Mt Gingee Munjie v Victoria and Others - [2003] NNTTA 125

NATIONAL NATIVE TITLE TRIBUNAL

Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, [2003] NNTTA 125 (22 December 2003)

Application No: VF03/1

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into a Future Act Determination Application

Mt Gingee Munjie Resources Pty Ltd (Applicant/grantee party)

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The State of Victoria (Government party)

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Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People (VC97/4) (native title party)

DECISION IN RELATION TO PRELIMINARY ISSUE

DECISION IN RELATION TO WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

Tribunal: Hon C J Sumner, Deputy President
Place: Melbourne

Date: 22 December 2003

Catchwords: Native title – future act – application for determination in relation to a mining licence – split in claim group – definition of ‘native title party’ – each person named as the applicant is not a separate native title party – ‘native title party’ is all persons comprising the applicant and registered native title claimant – separate representation of individual named applicants considered – individual named applicants no standing to challenge good faith negotiations without authority of claim group – good faith negotiations – obligation to negotiate in good faith with native title party – no obligation to negotiate separately with individual named applicants – failure of native title party to negotiate in good faith – Government party’s obligation to negotiate in good faith where excluded from negotiations by native title party – no obligation to fund native title party to negotiate – content of obligation to negotiate in good faith conditioned by circumstance of grant and local practice – general policy discussions may be relevant – Government and grantee parties have negotiated in good faith.

Legislation:Native Title Act 1993 (Cth) ss 24MD(6), 25-44, 29, 30(1)(a), 30A, 31, 35, 36, 38, 41A(1)(a), 57, 61, 66B, 109, 139, 151, 203FE(1), 251B, 253
Mineral Resources Development Act 1990 (Vic), ss 15, 25

Cases:Ben Ward and Others/Swiftel Ltd/Northern Territory, NNTT DO01/83, [2002] NNTTA 104 Mr John Sosso, 12 June 2002
Gary Dimer and Others; Elizabeth Sambo and Others; Anne Joyce Nudding and Others/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17, NNTTA 117 Hon C J Sumner, 18 November 2003.
Green v Daniels (1977) 51 ALJR 463
Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 (17 September 2003)
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 Hon C J Sumner, 22 June 2001
Placer (Granny Smith) Pty Ltd & Anor v Western Australia & Others (1999) 163 FLR 87 (21 December 1999)
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, [2000] NNTTA 75 Hon C J Sumner, 24 February 2000
Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, Hon E M Franklyn QC, 27 August 1999
Robin John Yarran on behalf of Ballardong; Reg Yarran on behalf of Ballardong; Reg Hayden on behalf of Ballardong/Hamill Resources Ltd & Others/Western Australia, NNTT WO01/187 and Others, [2003] NNTTA 99 Hon C J Sumner, 11 September 2003
Strickland & Anor v Western Australia (1998) 85 FCR 302
Timothy Glen Summons/Victoria/Graham (Bootsie) Thorpe and Others, NNTT VF02/2, [2003] NNTTA 66 Hon C J Sumner, 16 April 2003
Victorian Gold Mines NL/Victoria/Graham (Bootsie) Thorpe and Others, NNTT VF02/1, [2002] NNTTA 130 Hon C J Sumner, 4 July 2002
Western Australia/Arthur Dimer & Ors (Ngadju People) and Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited, NNTT WF99/10, [2000] NNTTA 290 Ms Patricia Lane, 9 August 2000
Western Australia v Daniel (2002) 172 FLR 168
Western Australia/Richard Guy Evans & Others/Anaconda Nickel Ltd & Others, NNTT WF98/267 & Others, [1999] NNTTA 203 Hon C J Sumner, 15 July 1999
Western Australia/Strickland & others; Champion & others/Glengarry Mining Ltd, NNTT WF98/8, Hon C J Sumner, 21 September 1998
Western Australia/M Strickland and J Nudding & Others; M Forrest, A W McKenzie and M O’Loughlin & Others/D R Crook and GK Edson, NNTT WF98/5, Kim Wilson, 11 August 1998
Western Australia v Taylor (1996) 134 FLR 211
WMC Resources & Anor v Evans (1999) 163 FLR 333

Words and Phrases: ‘applicant’

‘registered native title claimant’
‘native title party’
‘negotiate in good faith’

Hearing Date: 13 November 2003

Counsel for the
grantee party: Ms Georgia Denisenko, Just Outcomes (Aust) Pty Ltd

Counsel for the
Government party: Ms Jennifer Jude, Victorian Government Solicitor

Counsel for the

native title party: Dr Cecilia O’Brien

REASONS FOR DECISIONS ON PRELIMINARY ISSUE AND JURISDICTION

Background

On 6 January 1997, Mt Gingee Munjie Resources Pty Ltd (‘the grantee party’/‘MGM’) applied for mining licence MIN5180 (‘the mining licence’) under s 15 of the Mineral Resources Development Act 1990 (Vic) (‘the MRDA’).
On 24 September 1997, the State of Victoria (‘the Government party’) gave notice in accordance with s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘the NTA’) of its intention to grant the mining licence.
The grant of the mining licence under s 25 of the MRDA which is proposed to be for a term of five years is a future act and cannot validly be done unless the right to negotiate provisions of the Act are complied with (Subdivision P of Division 3 of Part 2 (ss 25-44)).
The land which is the subject of the mining licence application falls within the boundaries of Crown allotment 12, Section 4, Parish of Jirnkee, County of Dargo, and totals an area of 26.1 hectares. It is in the Gippsland region, approximately 2.5 kilometres south of Cassilis and within the Cassilis Historic Area which is an historical gold mining region dating back to the mid 1800s. The area which will be affected by the grant is predominantly natural bush land. The land is Reserved Forest under the Forests Act 1958 and was originally dedicated as such under the provisions of earlier legislation. The s 29 notice says that, subject to approval, work under the proposed mining licence may include underground mining and exploration, milling and ore processing. The grantee party in its s 35 application says that while mining may take place in the future its proposed initial utilisation of the area is as a transport route for ore mined out of and processed in Mining License MIN5335 which is located immediately to the north of proposed MIN5180 and held by Duval Dene, a subsidiary of the grantee party. Ore needs to be transported from MIN5335 on a track which passes through proposed MIN5180 to a processing plant on a nearby hill and which the grantee party expects will require some upgrading. Some limited exploration will also be undertaken on MIN5180 in order to meet the conditions to be imposed by the Government party on the grant.

Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose and Robert James Farnham are the registered native title claimant over an area which includes the area of the mining licence and are the native title party in these proceedings (Native title determination application VG6007/98 (Tribunal Claim No VC97/4) made and originally registered on 4 April 1997 and amended and registered under the 1998 amendments to the Act on 1 April 1999). For reasons which appear below the technically correct description of these persons is ‘persons who are (or comprise) the applicant for native title’ or ‘who are (or comprise) the registered native title claimant and native title party’. Common usage, however, including in the Federal Court and Tribunal decisions often more loosely refers to them as the applicants or named applicants for native title or as the registered native title claimants.
On 31 July 2003, being a period of 6 months after the s 29 notice was given, the grantee party made an application to the Tribunal under s 35 of the Act for a future act determination (‘the s 35 application’).
Section 31 of the Act imposes an obligation on all negotiation parties (i.e. the Government party, the grantee party and the native title party) to negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the act with or without conditions. If an agreement of the kind mentioned in paragraph 31(1)(b) of the Act (referred to in these proceedings as ‘a s 31 Deed’) has been made, the Tribunal must not make a determination (s 37). A copy of the agreement must be given to the Tribunal (s 41A(1)(a)). No s 31 Deed between the negotiation parties relating to the grant of the mining licence has been made and given to the Tribunal and the Tribunal must conduct an inquiry (s 139) and make a determination (s 38).

Preliminary proceedings

At the preliminary conference held on 2 September 2003 to consider directions for the conduct of the inquiry it was clear that a division in the claim group that had existed during previous future act inquiries remained (see Victorian Gold Mines NL/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham on behalf of the Gunai/Kurnai People, NNTT VF02/1, [2002] NNTTA 130 Hon C J Sumner, 4 July 2002 (‘Victorian Gold’); Timothy Glen Summons/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham on behalf of the Gunai/Kurnai People, NNTT VF02/2, [2003] NNTTA 66 Hon C J Sumner, 16 April 2003 (‘Summons’)). The Register of Native Title Claims says that the claim ‘is made jointly on behalf of the Aboriginal people who are the custodians of land owned traditionally by peoples known as the Gunai/Kurnai people “native title claim group”’. Despite this description the claim group has split into what for convenience only I will refer to as two factions. Of the persons named as the registered native title claimant Graham (Bootsie) Thorpe and Robert James Farnham are in the Gunai faction and Lindsay Gordon Mobourne and Regina Lillian Rose are in the Kurnai faction. In the previous inquiries I accepted that, although not persons named as the applicant, Pauline Mullett was the spokesperson for the Kurnai faction and Albert Mullett was the spokesperson for the Gurnai faction. The Kurnai faction challenged Albert Mullett’s authority to speak for the Gunai faction on the basis, they say, that not only is he not a named applicant but he is also not legitimately a part of the claim group. In the previous matters it was clear to me that Albert Mullett asserted that he was part of the claim group and that those members of the Gunai faction that were present accepted that he spoke for them. He is also Chairperson of the Gunai /Kurnai Elders Council which, it is now alleged by Native Title Services Victoria (‘NTVS’) can speak for the claimant group as reconstituted at a meeting at Bairnsdale on 4 April 2003 (see below). I accepted in this matter that Pauline Mullett and Albert Mullett spoke for their respective factions. (Note: NTSV was funded to perform the functions of a Representative Body following withdrawal by the Minister of the recognition of Mirimbiak Aboriginal Nations Corporation (‘Mirimbiak’) as the Representative Body for the claim area as from 12 August 2003 (s 203FE(1).)
At the preliminary conference the Kurnai faction asserted that the Government and grantee parties had not negotiated in good faith as required by s 31(1)(b) of the Act and I made directions for contentions and documents to be produced to enable this issue to be determined (‘the good faith issue’).
Subsequently the Government party asserted that two only of the named applicants (i.e. from the Kurnai faction only) did not have authority to make a lack of good faith contention and that the Tribunal should therefore reject any such contention that was not made with the authority of the claim group as a whole. I gave directions to enable this issue to be determined (‘the preliminary point’).
On 21 November 2003 the Tribunal advised the parties that it had upheld the Government party’s submissions on the preliminary point but had nevertheless also determined that the Government and grantee parties’ had negotiated in good faith, with these reasons to be provided as soon as practicable.

