NATIONAL NATIVE TITLE TRIBUNAL
Marine Produce Australia Limited and Another v Mayala People [2018] NNTTA 28 (2 May 2018)
Application No: | WF2017/0017 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Marine Produce Australia Ltd
(grantee party)
- and -
Mayala People (WC1998/039)
(native title party)
- and -
State of Western Australia
(Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
| Date: | 2 May 2018 |
Catchwords: | Future act determination application – compulsory acquisition of native title rights and interests – whether grantee party negotiated in good faith – whether Government party negotiated in good faith – negotiation process – ILUA negotiations – s 31(1)(b) negotiations – directly contacting the native title applicant – misleading conduct – Aboriginal cultural heritage – disclosure of confidential information – role of Government party – change in position – inaccurate information – grantee party has negotiated in good faith – Government party has not negotiated in good faith – Tribunal does not have power to proceed with future act determination inquiry |
Legislation: | Acts Interpretation Act 1901 (Cth) s 25C Land Administration Act 1997 (WA) ss 79, 91, 165, 170, 175 Native Title Act 1993 (Cth) ss 24MD(3), 26, 29, 30A, 31(1)(b), 35, 36, 76, 77, 151, 253 |
Cases: | Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 30 (‘Adani Mining v Wangan and Jagalingou’) Brownley v Western Australia (1999) 95 FCR 152; [1999] FCA 1139 (‘Brownley v Western Australia’) Cameron v Hoolihan (2005) 196 FLR 37; [2005] NNTA 84 (‘Cameron v Hoolihan’) Charles, on behalf of Mount Jowlaenga Polygon #2 v Sheffield Resources Limited [2017] FCAFC 218 (‘Mount Jowlaenga v Sheffield Resources’) Doxford v Barnes (2008) 218 FLR 414; [2008] NNTTA 54 (‘Doxford v Barnes’) FMG Pilbara Pty Ltd v Cox and others (2009) 175 FCR 141; [2009] FCAFC 49 (‘FMG Pilbara v Cox’) Gulliver Productions v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52; [2005] NNTTA 88 (‘Gulliver Productions v Western Desert Lands Aboriginal Corporation’) Kallenia Mines v Walalakoo Aboriginal Corporation RNTBC [2016] NNTTA 50 (‘Kallenia v Walalakoo’) McKenzie v Minister for Lands (2011) 45 WAR 1; [2011] WASC 335 (‘McKenzie v Minister for Lands’) Mr Kevin Cosmos & Ors (Yaburara Mardudhunera People)/Mr Jack Alexander & Ors (Kuruma Marthudunera People)/Western Australia/Mineralogy Pty Ltd [2009] NNTTA 35 (‘Cosmos v Mineralogy’) Northern Territory v Ward [2001] NNTTA 163 (‘Northern Territory v Ward’) Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87; [1999] NNTTA 361 (‘Placer v WA’) Risk v Williamson (1998) 87 FCR 202; [1998] FCA 640 (‘Risk v Williamson’) The Griffin Coal Company Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia [2005] NNTTA 100 (‘The Griffin Coal Company v Nyungar People’) Western Australia v Daniel (2002) 172 FLR 168; [2002] NNTTA 230 (‘Western Australia v Daniel’) Western Australia v Dimer (2000) 163 FLR 426; [2000] NNTTA 290 (‘Western Australia v Dimer’) Western Australia v Taylor (1996) 134 FLR 211; [1996] NNTTA 34 (‘Western Australia v Taylor’) Western Australia/Arthur Dimer, Ollan Dimer, John Walter Graham, Sonny Graham, Katie Ray, Maureen Young, Georgina Schultz, Mabel Wilson, Jack Schultz, Betty Bullen, Graeme Pellew (Ngadju People, WC95/17); Cyril Barnes, Merle Forrest, Mercy O’Loughlin, Stevie Sinclair, Judy Slater, Elvis Stokes & Victor Willis (Central East Goldfields People, WC99/30)/Equs Limited [2000] NNTTA 290 (‘Ngadju v Equs’) Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 93 (‘Xstrata v Albury’) |
| Representatives of the native title party: | Mr Dante Mavec of Kimberley Land Council |
| Representative of the grantee party: | Mr Ken Green of Green Legal |
| Representatives of the Government party: | Mr Domhnall McCloskey of State Solicitor’s Office |
REASONS FOR DETERMINATION
Introduction [1]
Part 1
The inquiry [6]
2.1Non-disclosure request [8]
2.2Directions hearing [10]
2.3Events subsequent to final compliance [14]
The future act [19]
3.1ILUA [23]
3.2Compulsory acquisition [28]
Negotiation periods [39]
Matters agreed, uncontested or open on the evidence [41]
Part 2
Good faith issues regarding Marine Produce Australia [48]
6.1The negotiation process (ILUA and s 31) [49]
6.1.1Negotiations prior to s 29 notice [50]
6.1.2Negotiations after s 35 application [53]
6.1.3‘Stated case’ contentions [54]
6.1.4Negotiations [58]
6.1.4.1Pre-s 29 notice [59]
6.1.4.2 Post s 29 notice [67]
6.1.5Primary contention – all negotiations towards ILUA [87]
6.1.5.1 Findings [98]
6.1.6Primary contention – secondary issue – ‘state of mind’ [99]
6.1.6.1Findings [109]
6.2Misleading conduct regarding access to Barnicoat Island [110]
6.3Unreasonable position regarding heritage [116]
6.4Directly contacting a Mayala Applicant member [128]
6.5Confidentiality issue (additional contention) [142]
6.6Conclusion [150]
Part 3
Good faith issues regarding the Government party [167]
7.1The negotiation process (ILUA and s 31 negotiations) [168]
7.2Change of position with respect to role in negotiations [183]
7.3Provision of inaccurate information to MPA [198]
7.4Conclusion [207]
Good faith decision [217]
Introduction
The State of Western Australia (‘the Government party’/‘the State’) gave notice of its intention to compulsorily acquire native title rights and interests in respect of Lot 355 on Deposited Plan 407212 (registration number N451803) comprising Barnicoat Island. The island is located in Cone Bay within the Buccaneer Archipelago in the Shire of Derby-West Kimberley. The Mayala People (‘Mayala’) have a registered native title claim encompassing Barnicoat Island and they are the only native title party for the relevant area. The purpose of the proposed compulsory acquisition is for the Government party to grant Marine Produce Australia Limited (‘MPA’), a lease for aquaculture purposes.
The Government party’s notice was given under s 29 of the Native Title Act 1993 (‘the Act’/‘the NTA’). The compulsory acquisition falls within the scope of s 26(1)(c)(iii) as it is a future act to which the right to negotiate applies. Section 31(1)(b) requires that the negotiation parties (here, the Government party, MPA and Mayala) negotiate in good faith with a view to obtaining Mayala’s agreement to the compulsory acquisition, with or without conditions. Where parties are unable to reach an agreement, any negotiation party may apply to the Tribunal for a determination as to whether or not the act may be done (and if so, with or without conditions).
In this matter, the parties did not reach an agreement of the kind mentioned in s 31(1)(b) of the NTA and MPA lodged a future act determination application on 14 August 2017. The lodgement requirements of s 35 of the Act were met as at least six months since the notification day had passed and no agreement of the s 31(1)(b) kind had been made. President Webb QC appointed me to conduct this arbitral inquiry and I accepted the application under ss 76-77 of the Act.
Within the future act determination inquiry process, where any party alleges that either or both of the Government party or grantee party did not negotiate in good faith, then the Tribunal must inquire about good faith. If the Tribunal finds that either party did not negotiate in good faith, then the Tribunal must not make the determination on the application.
Mayala has alleged that both the Government party and MPA did not negotiate in good faith. As these reasons explain, I am not satisfied that Mayala’s allegation against MPA has been made out, but I am satisfied that the Government party did not negotiate in good faith as required by s 31(1)(b).
The inquiry
Parties attended a preliminary conference on 6 September 2017, after which I set directions requiring each party to submit contentions and evidence and the native title party to submit a reply. During the preliminary conference, MPA requested that an additional step be added to the standard directions so that it could reply to Mayala’s contentions in reply. Rather than make additional directions at that time I listed a directions hearing to be held following receipt of Mayala’s reply to discuss the future conduct of the inquiry and to consider MPA’s request at that time (see [10] below).
In its statement of contentions, MPA asserts that the Tribunal should not accord the Affidavit of Janelle Isaac affirmed 17 October 2017 the status of an affidavit. The affidavit, witnessed by Mayala’s legal representative Mr Dante Mavec, was provided with Mayala’s statement of contentions and concerns issues regarding access to Barnicoat Island. The basis of MPA’s contention is the inappropriateness of a legal practitioner witnessing an affidavit where said practitioner participated in its preparation. That contention is set out in paragraphs 2.3 and 2.4 of MPA’s contentions referring to the requirements of s 9(7) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). Mayala contend that the Evidence Act 1995 (Cth) is applicable (based on the constitutional supremacy of Commonwealth legislation) to affidavits made for the purposes of proceedings in this Tribunal, effectively widening the category of authorised witness for affidavits. I accept the Mayala contentions in this regard, in particular their statement of contentions in reply to the MPA’s statement of contentions at paragraph 17. I accept the Affidavit of Janelle Isaacs for the purposes of this inquiry. I also note the application of s 109 NTA.
2.1 Non-disclosure request
At the time Mayala submitted their contentions and evidence their representative, Mr Dante Mavec, made a request for, and proposed draft non-disclosure directions in relation to, his affidavit (Mavec Affidavit) on the basis of commercial sensitivity. The other parties provided initial comments and the Tribunal requested that Mr Mavec identify the relevant aspects of the affidavit and allowed further comments from parties. On 1 November 2017, Mr Mavec identified those aspects and provided further reasoning for the request and on 2 November 2017, Mr Ken Green for MPA provided submissions in response.
I considered the request and other parties’ views and decided not to make non-disclosure directions because much of the material was already in the hands of, or created by, the grantee party. Further, in my view the commercial sensitivity was not sufficiently established. However, in these reasons, I avoid reference to the financial components of negotiations that are of concern to the native title party in a way that does not diminish the relevance of the information to the findings.
2.2 Directions hearing and whether to have an oral hearing
The conduct of the inquiry is shaped by the expected timeframe for the making of a future act determination. If a determination is not made within six months of the lodgement date (i.e. by 14 February 2018) then the Attorney-General is to be informed as soon as practicable after the six month date (see s 36(3)).
The directions hearing mentioned at [6] above was held on 16 November 2017. One of the matters for discussion was whether any further replies should be permitted. For reasons to do with effective case management I determined that Government party and MPA replies, and a further reply from Mayala (confined to two discreet issues) ought to be allowed, and I amended the directions accordingly.
