Michael Dowse Collins v Nguddaboolgan Native Title Aboriginal Corporation RNTBC - [2015] NNTTA 13

NATIONAL NATIVE TITLE TRIBUNAL

Michael Dowse Collins and Another v Nguddaboolgan Native Title Aboriginal Corporation RNTBC [2015] NNTTA 13 (25 March 2015)

Application Nos: QF2014/0007 - QF2014/0008

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into future act determination applications

Michael Dowse Collins (grantee party)

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Nguddaboolgan Native Title Aboriginal Corporation (QCD2012/004) (native title party)

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The State of Queensland (Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal:  Ms H Shurven, Member
Place:  Perth
Date:  25 March 2015

Catchwords: Native title – future acts – application for a determination in relation to mining lease applications – power – jurisdiction – self represented grantee party – whether grantee party has negotiated in good faith – authority – inconsistent statements – unreasonable conduct – cultural heritage – scope of the obligation to negotiate in good faith (s 31(2)) – grantee party has not negotiated in good faith – Tribunal does not have power to proceed with future act determination inquiry.

Legislation:Native Title Act 1993 (Cth), ss 29, 30, 30A, 31, 35, 36, 37, 38, 39, 77, 109, 148(a), 151(2)
Mineral Resources Act 1989 (Qld)

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 Diver’)
Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 (‘Archer v Queensland’)
Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabinga-Wiradjuri People (NC11/4)/State of New South Wales, [2012] NNTTA 145 (‘Coalpac v Gundungurra’)
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 v Cox’)
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52; [2005] NNTTA 88
(‘Gulliver Productions v Western Desert Lands Aboriginal Corporation’)
Kevin Cosmos & Ors (Yaburara Mardudhunera People)/Mr Jack Alexander & Ors (Kuruma Marthudunera People)/WA/Mineralogy Pty Ltd [2009] NNTTA 35 (‘Cosmos v Mineralogy’)
Mentyn v Law Society [2004] TASSC 24 (‘Mentyn v Law Society’)
Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87; [1999] NNTTA 521 (‘Placer v Western Australia’)
Re Queensland Electricity Transmission Corporation Ltd (trading as Powerlink Queensland) and Bonner & Ors [2006] QLRT 8 (‘Queensland Electricity and Bonners’)
Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303; [1998] FCA 868 (‘Strickland v WA’)
Western Australia v Taylor (1996) 134 FLR 211; [1996] NNTTA 34 (‘Western Australia v Taylor’/’Njamal’)
Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 93 (‘Xstrata v Albury’)
Yellow Rock Resources Ltd and Others v Shay and Others on behalf of Yugunga-Nya People [2014] NNTTA 43 (‘Yellow Rock v Yugunga-Nya’)

Representative of the Mr Michael Collins (self-represented)
grantee party:

Representatives of the Ms Patricia Lane, Counsel for the native title party

native title party: Ms Rhonda Jacobsen, North Queensland Land Council

Representatives of the Ms Leilehua Helu, Crown Law
Government party: Ms Michelle Lucas, Department of Natural Resources and Mines

REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT THE INQUIRY

On 19 October 2011, the Government party, through the Department of Natural Resources and Mines (‘DNRM’), gave notice (‘the notice’) under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of its intention to grant mining leases ML20671 (‘the first proposed lease’) and ML20672 (‘the second proposed lease’) to Michael Dowse Collins (‘the grantee party’/‘Mr Collins’). The notice specified 14 December 2011 as the notification day.
According to the notice, the first proposed lease covers approximately 28.73 hectares (approximately 0.28 square kilometres) and is located one kilometre from Kingsborough in Tablelands Regional Council, Queensland. The second proposed lease covers approximately 32.19 hectares (approximately 0.32 square kilometres) and is located approximately 26 kilometres north of Dimbulah in Tablelands Regional Council. Grant of each lease would authorise the grantee party to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld) (‘MRA’) for a term not exceeding 21 years, with the possibility of renewal for a term not exceeding 21 years.
Any person who, four months after the notification day, is a native title party (that is, a registered native title claimant or a body corporate according to the specified time frames in s 30(1) of the Act) in relation to any of the land or waters that will be affected by a future act, such as the grant of these proposed leases, has a procedural right to negotiate in relation to the future act (see s 30(1)(a) and s 31 of the Act). At the four month closing day (that is, 14 April 2012), the proposed leases were overlapped by the native title claim of the Djungan People #2 (QC1996/005; QUD6022/1998) by 100 per cent and 99.94 respectively. There were no other overlapping claims or determinations. For that claim, the Federal Court made a determination that native title exists on 2 August 2012 (see Archer v Queensland). The determination was entered onto the National Native Title Register that same day with its registered native title body corporate as Nguddaboolgan Native Title Aboriginal Corporation RNTBC. As the note to s 30(2) of the Act deems the registered native title body corporate for a successful claim to be the native title party in such matters, the Nguddaboolgan Native Title Aboriginal Corporation RNTBC is ‘the native title party’ for the purposes of this decision.
According to Tribunal Geospatial records, the area of the first proposed lease falls within the determination area for which non-exclusive native title rights and interests are held. The second proposed lease falls wholly within the determination area attracting exclusive native title rights and interests.
This decision is about whether the National Native Title Tribunal (‘NNTT’/‘Tribunal’) is satisfied that the grantee party negotiated in good faith with a view to obtaining the agreement of the native title party, as required by s 31(1)(b) of the Act (see s 36(2) as described below). Under s 36(2), if any negotiation party satisfies the Tribunal that ‘any other negotiation party (other than the native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b)’ of the Act, the Tribunal must not make a determination. That is, all parties need to act in good faith but the question of whether or not the Tribunal can make the determination (regarding whether the proposed leases can be granted) only arises if an allegation is made that the grantee party or the Government party did not negotiate in good faith as required. The practical effect of s 36(2) is to require the party alleging the lack of good faith to produce material to support the allegation (see Gulliver Productions v Western Desert Lands Aboriginal Corporation at [10]) though the Tribunal is not bound by the rules of evidence (see s 109).

The section 35 future act determination application

On 29 October 2014, the grantee party made application to the Tribunal in respect of each of the proposed leases for a future act determination under s 38 of the Act. Prior to this, the Tribunal assisted parties by convening mediation between March to October 2014, but that process was ultimately terminated without agreement being reached between parties. The timing of the future act determination applications complied with s 35 of the Act: the negotiation parties had not been able to reach agreement of the kind mentioned in s 31(1)(b) of the Act, and at least six months had passed since the notification day specified in the s 29 notice of the Government’s intention to do the act.
On 5 November 2014, President Raelene Webb QC appointed me as the Member to conduct the inquiry into the future act determination applications and I accepted the applications, according to s 77 of the Act, the following day. If the good faith of either the Government party or the grantee party is raised, before commencing the inquiry into the future act determination applications, it must be established whether good faith is satisfied such that the Tribunal has power to conduct the inquiry. Further commentary on the good faith and inquiry process is outlined at [18]-[22].
A preliminary conference was convened on 19 November 2014. At that conference, Ms Jacobsen for the native title party indicated that the native title party intended to allege that the grantee party had not negotiated in good faith as required by s 31(1)(b) of the Act. I invited parties’ viewpoints about whether there was any remaining prospect of reaching agreement and whether they wished for a s 150 conference to be convened to assist with resolving any issues. Parties were willing to attend a s 150 conference in Cairns to try and reach agreement. Agreement may be reached at any time prior to a determination being made (see s 35(3) of the Act). I made directions later that day, requiring parties to submit material in respect of the good faith and substantive components of the inquiry, and explained to parties that, if so directed, the s 150 conference would be handled by a different facilitator in a parallel and separate process.
On 21 November 2014, President Webb QC directed that a s 150 conference be convened. It was held in Cairns on 15 January 2015 by Tribunal convenors Ms Berman-Robinson and Ms Mann.
The Tribunal prepared a map of the proposed leases showing underlying tenure, topography, any overlapping claims or determinations, and the proposed leases and asked parties for comments. Following clarifying comments from parties in relation to the map, no party took issue with use of the map.
The native title party was due to provide its good faith material on 19 January 2015. On 16 January 2014, shortly after the s 150 conference, Ms Jacobsen emailed the Tribunal and parties, outlining the parties’ progress and requesting that directions be extended by three weeks. Having asked for the other parties’ viewpoints and considering the progress made, I amended directions on 16 January 2015 allowing a three week extension (to 9 February 2015) with subsequent dates adjusted accordingly.
On 5 February 2015, Ms Jacobsen asked parties for their viewpoints on a further extension of one week. The Government party had no issue with that extension but Mr Collins objected. I convened a directions hearing on 9 February 2015 to discuss the matter and hear parties’ viewpoints in further detail. Later that day, I issued amended directions allowing a four-day extension for the native title party, to 13 February 2015, with subsequent dates adjusted. Parties indicated that while progress had been made in the s 150 process, it was unlikely that agreement could be reached and as such, the s 150 convenors terminated that process on 27 February 2015. Parties were reminded that the s 150 process could be revived, or that parties could resume negotiations, with a view to reaching agreement, at any time prior to the Tribunal’s final arbitral decision.
The native title party submitted its good faith material on 13 February 2015 and due to technological complications, some items were received on the following business day (16 February 2015). I acknowledged the technological issue and accepted all material on that basis. The material broadly consisted of the following (see full list of annexures at Attachment A):
(a)Cover letter to the Tribunal from Ms Jacobsen;
(b)Statement by Ms Jacobsen dated 13 February 2015 with Annexures 1-33; and
(c)Statement of contentions with Annexures 1-13.
The grantee party submitted its good faith material on 18 February 2015, within the compliance period, consisting of a single statement of contentions.
On 5 March 2015, in compliance with the directions, the native title party provided its reply material (‘NTP Reply’), consisting of a cover letter amending some typographical errors in the statements, and a statement in reply with Appendix A (a copy of DNRM’s Native Title Protection Conditions), Appendix B (photographs of the first proposed lease taken on 14 January 2015) and Appendix C (photographs of the second proposed lease taken on 14 January 2015).
The Government party did not submit any material on the good faith issue.
The amended directions of 9 February 2015 provided for the option of a listing hearing and hearing on the good faith issue, subject to my consideration of whether it would be necessary. I asked parties to confirm on or before 5 March 2015 whether they wished for a hearing to take place, or whether the good faith decision could be made on the papers. All parties agreed that the decision could be made on the papers, and after considering the material before me in view of s 151(2) of the Act, I am satisfied it is appropriate to do so.

