestly with Ewamian and that his comments suggest a lack of understanding of the importance of cultural heritage. NQLC also notes that Mr Withers’ comments regarding Ewamian People being paid to exercise native title “has been taken as extremely offensive and not in good faith”. In this letter Ewamian says that it outlines the ‘evidence’ sought by Mr Withers and puts him on notice that there are cultural sites in the area of the leases. It also rejects Mr Withers’ offer of a flat inspection fee but offers to consider the State endorsed fee structure for exploration activities under the State’s native title protection conditions. In relation to compensation, Ewamian explains that the impact on its land is not comparable to a pastoral lease holder and sets out the negotiation costs payable by the grantee parties. | D15 | |
| 2 October 2018 | Mr Withers responds to NQLC, stating that he does not have a lack of understanding of cultural heritage management and says that he believes his offers “are truly beyond what is required for compensation”. Mr Withers rejects Ewamian’s characterisation of his comments and says that no evidence has been provided to indicate that Ewamian are currently enjoying their native title rights or interests in or near the leases and that “[t]his makes it very hard for [him] to think again about raising [his] offers for compensation”. Mr Withers also says that the grant of the leases are not likely to interfere with Ewamian’s native title “because of the obligation of the [grantee parties] pursuant to the MRA 1989, the NTA 1993 and the ACHA 2003 and the Code of Compliance for Environmental issues”, which he says takes care of all of Ewamian’s cultural heritage concerns (original emphasis). | D16 | |
| 30 November 2018 | NQLC responds to Mr Withers, outlining three methods that Ewamian use to calculate costs for cultural heritage inspections (each of which ensure Ewamian’s costs are covered) and provides Mr Withers the option to choose which method to apply. NQLC reiterates that the Ewamian Determination is evidence of Ewamian’s continued connection to their country and, as previously advised, compensation is not comparable to that of a pastoral lessee. NQLC says that costs can be further discussed once in-principle agreement is reached on the terms of the Ancillary Agreement. | D17 | |
| 1 April 2019 | Mr Withers responds to NQLC and says that, after reviewing NQLC’s previous correspondence, he “cannot see any fair response to most questions [he has] raised to see [himself] fit to raise monetary offers in the case of [cultural heritage] [i]nspections, or any other cost demands, beside [c]ompensation”. Mr Withers provides the following counteroffer: · compensation of $45 p/a for ML 100019 and $90 p/a for ML 100104; · agrees to the windfall clause initially offered in the SSM ILUA, being 2.5% of gross proceeds over $750,000, subject to the CPI adjustments not being affixed; and · cultural heritage inspection offer remains unchanged. Mr Withers also says that, as NQLC has not outlined the current native title rights and interests being enjoyed by Ewamian in or near the leases, it suggests that no native title rights would be diminished by his proposed activities. | 54 | |
| 28 April 2020 | State writes to NQLC to seek an update on the status of negotiations. | D18 | 63 |
| 19 May 2020 | Mr Withers corresponds with NQLC to seek a response to his 1 April 2019 correspondence. Mr Withers also advises that he was informed by the pastoral lessee that Ewamian sought permission to enter his property to conduct a cultural heritage inspection. Mr Withers says that as the inspection has been conducted mining can begin as soon as the leases are granted. Mr Withers also says that he hopes the pastoral lessee “was not intended to be tricked into giving the permission to enter the [leases] for any other reason” (original emphasis). | D18 | 63 |