I also heard parties’ preferences as to whether the good faith matter should be determined on the papers or by hearing (see s 151(2) of the Act). Parties’ views are summarised in Appendix A below. Mr Green for MPA proposed that a hearing be held. On 24 November 2017, Mr Green informed me that he would not require witnesses for any good faith hearing. On 1 December 2017, Mr Mavec explained why Mayala’s view remained that a hearing was not necessary. On 4 December 2017, Mr Domhnall McCloskey for the Government party indicated that they would prefer a hearing. On 12 December 2017, I wrote to the parties to advise them of my decision not to hold a hearing and provided my reasons (see Appendix A below).
The parties provided material in the ‘good faith inquiry’ in accordance with the amended directions, the last of that material being the native title party further reply on 7 December 2017.
2.3 Events subsequent to final compliance in the good faith inquiry
On 20 December 2017, the Full Federal Court delivered its decision in Mount Jowlaenga v Sheffield Resources.
On 9 January 2018 I wrote to the parties to inform them that it was my view that the implications of the Sheffield decision did not change my position regarding a hearing (as contained in my 12 December 2017 letter). I went on to say that as a result of that decision parties may wish to submit an addendum/corrigendum to their contentions provided in the good faith inquiry. I asked parties that if they did propose to submit an addendum/corrigendum to their contentions, for them to advise the Tribunal by close of business Monday 15 January 2018 of a date by which that document could be provided. I also asked that if any party wished to raise new matters relevant to the Tribunal’s consideration of good faith from the ‘post-s 35 application’ period could they advise the Tribunal a) that they wish to raise new matters, and b) a date by which an articulation of the matters in the form of additional contentions and evidence can be provided.
In response to my 9 January letter the native title party advised that it did not propose to provide any addendum or corrigendum to its contentions in the good faith inquiry, nor did it have any new matters to raise with respect to the ‘post-s 35 application’ period.
In response to my 9 January letter the Government Party advised that it did not wish to raise any new matters relevant to the Tribunal’s consideration of good faith from the ‘post-s 35 application’ period but, would seek to comment in due course on any such matters raised by any other party.
MPA did not respond before close of business on 15 January. It was understood that the legal representative for MPA, Mr Green, was overseas and there was no certainty that he had received the correspondence, despite it having been sent by email. A further email was sent to Mr Green on 24 January 2018, and as no response was received I accept that MPA did not propose to provide any addendum/corrigendum to its contentions, nor did it have any new matters to raise with respect to the ‘post-s 35 application period.’
The future act
In this case the act which was the subject of a s 29 notice was the compulsory acquisition of an area. Because the purpose of the acquisition is not to confer rights and interests on the Government party or to provide an ‘infrastructure facility’, as defined in s 253 of the Act, the taking of the area pursuant to s 165 of the LAA is a compulsory acquisition of native title rights and interests covered by s 26(1)(c)(iii) of the NTA. It is therefore an act to which the right to negotiate provisions set out in Part 2 Subdivision P of the Act apply. Unless the provisions of Subdivision P are complied with, the future act will be invalid to the extent that it affects native title: s 25(4) NTA.
For the reasons explained at [28] to [38] below, it is my view that the ‘future act’ in this case is ‘the compulsory acquisition of all native title rights and interests in lot 355 on Deposited Plan 407212.’ I discuss further below the MPA defined terms: ‘Future Act’ and ‘[Notified] Future Act.’
The proposed compulsory acquisition would be valid under the ‘right to negotiate’ provisions if an agreement of the kind mentioned in s 31(1)(b) was made or there was a determination under ss 36A or 38 that the act may be done or may be done subject to conditions (see s 28(1) NTA).
In the absence of a ‘right to negotiate’ compulsory acquisition process, the ‘grant of a lease’ over land where native title exists from a Government party to a non-government party is a future act - the validity of which could only be secured by the agreement of the native title party in an Indigenous Land Use Agreement (‘ILUA’).
3.1 ILUA
An ILUA (area agreement) must be about one or more of the matters listed in s 24CB including the doing of particular future acts; the relationship between native title rights and interests and other rights and interests in relation to the area; extinguishing native title rights and interests in the area by surrendering those rights and interests to the State; providing a framework for the making of other agreements about matters relating to native title rights and interests; compensation; any other matter concerning native title rights and interests in relation to the area.
An ILUA could provide for the agreement of the native title party to the grant of a lease subject to the non-extinguishment principle and any negotiated terms and conditions. An (area) ILUA which provides for the surrender of native title rights and interests to the State (s 24CD(5)) must include a statement to the effect that the surrender is intended to extinguish the native title rights and interests (s 24EB(1)(d)). A native title holder who is entitled to benefits provided for in the agreement is not entitled to compensation other than compensation provided for in the agreement.
Because the ILUA provisions (Division 3 Subdivisions B, C and D) precede the provisions that allow for the compulsory acquisition of native title rights and interests (Subdivision M), it would appear that if an ILUA provided for the surrender of native title rights and interests then there would be no power to undertake a compulsory acquisition process – and seemingly no need.
The ‘good faith’ obligation in s 31(1)(b) is not directly relevant to such voluntary negotiations. However, as discussed further below, the ‘pre-s 29’ negotiations provide a context for the s 29 negotiations and can therefore be relevant.
Accordingly, negotiations prior to the issue of the Combined Notice (the NOITT and s 29 notice discussed further below) were conducted on a voluntary basis, and negotiations conducted after the issue of the Combined Notice (including any voluntary negotiations that occurred after I accepted the present application: see Mount Jowlaenga v Sheffield Resources) were subject to the ‘good faith’ obligation in s 31(1)(b).
3.2 Compulsory acquisition
The Government party gave notice under s 29 of the Act with 18 November 2016 specified as the notification day. The Department of Land’s (‘DoL’) cover letter states that the notice is a Notice of Intention to Take (‘NOITT’) interests in land, operating in respect of s 170 of the Land Administration Act 1997 (WA) (‘LAA’) and s 29 of NTA (the ‘Combined Notice’). The NOITT (form 1078), by which notice is given under s 29 NTA and s 170 LAA, contains:
· a statement that ‘in accordance with section 29 [NTA] that the taking of interests in land as specified in the Schedule will involve the compulsory acquisition of any native title rights and interests in relation to that land’;
· a statement that in accordance with s 170 LAA, in relation to the land required, ‘it is proposed to take, pursuant to s 165 of the LAA’: all registered and unregistered interests (including all native title rights and interests) in the Land other than the interests of the Crown for the proposed grant of a lease to MPA for the purpose of aquaculture under s 79 LAA. The reasons for the acquisition are set out in the notice’s Schedule, and the date the land is likely to be required is the day after the final date for objections to be lodged under s 175 LAA;
· a Schedule which includes: a description of the land as Lot 355 on Deposited Plan 407212 being Barnicoat Island; a statement that the proposed grant is a lease to MPA for the purpose of aquaculture (pursuant to s 79 of the LAA) and reasons why the land is suitable for the proposed purpose;
· particular statements for LAA purposes , including setting out details by which certain persons may object to the proposed taking under s 175 LAA;
· particular statements for NTA purposes, specifying the notification day as 18 November 2016 and the process and timeframes for native title parties, noting a native title party is entitled to negotiation and procedural rights provided in Part 2 Division 3 Subdivision P of the NTA.
In McKenzie v Minister for Lands, Martin CJ at [41] to [56] describes the statutory scheme and the interplay between the LAA and the NTA relevant to compulsory acquisition in Western Australia.
Having reviewed the relevant operative provisions, Martin CJ says at [50] that when land is required in order that interests in that land can be granted by the State to another party, land can be taken compulsorily using the same processes as apply when the land is taken for the purpose of a public work. At [51] and [52] it says that Division 3 of Pt 9 of the LAA sets out the procedure for taking interests in land. Further, Subdivision 1 is concerned with the procedure for taking interests in land by agreement, whereas subdivision 2 is concerned with the procedure for taking interests in land without agreement. Section 170 of the LAA provides that if it is proposed to take interests in land without agreement, the Minister must issue a notice of intention to take the interest in accordance with the section.
The proposed acquisition in this matter falls under Subdivision 2 – the taking of interests in land without agreement.
Apart from some initial incorrect information from the State concerning a ‘non-extinguishing compulsory acquisition’ (see [62] to [63] below) which was later corrected, there is no suggestion in the material that s 24MD(3) NTA has any application, that is, that the compulsory acquisition might occur subject to the non-extinguishing principle.
The Combined Notice (NOITT and s 29) is headed:
NOTICE OF INTENTION
To Take Interests in Land to Confer Interests under Written Law
LAND ADMINISTRATION ACT 1997 (WA) – sections 165 & 170
And to Compulsorily Acquire Native Title Rights and Interests
NATIVE TITLE ACT 1993 (CTH) - section 29
The purpose of the proposed acquisition is described in the Schedule in the body of the notice as ‘Lease for Aquaculture’ and under the heading ‘Reasons why the land is suitable for, or is needed for, the proposed grant’, it says:
Barnicoat Island is suitable for the grant of a Lease to Marine Produce Australia Limited as it is in close proximity to its current sub-leased base on Turtle Island. The land provides physical characteristics that include flat areas for buildings and sheltered accessible beaches needed to support the infrastructure for the aquaculture business and provides potential for long term tenure.
The Native Title (Notices) Determination 2011 (No 1) at clause 6(4) says that a s 29 notice must include a clear description of the area to which the act mentioned in the notice relates, and a description of the nature of the act.
So, while the information required by the LAA is necessary to the validity of the NOITT, that information does not necessarily form part of the definition of the ‘future act’, the future act which in this case requires agreement of the kind mentioned in s 31(1)(b) or an arbitral decision for validity.
In my view the ‘future act’ that was notified is ‘the compulsory acquisition of all native title rights and interests in Lot 355 on Deposited Plan 407212’ (NTP Contentions, paragraph 17) and not as MPA defines it at paragraph 7.2 of its contentions, ‘a compulsory acquisition for the purpose of grant of a lease of the land to the GP.’[1] To merge the act of acquisition with the intended use (as suggested in paragraph 7.2 of MPA’s contentions) suggests that some form of conjunctive agreement or determination is required.[2] The requirement to include the Schedule and the Reasons why the land is suitable or needed for the proposed grant would appear to be LAA requirements, not a NTA requirement (except, as discussed above, to the extent that the Native Title Notices (Determination) requires a description of the area and the nature of the act).
[1] MPA in its further reply defines ‘[Notified] Future Act’ as the ‘compulsory acquisition of native title rights and interests.’
[2] MPA, in its contentions at paragraph 7.3, says ‘The GP accepts that for the purposes of this inquiry, the future act is the ‘Future Act’. Future Act is defined at paragraph 7.2 of MPA’s contentions as being ‘a compulsory acquisition for the purpose of grant of a lease of the land to the GP.’ It is not clear as to what the GP’s ‘acceptance’ is referrable to.