Legal principles

Negotiation parties are required to negotiate in good faith with a view to obtaining each native title party’s agreement to the doing of the future act. Good faith is not defined in the Act but the obligation is described in s 31 as follows:
31 Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with the view to obtaining the agreement of each of the native title parties to:
(i)     the doing of the act; or
(ii)    the doing of the act subject to conditions to be complied with by any of the parties.
Note:The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Negotiation in good faith
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3)If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
Information obtained in providing assistance not to be used or disclosed in other contexts
(4)      If the NNTT is the arbitral body, it must not use or disclose information to which it has had
access only because it provided assistance under subsection (3) for any purpose other than:
(a) providing that assistance; or
(b) establishing whether a negotiation party has negotiated in good faith as mentioned in
paragraph (1)(b);
without the prior consent of the person who provided the NNTT with the information.
Under s 30A of the Act, the ‘negotiation parties’ are the Government party, any grantee party and any native title party.
In Placer v Western Australia (at [30]), the following description of the relevant process was provided (note: references are to the Government party but the principles also apply to a grantee party):
Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’: Western Australia v Taylor [1996] NNTTA 34; (1996) 134 FLR 211 at 219 (‘Njamal’). Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Njamal as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour. Lack of good faith in the negotiations by the native title party will be relevant to whether the other parties have fulfilled their obligation and may impose a lesser standard on them.
The indicia mentioned in the preceding excerpt are those set out in Western Australia v Taylor (commonly referred to as the ‘Njamal indicia’). They are a series of guiding factors which can be taken into consideration when assessing the overall conduct in all the circumstances; they are neither a mandatory nor exhaustive list (see Adani Mining v Diver at [34]). The indicia are as follows:
(i)       Unreasonable delay in initiating communications in the first instance;
(ii)      Failure to make proposals in the first place;
(iii)     The unexplained failure to communicate with the other parties within a reasonable time;
(iv)     Failure to contact one or more of the parties;
(v)      Failure to follow up a lack of response from the other parties;
(vi)     Failure to attempt to organise a meeting between the native title and grantee parties;
(vii)    Failure to take reasonable steps to facilitate and engage in discussions between the parties;
(viii)   Failure to respond to reasonable requests for relevant information within a reasonable time;
(ix)      Stalling negotiations by unexplained delays in responding to correspondence or telephone calls;
(x)      Unnecessary postponement of meetings;
(xi)      Sending negotiators without authority to do more than argue or listen;
(xii)     Refusing to agree on trivial matters, for example, refusal to incorporate statutory provisions into an agreement;
(xiii)    Shifting position just as an agreement seems in sight;
(xiv)   Adopting a rigid non-negotiable position;
(xv)     Failure to make counter proposals;
(xvi)   Unilateral conduct which harms the negotiating process, for example, issuing inappropriate press releases;
(xvii)   Refusal to sign a written agreement in respect of the negotiation process or otherwise; and
(xviii)    Failure to do what a reasonable person would do in the circumstances.

Background

The native title party and the grantee party have been involved in negotiations over many years concerning various mining tenements, including the two subject to this good faith and inquiry process. The native title party explained that an integral component of the native title party and the grantee party’s history was in relation to former Indigenous Land Use Agreement (‘ILUA’) negotiations, summarised as follows:
·The Djungan People Small Scale Mining ILUA, operated between 2004 and 2009 as one of various ILUAs covering multiple tenements within the North Queensland Land Council ('NQLC') boundary.
·This ILUA applied to an eligible small scale miner who ‘opted in’ to the agreement. A vital criterion for eligibility was that a miner could hold tenements up to an aggregate coverage of 300 hectares.
·After expiry of that ILUA in 2009, the North Queensland Miners Association (‘NQMA’) and the State of Queensland renegotiated a new ILUA with similar terms during 2010 and 2011, but it has not been authorised by the Djungan People and thus is not currently registered.
·Some of the tenements intended to be covered by the new ILUA were applied for by the grantee party, but the grantee party did not meet the ‘small scale miner’ eligibility criterion.

An ongoing issue was the grantee party’s stated intention to have various tenements covered by the anticipated new ILUA, in contrast to the native title party’s communications to the grantee party outlining that he was not a small scale miner (that is, at that stage he held more than the aggregate of 300 hectares), thus the ILUA was not applicable to the negotiations (reference is made to letters dated 4 May 2011 and 9 September 2011; Annexure 4 and 7 to Ms Jacobsen’s Statement). The native title party states ‘the Grantee Party did not accept that the standards applicable to the SSM ILUA [Small Scale Miners ILUA] were only to be applied in the case of small-scale mining, and not to the scope of mining proposed under the Notified Tenements and the Subject Tenements’ (paragraph 20 NTP Contentions). Key events are summarised as follows:

Date

Event

21 March 2011

Letter from grantee party requesting tenement be subject to terms of original SSM ILUA

1 May 2011

Letter from the native title party outlining grantee party did not fall within criteria for SSM ILUA

14 December 2011

Notification date for the proposed leases

2 August 2012

Djungan People #2 determination made by the Federal Court

13 June 2013

Grantee party sent the native title party a draft ancillary agreement (prepared by the NQMA)

4 September 2013

Meeting between the grantee party and native title party

November 2013 – October 2014

Various communications between grantee party and native title party including offers and counter offers

December 2013 - January 2014

Grantee party reduced number of tenements such that only pursuing the proposed leases and ML20708; grantee party now eligible for SSM ILUA had it been registered. Native title party states it then approached negotiations as if the grantee party were a small scale miner and SSM ILUA was in place.

4 March 2014

Grantee party requested s 31(3) mediation in relation to the proposed leases

10 April 2014

NNTT mediation

10 June 2014

Grantee party advised of his intention to lodge a future act determination application in respect of the proposed leases

18 June 2014

NNTT mediation

9 July 2014

NNTT mediation

19 August 2014

NNTT mediation

12 September 2014

NNTT mediation

21 October 2014

Email from grantee party to native title party stating he would be seeking an arbitral outcome.

29 October 2014

Grantee party lodged s 35 future act determination application

Parties have provided information about the area of the proposed leases and activities involved. The grantee party has provided little specific information regarding the work proposed on the two leases. The native title party states that the grantee party intends to operate an underground ore body and establish a mill, dam and campsite as related processing infrastructure. This has not been challenged by the grantee party and appears to be confirmed by material the grantee party provided to the DNRM when application for the grant of the proposed leases was made. The proposed mining programs (Annexures 6 and 7 to NTP Contentions), which I note are undated and don’t specify the tenement, are said to convey that: each mine will be underground; the ore body will be drilled and blasted then removed and transported to the mill for processing; expected production is 40 tonne per day of treatable ore and the expected commencement is six months after grant; infrastructure requirements are a processing plant, camp accommodation, water dams, assorted machinery and explosives magazine. The public mining lease report for the first proposed lease (see Annexure 2 to NTP Contentions) outlines that the minerals/purpose are:
·Silver Ore
·Gold
·Living quarters/camp
·Mine waste/spoil dumps
·Processing Plant
·Platinum
·Tin Ore
·Tantalum/Tantalite
·Tungsten/Wolfram/Scheelite
·Water supply
There does not appear to be corresponding information for the second proposed lease, however, the proposed mining program for the first proposed lease refers to work on an underground mine, with machinery accessing the exposed ore body, a mullock dump (on an existing mullock dump site), with drilling, blasting, truck transport to an onsite mill (to be built) for processing. The mill itself will have features such as a jaw crusher, impact crusher, and a separating table, with 40 tonne of ore per day. A camp will also be needed, with water dams, machinery and explosives.
The native title party states that the grantee party has verbally insisted the infrastructure facilities will only be constructed on the second proposed lease, however, both mining programs provide for infrastructure facilities. The grantee party’s contentions convey that: at the time of production, he expects to engage up to seven employees; the proposed leases have previous ‘extensive mine workings on them’ (photographs of some existing workings said to be on each proposed lease are provided); the ground is predominantly bedrock and the surface area to be used has already been disturbed by previous mining operations; access roads exist providing access to and within the proposed leases (a photograph of an existing road said to be on each proposed lease is provided); and the mining operation is underground.