Decision ‘on the papers’

The Tribunal is empowered to determine a matter on the papers (s 151 NTA) and considers that this process can be utilised for decisions preliminary to a right to negotiate determination inquiry. The Government and grantee parties submitted that both the preliminary point and the good faith issue should be dealt with on the papers. Dr O’Brien for the Kurnai faction submitted that an oral hearing was necessary because of the ‘novel’ arguments involved in the preliminary point as to who constituted the native title party and because in relation to the good faith issue certain facts were in dispute which required a hearing to resolve. Although the Government party thought the disputed facts were relevant and important to the Tribunal’s decision on good faith it considered that they could be resolved by correspondence and discussions with the native title party. I determined that the most expeditious way of handling the disputed facts issue and at the same time providing the Kurnai faction with an opportunity to fully put its argument was to convene an oral hearing. The hearing was conducted in Melbourne on 13 November 2003. The Government and grantee parties and the Kurnai faction were legally represented and a number of persons from the Kurnai faction were also present. No representative of the Gunai faction appeared.

The preliminary point

Section 36 of the Act says that if any negotiation party satisfies the Tribunal that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b) of the Act then the Tribunal must not make a determination. A negotiation party is defined as the Government party, any native title party and any grantee party (ss 30A, 253). The question raised by the preliminary point is whether the Kurnai faction only is a native title party with authority to assert that the other parties did not negotiate in good faith.
The Government party’s submission was that Regina Rose and Lindsay Mobourne do not simply by being two of the named registered claimants on the native title application have authority to bring a lack of good faith contention. Ms Jude for the Government party argued that the native title applicant is a single entity and that it is not open to each registered claimant (or more accurately each named person comprising the applicant and registered native title claimant) to act severally in relation to bringing a lack of good faith contention. Rather the applicant (the native title party) must act jointly. The submission relied on a number of Tribunal decisions in which the Tribunal found that a native title party was the registered native title claimant acting on behalf of the claim group collectively and not each individual person named as comprising the applicant and registered native title claimant.
The cases relied on by the Government party are:

Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, [2000] NNTTA 75 Hon C J Sumner, 24 February 2000 at pps 7-11.
Dorothy Dimer & Ors on behalf of the Central West Goldfields People/Western Australia/WMC Resources Ltd, NNTT WO99/721, [2000] NNTTA 110 Hon C. J. Sumner, 6 March 2000 at pps 2-4.
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 Hon C J Sumner, 22 June 2001 at [19]-[20].
Victorian Gold at [9].
Summons at [14]-[23].

In the Ballardong matter (Robin John Yarran on behalf of Ballardong; Reg Yarran on behalf of Ballardong; Reg Hayden on behalf of Ballardong/Hamill Resources Ltd & Others/Western Australia, NNTT WO01/187 and Others, [2003] NNTTA 99 Hon C J Sumner, 11 September 2003) the Tribunal summarised the position(at [30]-[36] ):
‘[30]     The Tribunal has previously considered the issue before it in these proceedings in the context of whether a person or persons named as part of the applicant for a native title determination are entitled to separate representation in right to negotiate inquiries. In Placer (Granny Smith) Pty Ltd and Granny Smith Mines Ltd/Western Australia/ Ron Harrington-Smith & Ors on behalf of the Wongatha people, NNTT WF99/5, Hon C J Sumner, 24 February 2000 the Tribunal decided that a native title party is not each person named as an applicant on a native title claim. After considering relevant provisions of the Act the Tribunal concluded (at p 11):
‘that it is not open to individuals named as applicants to appear separately in an inquiry into a right to negotiate application and take a position which is contrary to that taken by other named applicants who are acting with the authority of native title claim group.
While individual applicants or members of the claim group can obtain their own legal advice in relation to matters which the group may be considering, resolution of any issues in dispute must be made by the claim group in accordance with its internal procedures. Once an issue has been resolved collectively no member of the claim group is entitled to take a contrary position in the claim application or any right to negotiate proceedings.’
[31]       Further, in the case of Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361, the Tribunal confirmed its decision (at para 20) that:
“a ‘native title party’ is the registered native title claimants acting on behalf of the claim group collectively and not each individual registered native title claimant.”
[32]       In both these matters the issue was whether it was appropriate for the Tribunal to make a future act determination with the consent of the parties where some of the persons named as part of the applicant (and registered native title claimant) did not consent. The Tribunal found that where the Tribunal was satisfied that the claim group collectively consented to a determination in accordance with its agreed procedures, then the Tribunal could make a consent determination.
[33]       In summary the position at law is as follows.
·A native title determination application may be made by a person or persons authorised by all persons in the native title claim group (s 61(1) NTA).
·The person or persons so authorised are jointly the applicant (s 61(2)).
·An applicant is empowered to deal with all matters arising under the Act in relation to the application (s 62A). This in the Tribunal’s opinion includes dealing with matters which arise under the right to negotiate provisions.
·A native title party under the right to negotiate provisions includes a registered native title claimant or a person who becomes one within four months of the s 29 notification day (ss 29(2)(b)(i), 30(1)(a) NTA). A registered native title claimant is a person or persons whose name or names appears on the Register of Native Title claims as ‘the applicant’ (s 253). It follows that a native title party, which is one of three negotiation parties (the others being the Government and grantee parties), with standing to participate in mediations and inquiries under the right to negotiate provisions of the Act is all the persons named on the native title determination application acting jointly. It is a native title party that has standing to lodge an objection with the Tribunal (ss 32(3), 75).
·The fact that native title is generally considered to be held communally Mabo v Queensland No 2 (1991-1992) 175 CLR 1 (at 109-110); Risk v National Native Title Tribunal [2000] FCA 1589 (at [30]); Western Australia v Ward [2000] FCA 191; 170 ALR 159 (at [181]) supports the position that a native title party is the person or persons who jointly comprise the applicant and registered native title claimant and not each individual person named as the applicant.
[34]       I have considered whether there is any Federal Court authority to the contrary. In Kulkalgal People v Queensland [2002] FCA 163 (23 February 2003) Drummond J found that a dissentient member of the native title claim group was not entitled to become a party to the proceedings pursuant to s 84(5) of the Act. Section 66B was the avenue which should be used by a dissatisfied member of a claim group to replace the applicant. A contrary decision was made in Bidjara People 2 v Queensland [2003] FCA 324 (7 April 2003) by Ryan J. In my view neither of these cases are of assistance in determining the issue before me, which must be resolved not only by reference to the provisions relating to the making of a native title determination but also the specific provisions in the Act governing the right to negotiate. There is no provision for persons other than the three negotiation parties to participate in right to negotiate inquiries and the definition of native title party does not contemplate dissentient members of a claimant group having standing in them.

[35] If my interpretation of the Act is correct it also follows that the failure of a s 66B application to replace a person named as an applicant is not necessarily determinative of the issue before me. Had Robin Yarran been removed as an applicant (or more accurately removed as a person named jointly with others as the applicant) then it would have been clear that Mr Yarran does not have the authority he claims but the converse is not the case. The statutory provisions and evidentiary requirements are not the same. In this matter the Tribunal must consider whether there is sufficient evidence to support a finding that Robin Yarran is or is not authorised to bring objections on behalf of the group, not whether there is evidence to support his replacement as an applicant.
[36] The above interpretation of who is a native title party is also consistent with the purpose of the Act which is not only to provide for the recognition and protection of native title but to provide for future dealings affecting native title to proceed (s 3 NTA). The Tribunal has said that the purpose of the right to negotiate provisions is to strike a balance between the recognition of native title rights and the interests of the broader community; that they were intended to deal with the ongoing grant of mining and petroleum titles; and that certainty for the mining industry is an important factor to be taken into account in their application subject of course to giving effect to native title rights (Western Australia v Thomas (1996) 133 FLR 124 at 149-150). The purpose of the Act and its workability would be severely compromised if each person named as part of the applicant and registered native title claimant could lodge objections and then seek to negotiate separate agreements in relation to them. The Tribunal’s approach to making consent determination in circumstances where one named registered claimant refused to sign a s 31 agreement against the wishes of other registered claimants and the native title claim group would no longer be possible.’