Nevertheless, the intended use of the land following the acquisition will be a significant focus of negotiations but it is the ‘act’ which affects native title rights and interests, the ‘doing of’ which is the subject of s 31(1)(b) good faith negotiations and agreement. An unwillingness to discuss and to provide information relevant to the purpose of a compulsory acquisition and the proposed use of the land to be acquired would be indicative of a failure to negotiate in good faith.
Negotiation periods
MPA’s contentions are structured according to its categorisation of negotiations into three distinct time periods which it describes as follows:
a) The pre-negotiation in good faith (‘pre-NIGF’) period (14 April 2015 to 21 October 2016). Elsewhere this is referred to as the ‘pre-s 29’ period. This is described as covering events between the parties between the time of initial contact between the DoL and Mayala (‘on or about 14 April 2015’) up until the ‘the time notice was given in accordance with s 29 NTA’ which ‘appears to be on or about 21 October 2016’. I note 21 October 2016 is the date Mayala received the notice, though the ‘notification day’ specified on the s 29 notice was 18 November 2016. Nonetheless, I treat what MPA refer to as the ‘pre-NIGF period’ as using the 21 October 2016 date;
b) The NIGF period (21 October 2016 - 14 August 2017). This is described as covering events between ‘on or about 21 October 2016’ (the expiration date of the ‘pre NIGF period’) and 14 August 2017, being the date the future act determination application was lodged;
c) The ‘post-NIGF period’ (14 August 2017 onwards), described as covering events since the future act determination application lodgement date. (See [53] below)
The Mayala contentions in reply do not adopt MPA’s ‘negotiation periods’ description but rather says ‘at all relevant times’ (for example, at paragraphs 21 and 25) seemingly referable to both the ‘pre-NIGF’ and NIGF periods in relation to the obligation imposed by s 31(1)(b) to negotiate in good faith.
Matters agreed, uncontested or open on the evidence
On 5 February 2018 I made further amended directions concerning the provision of material in the s 39 inquiry. I took the opportunity to present to the parties a list of matters drawn from the material that might be agreed, uncontested, or open on the evidence. I asked the parties to advise if any of the listed matters were incorrect. As a result of the responses received the list was modified. Accordingly, the following matters are agreed, uncontested, or open on the evidence:
(a)there is a proposal for an aquaculture lease to be granted by the Government party to MPA under the LAA over Barnicoat Island;
(b)the Mayala people have a registered native title claim over Barnicoat Island;
(c)the grant of a lease over Barnicoat Island may affect the native title rights and interests of the Mayala people (other than the grant of a lease referred to in the NOITT following a compulsory acquisition process);
(d)the Government party and MPA initiated discussions with the NTP in 2015 regarding the proposal to grant a lease over Barnicoat Island to MPA;
(e)a Combined Notice (NOITT and s 29 notice) was provided to the NTP by letter dated 14 October 2016, was received by the NTP on 21 October 2016, and was sent and received by email on 24 October 2016. The notification date was 18 November 2016;
(f)the NOITT was registered on 6 October 2016;
(g)a written objection to the taking of the interest in the land (s 175 LAA) was made on behalf of Mayala;
(h)the validity of the compulsory acquisition process under State legislation is not a jurisdictional prerequisite to the Tribunal dealing with the future act determination application;
(i)the proposed compulsory acquisition of native title rights and interests over Barnicoat Island is a future act to which Subdivision P NTA ‘right to negotiate’ applies;
(j)the compulsory acquisition of native title rights and interests the subject of the NOITT would extinguish those native title rights and interests;
(k)an act to which Subdivision P applies is invalid to the extent it affects native title unless, before it is done, the requirements of … s 28(1)(f) is satisfied: an ‘agreement of the kind mentioned in paragraph 31(1)(b) is made’.
(l)an agreement of the kind mentioned in s 31(1)(b) in this matter would necessarily include the agreement of the Mayala to the extinguishment of any native title rights and interests; and,
(m)no agreement of the kind mentioned in s 31(1)(b) has been made.
The list of matters sent to the parties included a statement that no objection is taken to the form or content of the future act determination application lodged on 14 August 2017 and accepted by the Tribunal under s 77 NTA on 23 August 2017. In their letter on 9 February 2018, Mayala assert the description of the area in paragraph 8 of the Form 5 lodged by the MPA is not consistent with the area notified in the s 29 notice. They state:
· in relation to the description in the s 29 notice, the boundary of Lot 355 is marked on Deposited Plan 407212 (‘the Lot’) as at the High Water Mark, defined in s 3 of the LAA as the ‘ordinary high water mark at spring tides’ (‘HWM’) – see NTP Contentions, paragraphs 13-15;
· the description and topographic maps provided in the Form 5 extend the area of the act beyond the HWM;
· this effectively ‘redefines the area of the land’ subject to the act, beyond the area notified in the s 29 notice; and
· this error is fundamental and means the description of the act at paragraph 9 and the statement of the effect of the act at paragraph 11 of the Form 5 are also erroneous.
Due to the alleged inconsistency in the description of the area, Mayala argue the Form 5 should not have been accepted and the Tribunal lacks jurisdiction to make a s 35 determination. It is asserted:
·a s 35 application must comply with s 76 of the NTA and Reg 4 of the NTRs, being in the form prescribed in the Form 5;
·the Tribunal is not vested with the discretion to cure irregularities in form or substance of a Form 5 application, nor is it able to accept a Form 5 which does not comply with the NTA or the NTR – citing Northern Territory v Ward at [60], [84].
Pursuant to s 25C of the Acts Interpretation Act 1901 (Cth), strict compliance with a statutorily prescribed form is not required and substantial compliance will be sufficient.
In considering the level of compliance required with paragraphs 11–14 of the prescribed Form 5, I stated in KalleniavWalalakoo at [24] (citing Northern Territory v Ward at [44]) ‘what is being considered is the effect of compliance with a Form’ and:
when considering whether an applicant has complied with a form, each of the requirements in that form must be considered: some of these may require strict compliance, some may allow substantial compliance and some may be ignored because they have no real bearing on the disposition of the matter.
In that matter I found that while the applicant had not strictly complied with a number of points, ‘no material injustice’ was caused by accepting the applications and concluded that I could proceed to make the determination (at [31]).
At [19] and [22]-[24] above I say that it is my view that the ‘future act’ in this case is the compulsory acquisition of all native title rights and interests in Lot 355 on Deposited Plan 407212. This is consistent with the description contained in the NOITT and by reference to the LAA boundary description. In my view no material injustice has been caused and any determination the Tribunal may make will relate (only) to the land the proposed subject of the future act.
Whether the NOITT is effective to take all the land necessary to enable access to Barnicoat Island is not something the Tribunal can determine.
PART 2
GOOD FAITH ISSUES REGARDING MARINE PRODUCE AUSTRALIA
The good faith issues Mayala have raised against MPA fall into the following categories to be addressed below:
(a)The negotiation process
(b)Misleading conduct regarding access
(c)Unreasonable position regarding heritage
(d)Directly contacting the Applicant
(e)Confidentiality issue
6.1 The negotiation process (ILUA and s 31 negotiations)
MPA states that an obligation of good faith arises under the NTA only ‘…under s 31(1)(b) NTA where notice has been given in accordance with s 29 NTA’ (paragraph 6.1(3)). MPA’s comment on the relevance of an event is based on the negotiation periods described above. Any reference in this decision to the pre-NIGF period, NIGF period or post good faith period is merely reflecting the language used by MPA and does not of itself represent acceptance that anything pre s 29 notice is simply pre-NIGF, or that after the lodgement of the future act determination application is simply ‘post good faith.’ My view about the negotiation periods is as follows.
6.1.1Negotiations prior to the section 29 notice
As mentioned above MPA appears to have nominated the date of receiving notice (21 October 2016) rather than the notification day (18 November 2016) as the end date of the ‘pre-NIGF’ period and the start date of the ‘NIGF’ period. The following principles are generally relevant.
Tribunal Members have had various views as to the relevance of conduct before a s 29 notice is given. In forming my view, I note the following. In Adani Mining v Wangan and Jagalingou, the Tribunal’s view was that to ‘the extent that they are relevant, negotiations that occurred before the s 29 notice was given and the notification day are taken into account for the purpose of whether the parties negotiated in good faith’ (at [42]). In Cameron v Hoolihan at [47], the Tribunal identified a commencement point of good faith negotiations (presumably aligning with the s 29 notice date, though not explicitly stated) but considered conduct prior to that date can be relevant:
There is no restriction on the Tribunal to receive into evidence past conduct of a negotiation party, if it is relevant to the issue of good faith. It would be wholly artificial to limit material to conduct arising after the commencement of good faith negotiations. Clearly parties engaged in such negotiations are influenced by a range of factors, and past negotiations and conduct may well be relevant not only to assessing the negotiations but also the overall tenor of the proceedings. … The Tribunal and Federal Court have recognized that relationships do change once negotiations start, and if a party was so influenced by past negotiations that they did not approach the new negotiations with an open mind and a preparedness to reach a reasonable accord, they would be the party failing to negotiate in good faith.
In my view the approach advocated in Cameron v Hoolihan cited above is appropriate and apposite. In this matter the ‘pre-s 29’ negotiations provided a context for negotiations. The s 29 notice identified the future act to be the subject of the s 31(1)(b) obligation to negotiate in good faith. The influence on party behaviour in ‘post-s 29’ negotiations arising from the ‘pre-s 29’ negotiations can be relevant to the good faith obligation.
6.1.2Negotiations after s 35 application
By s 35(3) of the Act, parties may continue negotiating beyond lodgement of the future act determination application. MPA argue that there is no obligation to ‘negotiate in good faith’ beyond the future act determination application date. As noted earlier, the Full Federal Court Sheffield decision was delivered on 20 December 2017. Consequently it is clear that the obligation to negotiate in good faith attaches to voluntary ‘post-s 35’ negotiations.
6.1.3 ‘Stated case’ contentions
In this matter MPA adopt a ‘stated case’ methodology to their contentions. In the MPA ‘further reply’ at paragraph 4.2 it says ‘The GP seeks findings on each of element of its stated case.’ Ordinarily a ‘stated case’ is a joint statement/agreement of undisputed facts - with parties taking different positions as to the legal consequences of the facts. Despite the opportunity provided in Direction 5 for the parties to provide an agreed statement of issues and facts, and to identify any material facts not agreed, no such statement was agreed or submitted.
I do not propose to make a finding on each ‘element of its stated case’ because in a number of instances it is difficult, if not impossible to do so. For example, MPA’s ‘stated case’ at paragraph 7.4(3) says that at no time during the ‘pre-NIGF’ period did the Government party or MPA ‘concede that they were not negotiating with a view to the doing of the Future Act.’ MPA does not contend that it was asked to make such a concession during negotiations prior to the s 29 notice. The thrust of this aspect of the ‘stated case’ seems to be that if it is accepted that neither the Government party nor MPA indicated to Mayala that they were not negotiating with a view to the doing of the Future Act, then in the absence of evidence to the contrary that conclusion can support a finding that the Government party or MPA were negotiating with a view to the doing of the Future Act. I prefer to consider each party’s contentions and evidence, conduct my own analysis and make findings where appropriate.