Grantee party contentions

The grantee party submitted a statement of contentions with photographs within that document, but no supporting material. As such, much of the information about the grantee party’s conduct is actually found within the emails, letters and other documentation submitted by the native title party. I note the native title party regards some of the grantee party’s photos as having insufficient resolution and so provided some photos of their own within its reply material, with the additional purpose of showing the Tribunal the topography of the proposed leases. The grantee party provided his perspective on some of the difficulties in negotiations, with limited detail, and some information about the proposed leases, but his contentions do not appear to respond specifically to the native title party’s contentions. The native title party, in its reply, contends that the lack of response to the substance of its contentions should be regarded as the grantee party’s acceptance of the matters detailed in relation to cultural significance and the importance of cultural heritage clearance.
I have dealt with cultural heritage issues in detail at [54] and [69], however, I do note here the grantee party’s comparative brevity and lack of response regarding heritage issues raised by the native title party. I do not assume that lack of response automatically amounts to acceptance from the grantee party, and instead rely on the factual content of materials provided by parties on which I must base my decision. The grantee party asserts that he believes he has acted in accordance with the good faith obligations (see [36] of this decision). He states that he requested the Tribunal’s mediation assistance to try and negotiate an agreement and that he ensured availability for all five mediation meetings (one where he missed the funeral of a family member). Noting that the grantee party’s contentions do not seem to respond directly to each of the native title party’s contentions, I shall refer to the grantee party’s material throughout this decision as relevant and appropriate.
The grantee party states that the main issue preventing agreement has been ‘money’, with relevant contentions summarised in the next four paragraphs.
The grantee party states that generally speaking, the amounts requested by the native title party were beyond what could be afforded, such that to comply with those amounts would render the mining operation economically unviable ‘with no point in going ahead with the mine’ (page 1 GP Contentions). The grantee party has not provided any breakdown of costs associated with the mine, or likely financial earnings from the mine. In relation to the grantee’s assertion, the native title party reply states there is nothing to satisfy the Tribunal that this statement is not just mere assertion, and they note that the grantee party did not disclose the financial basis for the proposed mining operations (see paragraphs 4-5 NTP Reply).
In relation to negotiations about cultural heritage inspectors (see below), the grantee party (at page 2 GP Contentions) states that the native title party wanted rates set by Powerlink Queensland (the State Government power utility). The grantee party distinguishes Powerlink Queensland and the grantee party in many respects. That is, Powerlink Queensland employs over 1000 people whereas the grantee party is ‘looking to employ up to seven people when in full production’; Powerlink Queensland is a price setter ‘who can afford to pay the fees as they recover their expenses from the end point user’ with earnings ‘in the hundreds of millions’ whereas the grantee party’s operation is speculative with high financial risks and the inability to set prices like Powerlink Queensland as ‘we are a price taker’; Powerlink Queensland’s inspections cover larger isolated areas of land (estimated coverage not specified) whereas the grantee party’s inspection areas are under 15 hectares.
The grantee party agreed to pay Powerlink Queenland's rate for cultural heritage inspectors (which he states was $128.00 per person per day more than was originally offered, and four inspectors, one extra than the original offer of three). The native title party query the reference to that rate and state that, if in fact the reference is to the decision in Queensland Electricity and Bonners, which sets out (at [12]) the cultural heritage monitoring rates from the Native Title Protection Conditions as they then were in 2006, then it is a ‘misrepresentation’ to refer the rates solely to Powerlink Queensland. The native title party outline that those rates were specific to the tenement types and circumstances of that particular decision. For example, they formed part of conditions for certain tenements under the expedited procedure, which are not relevant to a mining lease. The native title party outlines the current rates of the Native Title Protection Conditions (at Appendix A to its reply), and I note at the mediation on 9 July 2014, it was recorded that the cultural heritage rate being sought by the native title party is the rate set out in the Native Title Protection Conditions which applies to the grant of all exploration leases in Queensland. These conditions provide for four people to undertake a survey at the daily rate of $428.10 per inspector. It was recorded that the grantee party said he would be agreeable to the native title party’s offers in relation to cultural heritage survey rates and annual compensation, if the native title party accepted his offer on the windfall provision (also referred to as a production payment).
In relation to the windfall/production payment (see [53] below), the grantee party states the native title party originally requested a payment in the event of a financial windfall and that this request was then changed to a royalty payment. He states he could not afford the amount requested and the native title party did not accept what was offered. No specific figures are provided or reasons as to why the amount could not be afforded.
Another issue outlined by the grantee party was the time required for site inspections (although this would affect the monetary total to be paid under the agreement, it is described separately for ease). The grantee party states that he disagreed (and ‘will not agree under any circumstances’) with the native title party’s wish to have unlimited time for carrying out inspections. The grantee party describes his knowledge of mining operations which are situated one hour from the proposed leases, involving eight mining leases (one being five hectares, one being 25 hectares and the remainder at 45 hectares) with the same native title party, in which the native title ‘parties’ (it is not specified whether there is an additional native title party to the present native title party) ‘easily inspected two mining leases (about 90 hectares) in one day and three leases in one day’ (page 3 GP Contentions). No further detail about that arrangement was provided. The native title party has replied that the grantee party perception about the native title party wanting unlimited time is ‘simply false’ (paragraph 9 NTP Reply) and states that it also objects to Mr Collins’ explanation that he would pay for inspectors over certain periods on certain days and ‘if the remaining areas are not inspected in this time frame they will be deemed to be clear and can be disturbed’ (Letter dated 24 August 2014, Annexure 27 to Ms Jacobsen’s statement; see full explanation at [54] and [69] below).
Negotiations also addressed the construction of a dam site. The grantee party states that: a dam has existed in the proposed area (although does not specifically say where); the material used for that previous dam remains; and the intention is to use it again to construct the wall (a photograph is provided). In its reply, the native title party contends there is no evidence that a dam was previously in the location as depicted in the photograph. I agree that without further explanation or information, it is not possible from the photograph to discern whether a dam existed at this place or not. The grantee party explains that he objected to the native title party’s request to have two people present watching during construction of the dam because: (a) the materials have been used before; (b) the materials were brought from another location by truck due to limited material available on site; (c) the natural ground is bedrock; and (d) ‘any areas of significant importance will easily been [sic] identified in a single site inspection’ (page 6 GP Contentions). I note the native title party states it has not suggested the cultural heritage clearance was for the purpose of ‘watching the dam being built’ and as for (d), the native title party, in its reply, contends that it is mere assertion which should be rejected. The native title party states in its reply that it repeats its contentions regarding the irrelevance of past disturbance to the presence or absence of cultural heritage (see [70]).

Native title party contentions

Each negotiation process is unique, and while the Njamal indicia provide a guide which parties and the Tribunal can use to assess the conduct of parties during a negotiation process, issues raised will not always fit neatly under one or more of those indicia. This present matter is such a case. As shall be seen below, the issues the native title party raises largely fall under whether or not the grantee party’s conduct was reasonable in the circumstances (Njamal indicia xviii). The grantee party responses to the issues raised by the native title party are generally quite broad, and again, do not fit neatly into the Njamal indicia, or neatly under the good faith concerns raised by the native title party. The grantee party notes the information he was provided by the Tribunal in relation to negotiating in good faith. That related to the Njamal criteria, and was directed to, broadly speaking:
a)an obligation to communicate with other parties within a reasonable time
b)an obligation to make proposals to other parties with a view to achieving agreement and to respond by making comment or suggestion about counter proposals
c)to make inquiry of other parties if there is insufficient information to make an informed choice
d)to seek appropriate commitments to the process of negotiation
e)to act honestly and reasonably with a view to reaching agreement.
To assist in the analysis, I have looked carefully at the material, and provide below the nearest relevant Njamal indicia, as I saw them, for each of the issues raised. This was done in an attempt to assist parties to understand the reasoning behind the decision I make in this arbitral process.

Unreasonable delay in engaging right to negotiate procedure
Njamal Indicia (i) Unreasonable delay in initiating communications in the first instance

The native title party contends the grantee party ‘engaged in unreasonable delay in commencing negotiations with respect to the Subject Tenements, insisting on bundling the Subject Tenements with other tenements without regard to the fact that the terms of the original SSM ILUA did not extend to the aggregated tenements, or in the alternative failing to disclose that he proposed to sell or surrender some tenements to bring the Subject Tenements within the terms of the SSM ILUA’ (paragraph 50(a) NTP Contentions).
The background section of this decision (at [22]-[26]) is relevant regarding the proposed leases and ILUA negotiations. The native title party states that it initially communicated to the grantee party that he would not be eligible to opt in to any renegotiated small miners ILUA as the aggregate tenement areas he held exceeded the requirement of a 300 hectare maximum. It states that despite this, the grantee party continued to rely on that ILUA (up until the period when he did reduce his aggregate holdings in December 2013). The following communications are relevant:
(a)Letter dated 4 May 2011 from NQLC to Mr Collins listing 11 mining leases (ML20579-81, ML20635-39, ML20650-52, none of which are the proposed leases) in response to Mr Collins’ proposal that each of those leases be subject to the terms of the expired Djungan People Small Scale mining ILUA (Annexure 4 to Ms Jacobsen’s Statement). NQLC set out the definition of a small miner (being a person who ‘is not the holder of any number of Mining Leases that together allow mining on land in Queensland exceeding an aggregate total area of 300 hectares’), stated that Mr Collins holds in excess of 1,000 hectares, meaning he no longer meets the small miner criteria, and that those leases could not have been granted in their entirety under that ILUA. NQLC proposed to meet with him to negotiate terms of compensation, and to include the proposed leases with those negotiations, and set out budgetary information regarding a proposed negotiation meeting and community meeting.
(b)Letter dated 15 August 2011 from NQLC to Mr Collins (Annexure 5 to Ms Jacobsen’s Statement) listing 11 mining leases (none of which are the proposed leases). NQLC referred to a letter from Mr Collins’ dated 4 May 2011 regarding the 11 leases and, notably, the proposed leases. I note that Mr Collins applied for the proposed leases on 28 September 2010, and the Government party issued the s 29 notice in October 2011, with the notification date being 14 December 2011. NQLC explained that parties are required to negotiate in good faith and asked him to advise of suitable meeting dates and to advise their staff if he accepts the budget. I note in relation to budgets for meetings, no party has provided any particulars, so that does not form part of my consideration in this matter.
(c)Email dated 15 August 2011 from Mr Collins to NQLC (Annexure 6 to Ms Jacobsen’s Statement), in response to their 15 August 2011 letter, in which he states ‘I am awaiting for the completion of the agreement that is in the process now that Paul Crossland is negotiating on behalf of the NQMA. When I get a copy I will submit it to you’. Due to Mr Collins’ letter of 4 May 2011 referring to the proposed leases, I may infer that this email is also in relation to the proposed leases.
(d)Letter dated 9 September 2011 from NQLC to Mr Collins (listing 11 mining leases, none of which are the proposed leases) (Annexure 7 to Ms Jacobsen’s Statement). Among other matters, NQLC stated: their assumption that Mr Collins’ email of 15 August 2011 was referring to the new Small Scale Miners ILUA; the definition of a small scale miner is limited to a total aggregate of 300 hectares in mining tenement holdings; Mr Collins’ holdings still exceed 300 hectares (despite some changes to tenements between May-August 2011), which means he is not a small scale miner; the Djungan People are conscious that a number of tenements have been in notification for over 12 months and wish to meet with him to negotiate the terms of compensation for the impact of the proposed operations on their native title rights and interests; and instructions are to request mediation assistance from the Tribunal. The other matters mentioned in the 9 September 2011 letter are that: the budget had been sent in May 2011 from the native title party to Mr Collins; it is not known yet whether the budget was accepted; and they ask Mr Collins for suitable dates on which to meet with the native title party.
(e)Email dated 9 September 2011 from Mr Collins to NQLC (responding to (d) above) (Annexure 8 to Ms Jacobsen’s Statement), stating ‘I am waiting for the RTN agreement to be finalized. The defination [sic] of a small miner was the same in the old ILUA and we operated under that without any problem’. The email does not list the relevant tenements. I note the native title party provided a copy of the previous ILUA (see Annexure 5 to NTP Contentions), where ‘small miner’ was defined as, among other things, ‘not the holder of any number of Mining leases that together allow mining on land in Queensland exceeding an aggregate total area of 300 hectares’. However, without any further information about the grantee party’s holdings under this previous ILUA, it is not possible to draw any conclusions about previous agreements as compared with current negotiations.
(f)Email dated 15 October 2011 from Mr Collins to the Department of Employment, Economic Development and Innovation (‘DEEDI’, now DNRM) and Ms Jacobsen (Annexure 9 to Ms Jacobsen’s Statement), providing a response to DEEDI’s query of 14 October 2011 about the status of negotiations for ML20579-81, 20635-39 and 20641-52 (that is, 20 tenements, none of which are the proposed leases). Mr Collins replied ‘I have talked to the NQMA 10 days ago and the RTN agreement should be finalised by the end of this month. I will then send it to NQLC’. I note that Mr Collins is using the language of right to negotiate, rather than ILUA, and Ms Jacobsen’s statement contends that the ‘RTN Agreement’ referred to was in fact the negotiations in respect of the SSM ILUA.
(g)Email dated 18 April 2013 from Mr Collins to DNRM and Ms Jacobsen (Annexure 11 to Ms Jacobsen’s Statement), responding to DNRM’s query earlier that day about the current status of negotiations in relation to ML20579-81, 20635-39 and 20641-52 (that is, 20 tenements which do not include proposed leases). Mr Collins replied ‘I was waiting for the Ilua to be granted, I have had recent discussions with Paul Crossland of the NQMA about the ILUA, we where [sic] expecting it to be granted this year but he is now not sure if that is going happen so we may have to go back to RTN’.
(h)Letter dated 10 June 2013 from Mr Collins to the native title party (Annexure 12 to Ms Jacobsen’s Statement) regarding the proposed leases and 11 other tenements (ML20579-81, ML20635-39 and ML20650-20652), in which: he confirmed he wishes to proceed with the right to negotiate; he noted public notice for all listed leases has occurred and Nguddaboolgan Native Title Aboriginal Corporation RNTBC is the relevant native title party; and enclosed an ancillary agreement obtained from NQMA. The native title party notes that the ancillary agreement adopts financial provisions of the SSM ILUA and regards the provision of that agreement as amounting to a failure to acknowledge that he was not a small miner at this point (see [44] below).