While some of these cases dealt with the question of whether individual named applicants were entitled to separate representation in a right to negotiate inquiry the underlying issue is the same as raised by the Government party in this matter. On the question of separate representation I note the decision of Member Sosso in Ben Ward and Others/Swiftel Ltd/Northern Territory, NNTT DO01/83, [2002] NNTTA 104, 12 June 2002 at [21]–[23] in which he generally agreed with previous Tribunal rulings that separate representation of individual named applicants was not permissible but acknowledged that there may be circumstances where principles of procedural fairness require it but only as an exception rather than the rule. I respectfully agree with his observations and gave practical effect to them in this matter by permitting Dr O’Brien to appear for the Kurnai faction on the preliminary point on the basis that she wished to argue that each of the named applicants could take the good faith point and on the good faith issue on the basis of convenience as both matters were heard together.
Interestingly, given the history of what has happened in this matter Member Sosso made the following highly pertinent comments (at [23]):
‘… Not only is native title a communal concept, with which separate legal representation is potentially inconsistent, but, if the Tribunal were to allow it to occur, it would add to the cost and time of inquiries and may lead to a range of undesirable consequences for each of the parties. The Tribunal should be able to turn to a unified native title party who presents consistent evidence and who is represented by one representative or at least one team of representatives. Multiplicity of representatives for a native title party is a sign, as a general rule, that the claim group is split into factions and could lead to conflicting evidence. This in turn would raise a number of threshold legal issues that may result in the inquiry process becoming untenable.’
I also observe that as a matter of practice it has been difficult to insist on single representation where a claim group is split. In the Victorian Gold and Summons matters Pauline Mullett effectively represented the Kurnai faction. In Victorian Gold Mirimbiak, then the designated Representative Body for the area of the Gunai/Kurnai claim, appeared to assist the Tribunal. In Summons Albert Mullett represented the Gunai faction. In both these matters I permitted these appearances, with leave, to assist the Tribunal (Summons at [14]-[22]; see also Gary Dimer and Others; Elizabeth Sambo and Others; Anne Joyce Nudding and Others/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17, NNTTA 117 Hon C J Sumner, 18 November 2003 at [19] where separate representation was permitted).
Dr O’Brien submitted that the Tribunal was not bound by any doctrine of precedent to follow its earlier decisions. She also submitted that an administrative body should not as matter of natural justice fetter its discretion by rigid adherence and inflexible application of a policy (citing Green v Daniels (1977) 51 ALJR 463). In my view the issue raised by the preliminary point is not a matter of policy but is one of law based on the proper interpretation of the provisions of the Act. However, I accept her submission in relation to the interpretation of the law and in the absence of any clear statement of the law from the Federal Court I accept that the Tribunal can reconsider the law as set out in its earlier decisions. Accordingly, I have reviewed the previous decisions in light of her arguments.
In summary, Dr O’ Brien’s argument is that the NTA clearly distinguishes a ‘native title claim group’ which may make an application for a determination of native title under s 61 of the Act and a ‘native title party’ which has the right to negotiate and to make applications under Subdivision P of Division 3. She says the terms are defined differently in the Act and employed for different purposes and in the case of a native title party solely for the right to negotiate. Section 61(1) defines a native title claim group as ‘all the persons who according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’ which Dr O’Brien concedes constitutes a collective non-severable entity. However she says that the group does not have the status of a legal person until after a successful determination of native title and subsequent incorporation of a prescribed body corporate (s 57 NTA). As such she says that ‘the native title claim group’ or ‘applicant’ being an unincorporated entity unknown to the common law would not have the requisite legal personality to enter into enforceable agreements until after the determination of a native title claim. It is for this reason that Parliament introduced the concept of a ‘native title party’ so as to ensure that other negotiation parties are dealing with legal persons before a claim is determined. She says that the statutory provisions lead to this conclusion.
I cannot accept the Kurnai faction’s submission. In my view the sections of the Act relating to making a claimant application and the right to negotiate are inextricably linked. I can accept that not all claim groups or applicants for a native title determination are native title parties (as they may not be registered and consequently not have the right to negotiate) but it is indisputable that the status of native title party depends initially on there being a native title claim group and a person or persons who are authorised to make the application on their behalf who are ‘the applicant’ (s 61(2)). As explained in the Tribunal’s previous decisions once the name of a person or persons appears as an applicant on the Register of Native Title Claims they become a registered native title claimant (s 253 definition). In turn a registered native title claimant is ‘a native title party’ by virtue of s 29(2)(b) or s 30(1)(a). Dr O’Brien’s submission says that Mrs Rose and Mr Mobourne are ‘persons whose name or names appear on the Register of Native Title Claims’ and hence that they meet the definition of native title parties. This submission overlooks the critical part of the relevant definitions. In particular s 61(2) says that a person or persons authorised to make a claimant application by the native title claim group ‘are jointly, the applicant’ and it is those persons whose name or names appear on the Register ‘as the applicant in relation to the claim’ who constitute the ‘registered native title claimant’ (s 253). The fact that at the claimant stage there is no incorporated body (as is the case when a claim has been determined) does not in my view mean that each person named as part of the applicant is at liberty to act individually without reference to and authorisation from the claim group.
To say as Ms O’Brien does that the claimant group is a collectivity but that a native title party is not does not accord with principles of the NTA that an applicant for native title is all the named persons acting jointly. Although there is not an incorporated body involved at the claimant stage each person who jointly comprises the applicant, registered native title claimant and native title party has the capacity to enter into binding contractual relationships but in doing so they are acting with the authority of the claimant group (i.e. are effectively agents for the claimant group). There is nothing to suggest that the NTA was constructed deliberately to provide for a native title party to be each person named as part of the applicant because if it were not the persons named would not have the legal capacity to enter into binding agreements. I can see no difficulty with the named applicants signing agreements on this basis and establishing legal liability during the claimant stage even though it is acknowledged that after determination a body corporate will do this on behalf of the holders of native title. I also note that the concept of native title party is only utilised in the Act in Subdivision P yet there are a considerable number of other procedural rights accorded to registered native title claimants under other sections of the Act (eg s 24MD(6)) where it must be envisaged that agreements can be reached and presumably made binding on the claim group prior to a determination and creation of a body corporate.
As explained in Ballardong (at [36]) the purpose of the Act is not served by the Kurnai faction’s interpretation. If the Kurnai faction’s argument is pressed to its logical conclusion there would be a serious impediment to the workability of the Act as it would be possible for each individual named on the application to require separate negotiations with Governments and mining companies, to enter into separate agreements with them, and appear separately in an arbitration and put different positions on whether the act should be done and the conditions to be imposed if it is.
Dr O’Brien correctly points out that a plurality of native title parties is envisaged by s 30A of the Act which defines ‘any’ native title party as a negotiation party. In my view this section does not necessarily support her argument as there is another obvious reason for expressing the definition in this way. That is because the Act envisages that there can be more than one claimant application which can be lodged and registered over a particular area thus creating more than one native title party.
What general authority there is on the topic from the High Court and Federal Court supports the Tribunal’s interpretation (Ballardong at [33]). Since that decision, the Federal Court (Stone J) has provided more explicit support for the Tribunal’s position in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 (17 September 2003) at [8]:
‘The history of Pooncarie Barkandji (Paakantyi) People #8 shows that there have been persistent problems in the relations between Dorothy and Philip Lawson and other applicants. In the proceedings presently under consideration there have been attempts to have the applicants separately represented; that is to have Mr Dengate represent the Lawsons with the other applicants represented by someone else. These attempts reveal a fundamental misunderstanding of the role of applicants in native title determination applications. Such applicants are representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation is inappropriate and unacceptable.’
MGM did not support the Government party’s submissions on the preliminary point arguing that if it were correct then as a matter of logic this would prevent the factions putting separate contentions and evidence at the arbitration and taking different positions and, given the admitted irreconcilable split in the claim group, not to permit the factions to do this would make the arbitration unworkable resulting in a state of paralysis which would jeopardise the conduct of the inquiry and the opportunity for the grantee party to obtain the grant applied for. The other part of MGM’s argument was that separate legal representation of the factions should not be permitted at the inquiry proper as this could theoretically involve four barristers and four sets of legal submissions which would prolong and confuse the arbitration. Ms Denisenko for MGM said that there are no special circumstances in this case which would require legal representation and parties should be able to appear personally and put their case as they did in Summons. This approach she said would be consistent with the Tribunal’s mandated way of operating in an economical, informal and prompt way without being bound by legal technicalities legal forms or rules of evidence (s 109). The difficulty with this proposition is that if in fact each of the named applicants is a native title party then each of them would be entitled to be legally represented (s 143) and the Tribunal would have no basis to deny them this right.
I understand MGM’s argument to be essentially a pragmatic one rather than an argument about the principles enunciated by the Government party. Despite the practical difficulties which might arise I consider that the Government party is plainly right on the question of statutory interpretation. I should add that, as already explained, if the inquiry proper proceeds the factions would not necessarily be precluded from in effect appearing separately and putting separate positions in the inquiry as was permitted by leave in Summons and Victoria Gold. In Victoria Gold the position adopted by the Tribunal was essentially that argued for by the Government party in the present matter but despite the strict position at law the Tribunal was able to conduct an inquiry and make a determination after allowing the factions of the native title party to provide evidence and make submissions on the factors in s 39 of the Act. Although not ideal the Tribunal was able to fulfil its statutory duties.
Based on my findings it is clear that if any of the persons named as part of the applicant is not acting with the authority of the claim group then it is not permissible to make a contention about the lack of the good faith. Whether the persons named as the applicant have such authority depends on whether there is a traditional means of decision making or an agreed alternative (s 251B NTA). Although Albert Mullett could not attend the hearing contact was made with him by the Tribunal (see record of telephone conversation with Tony Shelley, Victorian State Manager on 10 November 2003) when he advised that he did not wish to argue that the Government party or grantee party had not negotiated in good faith. The Kurnai faction said that this telephone conversation was insufficient evidence upon which to find that the claim group as a whole did not support a challenge to good faith negotiations. There is also a record of a telephone conversation on 11 November 2003 between Mr Shelley and Graham (Bootsie) Thorpe who is a named applicant confirming that he did not wish to challenge good faith. Taking account of the Tribunal’s method of operating in s 109 I have no difficulty in finding that the Gunai faction does not support the good faith challenge.
There is also no evidence of a decision making process based on traditional law and custom which demonstrates that the Gunai faction or the native title party collectively challenge good faith negotiations. For reasons further explained below the Kurnai faction contend that Regina Rose is the traditional custodian of Kurnai law with authority to speak for the Kurnai People. However, they also make clear (and this was confirmed at the hearing) that this authority does not extend to speaking for the Gunai faction, who they do not recognise as legitimate claimants over this part of Victoria.
As part of its submission the Government party referred to recent events which it said meant that there must now be considerable doubt about the authority of Mrs Rose and Mr Mobourne to speak for the claimant group as their authority had been withdrawn by the claimant group. As part of its evidence it annexed an email letter from NTSV. This letter referred to a meeting of the claim group in Bairnsdale on 4 April 2003 at which certain decisions were taken in relation to the conduct of the claim including to replace the existing applicants on the basis that they were no longer authorised by the claim group to bring the claim and deal with matters arising from it. NTSV says that the meeting was properly constituted, well advertised and well attended. As a consequence NTSV have commenced proceedings in the Federal Court under s 66B of the Act to replace the existing applicants. Graham (Bootsie) Thorpe, Ollie Tregonning, Sandra Patten and Albert Mulllet are proposed as the new applicant. NTSV also said that as a result of this and subsequent claim group meetings the Gunai/Kurnai Elders Council was to represent the claim group as a whole and not individual named applicants and asserted that ‘the current situation is that the four existing registered applicants no longer have the authority of the claim group’.
Based on these documents I initially interpreted the Government party’s submission to mean that I could have regard to the Bairnsdale meeting in deciding the immediate issue before me. To ensure that I was fully informed of the issues arising from that meeting I requested from the Government party a copy of documents relating to the s 66B application in the Federal Court. They were received into evidence on the basis that I would rule on the relevance and weight to be given to them after hearing submissions from the parties. It is apparent that the Kurnai faction vehemently opposes the s 66B application and have filed affidavits in support of their application to strike out the s 66B application filed by NTSV. Their application includes to remove Robert James Farnham and Graham (Bootsie) Thorpe from the application, replace the name with Kurnai only and replace the present list of ancestors. Their application asserts that Regina Rose is the recognised Senior Elder for the Kurnai People who has been given authorisation to speak for them and conduct all native title matters. Mrs Rose’s affidavit filed in the Federal Court asserts that in Kurnai culture under traditional law both men and women are consulted but only Elders of Kurnai descent can make the decisions. Only full blood Kurnai persons can receive cultural information about customs, places, totems and heritage. Their position is that there is no such thing as a Gunai clan or tribe and that those who are currently identifying as such are descendants of people who came to Gippsland from elsewhere and lived in missions but who are not related to the Kurnai and who under Kurnai law have no traditional affiliation with their land. They say that while the current claim group description refers to persons who have a blood line connection to Ancestors many of the persons currently included in the group do not qualify on this basis as many are not Gippsland Kurnai but persons who shifted to Gippsland from other areas. Many currently included in the Gunai/Kurnai claim group have in fact identified with other tribal groups such as Yorta Yorta, Yuin or Monaro, Bidawal and Gunditjmara, the Kurnai faction assert.

