June Ashwin, Geoffrey Alfred Ashwin, Ralph Edward Ashwin and Raymond William Ashwin on behalf of the Wutha People/Western Australia/Contact Uranium Limited

[2008] NNTTA 129

NATIONAL NATIVE TITLE TRIBUNAL

June Ashwin, Geoffrey Alfred Ashwin, Ralph Edward Ashwin and Raymond William Ashwin on behalf of the Wutha People/Western Australia/Contact Uranium Limited [2008] NNTTA 129 (19 September 2008)

Application No:        WF08/16

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

June Ashwin, Geoffrey Alfred Ashwin, Ralph Edward Ashwin and Raymond William Ashwin on behalf of the Wutha People – (WC99/10)              (native title party)

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The State of Western Australia   (government party)

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Contact Uranium Limited  (grantee party)

FUTURE ACT DETERMINATION - TRIBUNAL JURISDICTION TO DETERMINE MATTER

Tribunal:  John Sosso
Place:  Brisbane

Date:  19 September 2008

Hearing date:  22 August 2008

Representatives:-

Grantee Party:  Ms Angela Blackmore, Tenement Administration Services
  Ms Lynton Downe, Tenement Administration Services

Mr Mike Drew, Contact Uranium Limited

Native Title Party:              Mr Ron Harrington-Smith, Wutha Heritage Coordinator

Mr Paul Tolcon, Mony de Kerloy Barristers and Solicitors

Government Party:              Mr Domhnall McCloskey, State Solicitor’s Office
  Ms Janice Goodwin, Department of Industry and Resources

Catchwords:  Native title – future act determination application – proposed prospecting licences – jurisdiction – whether grantee party has negotiated in good faith – evidentiary onus – challenge to good faith negotiations of government party withdrawn – grantee party has negotiated in good faith – jurisdiction to make a determination pursuant to s. 38.

Legislation:Native Title Act 1993 (Cth) ss, 29, 30A, 31, 35, 36, 37, 38, 39, 75, 193, 203B

Cases:Ashwin & Ors on behalf of the Wutha People/Contact Uranium Ltd/Western Australia [2008] NNTTA 92 (17 July 2008) Deputy President Sosso

Brownley v Western Australia (1999) 95 FCR 152

Champion v Western Australia (2005) 190 FLR 362

Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467

Placer (Granny Smith) v Western Australia (1999) 163 FLR 87

Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303

Walley v Western Australia (1996) 67 FCR 366

Walley v Western Australia (1999) 87 FCR 565

Western Australia v Taylor (1996) 134 FLR 211

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

Introduction

1. The issue to be determined in this matter is whether Contact Uranium Limited (‘the grantee party’) has fulfilled its obligations under s.31 of the Native Title Act 1993 (Cth) (‘the Act’) and negotiated in good faith with the Wutha People (‘the native title party’). The native title party initially contended that both the State of Western Australia (‘the government party’) and the grantee party had not negotiated in good faith. However, the native title party subsequently withdrew this contention with respect to the government party at the hearing convened on 22 August 2008. For the purpose of this matter I have proceeded on the basis that the only remaining issue in contention is whether the grantee party has negotiated in good faith. The issue of good faith goes to the jurisdiction of the Tribunal to make a s.38 determination, and once raised must be dealt with prior to a consideration of the s.39 criteria – Walley v Western Australia (1996) 67 FCR 366 and s.36(2).

2. On 13 July 2005, the Government party gave notice under s.29 of the Act of its intention to grant prospecting licences P38/3277, P38/3278 and P38/3279 (‘the proposed tenements’) to Contact Resources Ltd. The notice stated that the grant of the proposed tenements would authorise the grantee to prospect for minerals for a term of 4 years from the date of grant.

3. On 19 June 2007 Contact Resources Ltd registered a change of name to Contact Uranium Limited (ACN 108 456 444). 

4. Each of the proposed tenements entirely overlaps the registered native title claim of the Wutha People (WC99/10 – registered from 15 June 1999). The area and location of the proposed tenements is as follows:

   ·   P38/3277 – 197.4 hectares, located 141 kilometres north westerly of Cosmo Newbery Mission in the Shires of Laverton and Wiluna;

   ·   P38/3278 – 47.95 hectares, located 120 kilometres north westerly of Cosmo Newbery Mission in the Shire of Laverton; and

   ·   P38/3279 – 125.35 hectares, located 126 kilometres north westerly of Cosmo Newbery Mission in the Shire of Laverton.

The proposed tenements are termed ‘slivers’ by the Department of Industry and Resources (‘DoIR’); that is, areas of land not included under established mining tenure as a result of a shift in geodetic’ datum and boundary realignment.  It is understood that the grantee party holds granted mineral titles in the areas surrounding the proposed tenements and that the purpose of granting the proposed tenements is to consolidate the interests of the grantee party and establish contiguous holdings in the area for further exploration. The nature of the proposed activities that would be carried out by the grantee party on the land and waters comprising the proposed tenements was set out in the future act determination application as follows:

“Geological and structural mapping programmes with geochemical (soil) sampling Program.

Following results from the initial low-impact program, the Grantee will undertake higher level mapping and sampling with a plan to start preliminary geophysical investigations.

Minerals Explored for:

Any minerals of potential economic value including uranium, specifically including but, not limited to precious metals (Au, Ag, Platinum Group Metals (PGM)) and major base metals (Cu, Pb, Zn, Ni, Al & Sn).

To achieve the low impact nature of the above program, the Grantee party will utilize all existing tracks, cleared lines & fencelines to reduce vehicle impact.

Geophysical investigation may include aeromag (non-invasive) and ground mag (carried out on foot).

Geochemical – Soil sampling will in most cases be done on foot, with heritage surveys conducted over areas to be sampled.”

1. On 14 April 2008, the grantee party lodged with the National Native Title Tribunal (the Tribunal), pursuant to sections 35 and 75 of the Act a future act determination application. As at least six months had passed since the notification day (and in fact approaching three years), the grantee party was prima facie entitled to make this application – s.35(1)(a).