I note that from the materials parties provided, including the native title party contentions at paragraphs 37-38, the draft ancillary agreement developed by the NQMA (provided on 10 June 2013 by the grantee party) is based on the essential terms of the SSM ILUA and it does not provide rates of compensation nor rates for cultural heritage inspections but the NQMA encourages proponents to negotiate those directly with the native title party.
The native title party contends that the correspondence above shows the grantee party persistently advised them that he was awaiting the outcome of negotiations and the authorisation of the Small Scale Miners ILUA, even after having received the explanation that he would not, at that time, be eligible to opt in to such an ILUA. The native title party contends that the grantee party’s continued reliance on an ILUA in the face of that information ‘constitutes unreasonable delay in engaging in the right to negotiate procedure’ (paragraph 53 NTP Contentions). Specifically, it contends that for a period of ‘over a year’ since the notification day of 14 December 2011, there was no good faith negotiation, as the grantee party ‘declined to negotiate other than on a basis which was not available to him’ (paragraph 54 NTP Contentions).
The substance of the native title party’s assertions is that there was delay in engaging with the right to negotiate process, rather than delay in responses/communications. Some of the correspondence above does not expressly refer to the proposed leases, though to the extent that negotiations concerning other tenements are related or had bearing on the proposed lease negotiations, then I accept that the material does indicate (a) the grantee party’s approach to mining leases involving the native title party exhibits a persistent preference for finalising the mining lease negotiations through an ILUA and (b) perhaps either his misunderstanding or non-acceptance over a prolonged period that the native title party view was that the ILUA process was not then available to him. The native title party clearly made various communication efforts to inform the grantee party that the ILUA was not then an available option.
In such a case, a reasonable course of action for the grantee party would be to take steps to verify and explain whether the tenement holdings comply with the ILUA eligibility criteria or not. Mr Collins had some contact with NQMA but the extent of advice is not known, and I note his correspondence to the native title party came directly from himself in a self-represented capacity. Without knowing what advice Mr Collins had from NQMA or elsewhere, if any, it is difficult to know whether his resistance to departing from the ILUA course was reasonably held, but in any case it did not appear to be explained to the native title party. On the material before me, I cannot be satisfied that Mr Collins took necessary steps to clarify his position, either for his own purposes or to the native title party. The question is, was this reasonable?
The amount of time attributed to this period of resistance is important in considering this issue of delay. The correspondence above indicates that the native title party foreshadowed inclusion of the proposed leases within the negotiations of Mr Collins’ mining leases as early as May 2011, eight months prior to the notification day. The notification period ended on 14 April 2012, the point at which the native title party, for the purposes of any negotiations in relation to these proposed leases, was confirmed (see s 30 of the Act). However, 14 months later (April 2013) the grantee party responded to the State advising the ILUA approach was no longer feasible and on 10 June 2013, sending an ancillary agreement, which the native title party asserts contains financial provisions taken from the SSM ILUA (see [39](h)). There is nothing inherently unreasonable as a starting point for negotiations to use those financial provisions, but the grantee party was on notice that they were unlikely to be accepted as they related to ‘small miner’ operations, and his were of a larger scale, at that time. I note that by December 2013, the grantee party had reduced his lease holdings so that he did fall under the provisions of the SSM ILUA. This reduction is explained in more detail at [63] of this decision, but for the purposes of this issue, suffice to say the native title party appears to focus its concerns regarding delay at the period between May 2011 and late 2013. That is, during that time, it says the grantee party negotiated as if he was eligible for the provisions of the SSM ILUA, when he was not so eligible until late 2013. The ILUA was not then, and still is not registered. However, the native title party communicated to the grantee party by January 2014 (once the lease holdings did fall within the definition of 'small miner') that it was willing to use the relevant provisions of the SSM ILUA as a basis for negotiations.
Mr Collins knew since approximately May 2011 that his holdings, at that time, exceeded the criteria of a small scale miner for the purposes of a renegotiated SSM ILUA yet did not commence negotiations until sometime later. I do not believe that this in itself is inherently unreasonable as Mr Collins was self-represented and may have been endeavouring to sell some tenements so he did fall under that ILUA or make some other arrangement so that the ILUA did apply. I do note the native title party specifies that the grantee party had not advised the native title party of any intent to reduce his holdings (even though the native title party believes he had been advertising the sale of all tenements through a website – see more detail at [63] below).
It was not ideal that the grantee party did not provide any reasons or information to the native title party about his endeavours during this time, but considering all the circumstances, I do not think it was inherently unreasonable that the negotiations were delayed in this way. My ultimate findings on the issue of good faith are, however, outlined in the conclusion of this decision.

Fixed and intractable negotiation position

Njamal Indicia (xiv) Adopting a rigid non-negotiable position

The Federal Court in FMG v Cox set out the principles which must be explored in relation to the issues the native title party raise concerning fixed and intractable negotiation positions. For example, the Court stated (at [24]) ‘it is not sufficient for good faith negotiations to merely “go through the motions” with a closed mind or a rigid or predetermined position’, and similarly (at [20]) ‘[i]t is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in negotiations’.
The native title party contends there were various instances in which the grantee party exhibited a fixed and intractable negotiation position concerning cultural heritage and the windfall/production based payment.
The first example put forward concerns the content of the ancillary agreement provided by the grantee party in June 2013. The native title party asserts that:
(a)the ancillary agreement is a simple adoption of the financial provisions of the original SSM ILUA, at rates which were current in 2004 (that is, the time of ILUA registration) rather than rates at the time of expiration in 2009 which had been CPI-adjusted;
(b)by providing that ancillary agreement, the grantee party failed to acknowledge that he was not (at that time) a small miner.
I have previously explored the argument at (b), so here focus on the argument raised in (a). I note that on 4 September 2013, the first negotiation meeting took place between the native title party and the grantee party. The native title party advised it could negotiate on the basis of the renegotiated SSM ILUA, but the annual compensation payment would be at a higher rate because the grantee party was not a small miner (at that time) because of his aggregate lease holdings.
The native title party contends that, throughout 4 September 2013 to 15 September 2014, the grantee party consistently withdrew from agreed terms or otherwise unilaterally withdrew offers he made before the native title party had been able to respond, with three sets of circumstances as follows.

Liaison committee

The native title party contends that changes in how often the grantee party wished to meet and the behaviour and tone of the exchange demonstrates a ‘belligerence toward the Native Title Party which can be interpreted as a lack of respect to them personally and a lack of respond [sic] for the obligation to act in good faith...’ (paragraph 64). The native title party refers to the following sequence of events:
(a)The grantee party initially agreeing at the 4 September 2013 meeting to meet regularly for the term of the agreement to monitor implementation. This assertion is supported by an email from NQLC to Mr Collins dated 19 December 2013, which states ‘Liaison committee: agreed to regularised meetings with the Djungan People to ensure implementation of the Agreement...’ (Annexure 17 to Ms Jacobsen’s Statement). I note there are no minutes of the meeting; however, the assertion has not been contested by the grantee party.
(b)By email dated 22 January 2014, Mr Collins responded to the 19 December 2013 email, annotating that he agreed to one meeting per year in Cairns or Mareeba with each party bearing their own costs (Annexure 18 to Ms Jacobsen’s Statement).
(c)Eight months later, Tribunal mediation occurred (19 August 2014) and the synopsis and outcomes (Annexure 9 to NTP Contentions) record ‘it was agreed that a meeting would happen once a year in Mareeba or Dimbulah or perhaps on site – to be coordinated by Mr Collins at the convenience of the parties’.
(d)Tribunal mediation occurred on 12 September 2014, and the synopsis and outcomes (Annexure 10 to NTP Contentions) record that parties discussed the proposed annual meeting and that ‘Mr Collins did not see the necessity of an annual meeting as he advised his willingness for ad hoc meetings if issues arise. The parties agreed to communicate two weeks prior the anniversary date [of grant] and determine if an annual meeting is required’.

Output based payment/windfall payment

As noted in Xstrata v Albury, the Tribunal must focus on the quality of the negotiations and not the substance of offers. This is reinforced in Adani Mining v Diver, in which the Tribunal stated (at [36(c)]) that ‘the Act does not require the Tribunal to evaluate the reasonableness of each proposal or counter-proposal or that negotiations have reached any particular stage’. The parties discussed this type of payment providing an additional financial benefit, proportionate to the miner’s financial benefit, if the miner reaches a certain level of sales. This payment is in addition to the annual payment made to a native title party in respect of cultural heritage as annual compensation. The native title party contends that the benefits the grantee party proposed reduced as the negotiation continued, with the result being a reduced counter offer from the grantee party following each time the native title party rejected an offer. The native title party regards the grantee party’s offers/approach as maintaining a fixed position on the threshold level for payment of an output-based payment (noting that the payment would be unattainable, if using the grantee party’s estimates) ‘so that the Native Title Party would never secure a benefit under this term, and then [the grantee party] progressively reduced the benefit under this proposed term’ (paragraph 76 NTP Contentions). The native title party further submits this conduct does not show a genuine desire to reach agreement. The grantee party has briefly provided his viewpoint on this issue (see [33] above). Events referred to by the native title party are as follows:
(a)In the draft ancillary agreement dated 13 June 2013 (Annexure 12 to Ms Jacobsen’s Statement), the grantee party offered to pay an additional output-based payment. Clause 13.2 reads ‘where the miner’s gross proceeds of sale identified in the royalty returns in relation to the Mining Lease exceed the Threshold Amount in any Financial Year (a “Windfall Year”) the miner will pay to the nominated body, an amount equal to 1% of gross proceeds of sale over the Threshold Amount’;
(b)The offer was restated in Mr Collins’ email dated 22 January 2014 (Annexure 18 to Ms Jacobsen’s Statement), when he responded to the native title party’s 19 December 2013 email (Annexure 17 to Ms Jacobsen’s Statement). Within that email, the native title party requested the windfall provision have a 2.5 per cent figure, which Mr Collins reduced to one per cent in his reply. Within Mr Collins’ email, in response to a request from the native title party (notably asking for a 2.5 per cent figure), Mr Collins further provided for an output-based payment ‘where this mining lease with one or more other mining leases together constitutes a Single integrated project and the miner’s gross sales, if any, for the single integrated project exceed the threshold amount in any financial year (a ‘windfall year’) the Miner Party will pay to the Nominated Body an amount equal to 1% of that portion of the Gross Sales which exceed the Threshold Amount’;
(c)At Tribunal assisted mediation on 18 June 2014, the native title party alleges the grantee party said words to the effect ‘...don’t see why we have to pay at all’. I note the synopsis and outcomes have not been provided by either party, but this assertion has not been disputed by Mr Collins;
(d)The grantee party provided a counter offer on 26 June 2014 (responding to an earlier counter offer from the native title party based on the grantee party’s asserted calculation of a rate of production producing approximately $14 million per annum in product value) by which the output based payment rates were 2.5 per cent over a threshold of $3.5 million for a single lease and 2.5 per cent over a threshold of $10 million for a single integrated project. As for the $14 million per annum product value estimation, the native title party asserts it queried that figure, and the grantee party then acknowledged the native title party’s calculation (based on his data) actually amounted to production of $4.16 million per annum, but no data or explanation was provided for his change in conclusion;
(e)At Tribunal assisted mediation on 19 August 2014, during which the parties were only discussing the single integrated project option, the grantee party counter-offered a rate of one per cent over a threshold of $5 million (as reflected in the synopsis and outcomes record, Annexure 9 to NTP Contentions, which indicates the native title party representative could not respond until the native title party was consulted);
(f)By letter dated 24 August 2014, the grantee party changed the proposal in (e) above, to a payment rate of one per cent over a threshold of $10 million for a single integrated project and one per cent over a threshold of $5 million (presumably for a ‘non integrated project’ proposal). The native title party regards this as representing ‘a retreat from the position the grantee party had previously adopted without any explanation or rationale for this retreat being provided to any of the parties or the mediator’ (paragraph 72 NTP Contentions).
(g)The native title party explains that eventually the native title party proposed an alternate model which integrated the years of operation with the gross sales and threshold levels, which the grantee party adopted in further exchanges of offers and in mediation.