Further, at MPA contentions paragraph 7.4(3)(c) again as part of its ‘stated case’, MPA says that at no time during the ‘pre-NIGF’ period did the NTP invite MPA or the GVP to in any way give up, restrict or otherwise limit their right to seek an arbitral determination. Phrased the way it is, it is difficult to respond to this statement. For example, a ‘right to seek an arbitral determination’ does not arise unless the preconditions are met – and those pre-conditions could not be exist during the ‘pre-NIGF’ period.
I will, where I can, respond to matters raised in the ‘stated case’.
6.1.4 Negotiations
An examination of the material submitted by parties provides a useful chronology of negotiations in this matter. Negotiations began in May 2015, specifically focusing on an ILUA. The NOITT process was later progressed in response to concerns regarding timeframes for resolution of the matter. I have outlined the relevant events and correspondence below, with negotiations broken down into the period before the NOITT (‘pre-s 29’ period) and following the issue of the NOITT (‘post-s 29’ period).
6.1.4.1 Pre-s 29 notice
The evidence (including DM2, DM4, DM6, GP1, GP3) informs me that during April to September 2015, MPA expressed interest with DoL in getting a lease over Barnicoat Island for accommodation and facilities to support their aquaculture enterprise, and they initiated contact with KLC. Early indication from DoL to Mayala was that a right to negotiate process would be undertaken. KLC recognised and informed DoL that without an ILUA native title would be extinguished. MPA provided DoL with a draft letter of indemnification for compensation for the taking of native title and non-native title rights and interest.
Between November 2015 and February 2016, correspondence (including: GP6, GP8, GP9, GP11, GP12, DM7) was exchanged about the lease proposal and preliminary planning for a meeting between MPA and Mayala. MPA understood at that time that a NOITT process would be undertaken by DoL – but it is not clear that MPA completely understood the native title consequences at that time. In fact, MPA expressed concern about their inability to obtain information from DoL, despite a 18 May 2015 letter from DoL saying that a specialist team was there to assist (DM4, DM6).
It appears that in mid-February 2016, Mayala raised the prospect of an ILUA to enable the grant of the lease and ‘allow native title to be unaffected after the end of the lease’. Based on what is referred to as an assurance from DoL, MPA expressed a preference for the NOITT process to be initiated on the basis it could be ‘retracted’ at any point, and ‘as soon as the ILUA were negotiated’ (GP13; GP14; GP16; DM8; DM9). The NOITT was not issued until October 2016.
It is clear that at this time, MPA did not have a technical understanding of native title or the NTA, and were relying on DoL for direction. Unfortunately, MPA’s understanding was not greatly assisted by some incorrect or confusing information from DoL (DM10; DM11; GP17) that the NOITT ‘will have a notice saying expressly that native title rights and interests will not be taken’ and that there was ‘a new s 31 deed for claims, with the non-extinguishment process applied’ that might be faster and easier than the ILUA registration process. This information also pleased Mayala who, reserving their rights, asked to hear the details of the mechanism DoL proposed to invoke subdivision P of the NTA (GP19). MPA emailed Mayala on 11 March 2016 saying they were pleased with the discussion and happy when it was clear that ‘we all want to do this in a way that does not extinguish native title’ (GP18).
In early April 2016, DoL advised Mayala that the proposal (a non-extinguishing acquisition) could not in fact be used and confirmed that DoL was prepared to begin negotiations for an area ILUA to ensure the non-extinguishment principle would ‘be applied over the subject land’ (GP27). Mayala responded thanking DOL ‘for confirming the process intended to be used in discussions about the proposed lease for MPA’ and invited DoL to attend a Mayala meeting to discuss the State’s interest in the negotiation (GP37). That meeting happened in early May 2016. The outcomes from negotiation DoL described at the meeting would be three documents: 1) an agreement between MPA and Mayala; 2) ILUA with non-extinguishment principle (State and Mayala); and 3) lease from DoL to MPA (DM13).
There was correspondence regarding a site visit for early June 2016 which was cancelled because of a s 66B application. MPA expressed disappointment saying ‘… obviously I started this process in good faith back in December – and yet now I am here in June and it seems we have moved backwards’ (GP70). Some of the email exchanges at this time were terse (GP72) – and frustration evident. On 7 July 2016 Mayala confirmed that a new Mayala applicant had been confirmed and discussions about a site visit were again raised. Conversation shortly before this in June 2016, between DoL and Mayala, indicated that MPA were ‘jittery about timeframes for the negotiations and is considering the NOITT process again.’ DoL advised Mayala that they were ‘reluctant to put it in the NOITT process, and is still hopeful there can be agreement in principle by the end of the year.’ The DoL officer said ‘he will not begin the NOITT process for now and will have another talk with (MPA)’ (DM15).
The draft Negotiation Protocol, Project Summary and Budget Estimate was on the table in mid-July to mid-August 2016 (GP82; GP83; GP84; GP104). MPA expressed concern about costs, the extent of engagement, and ‘unnecessary items in the context of the scale of the proposal.’ Mayala and MPA representatives met in mid-August in Broome and MPA by email informed Mayala that they were prepared to cover the ‘fair costs’ of a first meeting with the new Mayala applicant and to arrange a site visit and outlined a costs schedule (GP96).
Issues concerning a contour survey also arose in mid-August 2016 (GP98-GP103) and MPA expressed frustration to DoL at Mayala’s concern about the survey being undertaken without informing Mayala, saying that the process was being blocked by KLC. MPA also expressed frustration about not being able to have a dialogue with Mayala and concern that conversations were not being passed on, saying ‘from our perspective this is causing great frustration and uncertainty …’ (GP105). Discussions had now also turned to the need for a heritage survey – and whether the existing survey included Barnicoat Island (GP106). The heritage survey issues extended in to September (GP109; GP111). An email concerning a follow up meeting followed, affected by the death of an applicant. The last email in the pre-s 29 period from Mayala, dated 23 September 2016, said the next date for consultation with the applicant depended upon funeral arrangements, and that (he) intended to consult with the Applicant in early October (GP117).
6.1.4.2 Post-s 29 notice
The NOITT was issued on 6 October 2016 (GP118) and around this time there was discussion about the Department of Aboriginal Affairs (‘DAA’) heritage survey and access to it (GP120; DM47). DoL in a phone conversation with Mayala say that despite the NOITT they would like to follow the ILUA path to avoid extinguishment. DoL refer to MPAs concern about costs and timeframes and say ‘So we have decided to issue NOITTs’ (DM16). A copy of the NOITT was emailed to Mayala, with the covering email stating DoL, MPA and ‘registered claimants met 5 months ago to commence negotiations for an Indigenous Land Use Agreement.’ The email also stated ‘we would like to continue to negotiate in good faith with the claimants with a view to obtaining their agreement’ (DM17; GP121). DoL does not refer to the NOITT as a combined notice – which might suggest that they assumed Mayala would understand it to be the commencement of the right to negotiate process.
Role of the State
Mayala responded to DoL (DM18) agreeing it is desirable that an ILUA be negotiated and sought clarification as to DoL’s involvement ‘to the extent the position has changed’ since May 2016. In particular, Mayala asked what matters the State is prepared to provide, or consider providing, funding of necessary costs to the negotiation process. In response on 31 October 2016 DoL note regarding funding that future act and agreement making are NTRB functions; and says its position has changed as a result of the issue of the NOITT ‘as we now have a role with MPA to continue with good faith negotiations with the hope of reaching agreement’ (DM19).
I note that DoL in correspondence tend not to refer to the s 29 NTA element of the notice, or even the fact it is a combined notice – and the only hint is in language such as ‘good faith’ negotiations – although by suggesting parties should continue with good faith negotiations DoL suggest that the ‘pre-s 29’ negotiations were good faith negotiations – presumably voluntary.
Mayala again wrote to DoL on 2 November 2016 (DM20) stating that an ILUA remains the preferred result and asks for more information regarding DoLs position. They query what interests and issues DoL has in relation to the NOITT and which it wishes to negotiate with Mayala about, separately or concurrently. Mr Barnett (DoL) was out of the office and responded roughly 4 months later by letter dated 27 February 2017 (received by KLC 7 March 2017) (DM26). The letter apologises for any confusion caused by the 31 October 2017 email and states ‘DoL’s position in terms of the particular future act and associated negotiations has not altered and that we do not see any merit or need to enter into separate negotiations with the claimants. MPA (as the proponent) would continue to negotiate the proposal directly with the Mayala Claimants.’ The letter went on to state:
For clarification, DoL’s involvement in the NOITT process is limited to issuing of the Notice, providing the Mayala Claimants with details of the Notice and giving them the opportunity to provide submissions regarding the proposed grant of lease. MPA will continue to be the negotiation party. If agreement to the compulsory acquisition is reached between Mayala and the claimants, DoL would prepare a draft Section 31 Deed of Agreement for consideration and execution by the Mayala Claimants, MPA and the Minister for Lands.
There are a number of features of this response from DoL which will be discussed in more detail later in this determination, but for the moment I note the reference to MPA as the ‘negotiation party’ - without reference to s 30A NTA.
KLC responded to the letter on 17 March 2017 (DM28), outlining progress and positions, in particular noting that MPA did not seek extinguishment, and Mayala being of the same view, they wished to negotiate an ILUA. The letter also states ‘In view of the above developments, and in view of the parties’ agreed position that native title not be extinguished over Barnicoat Island, we request that the NOITT process be suspended pending the outcome of negotiations between the parties, whilst maintaining the Mayala Claimants’ objection to the NOITT’.
I note email correspondence from the ‘pre-s 29’ period between MPA and Mayala in early February and early March 2016 indicated that DoL ‘… assures me that the issuing of the NOITT does not exclude a ILUA being put in place instead, and the NOITT being retracted’ (DM8; GP14) and ‘… at this stage it seems the best course would be to let DoL issue the imminent NOITT, knowing that it can be retracted at any point – and would be retracted as soon as the ILUA were negotiated’ (DM9; GP16). Minutes from a Mayala claimant meeting attended by MPA on 6 April 2017 (DM33) record the KLC as saying ‘The State is going to wait and see what happens with negotiations here before they proceed’ – however the basis of this statement is not apparent. I also note that the Mayala, in writing to the State asking for the NOITT to be suspended, indicated progress in the negotiations and did not seek State intervention. However, this must be read in the context of an affected party asking for the acquisition process to be suspended.
Nevertheless, DoL responded by letter dated 23 March 2017 (DM29) saying ‘I wish to advise that under the LAA there is no provision to suspend a NOITT, and that NOITT’s remain “live” until cancelled. Because of this reason I am unable to agree to your request. It is noted that the NOITT will remain in its current status pending the outcome of the negotiations.’