2. On 17 April 2008 I was appointed the presiding Member to constitute the Tribunal for the purposes of conducting the inquiry into the future act determination application.

3. At the preliminary conference convened on 29 April 2008, Mr. Harrington-Smith, representing the native title party, contended that neither the government party nor the grantee party had negotiated in good faith and challenged the Tribunal’s jurisdiction to hear and determine the matter. Consequently Directions were made, inter alia, for the parties to provide contentions and supporting documentary evidence in the jurisdictional issue. At a Directions Hearing convened on 6 June 2008 to consider Mr. Harrington-Smith’s application for an extension of time in which to comply, I amended the Directions to allow each of the parties a further three weeks in which to provide contentions and evidence. Subsequently the grantee party failed to comply by the due date and the native title party made application for the Tribunal to dismiss the future act determination application pursuant to s.148(b) of the Act. The Tribunal declined to dismiss the future act determination application - see Ashwin & Ors on behalf of the Wutha People/Contact Uranium Ltd/ Western Australia, [2008] NNTTA 92 (17 July 2008).

4. All parties have now complied with the Directions as amended, in relation to the jurisdictional challenge and the submissions received are as follows:

Native title party submissions:

Native Title Party’s Statement of Contentions and Supporting Documentary Evidence regarding Good Faith Negotiations, including attachments 1-5 inclusive (NTPSC) dated June 2008 (received 26 June 2008)

Native Title Party’ Statement and Contentions in Reply (NTPSCR), dated 12 August 2008

Grantee party submissions:

Correspondence from Tenement Administration Services Pty Ltd, detailing eight attachments comprising the Grantee Party’s supporting documentary evidence (GPSDE), dated 25 July 2008

Government party submissions:

Government Party Contentions including attachments A, A1-A2, B, B1, C, C1, D, D1-D2 and E (GVPSC), dated 7 July 2008

1. During the Hearing on 22 August 2008, the grantee party made application for the outcomes of the associated Tribunal assisted mediation in relation to the proposed tenements (designated file number WM06/26, and referred under s 31(3) of the Act) to be received into evidence. The Tribunal allowed this material to be introduced into the inquiry. These outcomes letters were distributed by the Tribunal on the same date and comprise the following:

   ·Informal outcomes of preliminary mediation conference of 26 April 2006, via email dated 1 May 2006;

   ·Outcomes of mediation conference of 15 May 2006, dated 15 May 2006;

   ·Outcomes of mediation conference of 12 June 2006, dated 12 June 2006;

   ·Outcomes of mediation conference of 28 June 2006, dated 28 June 2006;

   ·Outcomes of settlement list meeting of 25 July 2006 dated 25 July 2006;

   ·Outcomes of settlement list meeting of 4 September 2006, dated 6 September 2006;

   ·Informal outcomes of settlement list meeting of 25 September 2006 and teleconference of 9 October 2006, via emails dated 25 September and 10 October 2006 respectively;

   ·Outcomes of mediation conference of 16 November 2006, dated 17 November 2006; and

   ·Outcomes of mediation conference of 1 December 2006, dated 4 December 2006.

Pursuant to s.31(4) of the Act, the Tribunal is able to take into account information to which it has access because it has provided s.31(3) assistance for the purpose of establishing whether a negotiation party has negotiated in good faith as contemplated in s.31(1)(b).

History of Negotiations with Native Title Party

1. Pursuant to s.29(2)(b), the government party, by correspondence dated 8 July 2005, gave notice of the proposed future acts to the native title party, via the Goldfields Land and Sea Council (being the recognised native title representative body for the Goldfields Region within which the Wutha native title claim falls). The native title party was informed that the s.29 notices would be published in The Western Australian newspaper under “Mining Notices” and also in an Aboriginal newspaper. Notice was duly given on 13 July 2005.

2. On 15 July 2005  the government party (via the Tenure and Native Title Branch of the DoIR) wrote to both the native title party and the grantee party informing them of the notification of the future acts and enclosing:

   ·a copy of the tenement applications;

   ·a TENGRAPH plan of the proposed tenements;

   ·a topographical plan of the proposed tenements;

   ·a copy of the search of the Register of Aboriginal Sites; and

   ·an extract of s.39(1) of the Act.

After referring to the obligation imposed by s.31(1)(b) for each of the negotiating parties to negotiate in good faith and, in particular, that the government party give to native title parties an opportunity to make submissions regarding the grant, the government party requested the grantee party to provide to the native title party, within 14 days of the date of the letter, the following documents:

·an outline of the proposed work program for the proposed tenement areas, if available;

·copies of the grantee party’s last annual report, if available;

·advice as to whether Aboriginal heritage surveys within the area of the  proposed tenements are proposed or have been completed;

·any company policies or information which might be relevant to the native title party; and

·a suitable map of the project area (if applicable).

An outline of the government party’s proposal was also enclosed, being:

·a copy of the draft conditions and endorsements for the proposed tenements in accordance with the Mining Registrar’s recommendations;

·a copy of four additional conditions for discussion;

·a copy of ‘Administration and Operation of Exploration Licences, Prospecting Licences, Mining Leases, General Purpose Leases and Miscellaneous Licences in Western Australia’;

·‘Fees and Charges: Information on Mining Tenements’; and

·a summary of approvals and responsibilities required by Government before activities can commence on the proposed tenements.

The native title party was requested to make its submission to the government party by 5 September 2005, including its view on the effects the granting of the future act would have on native title rights and interests as detailed in s.39 of the Act. Finally, the government party also forwarded to both the grantee and native title parties copies of a guide on what constitutes good faith negotiations and a copy of the government party’s Negotiation Protocol.

1. The government party’s letter of 15 July 2005 to the grantee party was sent to Contact Resources Ltd care of Mr Daniel Matich of D and L Tenement Services.  By letter dated 7 September 2005, Mr. Karl Wolzak of Resource Mapping Pty Ltd wrote to the native title party (via Mr Trevor Preston of Australian Interaction Consultants) in which he explained, in effect, that he had recently assumed responsibility as tenement manager for the grantee party’s mining tenements from the previous consultant, Mr. Matich.