The position of those making the s 66B application filed by NTSV is that Gunai/Kurnai are interrelated and capable of forming a native title claim group and that this position is supported by professional anthropological study.
At the hearing consideration of the relevance of the Bairnsdale meeting and documents related to the s 66B application resulted in an acceptance by the parties (with which I agree) that they are not relevant to enable a general challenge to the authority of the current named applicants to act in these proceedings. However, they are relevant to confirm the deep division within the claimant group which has been apparent anyhow for some considerable time and to provide background to the split and difficulties within the claim group insofar as these have impacted on the right to negotiate. The Tribunal cannot ignore the effect of the split in the claimant group on the obligation to negotiate in good faith as the behaviour of the native title party is a relevant factor in determining whether the other parties have done so. Regrettably it is clear that the split has adversely affected the right to negotiate.
The Federal Court evidence cannot be used to call into question the authority of the persons currently named as the applicant for the purpose of these proceedings. The Tribunal must accept for the moment that, whether or not in practice they are divided into factions or there has been a meeting purporting to remove their authority, it is the named applicants who have the procedural rights to negotiate as a native title party.

Findings and decision on the preliminary point

In summary my findings on the preliminary point are that:

individual persons named as part of the applicant or factions within it are not a native title party and do not have standing to make a contention that the Government or grantee parties have not negotiated in good faith unless authorised to do so by the claim group;
there is no evidence that the Gunai/Kurnai native title claim group have authorised such a contention to be made and specifically Mr Farnham and Mr Thorpe (the Gunai faction) do not contend that the Government and grantee parties failed to negotiate in good faith; and
as a consequence it cannot be said that the native title party contests that the other parties negotiated in good faith.

On the basis of these findings I could have declined to consider the contentions and evidence submitted by the Kurnai faction on the good faith issue and proceeded to the inquiry proper. However, as I had received contentions and evidence and conducted a hearing into both matters together I consider it appropriate and expedient (in case my decision on who is a native title party is wrong) to make a decision on the good faith issue.

Good faith issue - contentions and documents

The Tribunal has had regard to the following contentions and documentary evidence submitted by the parties. At the hearing Gary Jungwirth and Graham Carter gave evidence to supplement their written statements and Pauline Mullett also gave evidence.
The native title party provided:
Contentions and submissions of Mrs Regina Rose and Mr Lindsay Mobourne filed on 10 October 2003.
Replies of Lindsay Gordon Mobourne, and Regina Lillian Rose to the Government party’s preliminary points and to the submission of the Government party and the grantee party on the good faith issue dated 29 October 2003.
The Government party provided:
Contentions of State of Victoria in respect to issue of good faith negotiations dated 16 October 2003 and accompanying documentary evidence including a statement of Gary Lewis Jungwirth, Senior Policy Officer in the Mineral and Petroleum Policy Unit within the Minerals & Petroleum Division (‘MPD’) of the Department of Primary Industries.
Correspondence to Dr Cecilia O’Brien, counsel for Regina Lillian Rose and Lindsay Gordon Mobourne, from James Syme, Victorian Government Solicitor, identifying facts in dispute dated 6 November 2003.
Correspondence dated 12 November 2003 from James Syme, Victorian Government Solicitor enclosing documents relating to Federal Court proceedings to replace named registered applicants on Gunai/Kurnai People Native Title application VG6007/98 including affidavits of Christopher Marshall, Chief Executive Officer of Mirimbiak Nations Aboriginal Corporation and Regina Rose.
Statement of Graham Milroy Carter, legal officer, Department of Justice Victoria, Native Title Unit, and former solicitor at Mirimbiak.
Statement of Sean Rooney, Senior Policy Adviser, Department of Primary Industries Victoria, and previously Senior Policy Officer in the Mineral and Petroleum Policy Unit within the Minerals and Petroleum Division (‘MPD’) of the then Department of Natural Resources and Environment.
The grantee party provided:
Statement of Contentions of the Grantee Party in respect of the issue of good faith negotiations dated 22 October 2003, including a witness statement of Thomas Jii Hian Tan, Management Consultant, one of the Directors of MGM dated 23 October 2003 with attachments showing correspondence between the grantee party and the native title party in the process of negotiations.
Correspondence dated 3 November 2003 from Just Outcomes (Aust) Pty Ltd (Ms Georgia Denisenko) to Dr Cecilia O’Brien clarifying facts in dispute.