Cultural heritage

The native title party describes two statements of the grantee party regarding financial arrangements for monitoring the initial ground disturbance of a dam site. The first statement was made by Mr Collins by letter dated 24 August 2014, as follows: ‘if we build a dam on MLA20672 I will pay 2 inspectors @ $428.00 per day for 1 day. We will pick them up from Mareeba, Dimbulah at 6:30am, supply sandwiches and drinks and return them. In the event they do not turn up when we go to collect them we can go ahead with putting in the dam’ (Annexure 27 to Ms Jacobsen’s Statement, enclosing an offer on the issue raised at a mediation on 19 August 2014).
The native title party states that Mr Collins wholly withdrew the proposal to contribute financially to the inspection and monitoring activities by later stating in an email dated 12 September 2014 ‘I would like to clarify my position on having 2 people present if we go ahead and build the dam...I agreed on the basis it’s at the native title parties cost...’. The native title party contends that it is ‘particularly distressed by the attitude of the Grantee Party in negotiations concerning cultural heritage’, compounded by the ‘unilateral withdrawal of offers’ prior to native title party having sufficient time to consider them (as outlined in (f) above and paragraph 72 and 77 NTP contentions).
I note for the mediation held on 19 August 2014 that the outstanding issues requiring resolution were the windfall provision, employment, communication, cultural heritage administrative fee, and issues concerning an access road close to the first proposed lease. Parties had exchanged communications since the previous mediation and Mr Collins confirmed that the estimate for gross sales would actually be $4.19 million rather than $14 million per annum. He estimated it would cost approximately $1 million and take 12 months to build the mill plant. The grantee party was not sure where the plant and dam would be located, and stated it would possibly be on the second proposed lease but the location would be determined after the shafts are opened.
The grantee party’s approach to cultural heritage could not be seen to have assisted reaching agreement with the native title party, particularly given that cultural heritage is central to the issues raised in this matter by the native title party.

Inconsistent information/unsatisfactory conduct relating to a change in position

Njamal Indicia:

(vii) Failure to take reasonable steps to facilitate and engage in discussions between the parties
(viii) Failure to respond to reasonable requests for relevant information within a reasonable time
(xi) Sending negotiators without authority to do more than argue or listen;
(xii) Refusing to agree on trivial matters, for example, refusal to incorporate statutory provisions into an agreement
(xiii) Shifting position just as an agreement seems in sight

The native title party contends that the grantee party delivered inconsistent and inaccurate statements, particularly in relation to: (a) the expected production of the proposed mine; (b) information about tenements he holds; and (c) the grantee party’s authority to negotiate.

Expected production

In relation to expected production, the native title party refers to the grantee party’s statement on 9 July 2014 that he expected his operations would produce gross sales of $14 million, accompanied with data. After the native title party examined that data and provided its own calculation of gross sales to be $4.16 million (communicated to the grantee party by email on 14 August 2014; Annexure 11 to NTP Contentions), the grantee party agreed with that conclusion by return email that day without explanation (as mentioned at [53](d) above).
The native title party also explains another communication of the grantee party’s that it characterises as ‘misleading’. By email on 14 August 2014, the native title party queried the data accompanying the grantee party’s estimation of gross sales, and stated ‘as I noted at the mediation, your estimates do not take into account the possibility of machinery breakdowns, weather events, illness and other matters that may hold up production’, to which the grantee party replied later that day (Annexure 11 to NTP Contentions):
With regards to the possibility of:
1.Machinery breakdowns: This will happen
2.Weather events: being underground mines the weather will not be as much of an issue as it is for alluvial mining. My biggest concern with the weather is us running out of water for the processing plant. I do believe this can be overcome by putting in a water bore.
3.ilnness [sic] and other matters that may hold up production: This will happen
My plan is to produce and process a minimum of 40 ton of ore per 12 hour day so when the above does happen I have enough in reserve to meet our expectations. When I am confident the plant is running properly and the extraction of ore is running smoothly I will run a night shift.

The native title party states that the final sentence above constitutes the only substantive response to qualify ‘his exaggerated calculations’ and notes that no time frame was provided as to when such accelerated production may occur (paragraph 86 NTP Contentions). The native title party contends the information was ‘at best, negligently misleading in the first instance and deliberately misleading in his response to the basis on which the Native Title Party was making calculations on which to make offers which would progress the negotiations’ (paragraph 87 NTP Contentions).
Overall, the figures regarding expected production lacked information and explanation on the part of the grantee party.

Tenement holdings

The native title party contends that the grantee party ‘deliberately provided misleading information as to his intentions’ regarding sale or retention of the proposed leases (paragraph 93 NTP Contentions). The native title party explains that, between 7 January 2014 to December 2014, it understood the grantee party to hold only three tenement applications that is, the two proposed leases and also ML20708, following the grantee party assigning twenty mining lease tenements to another party on 16 December 2013 (while the specific tenement identifiers are not provided, I assume these are the 20 tenements referred to at [39](f) earlier in this decision). At some point, ‘it came to the attention of the Native Title Party that the Grantee Party was advertising on the website for the sale of at least three tenements’ (paragraph 90 NTP Contentions). The native title party does not state what those three tenements were, perhaps because it was not specified on the website, but it leaves open the suggestion that those three for sale were perhaps inclusive of the proposed leases. The native title party says that it asked the grantee party during mediation on 19 August 2014 whether the proposed leases were either for sale or subject to negotiations for sale. The Tribunal’s synopsis and outcomes document records that ‘Mr Collins said that they were not’ (Annexure 9 to NTP Contentions). However, the native title party asserts that the grantee party has advertised the proposed leases for sale at least from December 2012 to the present, and refers to the affidavit of Mr Christopher Harris, solicitor, sworn 13 February 2015 (Annexure 13 to NTP Contentions).
This affidavit described Mr Harris searching for images on Google using the words ‘gold’ ‘mine’ ‘Mike Collins’ and compiling a series of images/descriptions from the search result on 10 or 11 August 2014. Mr Harris states that he accessed and that website reflects his compilation of images. The images convey that 22 mining leases (863 hectares on Hodgkinson River) and two mining leases (89 hectares on Campbell Creek) are either sold or for sale. However, I do not give weight to the information and Annexure provided by Mr Harris. The information was provided by entering certain search terms into a World Wide Web search engine, but there is nothing in the Annexures themselves, which are printouts from the web, which specifically link the information to either Mr Collins or to the two proposed leases which form the basis of this inquiry.

Authority

In Yellow Rock v Yugugna-Nya, Member McNamara (at [74]) summarised the Tribunal’s focus on authority in such negotiations as follows:
The issue of authority is not about whether people holding particular positions within the corporate entity comprising the grantee party attend meetings, but rather whether the persons who attend the meetings on behalf of the grantee party have the requisite authority to engage in substantive negotiations and not simply listen or argue. Then the question is whether the person representing the grantee party manifestly and objectively conducted themselves as if they had such authority.
I outline the following information in that context.

The native title party contends the grantee party ‘deliberately mislead the Native Title Party to believe he engaged in negotiations with the full authority to make offers and accept offers, and did not disclose the existence of other parties who also had some role in the project the subject of negotiations and upon whom the Grantee party was apparently required to consult before making agreement’ (paragraph 97 NTP Contentions). This contention is related to two statements, described by the native title party (including in its reply) as follows:
(a)During the 19 August 2014 mediation conference, the grantee party said he could not commit to certain points of negotiations (including output based payments) as he needed to confer with his ‘backers’; the native title party had not heard of the backers before and asked for information about them; and the grantee party ‘refused to disclose that information or any further information to the Native Title Party concerning the financial backing of the project on the basis that the information was commercial-in-confidence’ (paragraphs 94-95 NTP Contentions). I note there appears to be nothing about ‘backers’ in this synopsis, however, Mr Collins has not disputed this version of events in his contentions for this matter.
(b)At the 12 September 2014 mediation, the grantee party stated he needs to confer with his ‘backers’, as reflected in the synopsis record (Annexure to 10 NTP Contentions and further clarified in the NTP’s Reply material).
I note that at the 12 September 2014 mediation, further discussion was held about the windfall/production payment and Ms Jacobsen had taken instructions and noted that the native title party was willing to accept Mr Collins offer from January 2014 in relation to the payment. It is recorded that Mr Collins noted this offer no longer stands, referring to the costs of running a mine. A further arrangement was discussed and Mr Collins agreed he would discuss these amounts with his ‘backers’ and would forward an update by 15 September 2014.
The grantee party at times during the negotiations referred to his ‘backers’ but did not clarify who those backers were or their role. I do not believe this is reasonable conduct. As noted in Yellow Rock v Yugunga-Nya, (at [93]-[94] for example), inconsistent statements during negotiations, including during mediation can fall short of behaviour expected of a negotiation party and constitute a lapse in good faith. The native title party states that it was misleading that the grantee party engaged in negotiations and did not disclose the existence of other relevant parties until such a late stage. I appreciate that grantee parties may negotiate with others in relation to their tenements at any stage during an agreement-making process, or in relation to the grant and use of a tenement, and there may be various input needed by a grantee party from individuals or organisations relevant to a decision-making process. However, refusing to provide such information to a party to the agreement when requested is unreasonable in the circumstances. Information can be provided to an extent that does not release any commercial-in-confidence material but which can assist other parties to understand the nature and extent of any proposed involvement of others in the project. As noted earlier, my ultimate findings on the issues of good faith are outlined in the conclusion of this decision.