2. In the letter of 7 September 2005 Mr. Wolzak also said:

   “I have discussed these applications with the managing director of Contact and advised that the best way to deal with these applications is to enter into a suitable heritage agreement rather than continue with the Right to Negotiate process.

   It is my understanding that the Wutha People (WC99/10) consent to the Standard Heritage Agreement in use in the Eastern Goldfields regions for exploration tenure.  Accordingly, please find enclosed a Standard Goldfields Heritage Agreement executed by Contact Resources to accommodate the above listed applications.

   I hope this will satisfy the Wutha People in relation to this matter and we can therefore request that the DoIR prepare a State Deed for these applications to allow them to progress to grant.

   Once executed by the Wutha would you please provide me with a copy for our record.”

3. By letter dated 8 September 2005 Mr. Trevor Preston, of Australian Interaction Consultants, representing the native title party, responded to Mr Wolzak. After stating that the native title party had not received the s.29 notices, he noted that he was unable to identify whether a heritage survey would be required or whether the native title party would object. He then informed Mr Wolzak of the following:

   “I am obliged to inform you that, for reasons to which I am not privy, the Wutha people are no longer represented in future act matters by the Goldfields Land and Sea Council. One of the unfortunate consequences of this change in representation is that the Wutha people no longer consider the Standard Heritage Agreement (Goldfields) to be suitable for their purposes.

   I enclose a copy of the Heritage Clearance Agreement preferred by the Wutha people.”

4. Mr Wolzak emailed Mr Ron Gajewski, then a Director of the grantee party, on 13 October 2005 informing him of the tenor of the letter he had received from Mr Preston. He then proceeded to advise Mr Gajewski as follows:

   “I have reviewed this alternative agreement and it’s reasonable in terms of its brevity however there is no provision for any work whatsoever to be undertaken without first undertaking a clearance survey (minimum cost $8,250). All other Standard Heritage Agreements (‘SHA’) allow for no clearance surveys where exploration will be ‘Low Impact’. The following is a typical definition of ‘Low Impact’ – Low Impact Exploration includes aerial surveys, geological mapping, metal detecting, rock chip, hand specimen and soil and drainage sampling, only using hand-held tools and non-ground disturbing geophysical surveys including electrical and magnetic surveys and incidental activities.

   If you agree I suggest I write back and ask that provision be made to accommodate low impact type work without a requirement for a clearance survey simply notice from Contact prior to undertaken (sic) any low impact work of the time and extent of that work. I think this is reasonable because anyone else, for example, a prospector fossicking or a tourist camping or 4 wheel driving, could go anywhere on the tenement area without a requirement to undertake a clearance survey for what are passive activities.”

5. On 13 March 2006 the government party requested the Tribunal, pursuant to s.31(3) to mediate among the negotiation parties to assist in obtaining their agreement. Upon receiving a request pursuant to s.31(3) the Tribunal is obliged to mediate, subject to the cooperation of the parties. In the government party’s letter to the native title party of 13 March 2006 informing it of the s. 31(3) request, the following statement was made:

   “In accordance with the State Government’s Negotiation Protocol, where negotiations between any of the parties stall, the matter will be referred to the National Native Title Tribunal (NNTT) for mediation assistance.

   In the above case, one of the parties has indicated that negotiations have stalled.

   The matter was consequently referred to the NNTT for mediation assistance today.”

6. During the period from 26 April 2006 to 1 December 2006, the Tribunal convened a number of mediation conferences and three settlement list meetings, the latter being meetings convened on the basis that parties had previously confirmed that agreement had been reached.  The mediation was subsequently taken out of the settlement list once it transpired that this was no longer the case.  Outlined below is a brief outline of those conferences and meetings:

   ·26 April 2006. The native title party was not represented, however Mr. Gajewski for the grantee party observed that access fees and survey costs comprised the primary issue between the parties.

   ·15 May 2006.  The grantee party was not represented but Mr. Preston for the native title party indicated that once he had spoken to Mr Gajewski about issues of access fees and survey costs he would be able to seek instructions from the native title party. 

   ·12 June 2006.  The grantee and native title parties reported that they had not communicated in the intervening period.  Mr Gajewski further noted that he was leaving the employ of the grantee party and a new person would be representing the grantee party at the next mediation conference.

   ·28 June 2006. The grantee party was represented by Messrs. Al Maynard and Karl Wolzak. The parties noted that the proposed tenements were relatively small strips of land adjacent to existing tenements granted to the grantee party. Given this, Mr. Preston advised that he was in the process of seeking instructions as to whether heritage surveys were necessary for low impact exploration activities.

   ·25 July 2006. Mr. Ron Parker represented the native title party after the departure of Mr. Preston. Mr. Wolzak advised that he had received correspondence from Mr. Preston on 13 July 2006 in which it was indicated that Mr. Preston was awaiting a response from the native title party as to whether it would require a heritage survey for low impact activity in the proposed tenements. Mr. Parker agreed to contact Mr. Harrington-Smith to discuss this issue, and further that Messrs. Parker and Wolzak would meet before the next mediation conference to resolve any minor issues.

   ·4 September 2006.  Mr. Parker confirmed that the Goldfields Regional Standard Heritage Agreement (“RSHA”) executed by the grantee party had been sent to the native title party and that they would be likely to agree to it.

   ·25 September 2006.  Mr. Parker was linked in from Karratha and said that he would follow up on the execution of the State Deed and RSHA, both of which he believed had been sent to the native title party.

   ·9 October 2006.  Ms. Nadia Ayliffe, representing the native title party, advised that the State Deed had been executed by the native title party but that the RSHA had not as there were some concerns with it.

   ·16 November 2006.  Mr. Parker advised that the native title party had accepted, and had executed, the RSHA. However, the Agreement contained a typographical error at attachment 5 (Schedule of tenement applications to which the Agreement refers), although the “footer” on each page of the Agreement referred to the correct tenement applications. Further, Mr. Parker advised that the native title party had changed its policy and now requested the grantee party to execute the Wutha Alternative Heritage Agreement. Mr Wolzak advised that the Wutha Alternative Heritage Agreement was not acceptable to the grantee party because of the relatively small size of the proposed tenements. Mr Wolzak further advised that if agreement could not be reached the grantee party would be likely to lodge a future act determination application.