| 19 May 2020 | NQLC responds to Mr Withers to confirm that Ewamian did inspect the leases to “inform their position in relation to these negotiations and the impact [the] proposed operations could have on Ewamian People’s cultural heritage”. NQLC advises that, based on that visit, it was determined that the proposed activities will have significant negative impacts on Ewamian’s cultural heritage and that a full cultural heritage inspection will be required once agreement has been reached. NQLC outlines that Mr Withers cannot commence mining until this inspection has been completed. NQLC refers to Mr Withers’ correspondence of 1 April 2019 as inadequate and offensive and advises that: · Mr Withers’ counteroffer is not accepted; · the SSM ILUA is now expired and is no longer a benchmark for negotiations; and · costs for Ewamian’s consultation and consent meetings are approximately $5,000 (across two locations). NQLC request Mr Withers’ confirmation that the grantee parties will cover these costs and note that once in-principle agreement is reached, a detailed budget will be provided. | D18 | 63 |
| 27 May 2020 | Mr Withers responds to NQLC and says that Ewamian’s inspection of the leases was not needed and was “a total waste of funding” (original emphasis). Mr Withers questions why Ewamian went to the area of the leases prior to a full inspection and says that this shows him “that the Ewamian [P]eople are not enjoying any Rights or Interest in the ML areas, because if they had have been doing so, then they would have known prior to the Inspection of the issues [they] mention” (original emphasis). Mr Withers says that he has re-read his 1 April 2019 correspondence several times and “cannot see anything that is inadequate or offencive [sic]”. Mr Withers notes that NQLC can expect to receive a further counteroffer within the week. | D19 | |
| 1 June 2020 | Mr Withers corresponds with NQLC, providing a counteroffer for compensation of $54 p/a for ML 100019 and $100 p/a for ML 100104. | D20 | |
| 7 July 2020 | NQLC corresponds with the State to advise that instructions will be sought from Ewamian in relation to Mr Withers’ 1 June 2020 counteroffer at the next board meeting (to be scheduled). | D21 | |
| 4 September 2020 | Mr Withers corresponds with NQLC to seek a response to his 1 June 2020 correspondence and asks if the abovementioned board meeting has occurred. Mr Withers advises that the grantee parties are looking to have the leases granted by mid-March 2021. | D21 | |
| 17 September 2020 | NQLC responds to Mr Withers to seek further information in relation to his view that his offers meet the requirements for alluvial mining and to seek examples of other agreements with similar terms. NQLC advise that Ewamian does not share the same view and are not aware of any agreements with such small financial offers. | D22 | |
| 3 October 2020 | Mr Withers responds to NQLC to say that the information sought by NQLC is not for him to answer but for Ewamian’s legal advisors to determine if his offers meet requirements or “if any financial [payment] is really required at all” (original emphasis). Mr Withers also notes that he does not have any information on other agreements but says he considers his offers to be “well above what is really required for [him] to provide”. | D23 | |
| 8 February 2021 | Mr Withers corresponds with NQLC (copying the State), seeking a response to his 3 October 2020 correspondence and notes he will provide his proposed amendments to the draft Ancillary Agreement once a response is received. Mr Withers notes that he is close to reaching his maximum offer for compensation. | D24 | |
| 12 April 2021 | NQLC corresponds with Mr Withers, responding to the above and advising that his 1 June 2020 counteroffer is not accepted. NQLC provide a counter proposal for compensation of $5,000 per lease. NQLC notes that Mr Withers has not provided any substantive comments on the terms of the Ancillary Agreement and suggests that he provide a response on the whole agreement. NQLC outlines that any substantive changes to the proposed cultural heritage process are unlikely to be accepted. | D25 | 84 |
| 16 April 2021 | Mr Withers responds to NQLC to acknowledge the significant increase in compensation sought by Ewamian and questions whether Ewamian is negotiating in good faith. Mr Withers says that most of the monetary offers he has made “should be classed as a Good Will donation to [Ewamian] rather than noted for compensation”. Mr Withers notes that once a response is received, he will provide his proposed amendments to the draft Ancillary Agreement, which he says will include substantive changes to the proposed cultural heritage process. | D26 | |
| 21 April 2021 | NQLC responds to Mr Withers to note that it looks forward to receiving the marked up Ancillary Agreement for Ewamian’s consideration. | D27 | |