Good faith issue – the law

Section 31 of the Act says:
‘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.’
Section 36(2) says:
‘Determination not to be made where failure to negotiate in good faith
36(2)If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make the determination on the application.
Note: It would be possible for a further application to be made under section 35.’
The Tribunal has said that the practical effect of s 36(2) is to place an ‘evidential burden’ on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on. (Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, Hon E M Franklyn QC, 27 August 1999 (at pps 4, 21); Placer (Granny Smith) Pty Ltd & Anor v Western Australia & Others (1999) 163 FLR 87 (21 December 1999) (‘Placer’) (at [21]-[28]).)
In Placer The Tribunal summarised the obligation to negotiate in good faith as follows (at [30]):
‘On the assumption that it is normally the native title party that will assert that the other negotiation parties have not negotiated in good faith the position, in summary, is that the Tribunal must be satisfied that the Government and grantee parties have negotiated in good faith with the native title parties with a view to obtaining the agreement of the native title parties to the granting of the mining leases with or without conditions. Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’ (Western Australia v Taylor (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 it 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 Njamal indicia which provide a guide only and not a comprehensive check list are as follows (Njamal at 224-225):

unreasonable delay in initiating communications in the first instance;
failure to make proposals in the first place;
the unexplained failure to communicate with the other parties within a reasonable time;
failure to contact one or more of the other parties;
failure to follow up a lack of response from the other parties;
failure to attempt to organise a meeting between the native title and grantee parties;
failure to take reasonable steps to facilitate and engage in discussions between the parties;
failing to respond to reasonable requests for relevant information within a reasonable time;
stalling negotiations by unexplained delays in responding to correspondence or telephone calls;
unnecessary postponement of meetings;
sending negotiators without authority to do more than argue or listen;
refusing to agree on trivial matters eg a refusal to incorporate statutory provisions into an agreement;
shifting position just as agreement seems in sight;
adopting a rigid non-negotiable position;
failure to make counter proposals;
unilateral conduct which harms the negotiating process eg issuing inappropriate press releases;
refusal to sign a written agreement in respect of the negotiation process or otherwise;
failure to do what a reasonable person would do in the circumstances.

In Western Australia/Arthur Dimer & Ors (Ngadju People) and Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited, NNTT WF99/10, [2000] NNTTA 290 Ms Patricia Lane, 9 August 2000. The Tribunal endorsed the statement from Placer and the Njamal indicia and added (at p 31):
‘If we look at those criteria in the light of the kinds of activity that might be undertaken in negotiation, they fall into a series of related, though not necessarily coextensive obligations. Those obligations appear to me to involve the following:
· an obligation to communicate with other parties within a reasonable time and a reciprocal obligation to respond to communication received within a reasonable time, (Njamal (i),(iii),(iv),(v),(vii),(ix));
· an obligation to make proposals to other parties with a view to achieving agreement and a reciprocal obligation on other parties to respond either by making counter-proposals or by way of comment or suggestion about the original proposal, (Njamal (ii)(xv));
· an expectation that a party will make inquiry of other parties if there is insufficient information available to make an informed choice about how to proceed in negotiations and an obligation on those other parties to provide relevant information within a reasonable time, (Njamal (viii)); and
· an obligation to seek from other parties appropriate commitments to the process of negotiation or in relation to the subject matter of negotiation and a reciprocal obligation to make either appropriate commitments to process, or appropriate concessions as the case may be, (Njamal (vi),(x),(xi),(xii),(xiii),(xiv),(xvii)).
The final indicium in Njamal seems to express the overarching obligation imposed by s.31(1)(b) to act honestly and reasonably with a view to reaching an agreement on whether or not the act should go ahead.
If the parties do not negotiate because they fail to communicate at all, it is impossible to conclude that they have negotiated in good faith. The requirement of “good faith” sets the standard for behaviour of the parties in carrying out the activities involved in negotiation. It may be that parties participate reluctantly in the process. However, the statute requires their participation, and the Tribunal must have regard to their conduct viewed as a whole.’
Member Lane also said:

that each party must act both honestly and reasonably with a view to reaching agreement about whether the act can proceed (at 25, 31); and
all parties are required to adhere to the same standard of negotiating behaviour but what they do to satisfy the obligation must be judged by reference to the interests they seek to advance in negotiations, the behaviour of the other negotiation parties and the circumstances in which the negotiations take place (at 26). The Government party is not, as a result of the 1998 amendments to the NTA (which imposed the obligation to negotiate in good faith on all parties not just the Government party), now subject to a lesser standard than previously (at 27).

In their submissions the Government and grantee parties drew attention to the following principles which I accept as of particular relevance in this matter. First, the conduct of a party must be examined on a case by case basis in the light of the actual circumstances and that it is unrealistic to apply a standard based on an artificial or hypothetical negotiation model (Equs at 32). A relevant circumstance would be if the other parties make it clear that they do not want the Government party to be involved (Njamal at 248). Second, the behaviour of the other parties (in this case of the native title party) is a relevant factor in determining whether the Government and grantee parties have negotiated in good faith (Western Australia/Strickland & others; Champion & others/Glengarry Mining Ltd, NNTT WF98/8, Hon C J Sumner, 21 September 1998 at 5-6). If a party acts unreasonably or in a manner not conducive to constructive negotiations a lesser standard may be imposed on the other negotiation parties (Njamal at 250). Third, that discussion of a general nature between negotiation parties related to issues which are relevant to the specific negotiations can be taken into account as part of the negotiating process and whether a party has negotiated in good faith (Njamal at 236-237). Fourth, any party is entitled to make a s 35 application once the statutory period of six months from giving of the s 29 notice has passed and the act of making the application cannot normally be relied upon to demonstrate a lack of good faith (Strickland & Anor v Western Australia (1998) 85 FCR 302 at 322; Western Australia v Daniel (2002) 172 FLR 168 at [95]). Fifth, there is no obligation on the Government or grantee party to provide resources to the native title party for the negotiations (Western Australia v Daniel (2002) 172 FLR 168 at [146].

The good faith issue and the native title party

It follows from my findings on the preliminary point that the obligation imposed on the Government and grantee parties is to negotiate with the native title party and not individual persons named as part of it or elements or factions of it. Dr O’Brien, consistently with her argument on the preliminary issue, argued that the split in the claimant group was irrelevant to the negotiation process and that the obligation was to negotiate with the four registered claimants who presently have the legal authority to conduct the negotiations. I cannot agree with this submission. The split in the claimant group is a highly relevant factor to whether the other parties have negotiated in good faith. The Kurnai faction have insisted on separate negotiations even to the extent in one matter of not agreeing to sign the same agreement as the Gunai faction (Victorian Gold at [14]). They do not regard many of the Gunai claimants as being properly a part of the claim.
In my view this is an untenable and unacceptable position for the Kurnai faction to adopt in right to negotiate negotiations and inquiries. Their position calls into serious question whether the Gunai/Kurnai claim has been properly lodged (s 61 NTA). On their view the Gunai/Kurnai are not a legitimate native title claim group. There are no traditional laws and customs which provide a basis for the Gunai/Kurnai group (as opposed to the Kurnai People) to hold native title and some of the named persons could not therefore be authorised by the group to make the claim. This raises the question of why, given the fundamental dispute about the composition of the claim group and the persons authorised to make the native title determination application, steps have not been taken to strike the claim out particularly as this dispute about the basis for the claim has been known for some time.
The Gunai/Kurnai claim has also passed the registration test. Once again on the information currently before the Tribunal it is impossible to see how that claim to registration can be maintained. Indeed at the hearing the Kurnai faction readily conceded that it should not have been registered in its current form. I have found that, despite reservations about the state of the claim, the Tribunal in these proceedings must accept that there is a native title party with the right to negotiate. However it is my view that having obtained the benefits of the registration test (whether rightly or wrongly) the persons comprising the native title party should behave in a manner consistent with it. In Western Australia/M Strickland and J Nudding & Others; M Forrest, A W McKenzie and M O’Loughlin & Others/D R Crook and GK Edson, NNTT WF98/5, Kim Wilson, 11 August 1998 the native title party refused to engage in negotiations with the grantee party unless a confidentiality agreement was signed, which the grantee party was not prepared to do. When the Government party attempted to organise a mediation meeting and the Tribunal a mediation conference under s 31(3) the native title party refused to attend either until the confidentiality agreement was signed. The Tribunal held that the native title party cannot have it both ways by adopting a position which effectively precludes future development in the negotiations and then claim that the Government did not negotiate in good faith.
In a similar way I consider that the Kurnai faction of the native title party cannot have it both ways in this matter. That is, by obtaining registration and the status of a native title party and then insisting that negotiations in good faith must occur separately with only some of the persons comprising the native title party. This approach is not consistent with the terms of the Act or the policy behind it and in practical terms makes the process almost unworkable. It brings the whole right to negotiate system into disrepute. The difficulties faced by other parties in dealing with the current claimants and for the Tribunal in trying to conduct mediation or arbitrate about future acts in a proper manner and as envisaged by the NTA is demonstrated by the Kurnai faction’s contention in the Federal Court that in recent future act determination inquiries the Tribunal has allowed Beryl Booth to give cultural evidence when in the Kurnai faction’s view she has no authority to do so as she is a Gundjitmarra person and not Kurnai. The intention of the Act was to place registered claimants and determined holders of native title on the same footing for the purposes of the right to negotiate once the claim was registered (WMC Resources & Anor v Evans (1999) 163 FLR 333). The registered native tile rights are to be accepted as if they were determined for the purposes of the right to negotiate. In a case like this it is difficult to treat them in this way because there is no consensus within the claim group even about which persons are part of the group which extends to openly challenging evidence relating to the effect of the future act on the registered native title rights and interests by other persons within the claim group.