   ·1 December 2006.  Mr. Parker confirmed that the instructions of the native title party were to persist with the Wutha Alternative Heritage Agreement. Mr Wolzak advised that the grantee party would request arbitration but it wanted to confirm this with the grantee party to ensure that this position had not changed.

1. Ms. Underwood, the mediation case manager of the Tribunal, emailed the parties on 24 January and 14 February 2007 seeking clarification of the status of negotiations and, in particular whether the grantee party would be applying to the Tribunal for a determination pursuant to s.38.  I have not been provided with any documentation which indicates that Ms. Underwood’s emails were responded to. In any event, Tribunal mediation formally ceased on 14 April 2008 following the making of a future act determination application by the grantee party.

Legal Principles

1. Each of the negotiation parties (s.30A) is required by s.31(1)(b) to negotiate in good faith with a view to obtaining the agreement of the native title party to either the doing of the relevant future act unconditionally or subject to conditions to be complied with by any of the parties. If any negotiation party satisfies the Tribunal that any other negotiation party, other than a native title party, has not negotiated in good faith, the Tribunal must not make a determination pursuant to s.38 – s.36(2).

2. Although no party bears an onus of proof, the practical effect of s.36(2) is to place an evidential burden on the party or parties alleging lack of good faith: Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 at 93/[28]. In this matter the native title party has provided the Tribunal with two statements of contentions as well as documentary evidence in support of those contentions. As indicated earlier, the native title party initially contended that the government party had not negotiated in good faith. In support of this contention it was alleged, inter alia, that the government party had failed to serve on the native title party the s.29 notices. The government party produced postal records which indicated that service in fact had occurred. Subsequently, the native title party withdrew its assertion that the government party had not negotiated in good faith. Accordingly, the only assertion now made by the native title party is that the grantee party did not negotiate in good faith.

3. It is important to appreciate that the words “negotiate in good faith” “must be given their normal meaning having regard to the statutory context and principles of statutory interpretation”: Walley v Western Australia (1999) 87 FCR 565 at 573 per Carr J. Clearly the obligation imposed by s.31 is to “negotiate” in good faith. There is no obligation to reach agreement. Likewise, if agreement is not reached, the mere fact that a negotiation party makes application under ss.35 and 75 for arbitration is not of itself an indication of lack of good faith. As both the Tribunal and the Federal Court have held, there is no requirement for a party to capitulate or to wantonly make concessions simply in order to reach agreement. The obligation to negotiate in good faith connotes, in common parlance, an obligation to act honestly, reasonably and fairly and to negotiate in a transparent and open manner; to be prepared to listen, to consider and to respond; not to approach negotiations with a fixed frame of mind or with a “take it or leave it” mode of action.

4. Further, the obligation to negotiate is not open-ended.  As Carr J noted in Walley v Western Australia (1999) 87 FCR 565 at (577): “conduct should be judged in the context of matters related to or connected with the doing of the particular future act in question.” In short, the requirement to negotiate in good faith is limited to negotiations about the effect of the proposed future act on the registered native title rights and interests of the native title party. Some assistance on the type of matters that may form the basis of negotiations is provided by the list of issues outlined in s.39. Carr J pointed out in Walley v Western Australia (1999) 87 FCR 565 (at 576) that the list “has as its common theme a relationship with the likely impact of the future act in question.”  Reference can also be made to s.33 where it is contemplated that negotiations may include the question of royalty payments as well as existing non-native title rights and interests over the land and waters in question. This is not to say that negotiations are in any way circumscribed by the Act. Again, as Carr J said (at 577): “That does not preclude the Government party or the native title party negotiating on other matters, if they see fit.”  The right to negotiate provides a platform to meet, form relationships and engage in discussions about any matter the parties wish to raise. However, in evaluating whether the parties have met the statutory standard of “good faith” negotiations, only those negotiations that relate to the doing of the future act and its likely impact on registered native title rights and interests will be taken into account.

5. The most useful and succinct statement of what constitutes negotiating in good faith is provided by Deputy President Sumner in Placer (Granny Smith) v Western Australia (1999) 163 FLR 87 at 93-94. It should be noted that the references to the government party in the quotation below should be read (following the passage of the 1998 amendments to the Act), as applying to all negotiation parties:

   “Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’: Western Australia v Taylor (1996) 134 FLR 211 at 219. Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Western Australia v Taylor as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour. Lack of good faith in the negotiations by the native title party will be relevant to whether the parties have fulfilled their obligation and may impose a lesser standard on them.”

6. Deputy President Sumner referred to the good faith negotiating indicia which were outlined in Western Australia v Taylor (1996) 134 FLR 211 at 219. The indicia of failing to negotiate in good faith are as follows:

   (i)     unreasonable delay in initiating communications in the first instance;

   (ii)     failure to make proposals in the first place;

   (iii) the unexplained failure to communicate with the other parties within a reasonable time;

   (iv)    failure to contact one or more of the other parties;

   (v)     failure to follow up a lack of response from the other parties;

   (vi) failure to attempt to organize a meeting between the native title and grantee parties;

   (vii) failure to take reasonable steps to facilitate and engage in discussions between the parties;

   (viii) failing to respond to reasonable requests for relevant information within a reasonable time;

   (ix) stalling negotiations by unexplained delays in responding to correspondence or telephone calls;

   (x)     unnecessary postponement of meetings;

   (xi)    sending negotiators without authority to do more than argue or listen;

   (xii) refusing to agree on trivial matters, for example a refusal to incorporate statutory provisions into an agreement;

   (xiii) shifting position just as agreement seems in sight;

   (xiv)  adopting a rigid non-negotiable position;

   (xv)   failure to make counter-proposals;

   (xvi) unilateral conduct which harms the negotiating process, for example, using inappropriate press releases;

   (xvii) refusal to sign a written agreement in respect of the negotiation process or otherwise;

   (xviii) failure to do what a reasonable person would do in the circumstances

7. Finally, when determining whether the parties have negotiated in good faith, a contextual evaluation is required.  The approach taken by one party is normally influenced by the approach taken by another. For example, if a native title party refuses to negotiate, a lesser negotiating standard would normally be required of the government and grantee parties. Similarly, if a grantee party is a small miner with few resources and limited capacity to make concessions or offers, what would be regarded as negotiating in good faith could well be different to that of a large mining company with the capacity to make offers and concessions. Likewise, the standard of negotiating will be influenced by the external environment and the relevant State or Territory regulatory regime. Parties do not negotiate in a vacuum, and when evaluating conduct it is important to appreciate the broader environment. It would be incorrect to impose on parties altruistic or artificial standards of behaviour removed from the financial, regulatory and interpersonal reality that they face.