| 27 April 2021 | Mr Withers corresponds with NQLC, attaching an amended draft Ancillary Agreement (not marked up) and three maps to be included as annexures. In his cover email, Mr Withers’ says “[t]o show that I am trying hard to come to an Agreement, then again I will progress my offer for Consideration benefits (?Donation?) to [Ewamian]” (original emphasis). Mr Withers’ draft Ancillary Agreement provides the following counteroffer (among other amendments): · compensation (amended to be referred to as consideration) of $68 p/a for ML 100019 and $125 p/a for ML 100104; · windfall payment of 2.5% of gross sales over $750,000 for one lease or $1.5M for two or more leases in a single integrated project; and · cultural heritage inspection costs remain as offered on 27 February 2018, 5 June 2018 and 1 April 2019. | D27 | |
| 17 May 2021 | Mr Withers corresponds with NQLC, referring to the above amended Ancillary Agreement and explains that the amendments were made in the PDF version that was provided to him. Mr Withers also seeks a response from NQLC as to whether those amendments to the agreement can progress to the execution stage. | 91 | |
| 6 August 2021 | Mr Withers corresponds with NQLC to provide an alternate compensation offer of $135 p/a per lease or $95 p/a for ML 100019 and $175 p/a for ML 100104. Mr Withers notes again that his offers “are well beyond what would be required if such calculations were to be actually judged on both of the (2) [leases] merits”. | D28 | |
| 10 October 2021 | Mr Withers corresponds with NQLC, seeking a response to his recent emails. He also notes that he last provided an update to the State on 1 June 2021 and copies in the State so it is aware of the status of negotiations. | 100 | |
| 12 October 2021 | NQLC corresponds with Mr Withers, responding to the above and advises that Mr Withers’ amendments to the Ancillary Agreement are not accepted, however, further instructions from Ewamian are required before NQLC can provide a response. | D29 | |
| 30 November 2021 | Mr Withers responds to NQLC and again seeks a response to the agreement amendments be provided to NQLC on 27 April 2021. Mr Withers reiterates his view that Ewamian are not currently enjoying any native title rights or interests in or near the leases and states that Ewamian would not be able to provide any information that would cause him to increase his compensation offer. | 103 | |
| 20 December 2021 | NQLC respond to Mr Withers’ correspondence of 27 April 2021 and 6 August 2021 to advise that his counteroffer and the majority of his Ancillary Agreement amendments are not accepted and provides detailed reasons. | D30 | |
| 22 December 2021 | Mr Withers corresponds with NQLC to note an error in his 30 November 2021 correspondence and details his position on CPI adjustments, saying that no agreement he has been party to in the past has been subject to CPI. | D31 | |
| 14 April 2022 | Mr Withers corresponds with NQLC, referring to its 20 December 2021 correspondence and attaches a letter and a further amended Ancillary Agreement outlining which of Ewamian’s comments the grantee parties agree to (neither of these documents were provided). Mr Withers notes that the grantee parties are eager to finalise the agreement as soon as possible. | 108 | |
| 26 April 2022 | Mr Withers corresponds with NQLC, advising that he cannot locate the Word version of the Ancillary Agreement used to make his amendments and attaches various versions of the Ancillary Agreement and the State Deed. Mr Withers says that considering the circumstances of the leases he “thought that [Ewamian] would have considered that the expired [SSM] ILUA caters for a far larger mining operation than what [the grantee parties are] proposing” and therefore the “cost issues would be well below” the amounts offered in the SSM ILUA (original emphasis). | 113 | |
| 17 May 2022 | NQLC responds to Mr Withers, attaching an updated Ancillary Agreement and requests that any proposed changes be returned in markup. The updated Ancillary Agreement proposes: · compensation of $2,000 p/a for each lease; · windfall payment of 2.5% of gross proceeds over $750,000 for one lease or $750,000 for two or more leases in a single integrated project; · cultural heritage inspection: $2,000 up to the first 15ha, plus $100 for each additional hectare plus mileage/accommodation costs and administration costs; and · consultation and consent meeting costs must be contributed to (capped at $2,500 pro rata). | D32 and D33 | |