While this attitude exists within the Gunai/Kurnai claim group, recent practice demonstrates that the only way for the Victorian Government to grant a mining tenement is to go through the full right to negotiate process including a determination in every case. This is not reasonable behaviour on the part of the native title party and means that the native title party has not negotiated in good faith. In my view a native title party which has obtained the benefits of registration must act in a cooperative way consistent with the basis for the registration when exercising their right to negotiate about future acts. The Gunai/Kurnai claimants were apparently able to do this in cases until at least 7 July 2000. With the assistance of Mirimbiak consent determinations were made by the Tribunal in Yallourn Energy Pty Ltd/Terence Ernest Campbell Hood & Others/Victoria, NNTT VF99/1, [1999] NNTTA 247, Hon C J Sumner, 17 September 1999 and Pacific Minerals Pty Ltd and ABC Resources Pty Ltd/Terence Ernest Campbell Hood and Others/Victoria, NNTT VF00/1, [2000] NNTTA 258 Hon C J Sumner, 7 July 2000. I observe that in VF00/1 the named applicants were the same as in the present proceedings and that Mirimbiak was given as the address for service in Conditions that were imposed.
I also make it clear that I am not entering into the rights and wrongs of the dispute within the claim group or the merits of the issues currently before the Federal Court. My concern is how the behaviour of the native title party impacts on the Government and grantee parties’ obligation to negotiate in good faith. In the circumstances of this case I find that the content of the obligation is minimal. Where a Government party or grantee party have shown an intention to negotiate in good faith, commenced steps to do so and made proposals in relation to the matter and are confronted with a refusal by the native title party to negotiate unless those negotiations take place separately with persons named as applicants or factions within the group the Tribunal is entitled to conclude in an almost summary way that the obligation has been fulfilled. On this basis alone I find that the Government party and grantee party have negotiated in good faith as required by s 31(1)(b). However, in case I am wrong in my interpretation of who is the native title party I have considered further the substance of the negotiations.

Summary of negotiations

Section 31(1)(a) of the Act imposes an obligation on the Government party to give the native title party an opportunity to make submissions to it in writing or orally regarding the future act. The Government party was unable to provide a copy of any letter specific to this matter but provided a copy of a pro forma letter which it says is usually sent to native title parties in compliance with the obligation in s 31(1)(a). It then says that it relies on the presumption of regularity to enable the Tribunal to find that the letter was sent even though the specific letter relating to MIN5180 cannot be located on the relevant file. There is no evidence that the Government party sought a copy of the letter from Mirimbiak to whom it would have been sent had the normal procedures been followed. This would have constituted the best evidence that it had formally given the native title party an opportunity to make submissions in accordance with s 31(1)(a). Given the importance of the obligations in s 31 it is incumbent the Government to keep proper records of steps taken in negotiations even though in this matter I am satisfied that an opportunity to make submissions to the Government was provided at a meeting of the parties held in February 1998. Mr Jungwirth confirmed that at that meeting such an opportunity was given. In the light of this evidence it is not necessary for the Tribunal to decide whether the presumption of regularity is applicable in these circumstances although I note that it was not successfully relied on in other similar circumstances (Western Australia/Richard Guy Evans & Others/Anaconda Nickel Ltd & Others, NNTT WF98/267 & Others, [1999] NNTTA 203 Hon C J Sumner, 15 July 1999 at 29-33).
In February 1998, a meeting convened by the Government party was held between it, Mirimbiak and MGM in Sale. Present at the meeting were two representatives of MGM, Ms Sally Smith of Mirimbiak acting for the native title party, several representatives of the native title party (although apparently none from the Kurnai faction) and Mr Garry Jungwirth at that time Manager of Land Access, Minerals and Petroleum, with the (former) Department of Natural Resources and Environment on behalf of the Government. At this meeting MGM provided the native title party with a project outline and Mirimbiak agreed to provide MGM with a proposal regarding what they wanted from the negotiations and how they wished the negotiations to proceed. No proposals were received from Mirimbiak and after discussions with Mr Jungwirth, MGM obtained on 21 May 1998 a copy of a s 31 Deed and Project Consent Deed for its consideration. In May or June 1998 MGM sent to Mirimbiak an amended s 31 Deed and Project Consent Deed and requested comments from the native title party. Between mid 1998 and October 1999, MGM say that they received no response from Mirimbiak to their agreement proposals.
On 14 October 1999, Mirimbiak wrote to MGM what appears to be a standard letter advising that if there was no response to the letter within 14 days then they would assume that MGM did not wish to activate any negotiations with the native title party in the immediate future and that the file would be put away. On 26 October 1999, MGM replied to Mirimbiak setting out its understanding of the history of the matter and advising that it wished to keep the matter active, although there was no great urgency to pursue and conclude negotiations at that time. On 1 December 1999, MGM provided copies of this correspondence to Mr Jungwirth.

On 12 July 2000, Mirimbiak wrote a similar standard letter to that of 14 October 1999 to MGM which was replied to on 20 July 2000. MGM confirmed its wish to progress negotiations but said there was no urgency about them. They offered to provide another copy of the agreement documents sent to Mirimbiak in mid 1998. On 20 July 2000, MGM provided copies of this correspondence to the Government party.
Between August 2000 and June 2002 there was an hiatus in the negotiations. It was not a matter of urgency for MGM to conclude the negotiations during this period and the evidence is that one of its directors died and it had other priorities including the development of the mine on MIN5335 and possible changes in the company ownership. Following a meeting in July 2002 with Mirimbiak (Paul Simmons), MGM (Peter Hudson) wrote to Mirimbiak on 23 July 2002 outlining the history of the negotiations, confirming their wish to finalise negotiations as soon as possible, requesting a meeting with the native title party and advising of their intention to request mediation assistance from the Tribunal. Tribunal mediation and assistance was sought by letter dated 23 July 2002. On 26 July 2002, MGM

e-mailed Mirimbiak to request an update on its efforts to organise a meeting with the native title party. No response was received to this e-mail nor to follow up e-mails.
By letter dated 10 August 2002, MGM provided an update to the Government party. On 14 and 23 August 2002, MGM had meetings by telephone with the Tribunal to discuss its request for mediation assistance, during which it was informed of the split of the native title party into two factions and that there was disagreement about the structure of the claim group, including who should have responsibility for making decisions in relation to the claim and related matters.
On 21 August 2002, MGM sent to Mirimbiak copies of a pro forma s 31 Deed and Project Consent Deed which had been provided to it by the Government party. On 4 September 2002, Mirimbiak (Paul Simmons) wrote to MGM (Peter Hudson) outlining results of discussions that Mr Simmons had had with the factions about a possible resolution and way for both factions to negotiate separately with each future act proponent within the claim area to finalise negotiations. The letter advised that no agreement had been reached and accordingly Mirimbiak ‘has been unable to receive instructions from the Gunai/Kurnai native claim that would enable the progress of your application. Should the Gunai/Kurnai faction resolve a method in which to progress future act negotiations, then Mirimbiak may be able to assist.’ From this point on Mirimbiak was not formally advising the Gunai/Kurnai claim group although it appears that they were advising or assisting the Gunai faction from time to time.
On 5 and 6 September 2002, the Tribunal convened mediation meetings between MGM (Peter Hudson) and the Gunai and Kurnai factions of the native title party respectively. At the meeting with the Gunai faction on 5 September 2002 there were discussions about the s 31 Deed and Project Consent Deed which had been exchanged. Mr Hudson acknowledged that there would need to be time for the Gunai faction to consider the proposal but that MGM would like to move forward within a reasonable time. It was agreed that a site visit should be carried out and Mr Hudson requested the Gunai faction to advise of what they would like to see in the draft agreement. Mr Albert Mullett and Beryl Booth who were present for the Guani faction undertook to discuss the matter with the Gunai/Kurnai Elders Council.
At the mediation meeting on 6 September 2002 with the Kurnai faction, MGM agreed to organise a site visit with the Kurnai faction separately and arrangements for it were to be discussed subsequently. The Kurnai faction provided a document dated 30 July 2002 which outlined some guidelines for working with the Kurnai People . These had been sent to MGM on 30 July 2002 but because of a breakdown in internal communications were not forwarded to Peter Hudson until 18 October 2002.
On 18 November 2002, MGM provided the Government party with an update on negotiations. On 15 January 2003 the Tribunal (Ian Campbell-Fraser) wrote to MGM referring to a meeting with MGM on 14 January 2003. It provided the Tribunal’s perspective on the negotiations to this point including:

that tentative dates for the site visit were likely to be in the second half of February after which MGM would be seeking some commitment from the native title party as to their willingness to enter into s 31 Deed and Project Consent Deed;
reference to the attempts by the Federal Court since September 2002 to mediate the dispute noting that ‘the Federal Court mediation process has been the main focus of the ‘Kurnai’ and ‘Gunai’ groups in the intervening few months and until it concludes it may be difficult to secure meetings with them’; and
to remind MGM that it was to respond to the Kurnai faction’s guidelines letter.

The Kurnai guidelines were of a generic nature and included that the Kurnai People will not deal with consultants in relation to cultural and heritage issues and that fair and reasonable compensation based on financial gains be proposed before any discussions would commence, that cultural heritage assessment in the Gippsland Region will only be provided by the Kurnai People and that no other assessment is acceptable. Cultural Heritage Assessment would be charged at $900 per man day and meetings would be charged at $300 per man day plus costs.
On 15 February 2003, MGM replied to the Kurnai faction’s guidelines:

agreeing that cultural heritage assessments could be completed by agreement between the parties but that those assessments needed to be sanctioned by the Government party and hence may require input from approved consultants;
advising that as a small mining company with a limited financial base they were prepared to provide reasonable assistance for costs associated with site visits and cultural assessments but were not prepared to provide funds for legal support as it understood that Mirimbiak was the native title party’s solicitor and could advise in relation to finalising the Project Consent Deed and s 31 Deed;
recommending steps to complete the negotiations which involved a site visit including a cultural assessment, the transport to be facilitated by MGM with provision for an allowance of $100 per day per person for a maximum of three persons for two days to cover food and accommodation while on the visit; and
asking the Kurnai faction to confirm whether it agreed with the proposed steps and timetable.