Contentions of the Native Title Party

1. The native title party contended (NTPSC at paras 3 and 7) that the grantee party did not provide to it the documents and information outlined in [11] which the government party had requested the grantee party to provide to the native title party. Further, the native title party contended (NTPSC at par 12) that, in the absence of information regarding the type of work to be undertaken, it was difficult for it to determine what likely effect the proposed future acts would have on its registered native title rights and interests. The grantee party conceded at the Directions Hearing of 22 August 2008 that it had not supplied the native title party with this information.

2. The native title party also contended that when the request for Tribunal mediation was first made, negotiations with the grantee party had stalled even though little or no negotiations had actually taken place (NTPSC at para 4). Again the meagre documentary material supplied to the Tribunal would tend to confirm this alleged state of affairs. Clearly there was some initial exchange of communications between the grantee and native title parties, but no evidence has been adduced which would suggest that any meetings were held or that detailed proposals were discussed to allow the doing of the proposed future acts.  The government party’s letter of 13 March 2006 informing the native title party of the request for mediation also refers to the negotiations stalling. However the government party (GVPSC at para 6) contended: “The GVP understands the matter was referred by the GP because the GP felt the costs of heritage surveys in the Wutha Alternative Heritage Agreement were too high and it (the GP) sought mediation assistance to resolve the issue.” The scant material before the Tribunal suggests that the grantee party thought that the terms of the Wutha Alternative Heritage Agreement were not suitable, but it also suggests that prior to being referred to the Tribunal for mediation, there was very little attempt by either the grantee or native title parties to reach agreement.

3. The native title party also made the following contentions (NTPSC at para 10):

   “Mediation through the NNTT had continued but no agreement could be reached between the parties. It is contended that the Grantee Parties (sic) rigid position in insisting that the Native Title Party agree to a heritage agreement that has since been suspended and/or updated, is not negotiating in good faith.

Particulars

(a)The standard Heritage Agreement (Goldfields) had inter alia typographical errors relating to the Tenements that the NTP refused to accept;

(b)   The standard Heritage Agreement (Goldfields)  been superseded;

(c)The Grantee Party refused to accept the NTP’s Heritage Clearance Agreement (See documents 4 & 5);

(d)Mr Wolzak of the Grantee Party would not accept that agreement and indicated that he would likely seek a section 35 determination (see document 5);

(e)In December 2006 – January 2007, there was a change in tenement management (including the Tenements), to a Mr. Nicholas Powrie who confirmed that a section 35 application would be lodged by the Grantee Party. It is contended that the Grantee Party would not change its rigid pre determined position;

(f)Mr Powrie then advised that after consultation with Mr. Parker (for and on behalf of the Native Title Party) that the Grantee Party would execute the Wutha Native Title Party’s Heritage Agreement (See Future Act Determination Application at no. 10). This did not happen;

(g)In or about December 2007, Tenement Administration Services (‘TAS’) took over as the Grantee Party’s tenement manager;

(h)On or about 14 April 2008, TAS received instructions to lodge the Form 5 Future Act Determination Application pursuant to section 35 of the Native Title Act 1993, despite agreeing to the Native Title Party Heritage Agreement.”

1. The native title party submits (NTPSC at para 17) that there “is a subjective element to the thoughts and actions which constitute negotiation in good faith with a view to obtaining agreement, i.e. the state of mind of the Grantee Party, its officers and agents will be relevant facts: Brownley & Ors v Western Australia [1999] FCA 1139 at para 32.” The native title party also contended (NTPSC at para 18) that there is an objective element in determining the presence or absence of good faith, and this was determined by judging the actions of the parties against the indicia outlined in Western Australia v Taylor as set out in [24].

2. In this context, the native title party contends (NTPSC at para 27) that it can be inferred from the grantee party’s conduct that it negotiated at all times with a view to making a future act determination application and did not negotiate with a view to reaching agreement with the native title party. It is further contended (NTPSC at para 28) that the grantee party believed at all material times it was preferable to obtain a s.38 determination because it would not include the terms of the Wutha Alternative Heritage Agreement.

3. In addition, the native title party contends that the grantee party has failed to negotiate in good faith because by reference to some of the indicia outlined in Western Australia v Taylor, in particular:

   (a) the failure to make future act representations to the other negotiation parties about the grant of the proposed tenements, indicating an absence of good faith in respect of the negotiations that occurred after that date – indicium (v);

   (b)the failure to inform the native title party of the impact of the work proposed on the proposed tenements – indicium (i);

   (c) the failure to respond to the native title party’s request for information about its proposed activities on the proposed tenements and, inter alia, the financial structure of those activities – indicium (iii); and

   (d) the failure to respond to the draft Wutha Alternative Heritage Agreement and other correspondence both from the government and native title parties – indicium (iii).