Engagement between Mayala and MPA
On 31 October 2016, following the issuing of the Combined Notice, MPA emailed Mayala regarding a proposed meeting saying ‘As before, we are willing to pay the reasonable costs of this … and so would like please have you go and get this process back on track’ (GP124). MPA again raised concerns about Mayala’s budget expressing the need for a reasonable cost budget’ starting with ‘realistic costs’; and say ‘Obviously NOITT has now been issued, but as we have said all along, MPA has no interest in having native title extinguished on this land, but we do need for this discussion to progress, and cannot continue to have it stalled over KLC costings.’ This correspondence makes it clear that MPA understood what was at stake as a result of the commencement of the NOITT process.
Further correspondence in early November 2016 (GP136; GP141; GP143; DM23) concerned process and costs, and tentative arrangements were made for a meeting in January 2017. However, budgets could not be agreed and MPA contacted the Tribunal for mediation assistance. It appears that a Mayala meeting was convened and MPA asked if they could attend to provide a general introduction. MPA were informed that the agenda was full and that Mayala did not want to meet unless MPA first committed to a proper process of negotiation (GP148; GP149). Proposals from the meeting were not forthcoming despite requests from MPA and at this time (GP150; GP152) Mr Kevin Murphy, the Principal Legal Officer of the Kimberley Land Council (‘KLC’), presented what he described as a ‘a major compromise’ regarding the funding of meetings representing a ‘significant reduction’ to the previous costs proposal (GP154).
It appears that there was little engagement from November 2016 to mid-February 2017.
In a 17 February 2017 letter from KLC to Drummond Law (responding to Drummond Law letter of 15 February 2017, which was not tendered), Mr Murphy points out ‘there are two processes in play’ – the NOITT under the LAA and the right to negotiate process (‘RTN’) under the NTA. ‘At present, there is no scheduled NOITT hearing. The NOITT process will only become relevant if the parties cannot reach an agreed position under the RTN process’ (DM24). Mr Drummond’s 20 February 2017 response says: ‘It is MPA’s understanding that if, after a period of 6 months, they find that despite their best efforts at good faith negotiation (toward an ILUA), they are unable to resolve the situation, they can involve DoL and NTT and request a ruling on the NOITT (a situation which MPA have done everything possible to avoid over the past year) … MPA would like to negotiate a fair and equitable ILUA’ (DM25).
Minutes from a 9 March 2017 meeting between Mayala, KLC and Dr Allen for MPA indicate a positive and constructive discussion with the NOITT mentioned only in the introductory paragraphs (DM27). The minutes show Dr Allen saying that ‘… issuing the NOITT was only in reaction to MPA’s perceived “blocking” of the process by KLC and that they did this to “give KLC a kick up the backside.”’
On 14 March 2017, Mr Singh of the KLC, emailed Mr Drummond, Dr Allen and Mr Murphy of the KLC setting out ‘agreed outcomes’ regarding the negotiation protocol and ILUA negotiations (GP158). Mr Singh followed this up by email on 30 March 2017, noting ‘the objective of our negotiations are – if the parties agree – 2 agreements’. Mr Singh listed: ‘the ancillary agreement based on the draft terms sheet currently being negotiated’; and the ILUA as contemplated by the Negotiation Protocol. Mr Singh noted that ILUA preparation is a matter for the State and then explained the registration process (GP161).
This comment regarding ILUA preparation would seem to arise from the May 2016 Mayala meeting attended by DoL where the DoL representative said (in the context of ILUA negotiations) that there would be three documents: 1) an agreement between MPA and Mayala; 2) ILUA with the non-extinguishment principle (State and Mayala); and 3) lease from DoL to MPA (DM13). This suggests to me that the ILUA proposed was intended to be a minimal document, that is, it would provide the necessary native title consent to the doing of the agreed future act (noting also s 24EB(5) of the Act), but commercial terms were most likely to be contained in the ancillary agreement to which the State would not be a party. This appears to be confirmed in 30 March 2017 correspondence from KLC (DM30) and suggests a minimal involvement from the State where a non-extinguishment (ILUA) outcome was being pursued.
In correspondence to DOL on 30 March 17, Dr Allen expressed concern that access to the island would be dependent upon ILUA registration and asked for clarification regarding access prior to registration (GP162). In a separate email to the KLC, Dr Allen asked for clarification as the registration timeframe was beyond the date necessary to start construction (GP165). Mr Singh emailed Dr Allen on 4 April 2017, stating that subject to instructions ‘we accept most of your changes’ to the draft negotiation protocol. In particular, Mr Singh said: ‘The proposed changes to Clause 7 present the option of withdrawing from negotiations as being open to both parties, not just MPA, and are in recognition of the following facts: (i) That both parties are statutorily bound to negotiate in good faith; and (ii) That MPA may withdraw its application for the lease over Barnicoat Island at any time’ (GP167).
It seems that MPA questioned the quoted authorisation meeting costs in the KLC revised proposal. KLC advised 5 April 2017 that a breakdown was not feasible.
Generally, (from meeting minutes; the fact that MPA joins meeting with diagrams on board of ILUA process etc) it seems that KLC directed/controlled negotiation meetings and used the term sheet headed ‘Mayala negotiations regarding Barnicoat Island lease’ as a foundation document.
Minutes from a 25 May 2017 meeting attended by members of the Mayala Applicant, KLC and Dr Allen, state ‘if there is no agreement … the lease will not be granted to MPA under this process’ (DM37). The minutes also record Mr Singh stating ‘the NOITT is still alive, note KLC has lodged an objection’. The minutes reflect a statement by Dr Allen that ‘if we can’t reach an agreement today, we will go to the DOL and ask for a ruling from the NNTT that we have acted in good faith trying to make an agreement.’ After a break, MPA increased its offer, which the NTP then had to take back to family groups.
By letter dated 2 June 2017, Drummond Legal confirmed MPA’s offer saying it was ‘firm’ and open for acceptance until Friday 16 June 2017 (DM38). The letter advises: ‘If a formal written acceptance is not received from your clients by that date the offer will be retracted and MPA will proceed to the NOITT process with the Department of Lands.’ KLC rejected the offer by letter dated 8 June 2016 and reiterated Mayala’s previous offer saying ‘we respectfully and in good faith ask that your client consider our clients’ offer to finalise this matter expeditiously and without recourse to legal process which will inevitably delay the matter (DM39).
6.1.5‘Primary contention’ – all negotiations were directed towards ILUA outcome - no negotiation directed to agreement to compulsory acquisition
Mayala assert a ‘primary contention’ that both MPA and the Government party have failed to negotiate in good faith because there has been no negotiation directed to obtaining the native title party’s agreement to the proposed compulsory acquisition. Mayala say that negotiations that did occur were directed at obtaining its agreement to an ILUA consenting to the grant of a lease subject to the non-extinguishment principle (NTP Contentions re GP, paragraph 2; NTP Contentions re GVP, paragraph 2).
MPA contradicts the contention, asserting that during the ‘good faith period’ (21 October 2016 to 14 August 2017) negotiations were with a view to the doing of the Future Act. MPA define the Future Act as ’a compulsory acquisition for the purpose of grant of a lease of the Land to the GP’. MPA in their further reply at [4.9] and in the context of the ‘good faith period’ define ‘[Notified] Future Act’ as the compulsory acquisition of native title rights and interests.
As noted at [37] above, Mayala in their contentions at paragraph 17 say: ‘The “act” in question is the relevant future act notified pursuant to s 29 NTA. In this matter it is the compulsory acquisition of all native title rights and interests in Lot 355 on Deposited Plan 407212 – being the area of Barnicoat Island landward of the high water mark’. I agree.
Mayala contend the negotiations are required to address ‘the compulsory acquisition of native title rights and interests ie the extinguishment of the native title rights and interests’ (NTP Contentions re GP, paragraph 20). Mayala’s contentions point to the observation in Risk v Williamson regarding the impact of compulsory acquisition on native title rights and interests, being that ‘…the base upon which they can commence to negotiate [is] a base of total loss.’ Alternatively, MPA contends that to the extent negotiations were not with a view to the doing of the Future Act, it was because Mayala, despite fully appreciating that they were subject to an obligation under s 31(1)(b) to negotiate in good faith, elected not and/or refused to enter into future act negotiations and instead proposed to negotiate on an alternative basis (i.e. for an ILUA consenting to the grant of a lease over Barnicoat Island to MPA, subject to the non-extinguishment principle). MPA in its ‘stated case’ assert that it and the Government party ‘made clear’ that they were ‘ready, willing and able to negotiate in the manner mandated by s 31(1)(b).’
MPA says that ‘there is no obligation to ‘negotiate in good faith’ if persons are simply endeavouring to negotiate an [ILUA] as contemplated by Subdivisions B and C of Division 3 of Part 2 of the NTA’ (paragraph 6.2(1) GP contentions). However, MPA also says that ‘there is nothing preventing negotiations for an ILUA also comprising negotiations mandated by s 31(1)(b) NTA’ (GP contentions, paragraph 7.6).
Section 31(1)(b) of the Act describes a ‘normal negotiation procedure’ as parties negotiating ‘in good faith with a view to obtaining the agreement of the native title parties to the doing of the act’ (with or without conditions). Negotiation in good faith is not defined in the Act but has been interpreted by the Tribunal as requiring a party to act reasonably in the circumstances and with honesty of intention and sincerity. The obligation to negotiate in good faith can also be seen as a way to achieve the purpose of the right to negotiate, which is described in the Preamble to the Act as to ensure ‘every reasonable effort has been made to secure the agreement’ of the native title party to the doing of the act.
Mayala assert that MPA failed to negotiate in good faith as negotiations were directed towards an ILUA facilitating the grant of a lease to MPA, not to the compulsory acquisition of native title rights and interests. It is important to take a contextual approach when examining whether a party has negotiated in good faith, as observed by Deputy President Sosso in Doxford v Barnes (at [37]):
When the Tribunal has to determine if a grantee party has negotiated in good faith it is incumbent on the Tribunal to assess the overall conduct of that party in the context of that party’s capacity to negotiate, the attitude and actions of the other parties and the general negotiating environment faced by each of the negotiation parties. In short a contextual evaluation is required.
As outlined by Deputy President Sosso, the attitude and actions of the other parties is an important contextual consideration. From May 2015, Mayala expressed a clear preference that an ILUA be negotiated as opposed to a compulsory acquisition, to avoid the extinguishment of native title rights and interests. MPA also indicated it had no desire for native title to be extinguished and was willing to negotiate an ILUA. The State also supported this approach after it was confirmed a NOITT could not include a notice stating expressly that native title rights and interests would not be taken. It is clear from the statements of all parties that an ILUA was the preferred option and that extinguishment was to be avoided if possible. It was approximately 17 months later that the NOITT was notified after parties were unable to reach agreement about an ILUA.