MGM did not receive a response to that letter.

A further mediation meeting was conducted between MGM and the Kurnai faction on 7 March 2003 following which, on 18 March 2003, MGM wrote to the Kurnai faction with an increased financial offer in relation to the proposed site visit and providing a brief description of the activities proposed for MIN5180. The Kurnai faction responded to this letter on 28 March 2003 although, according to Mr Tan, it was only received by them by correspondence from the Kurnai faction on 26 June 2003 as it had not previously been received.
Between March 2003 and mid April 2003, MGM attempted to organise a meeting with the Gunai faction through the auspices of the Tribunal but were advised on 14 April by the Tribunal that the Gunai faction wanted a little more time to sought out issues relating to replacement of applicants (determined at the Bairnsdale meeting of 4 April 2003) before they were able to meet with MGM. In fact MGM did not meet again with the Gunai faction prior to making the s 35 application.
On 23 June 2003, MGM (Ms Denisenko of Just Outcomes) wrote to the native title party (Gunai/Kurnai registered native title claimants c/- Paul Simmons at Mirimbiak) providing a background to the negotiations and giving an assessment of the current state of the negotiations as follows:

the native title party has been involved in mediation ordered by the Federal Court to try and resolve its intra-indigenous dispute;
the dispute is still unresolved after a number of years, and an application in the Federal Court to remove registered native title claimants is imminent (and also likely to be opposed);
there are difficulties in having the pro forma version of the section 31 Deed executed by all of the Gunai/Kurnai registered native title claimants;
while Mirimbiak is the solicitor on the record for the native title party, MGM understand that at least one of the factions does not recognise Mirimbiak as its legal representative, which further complicates matters; and
MGM intended to make a s 35 application but committed itself to continuing to try to negotiate an agreement with the native title party (this letter was copied to the Government party, Tribunal and Gunai/Kurnai registered claimants).

In response to this letter the Kurnai faction, on 26 June 2003, provided a copy of its letter dated 28 March 2003 which MGM says that it had not previously received. This letter, amongst other things, said that the Project Consent Deed and s 31 Deed would not be signed unless a cultural heritage survey, flora and fauna report and detailed work plan involving conditions for site protection, restoration, revegetation and returning the area to its original condition was provided.
Mr Tan said that he was informed by Ms Denisenko that on 4 July 2003, Ms Denisenko spoke to Mirimbiak (Paul Simmons) by telephone and was informed that Mirimbiak’s position was that the current applicants were not authorised by Gunai/Kurnai People, that any authorisation was held by the Guani/Kurnai Council of Elders and that Mirimbiak would deal with the Guani/Kurnai Council of Elders in relation to the negotiations. On 9 July 2003, MGM through Just Outcomes provided a response to the Kurnai faction queries in their letter of 26 June 2003 which in turn was responded to by Kurnai faction on 29 July 2003.

Government party’s position

The evidence from Gary Jungwirth was that until the year 2000 the Mineral Petroleum Division (‘MPD’) played an active role in the right to negotiate process, attended and often arranged and facilitated meetings as a result of the negotiations required by s 31 of the Act in Melbourne and throughout Victoria. When Bryan Keon-Cohen QC was appointed as the Principal Legal Officer for Mirimbiak a policy which discouraged the Government party from active involvement in the negotiations about the Project Consent Deed was adopted by Mirimbiak (‘the Mirimbiak policy’). Mirimbiak’s position was that it did not want the Government party to know the specific details of any benefits provided by a grantee party to a native title party. This policy developed in late 1999 early 2000 when the Government party was having difficulty reaching agreement about future acts because of the resistance from Mirimbiak to their direct involvement in negotiations between the native title party and grantee party.

Mr Jungwirth says that since about mid 2000 the right to negotiate process in Victoria has been operated by a system of dual Deeds of agreements which are constituted by:

a s 31 Deed being a tripartite agreement between the three negotiation parties, the native title party, grantee party and Government party. This deed is regarded as a ‘bare’ deed, designed to comply primarily with the requirements of s 31(1)(b) of the Act. No confidential details are contained in the s 31 Deed a copy of which is provided to the Tribunal under s 41A(1)(a) of the Act; and
the Project Consent Deed being a deed of agreement between the native title party and grantee party only. This Deed is regarded by those parties as commercial in confidence and contains a substance of detail of the negotiations which have taken place between the parties during the negotiations.

With respect to the dual Deeds the procedure is that MPD will receive the s 31 Deed from Mirimbiak which had been executed by the native title party and grantee party together with a request that the Government party execute the Deed. This Deed will then be the subject of consideration by the Government and any changes negotiated with the other parties. The Government party no longer requires inspection of the Project Consent Deed prior to executing the s 31 Deed because of the strong opposition from Mirimbiak to providing the Project Consent Deed. The Government party now receives the s 31 Deed for review and execution but no longer views the Project Consent Deed.
Mr Jungwirth says that the Mirimbiak policy was public and open and well known amongst the relevant native title stakeholders such as the Victorian Minerals and Energy Council.
Mr Jungwirth also says that while the Government party decided that it would respect Mirimbiak’s policy it was always prepared to provide information to the other negotiation parties if sought and attend meetings if requested to do so. It also has in the last two years or so ensured that negotiation parties are actively involved in negotiations by requiring the grantee party to report on their negotiations with the native title party by way of a pro forma questionnaire sent at six month intervals asking whether there has been negotiations towards an agreement and asking for explanations if there has been no negotiations.

The pro forma project

Mr Jungwirth’s evidence was that for the last three years or so the Government party has been involved with Mirimbiak and the Victorian Minerals and Energy Council in ‘the pro forma project’ which involved the development of pro forma documents including s 31 Deeds, Project Consent Deeds and Indigenous Land Use Agreements. It is proposed that these pro forma documents will be publicly available on the internet and it is hoped that they will be widely used and adopted by development proponents and native title parties in Victoria. During the negotiations, in relation to the pro forma project, native title parties and grantee parties have been utilising current drafts of the s 31 Deeds and Project Consent Deeds prior to their final endorsement and public release. The evidence also is that earlier drafts of the two documents were used in 1998 when negotiations in this matter commenced. The Government party has spent a considerable amount of time and resources in the pro forma project over a number of years.

In his oral evidence Mr Jungwirth said that he had responsibility for future act negotiations under the Act virtually from their commencement to October 1999. He said that he believed that the Gunai/Kurnai were aware of the Mirimbiak policy as he was involved in discussions where it was raised. Prior to the development of the Mirimbiak policy the Government party played an active role in facilitating negotiations. It prepared information packages about the process and initiated negotiations by sending a letter to parties and in conjunction with Mirimbiak organising the first meeting which were variously held in Melbourne normally at Mirimbiak offices or in rural areas. The Government party usually chaired the first meeting. The meeting enabled the parties to introduce themselves, receive information about the right to negotiate process, have the grantee party outline the project and allow Mirimbiak or the native title party to respond and ask questions and develop a process for the future conduct of negotiations.
The evidence of Mr Jungwirth was supported by Graham Carter who from April 1999 to July 2000 was employed as a solicitor at Mirimbiak where he was actively involved in a number of future act negotiations as well as the pro forma project. His evidence was consistent with that of Mr Jungwirth in relation to Mirimbiak’s policy on participation of the Government party in negotiations and the development of the pro forma project. In his oral evidence Mr Carter said that native title claim groups that he acted for in negotiations had provided instructions that they wished to negotiate directly with the grantee party and considered issues between the native title and grantee parties to be commercially in confidence which instructions were in accordance with Mirimbiak’s position. However he was not aware of any such instructions specifically given to Mr Keon-Cohen by the Gunai/Kurnai applicants as he was not assigned to that group. He said that he was not aware of any policy document which outlined Mirimbiak’s policy and the pro forma project to give effect to it. The Kurnai faction’s position was that they were unaware of Mirimbiak’s policy until they received the contentions in the present matter.
Sean Rooney provided evidence about the pro forma project, including copies of the draft s 31 Deed and Project Consent Deed. These documents are quite comprehensive and the Project Consent Deed covers a large number of topics which are customarily found in agreements about future acts between native title parties and mining companies. Standard Cultural Heritage Management Procedures are provided for and optional clauses dealing with benefits to be paid by proponents to the native title party and a Liaison Committee are to be negotiated on an individual basis. Mr Rooney confirmed the existence of the Mirimbiak policy.
Leaving aside for the moment the Kurnai faction’s specific contentions, I find in relation to the negotiations in the particular circumstances of this matter that MGM has generally acted consistently with the principles outlined and the Njamal indicia. This is despite the difficulties caused by the split in the native title party. There was a delay in the negotiations in 2000 and 2001 but the native title party did not request MGM to engage in negotiations or put forward proposals for consideration during this period which would have activated an obligation to respond. There was an unreasonable delay in responding to the Kurnai faction’s guidelines (some four months from their actual receipt) but this on its own is not sufficient to constitute a failure to negotiate in good faith. Apart from these possible lapses there is sufficient evidence looking at the negotiations overall to find that MGM, in difficult circumstances, made genuine efforts to engage in discussions with the native title party (including both factions of it) with a view to reaching agreement. It had a proposal on the table very early in the piece in 1998 (a s 31 Deed and Project Consent Deed), it met with the factions separately and responded to their correspondence. It was willing to organise and fund a site visit and heritage survey.
I also cannot ignore the behaviour of the native title party in making my assessment. Apart from the requirement that negotiations occur separately with the factions, the native title party did not put forward a submission under s 31(1)(a), did not make any detailed proposal for resolution of the matter, did not respond to the agreements tabled and did not proceed with the site visit and survey. The consequences of the split were again manifested by the Kurnai faction’s insistence that the only acceptable Heritage Protection Survey would be one carried out by them. The Gunai faction freely admitted their preoccupation with the s 66B proceedings. There is no doubt that these negotiations did not proceed in an ideal way in that there was not the serious engagement one might expect as part of good faith negotiations. However, in my view the primary responsibility for this failure rests with the native title party.