4. The contentions of the native title party as mentioned differentiate between the alleged subjective and objective elements of good faith negotiations by the grantee party.  This is, on the whole, an unhelpful distinction.  The Tribunal is not required to second-guess the state of mind of a negotiating party. Nor, despite some Federal Court authority to the contrary (Risk v Williamson (1998) 87 FCR 202 at 223 per O’Loughlin J), is the Tribunal required to ascertain the actual state of knowledge of a negotiating party. The better approach, as determined by the Federal Court in Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 and Brownley v Western Australia (1999) 95 FCR 152, is to make an assessment on the evidence before the Tribunal rather than attempting to divine the state of mind of a party at a particular time. For present purposes I adopt the following statement of law as explained by Lee J in Brownley v Western Australia (1999) 95 FCR 152 (at 173) as follows:

   “The acts of government include, but are not limited to, the acts of the negotiating team, and whether a government has acted in good faith in negotiations will be a matter of the inference to be drawn from the totality of the material. Knowledge of the negotiating team in the absence of good faith on the part of a government instructing it is not an essential fact to be established to allow an inference of lack of good faith to be drawn from that material.  To determine if the obligation in s 31(1)(b) has been complied with, honesty and good faith in the conduct of the government will be judged objectively, not by whether a government believes it has so acted.  The standard of honest conduct is not set by a subjective belief.”

5. It is also important to note that in assessing whether the parties have negotiated in good faith it is not permissible for the Tribunal to engage in an exercise of weighing the various offers of the parties to determine if they were appropriate, and thus were reasonable offers.  This aspect of assessing negotiations in good faith was explained by Nicholson J in  Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 at 321 as follows:

   “… it is not for a court or Tribunal to assess the reasonableness of each offer. What is required is the court or Tribunal apply the test of ‘negotiating in good faith’, in accordance with the common understandings encompassing subjective and objective elements, to the total conduct constituting the negotiations.   All those circumstances must be considered against the legal requirements of the phrase ‘negotiating in good faith’.

   The reasoning of the Tribunal that negotiations in good faith require ‘reasonable substantive offers’ requires, as submitted for the Government party, a further and unnecessary level of complexity and application to the interpretation of the words of s 31(1)(b). It is not necessary to have resort to any standard outside the words in the section itself. The question is whether the communications and other events as they have fallen satisfy the legal standard of negotiating in good faith as required by s 31(1)(b).”

This statement of law was accepted by Carr J in Walley v Western Australia (1999) 87 FCR 565 (at 577) with one “slight reservation”:

“… if a Tribunal, as part of the overall assessment of whether the Government party has negotiated in good faith, finds it useful to consider whether any particular offer (or all offers for that matter) appears (or appear) to be reasonable, then it is open to the Tribunal to engage in that exercise. But that is not to say that it will always be obliged to do so. Much will depend on the circumstances of the particular matter. The Tribunal will be engaged on a factual assessment of the Government party’s conduct and, in some cases, the reasonableness or unreasonableness of its proposals or offers may be relevant. In other cases there may be a difference between making reasonable offers and being reasonable in negotiating in good faith.”

1. The native title party contends, in essence, that there have been scant negotiations with the grantee party and that the grantee party ignored or failed, for whatever reason, to comply with the request of the government party to supply key information to the native title party. The native title party contends that as a result, it has been hamstrung in its capacity to negotiate. In particular, the native title party was left in a state of ignorance about the nature of the proposed exploration activities on the subject lands and waters.  In these circumstances the native party contends it was at liberty to adopt as its negotiation position, the execution of the Wutha Alternative Heritage Agreement which presumably provides greater benefits and protections to the native title party over and above the RSHA.  Further, the native title party contends the grantee party not only failed to supply key information, but was reactive and not proactive in its negotiating stance. The native title party contends that the grantee party unfairly adopted a rigid non-negotiable position in refusing to execute the Wutha Alternative Heritage Agreement and from the outset had no real desire to reach an accord, but had as its end-game the making of a future act determination application. In short, the native title party contends that the negotiations with the grantee party were cursory, unsatisfactory and the grantee party entered into those negotiations without any real intention of compromising, discussing or sealing a consensual outcome.

1. The Tribunal has not been assisted in this inquiry by the failure of the grantee party to produce detailed contentions in support of its submission that it negotiated in good faith. Instead the Tribunal only has before it the information in the Form 5 (future act determination application) and the limited information and contentions contained in the correspondence from Tenement Administration Services dated 25 July 2008. Nonetheless, despite the relative paucity of information, the Tribunal has received sufficient material to enable it to reach a conclusion whether the grantee party negotiated in good faith.

2. The native title party contends that the grantee party’s failure to provide the material as requested by the government party in its letter of 15 July 2005 indicates an absence of good faith on the part of the grantee party. The material before the Tribunal is limited, but it appears that the failure by the grantee party was not due to mala fides, but flowed from the confusion on the part of the tenement service managers acting for the grantee party. A hallmark of this matter has been the high turnover of persons acting on behalf of both the grantee and native title parties.  The picture which emerges from the material before the Tribunal is not of a cunning grantee party strategically making decisions so as to achieve a pre-determined goal, but rather changes of staff leading to duplication of effort, mishandling of information, failure to meet time requirements and innocent omissions.  The very fact that the native title party sought dismissal of the future act determination application because of the failure of the grantee party to comply with the Directions of the Tribunal is illustrative of this. Reference can be made to the following correspondence to the Tribunal from the grantee party which was quoted in the decision not to dismiss the application – Ashwin & Ors on behalf of the Wutha People/Contact Uranium Ltd/Western Australia [2008] NNTTA 92 at [6] which is illustrative of the administrative problems which the grantee party experienced:

   “Ms. Linda Skender, Senior Mining Tenement Manager with Tenement Administration Services Pty Ltd (‘TAS’) made the following submissions by email on behalf of the grantee party:

   The reason for lateness in TAS preparing the documents, is the enormous administrative disruption TAS has suffered through the illness of Lynton and the departure of a key person (Raoul Braithwaite) responsible for Native Title matters.

   During the year TAS has had staff members leave on exceptionally short notice, namely due to the current industry boom, regrettably, leaving TAS totally unable to carry out certain functions for past months and consequently this deadline was missed.

   As a small organization, the disruption caused by the sudden loss of staff, has been extremely traumatic for TAS.”