Following the issuing of the NOITT, Mayala continued to state that an ILUA remained the preferred result and in March 2017, Mayala requested DoL suspend the NOITT process pending the outcome of negotiations between the parties. It is clear Mayala understood that following the issuing of the NOITT, parties were in the right to negotiate process, as evidenced by correspondence to MPA stating ‘the NOITT cannot proceed unless MPA negotiates in good faith with the Mayala applicant’ (DM22; GP128). Mayala also reference ‘two processes in play – the NOITT under the LAA and the RTN under the NTA’ in correspondence to MPA’s legal representative (DM24). Timelines for each of the two processes were also displayed at a meeting attended by the Mayala applicant, KLC and MPA. These references to two processes show Mayala was aware of the nature and consequences of the NOITT and with this knowledge, elected to pursue ILUA negotiations with MPA.
MPA also continued to express willingness to negotiate an ILUA to avoid the extinguishment of native title rights and interests resulting from the compulsory acquisition process. The extinguishing effect of the NOITT has a significant impact on native title rights and interests and the relevance of this impact is considered in Cosmos v Mineralogy (at [32]):
The greater the possible impact of the ‘doing of the particular future act’ on registered native title rights and interests, the greater the obligation imposed on the non-native title parties to negotiate about those possible impacts. If ‘the doing of the particular future act’ may result in deleterious impacts on registered native title rights and interests, a non-native title party negotiating in good faith would be keen to minimise or remedy the deleterious impacts and bring to the negotiating table an offer or a package of proposals designed to address the concerns of the native title party.
By agreeing to continue ILUA negotiations, MPA was arguably attempting to avoid the significant impact of the compulsory acquisition and address Mayala’s concerns regarding extinguishment.
It appears that at some points during parties’ discussions, the distinction between the NOITT and ILUA negotiations became somewhat conflated. However, I am satisfied that at all times throughout the negotiations parties were aware of the different processes and their consequences. Parties elected to pursue ILUA negotiations as an alternative way to facilitate the granting of a lease to MPA.
6.1.5.1 Findings
In relation to Mayala’s primary contention, I am not satisfied that MPA has failed to negotiate in good faith due to a lack of negotiation about the doing of the act. At all times during negotiations, Mayala sought to pursue an ILUA with MPA as an alternative to the compulsory acquisition of native title rights and interests. Given the significant impact of the compulsory acquisition, and Mayala’s stated preference that an ILUA be negotiated, it is reasonable that MPA continued with ILUA negotiations following the issuing of the NOITT. MPA’s agreement to negotiate an ILUA was an attempt to facilitate negotiations and to address the concerns of Mayala regarding the extinguishing effect of the compulsory acquisition.
6.1.6‘Primary contention’ - ‘Secondary issue’ – ‘state of mind’ - all parties erroneously assumed ILUA negotiations were within ambit of s 31(1)(b)
Mayala’s statement of contentions in reply (to the MPA’s statement of contentions) at paragraph 25 say that at all relevant times, all parties, including the native title party, were aware of the obligation to negotiate in good faith should a NOITT be issued. Mayala say that all parties erroneously assumed that the negotiations towards an ILUA fell within the ambit of s 31(1)(b)(i) and (ii). Mayala state the evidence is ‘overwhelmingly clear’ that negotiations were directed to the Mayala’s agreement of some other act (i.e. agreement to the grant of a lease subject to the non-extinguishment principle in an ILUA) rather than the compulsory acquisition under s 31(1)(b).
During the directions hearing on 16 November 2017, Mr Green argued that the Mayala primary contention was presented in a different way in their reply, and Mr McCloskey for the Government party considered that the presentation of the primary contention had been ‘tweaked’ or altered. I allowed MPA and the State to (further) reply to the primary contention expressed in Mayala’s reply.
In the MPA further reply, this contention is referred to as the ‘state of mind’ issue. MPA take a forensic approach to the wording in paragraph 25 of Mayala’s reply against the elements of s 31(1)(b).
Mayala, in its ‘reply to the Grantee Party's further reply’, at paragraph 7 maintain that their primary contention concerns the subject matter of the negotiations engaged in by the parties and at paragraph 8 that the ‘state of mind’ of the parties arises only as a secondary issue, ‘and only to the extent that they may assist the Tribunal in discerning what the subject matter was.’
The argument pursued by MPA in its reply contentions is based on:
(a)At all times during the NIGF period the NTP fully appreciated it was subject to an obligation under s 31(1)(b) to negotiate in good faith to the doing of the [Notified] Future Act (the compulsory acquisition of native title rights and interests);
(b)to the extent the parties negotiated other than with a view to the doing of the [Notified] Future Act ‘they did so by design of the NTP’ – which amounted to ‘sharp practice’;
(c)the NTP knowingly elected not and/or refused to comply with the NTP’s obligation under s 31(1)(b) – and accordingly there is little other negotiation parties can/could do other than, as stated in MPA’s contentions at paragraph 7.4(2)(c), ‘make clear’ that they are ready, willing and able to negotiate in the manner mandated by s 31(1)(b) and perhaps seek mediation assistance.
In examining Mayala’s assertion that parties operated under an ‘erroneous assumption,’ MPA characterise the ‘erroneous assumption’ as an understanding ‘the act notified by the GVP pursuant to s 29 NTA was the grant a lease subject to the non-extinguishment principle.’ From my reading of the contentions, this seems to be a mischaracterisation of Mayala’s argument. This is affirmed in Mayala’s further reply which notes MPA’s interpretation of the ‘erroneous assumption’ and state this has never been Mayala’s belief.
In relation to the relevance of Mayala holding the erroneous assumption, MPA asserts that Mayala’s state of mind during the NIGF period is ‘relevant to, but not determinative of … whether the GP … failed to negotiate in the manner mandated by s 31(1)(b) NTA.’ MPA also assert that at all times during the NIGF period, Mayala were aware of their obligation to negotiate in good faith with a view to the doing of the act. MPA argues that any negotiations other than those with a view to the doing of the [Notified] Future Act were by the design and election of Mayala. Mayala’s initial reply contentions state there was no such design and Mayala held a mistaken belief that they were complying with the obligation under s 31(1)(b) of the Act. MPA unhelpfully labels this mistaken belief, along with the mischaracterised ‘erroneous assumption,’ as the ‘Incompetency Argument’ and assert it is ‘inconceivable’ that the legal practitioners representing Mayala could have suffered such a misapprehension. MPA argues the lack of statements from two of the legal practitioners, and the opaqueness of statements in the second affidavit of Mr Mavec, provide little assistance to the Tribunal on this issue.
The MPA reply contentions state that regardless of the success of the ‘Incompetency Argument’, neither MPA, nor the State, suffered from any misapprehension as to the negotiations mandated by s 31(1)(b) of the Act.
The evidence makes it clear Mayala, and MPA, were aware the right to negotiate applied to the NOITT and parties were obliged to negotiate in good faith about the doing of the act, being the compulsory acquisition of native title rights and interests. With this awareness of the nature and consequences of the NOITT, Mayala elected to pursue ILUA negotiations with MPA. The assertion by MPA that Mayala seeking to negotiate an ILUA was ‘sharp practice’ seems to be a leap not made out on the evidence. Mr Mavec has provided affidavit evidence (Mavec Affidavit, paragraphs 2-4; Mavec Supplementary Affidavit) stating he, and to the best of his knowledge the other KLC lawyers involved in these negotiations, only became aware of the “erroneous assumption” after the lodgement of the s 35 application. I have examined the negotiating behaviour of MPA above at [87]-[98], taking into account Mayala’s expressed preference for an ILUA, and concluded MPA continuing to negotiate an ILUA with Mayala was not a failure to negotiate in good faith.
The requirement to negotiate in good faith has both objective and subjective standards as explained by Deputy President Sumner in Placer v WA at [30]:
Good faith requires the Government [and grantee] 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 state of mind of the parties is relevant to the consideration of whether MPA has acted with subjective honesty and intention. Both Mayala and MPA have pointed to the state of mind as being relevant to the analysis of parties’ behaviour but not determinative. I am satisfied that Mayala and MPA believed they were negotiating in good faith with a view to reaching agreement. That negotiations were aimed at finding an alternative to the compulsory acquisition does not lead to a conclusion that those negotiations do not satisfy the requirement to negotiate in good faith about the doing of the act.
6.1.6.1Findings
In relation to the secondary issue raised by Mayala, that all parties erroneously assumed ILUA negotiations were within ambit of s 31(1)(b), I am not satisfied there was a failure to negotiate in good faith. Negotiations undertaken by the parties were conducted with honest intentions and sincerely directed towards reaching agreement, with parties exploring an option that would not result in the extinguishment of Mayala’s native title rights and interests.
6.2 Misleading conduct regarding access to Barnicoat Island
Mayala outline events relating to MPA’s access of Barnicoat Island for a contour survey in circumstances Mayala describes as being without Mayala’s permission and involving deliberate conduct and the withholding of information. I note the following events and parties’ views and have added in bold to highlight certain aspects:
(a)On 28 June 2016, Mr Barnett of the Department of Lands called Mr Mavec ‘to advise that MPA were seeking access to Barnicoat Island to conduct a “contour survey”’ (Mavec Affidavit, paragraph 71). Mr Mavec’s file note of that call (DM41) records Mr Barnett explaining Dr Allen is seeking a s 91 LAA Low Impact Licence to carry out a contour survey allowing access for a week (though access would take a few hours). It says Hugh Barnett of DoL ‘said that he advised Dr Allen to wait and ask Mayala before getting the licence, to show respect for the elders.’ Mr Mavec said he would not be able to get instructions but suggested that it would be best to wait for the first negotiation meeting particularly as no heritage survey had been done before and meeting dates are not yet known;
(b)On 4 July 2016, Mr Barnett emailed further information to Mr Mavec (DM42). The email: notes MPA seeks to obtain access to Barnicoat Island as soon as possible to undertake a contour survey; explains the purpose and gives an estimated one day duration for the survey; states ‘it is the Department’s view that the contour survey is an important pre-requisite to the ILUA negotiations, and a key first step in the process for MPA to be able to provide the Applicants with as much information about its proposal as possible. Can you please provide any comments that you may have in regard to this request’;
(c)On 5 July 2016 Mr Mavec responded to Mr Barnett (DM42), providing comments on a ‘without instructions basis.’ He stated:
I would suggest it would be preferable ‘for MPA to wait until the first negotiation meeting with the Mayala Applicant before it seeks or is given permission to access the island. This is, primarily, as a matter of proper respect to the Mayala claimants who have a registered claim to exclusive possession over Barnicoat Island. The proper way to proceed would be for MPA to explain the activities proposed to Mayala and obtain their consent before proceeding with the contour survey
(d)On 8 July 2016, Dr Allen emailed Mr Mavec about MPA’s intention to carry out a contour survey and also canvasses the possibility of the Mayala applicant visiting the island. The email states:
I just wanted to ask you about the possibility of taking the new Applicant group out to visit Barnicoat Island. As you know, we are keen to try and get a basic land contour survey done of the east end of the island so as to start trying to work out what sort of camp set‐up we might be able to build, once we have received Mayala’s approval. We were hoping to be able to take a surveyor to the island sometime in the next few weeks, and I wondered firstly if the Applicant would be ok with that, but also if they might want to be involved in that trip – hopefully it would provide some clarity as to what the survey involves, and also the opportunity to have them see the island and talk to me generally about our possible plans, prior to the start of any formal discussions.