Kurnai faction contentions

The Kurnai faction’s contentions (in italics) and my findings in relation to them are as follows.
The Government party did not participate in the process until it appeared at a preliminary conference for these proceedings. It was acknowledged by the Kurnai faction at the hearing that this contention could not be maintained. At the very least the Government party organised and participated in the meeting in February 1998. In other respects its participation was understandably conditioned by the Mirimbiak policy.
The Government party failed to address the issue of funding for the native title party and allowed a situation where there was fundamental inequality of bargaining power between the grantee party and native title party. The obligation to negotiate in good faith does not extend to providing financial assistance to a native title party to conduct the negotiations. The designated Representative Body has the responsibility to assist claimants in matters relating to their claim (see Daniel at [146]). I acknowledge that in this matter this assistance was not forthcoming but find that this situation developed because of the split in the claim group and the refusal of the Kurnai faction to deal with Mirimbiak. In Victorian Gold Mirimbiak attempted to overcome this problem by engaging an independent barrister to advise the Gunai/Kurnai claimant group but this was not acceptable to the Kurnai faction (at [11]). I reiterate that once a claim has been registered then it is incumbent on a native title party to act in a manner consistently with the registration and negotiate as a Gunai/Kurnai native title claim group. It has been the failure to act in this way that has resulted in a lack of assistance from Mirimbiak.
The grantee party did not provide the Kurnai faction with information necessary for the purposes of the negotiation including about the work proposed, the amount of material (which may contain toxic materials such as arsenic and cyanide) to be processed, the volume of traffic, ongoing maintenance work on the track (road), the commercial value of the project, any exploration to be undertaken, any effect on cultural heritage and flora and fauna which impinge on native title rights, proposals for ongoing consultation. While the Kurnai faction was not satisfied with the level of information provided it cannot be said that MGM ignored requests for information. It provided an outline of the project supplementary to that described in the s 29 notice but was unable to provide final details because no intention had been formed to actually mine on the mining lease. It is principally to be used for transport purposes which will involve minimal disturbance. The fact that a native title party is dissatisfied with a response does not automatically mean a failure to negotiate in good faith on the part of a Government or grantee party. Further the native title party did not take up the offer of a site visit where the issues raised by the Kurnai faction could have been pursued in face to face negotiations.
Lack of information lead the Kurnai faction to believe that any exploration on the site will only be undertaken to fulfil the conditions of the mining licence grant which makes the offer to share in royalties of any mineral extracted which had been offered by the MGM illusory. The information on this point was clear enough. On what MGM says it may well be the case that the mining lease will not be used for actual mining but if it is not then there would be no basis for paying royalties. If the only disturbance caused by MGM will be some upgrading of a road and some exploration then the Kurnai faction could have negotiated about this and put a proposition on the table for compensation based on this lower level of disturbance. Again, the opportunity for detailed face to face discussions about this issue was not taken up.
MGM has taken ‘a take it or leave it’ bargaining position, not seriously considered the Kurnai faction’s proposals and maintains a predetermined position. This contention is not supported by the facts. MGM did consider the Kurnai faction’s position, and modified its financial offer in relation to the site visit. It must also be said that the Kurnai faction and native title party generally did not put on the table detailed proposals regarding the specific future act based on the effect of the future act on the registered native title rights and interests.
There is insufficient evidence of the Mirimbiak policy as there was no policy document and appears to have been a policy adopted by one officer at Mirimbiak. My finding is that there is ample evidence to support the existence of the Mirimbiak policy. The Kurnai faction did not produce evidence to contradict that of the Government party’s witnesses except Pauline Mullett who said that she was unaware of the policy. Mr Jungwirth says the policy was discussed with the Gunai/Kurnai claimants. Given the unsatisfactory state of the claim group both persons could be right. As with the February 1998 meeting, Ms Mullett may not have been present. The breakdown in relations between Mirimbiak and the Kurnai faction means it is also possible that the Kurnai faction did not become aware of the policy. Whatever the truth about this, there is no doubt the policy existed and that Mirimbiak were acting for the native title party in future act matters until at least July 2000 (Pacific Minerals matter VF00/1). They were also the solicitor on the record in the Federal Court and one of the addresses for service until 31 October 2003 when they were replaced by NTVS. In these circumstances the Government party was entitled to rely on the policy in making an assessment of what its obligation to negotiate in good faith involved generally and in the Gunai/Kurnai matter. There is also no evidence that the Kurnai faction, when negotiations recommenced in mid 2002, put any proposal to the Government party or requested their greater involvement.
The existence of the Mirimbiak policy does not justify the blanket absence of the Government party from negotiations. The policy did not absolve the Government party of their obligations under s 31(1)(a) and (b) as some participation in each future act negotiation is required. The Government party has not conferred with a view to reaching agreement. I accept Ms Denisenko’s submission that Mirimbiak’s policy and the system of split deeds effectively means that as a matter of practice in Victoria the Government party does not normally become involved in negotiations until there have been negotiations about the Project Consent Deed between the native title party and grantee party. Negotiations between MGM and the Gunai/Kurnai native title party did not reach resolution and there was no agreement on several aspects of the Project Consent Deed. It was not even possible to agree to go ahead with a site visit which had previously been discussed. In these circumstances there is no agreement about a Project Consent Deed and no s 31 Deed that had been signed by MGM and the native title party which could be put to the Government for its consideration and trigger the Governments more active involvement.
In considering this matter the Tribunal is entitled to take into account the practice of negotiation which has developed in Victoria since the commencement of the right to negotiate process. I accept that the Mirimbiak policy and development of the dual pro forma deed system does not remove the obligation on the Government party to negotiate in good faith as required by s 31. However, in practice that obligation must be viewed on the basis that the Government party does not effectively become involved in negotiations until a Project Consent Deed is finalised between the other negotiation parties. In this matter the Government party commenced the negotiations in accordance with its normal practice but did not get to the point of finalising matters as between themselves and the other negotiating parties because no State Deed was presented to it for consideration. The content of the obligation on the Government party is thus conditioned by the practice developed in Victoria. The situation would almost certainly be different if the Mirmibiak policy was not in place and the grantee and native title parties requested the Government party to be closely involved in the negotiations or the native title party put forward proposals for consideration by the Government.
As the practice of negotiating in good faith under the right to negotiate has developed around the country it has become obvious that what is required in the particular circumstances is very fact specific. It depends very much on the circumstance surrounding the nature of the project and arrangements that have developed for the negotiations between the parties as a matter of practice in different States. For instance, in Western Australia and the Northern Territory the dual deed system has been adopted whereas in Queensland it is usual for there to be one agreement only and the Government party customarily plays a more active part in the negotiations between the native title and grantee parties As pointed out in Njamal (at 248-249) there will obviously be a difference between a major project in which the Government is playing a central part and offering benefits and incentives for industry to participate in the project and a smaller project such as the mining licence in these proceedings where the Government party is not in a position to offer very much of substance beyond a commitment to ensuring the regulatory regime relating to the grant of the mining licence, site and heritage protection and environmental protection is properly adhered to. The Tribunal is entitled to have regard to the specific practice which has developed in Victoria in relation to negotiation in good faith in assessing the extent of the Government party’s obligations.
The pro forma project cannot be considered as part of future act negotiations as envisaged by s 31 of the Act. These negotiations must be between the specified negotiation parties about the specified future act. Negotiations about pro forma documents with peak industry or Native Title Representative Bodies which are of a general nature are no substitute for participating in specific negotiations. I agree that general discussions of a policy nature are not sufficient on their own to constitute good faith negotiations but can accept that they may be relevant where they are directly related, as these were, to the approach of one of the parties to the negotiations. This project demonstrated the Government party’s willingness to constructively engage in developing procedures to facilitate the right to negotiate in accordance with the wishes of the Representative Body and which would assist in individual negotiations. The project is not on its own a decisive consideration but can be added to the mix of factors which demonstrates that the Government party has negotiated in good faith.
The Kurnai faction was taken by surprise by the s 35 application. There is no substance in this contention. MGM were entitled to make the s 35 application and in fact gave the native title party some four weeks notice of its intention to do so, while committing itself to continuing negotiations.

Decision on the good faith issue

For the above reasons I find that both the Government party and grantee party have fulfilled their obligation under s 31(1)(b) of the Act to negotiate with the native title party with a view to obtaining their agreement to the doing of the future act. The Tribunal has jurisdiction to conduct an inquiry.

Hon C J Sumner
Deputy President
22 December 2003