3. The native title party also contends that the grantee party adopted a rigid non-negotiable position by refusing to execute the Wutha Alternative Heritage Agreement and insisted on the execution of the RSHA.  A very useful background to the development of regional standard heritage agreements in Western Australia and the policy underpinning such agreements was provided by Deputy President Sumner in Champion v Western Australia (2005) 190 FLR 364 at 367 – 368. Importantly, Deputy President Sumner explained (at 368/[21]):

   “The Government party’s evidence is that while each RSHA is region specific they all include:

   ·   a commitment to co-operate to ensure the ongoing protection of Aboriginal heritage;

   ·an obligation to take into account activities that could significantly affect cultural heritage and to discuss proposed activities and conduct heritage surveys where appropriate;

   ·capped daily rates for survey costs and administration fees agreed by both parties which are region specific;

   ·   certainty for grantee parties in undertaking activities for the life of the tenement; and

   ·once-only execution of an agreement for multiple exploration and prospecting licences within a claim area.”

4. While Nicholson J held in Strickland v Minister for Lands for Western Australia it is not appropriate for the Tribunal to assess the reasonableness of various offers, nonetheless as Carr J explained in Walley v Western Australia it is open to the Tribunal, when relevant, to consider if a particular offer was reasonable, particularly in the context of determining if this evinced reasonable negotiation behaviour.  In this matter, the tenements in question are for prospecting and not mining. The tenements are very small in area, and the proposed prospecting activities (as set out in the future act determination application) are mostly non-intrusive.  RSHAs were designed to facilitate the State of Western Australia asserting the expedited procedure for low impact exploration and mining activities.  They were intended to provide a template for appropriate relations between explorers and miners and registered native title claimants so as to facilitate low impact exploration and mining activity without the parties engaging in a full right to negotiate process. Although this matter is in fact, in a full right to negotiate process, the activities proposed by the grantee party largely fall within low impact activity and further, the grantee party has indicated in paragraph 11 of the future act determination application that it “will offer to undertake Aboriginal heritage surveys in relation to any areas that may be disturbed by prospecting activities.”  The grantee party filed with the Tribunal a copy of the RSHA which was initially forwarded to the native title party in correspondence dated 7 September 2005.  Likewise the Tribunal was also provided with a copy of the Wutha Alternative Heritage Agreement. As Mr Wolzak stated in his email to Mr. Gajewski, the main difference between the two agreements is that the Wutha Alternative Heritage Agreement mandates site clearances in all circumstances (designated as either a “preliminary clearance” or a “detailed clearance”), whereas the RSHA makes allowance for low impact exploration by not requiring heritage surveys in every case (e.g. if previous assessments have been carried out; there are no registered sites etc).

5. The indicia as set out in Western Australia v Taylor are simply that. They provide a useful checklist that can be referred to when assessing negotiating behaviour. They are not intended to be applied mechanistically so that if any given indicia are present, a pre-determined result is achieved. It is important to appreciate that the overarching principles which guide the Tribunal in assessing whether a party has negotiated in good faith are the concept of reasonableness and the requirement for honest behaviour.  Was it reasonable for the grantee party to put forward as its position the execution of the RSHA? Was the grantee party required to compromise and make a counter-proposal?  In this case the proposal put forward by the grantee party was ostensibly reasonable in that it was an agreement that was used by the representative body for the Goldfields region, and was consistent with other regional heritage agreements in use throughout Western Australia. Further, it was also ostensibly reasonable having regard to the non-intrusive nature of prospecting proposed and the small areas of land and waters comprising the proposed tenements. Nonetheless, was the grantee party required to resile from that position when the native title party put forward a counter-proposal, namely the Wutha Alternative Heritage Agreement? The particular facts presented in this matter suggest a negative response.  There was no requirement for the grantee party to capitulate and agree to pay for heritage clearances for low impact prospecting. 

6. It is not for the Tribunal to speculate on what was the preferred negotiating model for the parties or the optimal agreement in an ideal negotiating environment. The Tribunal’s task is to assess the behaviour of the parties having regard to the circumstances they faced, the information they each had, and the objective behaviour each exhibited. In this matter the grantee party put forward an apparently reasonable proposal on a fundamental issue (the requirement for heritage clearances). Ultimately, agreement was not obtained. The refusal of the grantee party to agree to the native title party’s Wutha Alternative Heritage Agreement or to put forward a compromise position is not a failure to negotiate in good faith.  When a grantee party puts forward a proposal which on its face is reasonable, and where there is a fundamental difference of opinion on a key point with the native title party, the failure of the grantee party to resile from its original position is not, in every case, the exhibition of a rigid non-negotiable position. A rigid non-negotiable position is where a party is exhibiting intransigent and possibly unreasonable behaviour.  Where a party puts forward a reasonable proposal and the counter proposal from another party is significantly at odds with the original proposal, the first party is not necessarily required to make a counter-offer which undercuts its first offer or which involves a capitulation on a fundamental point (e.g. the need to conduct heritage surveys or large differences in quantum of moneys to be paid). 

7. The grantee party’s insistence on its original proposal did not constitute rigid non-cooperation but was standard commercial bargaining practice. It is not a case of bad faith but of hard commercial bargaining, and there is a distinct difference between the two for the purposes of s.31(1)(b). It is relevant, in assessing whether the grantee party has negotiated in good faith, to consider that the native title party voluntarily executed the RSHA. This sheds light on the reasonableness of the bargaining position of the grantee party. Normally when a party makes an offer but declines to move from that position it is not negotiating. In such a case it would be usual to categorise such behaviour as exhibiting rigidity and avoiding negotiations. However, on the facts of this case, the grantee party was not acting unreasonably and was engaging in commercial negotiations. This was so because the offer was seemingly reasonable and comprehensive, appropriate for the proposed tenements and was voluntarily assented to by the native title party.

8. Another issue which flows from the failure of the grantee party to supply information to the native title party at the outset, as requested by the government party, is whether this omission of itself, or in conjunction with other behaviour, can substantiate that the grantee party failed to negotiate in good faith. I have already dealt with the contention that the grantee party although pretending to negotiate was actually engaging in “delay, obfuscation, intransigence and pettifoggery” – Brownley v Western Australia at 163/[27], and found that the grantee party was in fact acting honestly and not deceptively. The other issue which flows from this omission, which was never substantially rectified, is whether it so disadvantaged the native title party and so skewed the negotiation process that, of itself or in conjunction with other behaviour, it demonstrated a lack of good faith by the grantee party.