Is that something you might be able to facilitate?
(e)On 11 July 2016, Mr Mavec responded to the 8 July 2016 email, stating ‘Something of this nature is a possibility that’s worth exploring. Thank you for flagging it with me, and I will work it into the draft plan that is being put together at the moment’ (DM43);
(f)On 15 July 2016, Mr Mavec and Dr Allen spoke on the phone. Mr Mavec’s record of the call states ‘We discussed the possibility of a field survey, subject to instructions, in early August, to allow the contour survey to go ahead without heritage impacts’;
(g)Also on 15 July 2016, Mr Mavec emailed Dr Allen a project summary and budget estimates with the cover email stating ‘the proposed field inspection is to address your recent request for permission to access the island for a contour survey. The proposal is entirely subject to instructions from the Mayala Applicant’;
(h)A member of the Mayala applicant, Ms Isaac, states in her affidavit that around August 2016 she became aware that ‘there were people walking around on Barnicoat Island’ and describes her conversations with Mr Mavec about this and also the implications of people accessing the island without Mayala People;
(i)On 8 August 2016 the licence for access was granted under s 91 LAA;
(j)On or about 16 August 2016, the contour survey was carried out by RM surveys;
(k)On 18 August 2016, various emails were exchanged between Mr Mavec and Dr Allen.
(i)Mr Mavec first emailed Dr Allen. It states:
…I have been advised today that some Mayala men who were out hunting near Barnicoat Island saw people, possibly surveyors, this Monday. Word about this has been circulating in the community at One Arm Point, and I have received an angry phone call from one of the Mayala Applicants wanting to know what is going on. She advises that there is general upset in the community about this news. Can you please urgently tell me anything that you know about this?
(ii)Later on 18 August 2016, Dr Allen responded stating that on Tuesday (16 August) there was a surveyor carrying out a land contour survey following authorisation from the DoL to undertake the contour survey through a s 91 LAA licence issued for one week;
(iii)Mr Mavec responded explaining why it is a serious matter, stating his view that ‘it seems clear to me that MPA has deliberately gone ahead with a land contour survey and has withheld information from KLC and Mayala that it would be occurring’ and summarising recent events in detail (DM45);
(iv)Dr Allen responded ‘We were told by the Department of Lands that this survey was not a native title concern and instead was dealt with under the Land Administration Act. If you have issue with this you will need to take it up with the DoL, not MPA’ (DM45).
MPA contends that the events between 4 July to 16 August 2016 (set out at its contentions at paragraph 10.3) took place in the ‘pre good faith period’ so ‘to the extent relevant, no obligation had arisen under s 31(1)(b) NTA to “negotiate in good faith”’ (paragraph 10.4). These events are however part of a chain of events which continues into the ‘good faith period’ and are relevant to the consideration of this issue.
Regarding Ms Isaac’s views about the access, MPA contend that Ms Isaac’s distress was because she failed to appreciate that the Government party had sought Mayala’s comments prior to granting the licence. MPA also contend Ms Isaac had a flawed understanding of her rights under Australian law, as MPA had ‘every right’ to go onto the land.
Overall, in my view the Government party did not negotiate in good faith because it departed from its responsibilities as a negotiation party. While seemingly aware that its responsibility had changed as a result of the s 29 notice, and despite the invitation from Mayala to structure s 29 negotiations, the Government party reverted to its negotiating position in the ILUA negotiations. That negotiating position which is similar to that often seen in mining related right to negotiate matters fails to take account of the quite different circumstances and consequences (including benefits) of a compulsory acquisition right to negotiate process.
As the Tribunal observed in Cosmos v Mineralogy at [32], the degree of impact associated with a particular future act has a bearing on the nature of the obligation imposed on the non-native title parties to negotiate. Although the Tribunal recognised that this kind of proportionate analysis does not occur in a vacuum and there will always be a minimum standard of behaviour, the nature of the future act is relevant when evaluating the quality and nature of the negotiations undertaken. Considering the nature of the proposed future act and its effect on the native title rights and interests, I am satisfied the Government party’s conduct fell short of the relevant standard.
GOOD FAITH DECISION
As noted above, I am not satisfied that Marine Produce Australia did not negotiate in good faith. I am satisfied that the State of Western Australia did not negotiate in good faith as required by s 31(1)(b) of the Act regarding the compulsory acquisition of native title rights and interests in respect of Lot 355 on Deposited Plan 407212. By s 36(2) of the Act, the Tribunal has no power to proceed to make a determination as to whether or not the future act may be done (with or without conditions).
Mr JR McNamara
Member
2 May 2018
APPENDIX A: NNTT letter to parties 12 December 2017
Dear parties,
Good faith inquiry and decision regarding s 151(2): WF2017/0017 Marine Produce Australia, Mayala People and State of Western Australia N451803
This letter is to advise the parties of my decision as to whether a ‘good faith’ hearing will be conducted in this matter. The reasons for my decision not to hold a hearing are as follows.
Parties’ views
Directions hearing
During the 16 November 2017 directions hearing, after having requested the opportunity to submit a reply (to the Native Title Party reply), Mr Green explained his view that a hearing should be held regardless of whether a further reply is allowed. He suggested that oral submissions at a minimum be made, based on his view that the matter raises ‘novel issues’; involves issues capable of misunderstanding; and, that a hearing would give the Tribunal the opportunity to ‘cut through’ the issues. In the ensuing discussion, Mr Green noted that he would need to give further consideration to the possibility of seeking leave to cross-examine.
Mr Mavec’s view was that the matter should be determined on the papers. He agreed that the Native Title Party’s (NTP) ‘primary contention’ is novel but expressed the view that it was capable of being dealt with on the papers. Mr Mavec noted that there had already been ‘three rounds of material’ presented, and that further material (whether written or oral) would involve a lot of repetition. He said that he saw no value to the Tribunal in parties revisiting the issues. Mr Mavec also noted that as a potential witness, should his cross examination be requested and required, he would need to consider how the future conduct of the inquiry would occur.
Mr McCloskey indicated that the State had not yet formed a view that a hearing involving cross-examination would be necessary and that he needed to further consider the matter. Mr McCloskey also noted that in the Federal Court, when matters require clarification, it is usually done by correspondence and that clarification can always be provided in ways other than by holding a hearing.
I advised the parties that I would make my decision as to whether a hearing is to be held at a later date, but proceeded to lead a discussion of the timing and logistics of such a hearing in the event that I decided one should occur. On the basis of a hearing comprising oral submissions (only), a tentative date was proposed at the Tribunal’s Perth office. In the event that witnesses would be required, we discussed how more time would be needed to plan the location and logistics.
Key events since the directions hearing
On 24 November 2017, the Tribunal received Mr Green’s email indicating that he did not require cross-examination of NTP witnesses.
On 1 December 2017, being the due date for compliance with Direction 7, the agreed statement (inclusive of a joint chronology and also parties’ written views about whether the matter can proceed on the papers), Mr Mavec emailed the Tribunal explaining why an agreed statement was unable to be submitted by the parties. Mr Mavec also set out his view of why the NTP continue to consider a hearing unnecessary, stating:
The Tribunal’s decision whether to hold a hearing is dependent, not on the consent of the parties, but on its assessment of the criteria in s 151(2). In Little v Western Australia [2001] FCA 1706 at [55], RD Nicholson J notes that “If the Tribunal was correct that it should not hear further evidence, there was no reason for it not to be satisfied that the determination could be adequately dealt with in the absence of the parties. The clear legislative intent behind the power is that in those circumstances the Tribunal should be able to act on the papers.”
After a preliminary review of the further replies provided by the non-native title parties, the native title party’s view at this time continues to be that no hearing is necessary. The native title party’s intention (provisional upon detailed consideration of the further replies in days to come) is to provide brief written replies, as well as brief written evidence from Mr Mavec.
In our submission, the issues have been very thoroughly canvassed and there is no need, or benefit to the Member, for the parties to be put to the expense of an oral hearing solely for the purpose of the making of further submissions. All parties have well and truly exercised their right of reply. The grantee party has identified the issues it believed required further submission, and has had its say on those issues. The native title party continues to be of the view that the “state of mind” issue is not a new or a major issue; nor, respectfully, one which requires any special oral explanation to the Member. The native title party says that this is clear on any reasonable reading of the submissions already provided, and will be made yet clearer in the native title party’s further reply.
Within Mr Mavec’s email he stated “I note that the grantee party expresses the view in the attached email that the matter cannot be heard on the papers, as it did during the 16 November 2017 Directions Hearing.” The attached email was an email from Mr Green to Mr Mavec (and Mr McCloskey) which states “The GP’s view is that this matter cannot be heard on the papers.”
On 4 December 2017, the Tribunal emailed parties: noting recent events; noting direction 7 required by 1 December 2017 the parties’ views about whether the matter can proceed on the papers; summarising parties’ views to date on whether a hearing should be held; allowing the opportunity for Mr Green to advise the Tribunal if he no longer wished for a hearing to be held; and querying the State’s view about the hearing issue. A copy of that email is attached.
On 4 December 2017, Mr McCloskey informed the Tribunal that the State’s preference is for a hearing, explained as follows:
…
The directions published following the last directions hearing permitted MPA and the State to file replies to the Mayala replies to the contentions filed by the former parties were limited to 2 issues or matters of controversy, the application by MPA and the State to be allowed to file replies being made in circumstances where those parties felt that the content of the Mayala replies went beyond what had been expected would be included in such documents. However, as suggested at the directions hearing (by, in particular, the grantee party) it may be that certain issues identified at the directions hearing would be better explained by parties having concerns about the same addressing the Tribunal about those issues, noting the Mayala replies dated 13/11/2017 had been provided to the Tribunal and MPA and the State a few days prior to the directions hearing on 16/11/2017.
Further, the next document to be filed by the Mayala is due on Thursday, 07/[12]/2017 and, of course, neither MPA or the State yet know what will be in those documents which, the lawyer for Mayala has advised are to be accompanied by further brief written evidence.
In these circumstances, and bearing in mind the developments in recent days, a decision to determine this application on the papers it [sic] is not appropriate.