| 18 July 2022 | Mr Withers responds to NQLC, attaching a letter outlining his position and case references to explain the basis of his calculations, some of which were included to support his view that compensation should be ‘nil’. Mr Withers also says that “the [lease] areas are not currently being used for any Native Title Rights or Interests or for any other [Aboriginal cultural heritage] purposes” and that “these rights are not rights currently enjoyed at all, on this area, or on any nearby areas”. Mr Withers also attaches an amended Ancillary Agreement which provides the following counteroffer: · compensation of $350 p/a for each lease, with no CPI adjustments and $700 p/a for each lease after any renewal, with no CPI adjustments; · windfall payment of 2.5% of gross proceeds over $880,335 for one lease or $1,760,670 for two or more leases in a single integrated project; · cultural heritage inspection to cover both leases for $2,340 plus mileage, accommodation and administration costs; and · consultation and consent meeting costs may be contributed to on a pro rata basis. | D33 | 115 |
| 19 September 2022 | NQLC responds to Mr Withers to advise that the full costs of the cultural heritage inspections will need to be agreed by the grantee parties before Ewamian will negotiate the remaining terms of the Ancillary Agreement. NQLC reiterate that not all cultural sites within the area of the leases have been recorded and say cultural heritage inspection that have been conducted “were not conducted for all activities [the grantee parties] intend or may intend to conduct”. | D34 | 119 |
| 7 November 2022 | Mr Withers corresponds with NQLC to note the recent Tribunal decision in De Roma and seeks to retract all past negotiations (except for those related to costs) prior to 31 May 2022. Mr Withers says the grantee parties now agree to all terms of the Ancillary Agreement originally offered by Ewamian on 8 December 2017, but the cost figures remain as offered on 18 July 2022. Mr Withers also says that for these new negotiations the grantee parties “again note that [they] wish of not to be too much out of pocket for any costs if by Law, … or past Judgements [referring] to such as being Voluntary to agree to”. Mr Withers notes that the grantee parties have “offered far more than just costs to [Ewamian] for the [inspection] to be done” and that they have voluntarily offered “more than a reasonable hourly rate” (original emphasis). | D35 | 122 |
| 18 November 2022 | NQLC responds to Mr Withers to advise that his request to retract all negotiations prior to 31 May 2022 is not accepted. NQLC reiterates that Ewamian’s position remains as outlined on 19 September 2022 and seeks a response to that from Mr Withers by 14 December 2022 so instructions can be sought from Ewamian at the next board meeting on 15 December 2022. | D36 | |
| 23 December 2022 | Mr Withers responds to NQLC to seek further information on Ewamian’s reasoning and calculations for the cultural heritage inspection costs. He also requests a response to his 18 July 2022 counteroffer before he provides any further amendments to the Ancillary Agreement. Mr Withers notes that the grantee parties need the leases granted before 1 April 2023. | 132 | |
| 3 January 2023 | NQLC responds to Mr Withers to reiterate that Ewamian’s position is that it should not be out of pocket for cultural heritage inspections and that these costs will need to be agreed by the grantee parties before the remaining terms are discussed. NQLC asks Mr Withers to advise whether he would like to negotiate on Ewamian’s revised fee structure for inspections. | D37 | 134 |
| 16 January 2023 | Mr Withers corresponds with NQLC noting that a future act determination application may be submitted if the grantee parties’ proposed amendments to the Ancillary Agreement are not agreed to. Mr Withers notes that those amendments relate to costs or “anything that would cause the [grantee parties] to unnecessarily be subject to a cost that could be avoidable”. | D38 | 138 |
| 9 February 2023 | NQLC corresponds with Mr Withers, advising that his counteroffer of 18 July 2022 is not accepted. NQLC encloses Ewamian’s updated pay rates for cultural heritage inspections and retains its position that until these costs are agreed in full the remaining terms of the agreement will not be discussed. NQLC say that the compensation offered by Mr Withers “is insufficient to compensate Ewamian People for the impacts on their Native Title rights and interests” and reverts back to its 12 April 2021 offer of $5,000 p/a per lease. | D39 | 139 |