Viewpoint regarding cultural heritage and impact on native title rights and interests
Njamal Indicia (xvi) Unilateral conduct which harms the negotiating process, for example, issuing inappropriate press releases

Under the heading ‘disparagement of cultural connection’ the native title party contends the grantee party’s attitude and behaviour towards its cultural heritage and ‘unwillingness to acknowledge these values was belittling, antagonistic and lacking in respect toward the Native Title Party and the intent of good faith negotiations’ (paragraph 106 NTP Contentions). The native title party describes cultural heritage inspection as ‘one of the more contentious matters subject to negotiation’, and with particular reference to discussions about the time it would take to inspect the area and associated payments and people required, contends the grantee party maintains the viewpoint that cultural heritage clearances were not required due to the area having previously been mined. The native title party also contends there were issues of content and tone exhibiting distrust about the native title party undertaking any inspection in a timely manner. The native title party refers to the following:
(a)By letter dated 24 August 2014 to Ms Jacobsen (Annexure 27 to Ms Jacobsen’s Statement), Mr Collins offers two days of cultural heritage inspections covering three tenements (in total 63.65 hectares). After setting out what he is prepared to pay (that is, four inspectors for one day to inspect areas subject to disturbance on the proposed leases and ML20608, then four inspectors for an extra day to inspect the remaining area on all three leases), Mr Collins states ‘…if the remaining areas are not inspected in this time frame they will be deemed to be clear and can be disturbed’;
(b)Email dated 12 September 2014 from the grantee party to the native title party, Government party and Tribunal during the months of mediation involvement (Annexure 12 to NTP Contentions), in which the grantee party withdraws his prior offer regarding monitoring initial disturbance of the dam area. The email reads as follows (the text in bold is that which the native title party has drawn my attention to):
Atour [sic] last meeting the native title parties requested to have 2 people present if we are to go ahead and put in a dam.
I agreed on the basis it’s at the native title parties cost,
·       There is no legal requirement for me to do so
·       I have already paid four people to do a cultural inspection
·       The area has already had major disturbance
·       in our other mining operation and every other small miner site in Nth QED dirt is being dug up without the need and the cost of some one there, especially after a cultural heritage inspection has been done
The native title party states it made ‘consistent and emphatic attempts to explain that prior disturbance does not nullify any further disturbance’ (paragraph 103 NTP Contentions). The native title party notes the grantee party, within his contentions, repeats a matter at issue (that is, that the existence of surface disturbance is irrelevant to the question of whether there may be cultural heritage of significance in the area). I note the grantee party has included the following in his contentions: he notes that the surface area to be used has already been disturbed by previous mining operations (but does not state a conclusion about that impact on cultural heritage) and his view that ‘any areas of significant importance will easily [have] been identified in a single site inspection’ (pages 3 and 6 GP Contentions). The parties’ disparate views on the relevance of prior disturbance to the area is perhaps of greatest relevance to issues that arise in the context of s 39(1)(a)(v) within a substantive inquiry and the consideration of cultural heritage laws which are decisive on that issue. For the purposes of the good faith issue, which is the subject of this decision, it is clear parties hold differing views about the process of cultural heritage clearance, and how that clearance could be achieved in relation to the proposed leases subject to this inquiry.
The native title party raises several issues about the content of the grantee party future act determination application (with express reference to paragraph 11(7) of that form), contending at paragraphs 98-99 NTP Contentions:
It is evidence from his own application to the NNTT that the Grantee Party considers that there is no cultural heritage of any description on the subject tenements. It is also submitted that this misconception underlies his intransigent position with respect to cultural heritage payments. In his application, Item 11 paragraph 7, the Grantee Party refers to the existence of people who can state that no cultural activity has occurred on the subject tenement for 44 years.
This attitude demonstrates a fundamental misunderstanding of the nature of Aboriginal connection to country and the Grantee Party’s unwillingness to accept that although the area may be disturbed, it retains significance to the Djungan People. The recognition of native title over the area justifies a finding by the Tribunal that the area is subject to Djungan law and custom. It is submitted that failure to acknowledge or respect Djungan law and custom as it applies to the area is indicium [sic] of failure to negotiate in good faith, whether in itself, or if it has led to the adoption of an intransigent position in negotiations concerning cultural heritage protection.
The native title party also refers to paragraph 11(7) of the grantee party application (which asks for a statement of the effect of the act on various matters drawn from s 39(1)(a) of the Act), in which the grantee party states that an old couple who live near the second proposed lease and have lived in the area for many decades ‘have never seen native title parties carry out there [sic] culture and traditions in this area’.
Although not expressly referred to by the native title party, I also note other relevant aspects of the application in relation to cultural heritage. At paragraph 11(8), the grantee party states that he has done a search of the cultural heritage listing register and there are no listings. I take this to mean that there are no listings of cultural heritage sites within the proposed leases from the Department of Aboriginal and Torres Strait Islander and Multicultural Affairs’ records.
The native title party states in its reply that, due to the grantee party’s contentions not responding to the substance of the native title party’s contentions, ‘it is submitted that the grantee party accepts the matters complained of in relation to his approach to the cultural significance of the area and the importance of cultural heritage clearance...’ (paragraph 1 NTP Reply). While I do not wish to conclude that silence necessarily can be equated with acceptance, I do note that the native title party’s material on these points is uncontested and thus carries significant weight within this process.
The native title party also contends that the grantee party’s attitude and behaviour towards native title rights and interests and ‘unwillingness to acknowledge these values was belittling, antagonistic and lacking in respect toward the Native Title Party and the intent of good faith negotiations’ (paragraph 106 NTP Contentions). Specific reference is made to the grantee party’s purported understanding of native title rights and interests, referring to paragraph 11(7) of the application (see above) and paragraph 11(4) of the application, in which: the grantee party describes his viewpoint about the right to hunt, without any mention of other rights and interests; the native title party interprets this as evidence that Mr Collins views the native title rights and interests as being limited to hunting. Mr Collins states (at 11(4) of the application) that as the native title party ‘...prey is active prey they will be moving through, not stopping to seek refuge in our operations area’.
I note that the grantee party has evidenced a ‘take it or leave it’ approach in relation to cultural heritage. The views expressed by the grantee party have not assisted parties negotiate with a view to reaching agreement, as required by s 31(1)(b) of the Act, and in addition to connoting Njamal indicia (xvi), also echoes the indicia which counsels against a party adopting a rigid position (xiv).
Cultural heritage is not a tick-a-box affair and grantee parties must take seriously the rights and interests of the native title party in relation to heritage matters. Making statements such as if the inspectors ‘do not turn up when we go to collect them we can go ahead with putting in the dam’ and then further indicating that such activities are at the native title party’s cost, when he had previously agreed to pay inspectors, is unreasonable conduct. It is not the substance of the offers that in unreasonable, it is the nature of the conduct in the context of negotiations about the grant of a lease. A similar conclusion was reached in Cosmos v Mineralogy (at [91]), where the Tribunal said:
...to sum up, the grantee party has not fulfilled its requirement to negotiate in good faith with the second native title party. It has failed to do so because it adopted a rigid non-negotiable position based on a negotiating premise which itself failed to take account of the legitimate and long held concerns of the second native party concerning cultural heritage issues.

Conclusion

Section 31(1)(b) of the Act requires parties to negotiate in good faith with a view to obtaining the agreement of the native title party regarding the grant of the proposed leases. The Tribunal generally will not decide whether an offer was reasonable. The content of the offer is for the parties to decide. The Tribunal is more focussed on the conduct. In Strickland v WA, it was held that it was not possible for the Tribunal or the Court to decide whether an offer made was reasonable in an objective sense. In FMG v Cox (at [38]), the Full Federal Court held that:
[t]he Act does not dictate the content and manner of negotiations by compelling parties to negotiate in a particular way or over specified matters. Providing what was discussed and proposed was conducted in good faith and was with a view to obtaining agreement about the doing of the future act, the requirements of s 31(1)(b) will be satisfied’.
The process parties will follow, and the type of agreement they will pursue, is a fundamental aspect of negotiation. Reasonable action would involve back and forth communication about those fundamentals. On the material provided to the Tribunal in this matter, the approach of the grantee party seems to fall short of ‘communicating, having discussions or conferring with a view to reaching an agreement’ (see Western Australia v Taylor at 219). The number of meetings held is not crucial, it is the quality of the exchanges on procedural and substantive issues which is important, and which propels along the process of agreement making between parties. See for example, Coalpac v Gundungurra, at [103], where the Tribunal stated:
What is relevant is the quality of a party’s conduct. It is not sufficient for good faith negotiations that a party ‘go through the motions’ with a closed mind or a rigid or predetermined position.
As noted earlier in this decision, the activities the grantee party proposes are of a relatively substantial nature, involving building of infrastructure and mineral extraction. The project is estimated to generate between $4.16 million to $14 million per year, depending on whether the grantee party or native title party calculations are accepted, although I note the grantee party did accept the native title party calculations of $4.16 million. On grant, these proposed leases will exist for at least 21 years, with a possible extension of 21 years. As such, in applying for these proposed leases, Mr Collins has embarked on a substantial and serious undertaking.
This undertaking, by its very nature, includes the native title party. It must negotiate with the grantee party, and between them, the parties must strive to reach an agreement – a common understanding which will assist the needs and interests of both parties for years to come. It may take some years to reach agreement, and as noted, it is not the role of this Tribunal to assess the reasonableness of offers (see for example, FMG v Cox at [38]). It is the role of the Tribunal to assess the quality and reasonableness of parties’ conduct.