…
Whether to hold a hearing
Having heard detailed explanations from parties during the directions hearing, and having considered the emails above, I am aware of the reasons for each party’s preference as to whether a hearing should be held and I have taken these into account.
Section 151(1) gives a discretion by stating the Tribunal may hold hearings. Section 151(2)(b) provides that the Tribunal may make a determination by considering the documents or other material lodged, without holding a hearing. However, a hearing must be held if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. It is clear that it is the viewpoint of the Tribunal that is pivotal, rather than the viewpoint of parties, though I have taken parties’ views into consideration in reaching my decision.
By s 142, subject to s 151(2) (among others), the Tribunal must ensure that every party is given a reasonable opportunity to present their case and to inspect documents and make submissions.
There is an expectation raised by section 36(3) that the Tribunal will deliver a future act determination within six months of the lodgement of the application. If that timeframe cannot be achieved the Tribunal is to advise the Commonwealth Minister as soon as is reasonably practicable after the six month period of the reasons and provide an estimated time frame for completion.
Section 109(1) requires the Tribunal to carry out its functions in a fair, just, economical, informal and prompt way.
In Michael Page/Northern Territory/Michael Daniel Teelow [2002] NNTTA 17 the Tribunal interpreted s 151(2) as follows at [23]:
…In other words, only if the Tribunal is of the view that documents and other material lodged by the parties sufficiently address the matters in contention, is it permissible for an inquiry to be conducted on the papers. The wording of section 151(2) is mandatory. If there is any doubt in the mind of a Member conducting an inquiry about the adequacy of material before the Tribunal, and assuming that this inadequacy could be cured by the giving of oral testimony, then there is a statutory obligation placed on that Member to convene a hearing.
In Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 , Member O’Dea provided his view as follows:
[11] Whether parties consent to the Tribunal determining the matter on the papers or not is irrelevant to the exercise of the Tribunal’s discretion under s 151(2): Little v Western Australia [2001] FCA 1706 at [55]. What that section requires is that the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. A hearing must be held if there is any doubt as to the adequacy of the material, provided the inadequacy can be cured by oral testimony: Page v Teelow (2002) 169 FLR 62 (Page v Teelow) at [23]. The fact that a party has not provided sufficient evidence to support its contentions will not necessarily mean that a hearing is required (see for example Sandy Limmen & Ors on behalf of Alawa, Marra and Ngandji People/Astro Mining NL/Northern Territory [2002] NNTTA 202; Leonne Velickovic on behalf of the Widji People/Western Australia/Glyn Thomas Morgan, Angus Gordon Gailbraithe [2003] NNTTA 10). The cost, delay and inconvenience to parties associated with a formal hearing may also be relevant to the Tribunal’s decision about whether or not a hearing should be held: Page v Teelow at [34].
It is standard practice in a good faith inquiry for the Tribunal to make directions regarding the conduct of the inquiry. Those directions require each of the negotiation parties to submit contentions and evidence, followed by a native title party reply, followed by the opportunity for a listing hearing and hearing, if considered necessary.
In this matter, the directions were more extensive than usual. The grantee party requested a reply opportunity, the State also wished to be afforded a reply opportunity, and the native title party requested to have a further reply. I allowed those additional steps as discussed in the directions hearing. The material I have now before me comprises:
Native title party contentions and evidence (contentions regarding grantee party; contentions regarding Government party; Isaac affidavit; Humphries witness statement; Mavec affidavit with 50 annexures)
Grantee party contentions and evidence (contentions, list of documents, chronology, authorities and 182 annexures)
Government party contentions and evidence (contentions and two annexures)
Native title party reply (regarding grantee party; regarding Government party; supplementary Mavec affidavit with five annexures)
Grantee Party’s Further Reply for “Good Faith” Hearing
Government Party’s Reply to Native Title Party’s Reply Regarding Good Faith Negotiations Relevant to the Government Party
Native Title Party’s further reply to the Grantee Party’s Further Reply for “Good Faith” hearing and the Government Party’s Reply to the Native Title Party’s Reply regarding Good Faith Negotiations relevant to the Government Party [and further supplementary affidavit]
Decision
As outlined above, if it appears to the Tribunal that the issues cannot be adequately determined in the absence of the parties, then a hearing must be held. If it does not so appear, then the Tribunal may determine the matter on the papers or could also hold a hearing. In this matter, my view is the issues can be adequately determined without the parties.
I have read all the material submitted by the parties in accordance with the directions amended 17 November 2017.
It is not suggested by any party that the material each has submitted in the good faith inquiry is insufficient to support its contentions.
The bases proposed for holding a hearing relate to: the issues being considered ‘novel’; the issues being capable of misunderstanding; the hearing giving the Tribunal the opportunity to ‘cut through’ the issues; and the hearing enabling the issues to be better explained.
I note that the negotiation parties in this matter are represented by some of the most experienced Native Title (Future Act) lawyers in Western Australia. It has been raised by Mr Mavec, and as referred to in the passage from Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 per Member O’Dea above, issues of ‘cost, delay and inconvenience to parties associated with a formal hearing’ may be relevant.
In that regard Mr Mavec is based in Broome. Mr Green and Mr McCloskey are based in Perth. A hearing venue other than Perth has not been discussed so the views of Mr Green and Mr McCloskey in that regard are unknown. I presume that (should a hearing be convened) it would be the preference of the representatives of the parties that they each appear in person (as opposed by video or telephone) and that the Tribunal attend in person.
I am aware that due to the leave commitments of representatives of all parties, the earliest common date when all would be present in Western Australia would be 15 February 2018.
The s 35 Future Act Determination Application in this matter was lodged with the Tribunal on 14 August 2017. Pursuant to s 36(3), should a determination of the application not be completed within six months (that is, before 14 February 2018), the Tribunal must advise the Attorney General. As stated above the expectation inherent in s 36(3) is that Future Act Determination Applications should be determined within six months. The fact that a good faith inquiry (where raised) must precede the substantive inquiry challenges the ability of the Tribunal to meet that timeframe. Neither the Government Party nor the Grantee Party have raised concerns about the likely need to advise the Attorney General that the matter would not have been completed by 14 February 2018.
In this matter, the parties have been given extended opportunities to state their case and clarify their material. Parties have had the opportunity to present their case by way of the directions issued and amended, and in the interests of making the decision efficiently and promptly, it is reasonable not to allow unnecessary repetition or unnecessary time and expense in drawing out the matter. In the circumstances where a hearing would focus on oral submissions, as no witnesses have been required, I do not consider a hearing necessary.
I have given careful consideration to the material submitted by parties, their views about a hearing, the legislative provisions and case law and ultimately, whether the presence of parties is required according to s 151(2). Accordingly, I shall determine the matter on the papers and parties will be advised when a decision has been handed down.
Mr JR McNamara
Member
Attachment 1: Email to parties dated 4 December 2017
Attachment 1: NNTT Email to parties dated 4 December 2017
Dear all
Recent events
I note some recent events as follows:
The Tribunal received Mr Green’s email of 24 November 2017 indicating he did not require cross-examination of NTP witnesses
The Government party further reply was received 30 November 2017
The grantee party further reply was received 30 November 2017
The native title party’s email regarding the agreed statement was received 1 December 2017
The Government party’s email commenting on the agreed statement and hearing prospect was received on 1 December 2017
Parties’ preferences regarding any hearing
During the directions hearing parties provided their views about the prospect of a hearing (Mr Green requested a hearing, Mr Mavec opted for ‘on the papers’ and Mr McCloskey noted clarifying material can be provided by written means though not yet confirming the State’s view on the issue). Member McNamara and parties discussed availability for a 11 December good faith hearing and that date was tentatively set aside. The hearing was requested by the grantee party for the purpose of clarifying or further explaining the material provided in the inquiry and for the Tribunal and/or other parties to ask questions and further clarify matters. It is understood that no party would require the attendance of witnesses. The Tribunal indicated that parties would be contacted around 4 December about the future conduct of the inquiry.
The ‘agreed statement’ direction (due 1 December) required each party to state whether the matter could proceed on the papers.
In Mr Mavec’s 1 December 2017 email he noted the native title party’s view remains that a hearing is not necessary.
The Tribunal has not yet received the grantee and Government parties’ current view in writing of whether the matter can proceed on the papers. Noting that Mr Green explained the reasons for his hearing request during the directions hearing, the Tribunal presumes that Mr Green’s preference remains for a hearing to be held. If Mr Green no longer prefers a hearing, please advise the Tribunal by close of business WST today.
The Tribunal requests Mr McCloskey to indicate the State’s current view of whether the matter can be determined on the papers, by close of business WST today.
Next steps
The Tribunal acknowledges that further written material is due this Thursday 7 December by way of the NTP further reply.
As mentioned above a tentative hearing date discussed at the Directions Hearing was Monday 11 December in Perth. That will leave only one business day: for consideration to be given to the last of the material provided in the inquiry (see next paragraph); to make a decision as to whether a hearing will or will not proceed (s151(2)); and, if a hearing is to proceed, to inform the parties and put in place the arrangements for the conduct of the hearing (allowing adequate time for arrangements to be made for the preparation and attendance of representatives in Perth).
Member McNamara will make a decision about whether a hearing will occur as soon as practicable after the receipt of the last of the material to be provided in accordance with the directions. In that regard, and noting the issues raised by the parties concerning the production of an agreed statement, he is willing to waive compliance by the parties in relation to direction 7 and has sought confirmation about the matter being ‘heard on the papers’ aspect as set out above.
Therefore, in the event that a hearing is to occur, and conscious of the upcoming leave arrangements as advised by the legal representative of the GP and NTP, Member McNamara would propose that parties’ be allowed a greater period of notice and preparation, such that a hearing could be conducted by telephone later in 2017 or early 2018, or in person in 2018. If one of those options is to occur, the Tribunal would then liaise with parties to discuss dates.
I shall be in touch to advise of Member McNamara’s hearing decision in due course, as described above.
Kind regards
[NNTT]
- AGLC
- Marine Produce Australia Limited v Mayala People [2018] NNTTA 28
- Case
- [2018] NNTTA 28
- Decision Date
CaseChat Overview and Summary
The Federal Court examined whether the State of Western Australia and Marine Produce Australia Limited had complied with the good faith negotiation requirements outlined in the Native Title Act. The Court found that Marine Produce Australia had negotiated in good faith, but the State had not. The Mayala People argued that the description of the area to be acquired in the notification differed from that in the subsequent documentation, extending the area beyond what was initially notified, which they argued was fundamental and rendered the entire process invalid. The Court, however, did not find this discrepancy to be fatal to the proceedings.
In its decision, the Court determined that the State of Western Australia had not negotiated in good faith as required by section 31(1)(b) of the Native Title Act. Consequently, the Tribunal was without power to proceed with determining whether the future act could proceed, with or without conditions, under section 36(2) of the Act. The Court's ruling effectively halted the compulsory acquisition process due to the failure to negotiate in good faith.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
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