9. It is important to appreciate that when assessing whether the negotiation parties have negotiated in good faith, the Tribunal is required to look at the totality of the evidence including all of the negotiations from the outset until the time that a negotiation party makes application for arbitration. If the Tribunal was to assess whether the grantee party had negotiated in good faith at the earlier stages of the process, it may have found that it had not met the standards required by s.31(1)(b). However that is not the task required of the Tribunal. The Tribunal has to assess whether the parties have negotiated in good faith over the longer period. Both the Tribunal and Federal Court have recognized that there can be, and often are, lapses in negotiation behaviour. The ebb and flow of negotiations often result in less than perfect stances being taken, and behaviour exhibited. The task of the Tribunal is not to disaggregate all of the negotiations and make an assessment based on particular behaviour or snapshots in time. The requirement is to look at the overall negotiations and make an assessment. In this matter even though the native title party was not assisted by the failure of the grantee party to supply the information requested, the manner of its participation in Tribunal mediation illustrates that the omission did not impede the capacity of the native title party to negotiate.

10. The next matter was not emphasised by any of the parties in their submissions to the Tribunal. Even if I am incorrect in my assessment that the grantee party did not display a rigid non-negotiable stance and the native title party was not disadvantaged by the failure to provide the information requested by the government party at the outset, there is some evidence before the Tribunal that the grantee and native title parties may have actually reached agreement.

11. The evidence before the Tribunal is that the grantee party forwarded, by letter dated 7 September 2005, an executed RSHA to the native title party. Further, the government party contended (GVPSC at para 7) that State Deeds were emailed to Mr. Preston and Mr. Parker of AIC (on behalf of the native title party) on 28 June and 4 September 2006 respectively as outcomes of Tribunal convened mediation meetings held on those days. The government party annexed to its statement of contentions a copy of these emails. At the Tribunal mediation conference convened on 9 October 2006 Ms. Nadia Ayliffe, on behalf of the native title party, advised that the State Deed had been executed by the native title party.   Further, at the Tribunal mediation conference convened on 16 November 2006 the native title party advised that the RSHA had also been executed but it contained a typographical error of a significant nature, namely the Schedule of tenement applications to which the Agreement referred. The “footer” on each page of the Agreement made reference to the right tenements (P38/3277 – 38/3279) but Attachment 5 of the Agreement referred to different tenements (Exploration Licences 38/1764, 38/1766-38/1768 (inclusive) and 38/1774). The native title party apparently then changed its policy and resiled from the execution of the agreement.

12. The jurisdiction of the Tribunal to make a determination pursuant to s.38 is predicated on the parties not reaching agreement. If the parties have reached an agreement, then the Tribunal does not have a role to play. The whole object of s.31(1)(b) is requiring the parties to negotiate in good faith “with a view to obtaining the agreement of each of the native title parties to the doing of the act”.

13. In this matter it is possible that the parties have reached agreement, and in this regard the key document is the State Deed. There is evidence that both the State Deed and that the RSHA were executed by the native title party. There is also evidence that the RSHA was also executed by the grantee party. It is not clear if the State Deed was executed in counterpart by either the grantee party or the government party. It is not necessary for me to deal with the issue whether the parties had reached agreement in the absence of the either (or both) the government and grantee parties formally executing the State Deed.

14. Even if there was evidence of the State Deed having been fully executed, it could be contended that the assent of the native title party did not result in a binding agreement because of a mistake in the execution of the collateral RSHA. In short there was no mutual consent because the RSHA contained a material error which would enable the native title party to avoid it (i.e. the misdescription of the proposed tenements). There is a long line of authority from the earliest times that when the parties are at cross purposes in describing the goods or land in question, there is, in reality, no binding contract – e.g. Scott v Littledale (1858) 120 ER 304 and Raffles v Wichelhaus (1864) 159 ER 375. Again, it could be argued that such an argument is misconceived as there was no mistake as to the identity of the tenements, and this was simply the case of a typographical error – Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 600-601. However, without the benefit of contentions from the parties it is impossible for the Tribunal to reach a considered view. As the parties have implicitly concluded that there was no binding agreement the Tribunal can proceed on the assumption that the only challenge to its jurisdiction relates to the question of good faith. However, if before the Tribunal makes a determination pursuant to s.38 a party challenges the jurisdiction of the Tribunal on the basis that there is a binding agreement, the Tribunal would need to deal with that matter before making a determination – Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 at 478 per Carr J.

15. Of more immediate significance however, is the fact that the native title party did in fact voluntarily execute (partially or in whole) the RSHA. If the native title party had formed the view that this agreement was not appropriate it would not have executed it. Again, the fact that the native title party executed the agreement but later resiled on the basis that the wrong tenements were set out in the Schedule, suggests that the proposal put forward by the grantee party was not unreasonable, inappropriate or harsh.  There is an inherent difficulty with the native title party arguing that the grantee party has not negotiated in good faith when it is uncontested that the parties actually reached at least partial agreement on the basis of the grantee party’s offer.

Conclusion

1. Based on the material before the Tribunal the following findings are made:

   (a)the grantee party’s conduct throughout the negotiations was honest;

   (b)the grantee party did not deliberately engage in a course of conduct design to mislead or deceive;

   (c)the grantee party did not commence the negotiations with the aim of obtaining an arbitrated outcome;

   (d)the grantee party’s offer of the RSHA was seemingly reasonable;

   (e)an inference can be drawn from the execution (in whole or part) of the Agreement by the native title party that the native title party also believed that the Agreement was a reasonable offer;

   (f)the delays and omissions by the grantee party in supplying information to the native title party was due to administrative problems and not a deliberate course of action;

   (g)the failure to supply the information while unsatisfactory did not significantly impede the capacity of the native title party to engage in negotiations; and

   (h)both the grantee and native title parties negotiated in good faith.

Decision

[50] The grantee party has fulfilled its obligation to negotiate in good faith as required by s. 31(1)(b) of the Native Title Act1993 (Cth) and the Tribunal has jurisdiction to conduct an inquiry and make a determination pursuant to s.38.

John Sosso

Deputy President