In engaging in negotiations, parties will expend time, human resources, and financial resources. They will sometimes need to seek advice or assistance from other persons or organisations. In this matter, I appreciate Mr Collins has represented himself in the negotiations. I also appreciate that a self-represented grantee party such as Mr Collins will be able to make offers and conduct negotiations on a different scale to that of a large, multinational corporation. For example, in Doxford v Barnes at 424-425, the Tribunal noted:
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. In this matter it is relevant to consider the financial circumstances of the grantee party and his overall capacity to engage in negotiations. A negotiation party with considerable resources, access to professional advice and the ability to organize and attend meetings will be required to act reasonably having regard to its ability to negotiate. Conversely the conduct of a negotiation party with limited resources, little or no access to professional services and difficulties in attending, let alone organising meetings, will be evaluated in that context. Reasonableness does not connote an inflexible and static standard of negotiating conduct.
I have assessed the material provided in this matter bearing all of that in mind. Nevertheless, to embark on a 21 year mining undertaking, it is incumbent on a grantee party to demonstrate and bring to the negotiating table an understanding of and genuine attempt to resolve those issues which are central to his needs and interests and those of the other parties, otherwise it will be impossible for parties to ever reach agreement.
Mr Collins made statements and comments which were not helpful to negotiations in relation to cultural heritage. It is unclear from the information provided by both parties whether Mr Collins had access to any independent information or expertise on this issue. Payment and timing of cultural heritage surveys became a sticking point. I do not believe it was reasonable for Mr Collins to state he would proceed to build a dam, or do other activities on the leases, on the basis that surveys would not be done in some circumstances, or not done within his specified timing. It could be reasonably expected that cultural heritage issues would form part of the negotiations in relation to the grant of a mining lease. FMG v Cox set out (at [35]) that (emphasis added):
[The grantee party in this matter submitted] that the Act does not circumscribe the subject matter of the s 31(1)(b) negotiations provided that they are conducted in good faith with a view to obtaining the agreement of the native title party to the doing of the future act. There is some guidance from the statute as to the matters which might be canvassed in negotiations. Section 39 lists a variety of matters which, it has been held, may provide some guidance as to those that may reasonably be expected to form part of the negotiations (see Brownley 95 FCR 152 at [24]–[25]. However, the manner in which they are dealt with (apart from a good faith obligation with a view to obtaining agreement), is not prescribed.
Cultural heritage is one of the variety of matters woven through the s 39 list. Cultural heritage could be expected to, and has come up, in the negotiations of the two proposed leases in this matter. The grantee party’s comments and attitude as expressed in his negotiations has not been consistent with the legislative system in place in the State of Queensland. Nor is it consistent with what a reasonable person would do in the circumstances, when trying to reach agreement with a native title party, and particularly one which has a determined outcome over the relevant land, including an area of exclusive native title rights and interests, concerning a central aspect to negotiations about the grant of a tenement.
For example, this matter can be considered in the context of Coalpac v Gundungurra, in which the allegation was the grantee party had not allowed the native title party to conduct cultural heritage surveys. It was noted that there was an existing Aboriginal Archaeology and Cultural Heritage Impact Assessment on part of the area covered by the inqury, and the grantee party was willing to accommodate further cultural heritage investigation into the remaining part of the tenement, which had no previous such Assessment. In this present matter, it appears no cultural heritage surveys have been conducted. Yet the grantee party appears to have persisted in presenting view’s such as because a neighbour in the area had not seen evidence of native title party activity or because the area had been subject to mining in the past, his endeavours would not lead to disturbance of the proposed leases for cultural heritage purposes. I conclude this is an uninformed perspective, and does not indicate the grantee party had properly prepared for the negotiations in relation to cultural heritage.
The final round of correspondence between the native title party and the grantee party was not particularly helpful to the negotiations and suggests a level of frustration from both parties. It consisted of a letter from the former on 13 October 2014 (Annexure 31 to NTP Contentions), which is four pages in length and notes that the representative has instructions to respond to the grantee party’s counter offer contained in his email of 15 September 2014. In its letter, the native title party goes through the information in some detail and weighs up the information provided by the grantee party in relation to the windfall/production payment. It notes the various models the parties discussed and that the grantee party had adopted the latest model in his 15 September 2014 offer. By letter dated 13 October 2014 (Annexure 31 to Ms Jacobsen’s Statement) the native title party states that Mr Collins’ latest counter offer ‘is confused insofar the years 5 and 7 overlap on two occasions’ and thus it was not clear which years were aligned to which payment.
The native title party then restated its offer made on 12 September 2014 for both a single integrated project and a single mining lease, should the integrated project not proceed. In relation to cultural heritage protection this correspondence of the native title party refers to the camp, plant and dam infrastructure which was proposed and notes the grantee party’s intention is to establish those facilities on the second proposed lease. The native title party states (at page 3 of Annexure 31 to the Statement of Ms Jacobsen) ‘we acknowledge that your stated intention is to establish those facilities only on ML20672, nevertheless, the grant of each of the leases will include the right to establish those facilities on both mining leases irrespective of whether or not that right is exercised. The rights granted to the surface area of the tenement apply to the whole of the tenement area and although you currently envisage locations for the infrastructure, it is entirely conceivable that the locations may change. Further, you assert that prior disturbance infers an absence of cultural heritage’. I do note the grantee party has not provided any firm plans or information about the location of the infrastructure, apart to state his belief that a dam had existed previously and the new dam may be built on that same area.
The native title party also outlines the cultural heritage terms acceptable to the native title party, which is four people paid at the rate of the Native Title Protection Conditions for inspections and two people paid at the rate of the Conditions for monitoring activities (that is, disturbance to top soil to a depth of one metre). The letter concludes ‘we look forward to your acceptance of the terms above at which time I will amend the draft ancillary agreement to reflect the agreed terms in preparation for execution of the parties’ (13 October 2014 letter; Annexure 31 to Ms Jacobsen’s Statement). By that statement, I assume this is the native title party final offer in relation to those issues. Whether this was the case, and whether there was any opening for further negotiation, may have been expressed more directly, although throughout the matter the native title party had provided much detail in relation to each proposal it put forward, and in relation to each response to the grantee party offered.
The grantee party replies on 21 October 2014 (Annexure 32 to Ms Jacobsen’s Statement) by simply stating ‘after reading the RNTBC reply, as the RNTBC has worked out what a small underground mine such as ours can pay what they are asking, then they should put up their own money and have a go at mining themselves. As per my last email, we have not been able to come to agreeable terms and I will now be going to arbitration’. The grantee party response did not outline any further information, or any detailed response in relation to the windfall/production payment or cultural heritage terms put forward by the native title party.
The native title party representative provided a copy of the whiteboard notes from the RNTBC representatives who had participated in negotiations (the RNTBC met on 7 November 2014; Annexure 33 to Ms Jacobsen’s Statement) and the RNTBC felt that the following were at issue in relation to the grantee party negotiations with the native title party: there was nothing concrete at the table, always undecided and information was ‘slippery’; there were ‘wrong figures in his calculations’; the attitude that the ‘Djungan people will listen to him and take his offer and not listen to Djungan people position’; ‘Djungan people in negotiations felt he was arrogant, disrespectful, belittle, and demeaning of Djungan people’; and ‘Djungan people respect land and he didn’t try to see how we see land’.
The native title party contends (at paragraphs 46 and 47 NTP Contentions) that an absence of good faith can include attempting to make an agreement other than on specific terms and/or providing false or misleading material. The native title party states (at paragraph 50 NTP Contentions) that the grantee party adopted a fixed and intractable negotiation position regarding cultural heritage surveys and windfall/production payments. They also stated that he engaged in ‘tricky and otherwise unsatisfactory conduct’ by providing material then retracting the information and presenting a different position without acknowledgment or explanation about the change of position or providing any reasons.
In Cosmos v Mineralogy (at [23]), the Tribunal noted:
What is reasonable in any given context depends on a range of factors and circumstances. The capacity of the parties, the external environment in which they are operating, the behaviour exhibited during the negotiations and even the past history of their relations, are all relevant in ultimately assessing whether a negotiation party had engaged in good faith negotiations
I noted earlier in this decision that the grantee party is self-represented. It appears he has had some contact with NQMA as he provided a copy of the NQMA draft ancillary agreement to the native title party. The NQMA and the Government party negotiated the now expired ILUA which previously regulated such small mining tenements. As such, they would have expertise in relation to these issues. It is not clear the extent to which the grantee party in this matter consulted with, or obtained information from, the NQMA. It is not clear the extent to which the grantee party obtained information or advice from any person or organisation. While there is no onus or duty on any party to obtain such, there is an onus on parties to negotiate in good faith. To a reasonable person, this would mean coming to the negotiation table in as timely manner as possible, to engage in the relevant process, with information that was as clear and as well-prepared as possible, to allow other parties sufficient time to digest that information, and responding meaningfully to that information, in the interests of working towards agreement to matters relevant to the grant of the proposed leases.
In Mentyn v Law Society, Slicer J noted (at [62]) that ‘various appellate courts have set out the duties of judges and tribunal members at first instance in dealing with and giving assistance to self-represented litigants’. Slicer J reviewed guidelines provided to self-represented parties by Tribunals, and suggested (at [63]) that the assistance provided by a Tribunal may include:
(i)identifying the issues which are central to the determination of the particular proceedings;
(ii)drawing a party's attention to the relevant legislative provisions and key decisions on the issues being determined;
(iii)asking a party questions designed to elicit information in relation to the issues which are central to the determination of the particular proceedings; and
(iv)assisting a party to conform to...procedural rules designed to avoid unfairness.
In the present matter, prior to the application for arbitration, parties had attended five Tribunal mediations, presided over by a Tribunal member. The parties, including the grantee party, had access to the Tribunal’s case managers to provide any clarification or assistance in the matter. The synopsis of each mediation session outlines that: the issues central to the matter were clarified on a number of occasions; legislation and the key decisions to be made were also clarified; and questions were asked of the grantee party (and other parties) to elicit information. Again, during this good faith arbitral process, including directions hearings in the matter: the issues were identified; the key decisions needed to be made in an arbitral sense were outlined; questions were asked; and parties were assisted to conform to the procedural rules of arbitration in order to avoid unfairness. During the arbitration process, parties, including the grantee party, again had access to the Tribunal’s case managers for assistance purposes. The grantee party had time to obtain information needed to progress the negotiations, and to present it in a manner which would advance the negotiations. In addition, in considering all circumstances, the native title party’s conduct can be taken into account in order to assess the reasonableness of other party’s conduct (see, for example, Placer v Western Australia at [30]). In this case, it appears that the native title party was generally diligent and reasonable in its attempts at negotiation and agreement-making since prior to the notification date of the proposed leases in 2011.
The grantee party has indicated he is intending to undertake the building of infrastructure, including a dam, plant and accommodation. This has been estimated to take approximately 12 months, and cost around $1,000,000. The output of the production has been estimated to be at least some $4,000,000 per year, and could run for 21 years or more. As such, I reiterate that it could be said this is a significant undertaking the grantee party has embarked on. The native title party has determined native title rights and interests of an exclusive nature on the second proposed lease and non-exclusive on the first proposed lease. The grantee party had the opportunity to obtain information and advice on what these rights and interests meant, for the purposes of such negotiations, from the Tribunal, from the NQMA, from the Government party, or any other relevant organisation.
The grantee party reply to the good faith allegations outlines that he attended all mediations, and that ‘money’ was the issue which parties could not agree on. He states that the amount the grantee could pay was increased ‘as much as possible’ and the amounts requested by the native title party would make the mine ‘unviable’. Yet little detail was provided throughout the negotiations in relation to those assertions.
As is mostly the case, whether a party has negotiated in good faith is a finely balanced decision, which is determined from a reconstruction of conversations, verbal exchanges, documentary evidence and other available information. In this matter, the grantee party did communicate with other parties within a reasonable time. However, in relation to proposals and counter proposals it appears that the grantee party provided, for the purposes of negotiations, information which was not accurate, or at best, was vague and not helpful to parties being able to reach agreement. For example, the likely location of the infrastructure was not detailed, the output-based figures were not detailed and it was the native title party who calculated that the figures were not accurate. While parties must make inquiry of each other where there is insufficient information, it appears at all times to have been incumbent on the native title party not only to check figures and information provided to them (which would be part of any due diligence in a negotiation process), but then to raise concerns with those figures, and propose models and threshold figures from their own calculations, which formed the basis of the further discussions. In relation to a commitment to the process, while the grantee party did physically participate at all times, it appears he would agree to certain points (for example, payment to monitors and inspectors), but then resile from that agreement, with no indication of why that change of mind had occurred, or whether it was counterbalanced by consideration of another part of the agreement terms.
As the Tribunal noted in Yellow Rock v Yugunga-Nya at [114]:
Accepting and adapting the ‘good faith’ analysis in Placer v Western Australia, good faith requires the grantee party to act with subjective honesty of intention and sincerity, but an objective standard also applies. The grantee party’s conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the grantee party as a whole and have regard to the Njamal indicia as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances.
I believe the grantee party did act honestly, in the sense that he believed or hoped that the information he was providing may be sufficient for he and the native title party to reach agreement, but I believe that belief was unreasonable given the scope of the works he intends to conduct on the proposed leases, together with the information which he did provide to parties, and which was provided to him, throughout the negotiation process. Moreover, it could not be said that meaningful discussion, conferral and necessary clarification took place in relation to some fundamental aspects of negotiations.
For the reasons outlined above and within this decision, I do not believe the grantee party has negotiated in good faith in relation to this matter for the purposes of ss 31(1)(b) and 36(2) of the Act, and so the Tribunal does not have power to determine the matter.