| 7 March 2023 | Mr Withers responds to NQLC advising that he has received advice from the State that the matter must be finalised by 28 March 2023. Mr Withers provides the following “final offers” (original emphasis): · compensation of $350 p/a for each lease, with no CPI adjustments and $700 p/a for each lease after any renewal, with no CPI adjustments, or $350 p/a for each lease, with CPI adjustments; · windfall payment of 2.5% of gross proceeds over $880,335 for one lease or $1,760,670 for two or more leases in a single integrated project; · cultural heritage inspection to cover both leases for $2,340 plus mileage and administration costs; and · consultation and consent meeting costs may be contributed to on a pro rata basis. Mr Withers also says that Ewamian has not provided any reason to explain “why they should receive any amount of Compensation that they have asked for” and, although the leases are located within the Ewamian Determination area, that “does not mean that it is [m]andatory that the [grantee parties] ha[ve] to pay an [a]nnual compensation”. | D40 | 146 |
| 7 March 2023 | NQLC acknowledges receipt of the above and requests Mr Withers seek an extension of time from the State to finalise the matter. | 148 | |
| 8 March 2023 | Mr Withers responds to NQLC to note that if Ewamian do not agree to the grantee parties offer made on 7 March 2023, then the matter should proceed by way of a future act determination application. | 149 | |
| 14 March 2023 | NQLC responds to Mr Withers 7 March 2023 correspondence and advises that his offer for windfall is accepted but the offers for compensation and cultural heritage inspections are not. NQLC advise that Ewamian’s counteroffer for compensation of $5,000 p/a per lease remains and says that this amount “is the lower amount [Ewamian] expects to see under these kinds of agreements and their standard rate has been reduced given the size of each tenement and the seasonal nature of the mining proposed”. NQLC also say that Ewamian considers these two issues to be the only remaining matters to be negotiated and, once agreed in-principle, the technical drafting of the agreement can be settled. | D41 | 150 |
| 15 March 2023 | Mr Withers responds to NQLC stating that his offer for compensation remains and says that Ewamian is “definitely not currently doing anything at all to do with any [Aboriginal cultural heritage] issues within the areas” of the leases. Mr Withers also says that his offer for cultural heritage inspections remain and that his offer “far exceeds” Ewamian’s actual out of pocket costs. | D42 | 151 |
| 16 March 2023 | NQLC corresponds with Mr Withers and says that, although Ewamian have made “considerable concessions” by agreeing to Mr Withers’ windfall offer, they acknowledge that Mr Withers’ position outlined above has not changed since his last offer and asks if he has a counteroffer for Ewamian to consider. | D43 | 153 |
| 17 March 2023 | Mr Withers responds to NQLC to say that Ewamian’s comments are misleading and states that they have not made any concessions at all by agreeing to the windfall offer as it is the same windfall offer proposed in the SSM ILUA. Mr Withers says that the grantee parties made this offer in the hope to speed up the negotiations. | 154 | |
| 20 March 2023 | NQLC responds to the allegation that its correspondence is misleading and provides clarification. NQLC asks Mr Withers again if he has a counteroffer for Ewamian to consider. | 156 | |
| 21 March 2023 | Mr Withers responds to NQLC stating that “as of today [he is] finished answering questions from NQLC … that [have] been either answered to, or remarked upon numerous times since year 2017 when negotiations started” (original emphasis). | D44 | 157 |
| 22 March 2023 | NQLC responds to Mr Withers noting again that Mr Withers’ position has not changed since they wrote to him on 14 March 2023 and asks again if Mr Withers has a counteroffer for Ewamian to consider. | D45 | 159 |
| 23 March 2023 | Mr Withers corresponds with NQLC to advise that the grantee parties do not have a counteroffer for Ewamian to consider. | D46 | 160 |
| 24 March 2023 | NQLC responds to Mr Withers to advise that Ewamian remain open to receiving a counteroffer from him. | D47 | 161 |
| 27 March 2023 | Mr Withers lodges a future act determination application. |
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