Decision
[100]I find that the grantee party has not fulfilled its obligation to negotiate in good faith with the native title party in relation to mining leases 20671 and 20672, as required by s 31(1)(b) of the Native Title Act 1993 (Cth), and the Tribunal does not have power to make a determination in relation to the future act determination applications. As such, the application is dismissed under s 148(a) of the Act, I will not be proceeding to make a substantive arbitral determination, and parties need to resume negotiations in good faith with a view to obtaining the agreement of the native title party as to the grant of the proposed leases, noting the possibility that a further s 35 application can be made in future (see Note to s 36(2)).

Helen Shurven
Member
25 March 2015

ATTACHMENT A – Native title party’s supporting documentation

Statement by Ms Jacobsen with Annexures 1-33:

1.A copy of the s 29 notice for ML 20641-52, ML 20635-39, ML 20579-81;
2.Letter dated 21 March 2011 from Mr Michael Collins to North Queensland Land Council (‘NQLC’) regarding ML 20650-52, ML 20635-39, ML 20579-81;
3.Letter dated 1 April 2011from NQLC to Mr Collins advising NQLC responding to his letter of 21 March 2011;
4.Letter dated 4 May 2011from NQLC to Mr Collins with ML 20650-52, ML 20635-39, ML 20579-81 in the subject line;
5.Letter dated 15 August 2011 from NQLC to Mr Collins (regarding ML 20650-52, ML 20635-39, ML 20579-81) referring to NQLC’s earlier letter dated 04 May 2011;
6.Email dated 15 August 2011 from Mr Collins to NQLC and Queensland Government (‘NQMA’);
7.Letter dated 9 September 2011 from NQLC to Mr Collins (subject line lists ml 20650-52, ML 20635-39, ML 20579-81) responding to his email dated 15 August 2011;
8.Email dated 9 September 2011 from Mr Collins to NQLC;
9.Email dated 15 October 2011 from Mr Collins to NQLC;
10.Email dated 16 April 2013 from DNRM to Mr Collins and NQLC regarding ML 20650-52, ML 20635-39, ML 20579-81 and section 31 deeds;
11.Email dated 18 April 2013 from Mr Collins to DNRM and NQLC responding to DNRM email of 16 April 2013;
12.Letter dated 10 June 2013 from Mr Collins to NQLC enclosing ancillary agreement obtained from NQMA;
13.Email dated 4 September 2013 from NQLC to Mr Collins regarding meeting on 4 September with Djungan People, attaching Schedule of Rates;
14.Email dated 6 November 2013 from NQLC to Mr Collins regarding 4 September 2013 meeting;
15.Email dated 13 November 2013 from Mr Collins to NQLC with subject line listing ML 20650-52, ML 20635-39, ML 20579-81 requesting NQLC’s email dated 4 September 2014 be resent;
16.Email dated 6 December 2013 from Mr Collins to NQLC with subject line ML 20650-52, ML 20635-39, ML 20579-81 and advising of intentions re the proposed leases and ML20708;
17.Email dated 19 December 2013 from NQLC to Mr Collins regarding the proposed leases and ML20708 and attaching:
a.       Windfall Payments information;
b.       Costs for Cultural Heritage;
18.Email dated 22 January 2014 from Mr Collins to NQLC regarding proposed leases and ML 20708 only providing annotations within the text of NQLC’s email of 19 December 2014 and attaching:
a.       Annotated Costs for Cultural Heritage;
b.       Annotated Windfall Payments information;
19.Letter dated 14 February 2014 from DNRM to NQLC providing notice of ML 20708 – enclosing:
a. S 29 notice for ML 20708;
b.       Mining Lease Report for ML20708
20.Email dated 12 March 2014 from the Tribunal to Mr Collins, NQLC and DNRM providing notification of mediation requested by Mr Collins (file number QM2014/0001);
21.Email dated 9 April 2014 from NQLC to NNTT, DNRM and Mr Collins regarding a mediation meeting scheduled for 10 April 2014;
22.Email dated 10 April 2014 from Mr Collins to NQLC, DNRM and NNTT regarding the proposed leases and 20708;
23.Email dated 10 June 2014 from Mr Collins to NQLC, DNRM and NNTT notifying of intention to lodge arbitral application for the proposed leases;
24.Email dated 11 June 2014 from the Tribunal to all mediation parties regarding scheduling a mediation meeting on 18 June 2014; the email chain below includes an email from NQLC to the Tribunal, Mr Collins and DNRM responding to Mr Collins’ email of 10 June 2014;
25.Letter dated 26 June 2014 from Mr Collins addressed to all parties regarding mediation matter QM2014/0001 and detailing an offer;
26.Email dated 22 August 2014 from NQLC to the Tribunal, DNRM and Mr Collins providing an update relevant to the mediation process;
27.Email from Mr Collins to NQLC and the Tribunal regarding the next mediation meeting advising of intention to seek arbitration if no agreement can be reached at that meeting, enclosing his letter of offer dated 26 June 2014 (see Annexure 25 above);
28.Email dated 15 September 2014 from Mr Collins to NQLC providing a counter offer regarding windfall payments and dam inspection;
29.Letter dated 30 September 2014 from NQLC to Mr Collins responding to his counter offer of 15 September 2014 regarding the proposed leases and ML20708;
30.Email dated 30 September 2014 from Mr Collins to NQLC, responding to a letter from NQLC sent earlier that day, noting intention regarding seeking arbitration;
31.Letter dated 13 October 2014 from NQLC to Mr Collins regarding the proposed leases and ML 20708, referring to NQLC’s 30 September 2014 letter and Mr Collins’ counter offer of 15 September 2014;
32.Email dated 21 October 2014 from Mr Collins to NQLC regarding NQLC’s letter of 13 October 2014 and his intention to seek arbitration;
33.Handwritten notes with ‘Djungan People’ and 7 November 2014 written up the top.

Native title party’s statement of contentions with Annexures 1-13:

1.A copy of Logan J’s judgment Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801;
2.Letter dated 9 December 2011 from DNRM to Native Title Claimants c/- North Queensland Land Council Native Title Representative Body Aboriginal Corporation (NQLC NTRBAC) enclosing s 29 Notice and mining lease report for the proposed leases;
3.NNTT Overlap Analysis Report for the first proposed lease as at 23 October 2014;
4.NNTT Overlap Analysis Report for the second proposed lease as at 23 October 2014;
5.Letter dated 31 May 2004 from DNRM to NQLC NTRBAC regarding Small Scale Mining ILUA (Djungan People) enclosing:
a. Registered ILUA Summary from NNTT website accessed 7 August 2007;
b. A signed copy of the Small Scale Mining and Exploration Activities North Queensland Area – Djungan – An Area Agreement under Subdivision C Division 3 Part 2 of the Native Title Act 1993’
6.Proposed Mining Program (undated and with no tenement reference);
7.Proposed Mining Program (undated and with no tenement reference);
8.NNTT Synopsis and Outcomes document for 9 July 2014 mediation conference;
9.NNTT Synopsis and Outcomes document for 19 August 2014 mediation conference;
10.NNTT Synopsis and Outcomes document for 12 September 2014 mediation conference;
11.Email dated 14 August 2014 from Mr Collins to NQLC, NNTT and DNRM responding to NQLC’s email of 14 August 2014 (regarding calculation regarding production calculations);
12.Email dated 12 September 2014 from Mr Collins to NQLC, NNTT and DNRM regarding dam construction on the second proposed lease;
13.Affidavit sworn13 February 2015 of Mr Christopher Daniel Harris, Solicitor, enclosing Annexure A (compilation of Google search results).

Date	Event
21 March 2011	Letter from grantee party requesting tenement be subject to terms of original SSM ILUA
1 May 2011	Letter from the native title party outlining grantee party did not fall within criteria for SSM ILUA
14 December 2011	Notification date for the proposed leases
2 August 2012	Djungan People #2 determination made by the Federal Court
13 June 2013	Grantee party sent the native title party a draft ancillary agreement (prepared by the NQMA)
4 September 2013	Meeting between the grantee party and native title party
November 2013 – October 2014	Various communications between grantee party and native title party including offers and counter offers
December 2013 - January 2014	Grantee party reduced number of tenements such that only pursuing the proposed leases and ML20708; grantee party now eligible for SSM ILUA had it been registered. Native title party states it then approached negotiations as if the grantee party were a small scale miner and SSM ILUA was in place.
4 March 2014	Grantee party requested s 31(3) mediation in relation to the proposed leases
10 April 2014	NNTT mediation
10 June 2014	Grantee party advised of his intention to lodge a future act determination application in respect of the proposed leases
18 June 2014	NNTT mediation
9 July 2014	NNTT mediation
19 August 2014	NNTT mediation
12 September 2014	NNTT mediation
21 October 2014	Email from grantee party to native title party stating he would be seeking an arbitral outcome.
29 October 2014	Grantee party lodged s 35 future act determination application