Normandy Pajingo Pty Ltd and Battle Mountain (Australia) Inc/Queensland/Colin McLennan and Ors on behalf of the Birri People (QC98/12) and James Reid and Ors on behalf of the Kudjala People (QC00/1)
[2000] NNTTA 327
•29 September 2000
NATIONAL NATIVE TITLE TRIBUNAL
Normandy Pajingo Pty Ltd and Battle Mountain (Australia) Inc/Queensland/Colin McLennan and Ors on behalf of the Birri People (QC98/12) and James Reid and Ors on behalf of the Kudjala People (QC00/1), [2000] NNTTA 327 (29 September 2000)
Application No: QF00/2
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of a Future Act Determination Application
Normandy Pajingo Pty Ltd and Battle Mountain (Australia) Inc (applicant/grantee party)
- and -
The State of Queensland (Government party)
- and -
Colin McLennan and Ors on behalf of the Birri People (QC98/12) and James Reid and Ors on behalf of the Kudjala People (QC00/1) (native title parties)
DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY
Tribunal: Hon CJ Sumner, Deputy President
Place: Brisbane
Date: 29 September 2000
Catchwords: Native title – future act – application for a determination in relation to a mining lease – jurisdiction – whether Government party has negotiated in good faith – evidentiary onus on native title party to satisfy the Tribunal that other parties have not negotiated in good faith –Tribunal not obliged to but may have regard to the reasonableness of the Government party’s proposals – obligation to negotiate in good faith about matters related to the future act – s 39 of the Native Title Act indicates the scope of matters about which negotiations may occur – importance of submissions from the native title parties under s 31(1)(a) Native Title Act considered – Government party’s negotiating behaviour reasonable in the circumstances – Government party has negotiated in good faith.
Legislation:Native Title Act ss 31(1), 33, 36(2), 38, 39
Cases:Western Australia v Taylor (1996) 134 FLR 211
Western Australia/Marjorie May Strickland (Maduwongga) & Ors, NNTT WF97/4, Hon CJ Sumner, 10 December 1997
Stickland v Western Australia (1998) 85 FCR 303
Western Australia/Kevin Peter Walley & Ors, NNTT WF97/5, Hon CJ Sumner, 25 March 1998
Walley v Western Australia [1999] FCA 3, (1999) 87 FCR 565
Western Australia/Leo Winston Thomas & Ors/Anaconda Nickel Ltd, NNTT WF98/7, Hon CJ Sumner, 4 September 1998
Brownley v Western Australia [1999] FCA 1139, (1999) 95 FCR 152
Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, Hon EM Franklyn QC, 27 August 1999
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Koara people, NNTT WF99/5, Hon CJ Sumner, 21 December 1999
Western Australia/Arthur Dimer & Ors (Ngadju People); Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited, NNTT WF99/10, Ms Patricia Lane, 9 August 2000
Word & Phrases: ‘negotiate in good faith’
REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY
Background
The State of Queensland (‘the Government party’) proposes, under the Mineral Resources Act 1989 (Qld), to grant mining lease ML 10246 to Normandy Pajingo Pty Ltd and Battle Mountain (Australia) Inc (‘the grantee party’/‘Pajingo’). The mining lease is of 1255.38 hectares located 72 kilometres south of Charters Towers. On 8 October 1999, the Government party, in accordance with s 29 of the Native Title Act 1993 (Cth) (‘the NTA’), gave notice of the grant. On 20 July 2000, the grantee party, pursuant to s 35 of the Act, made a future act determination application to the Tribunal.
The following persons became registered native title claimants over the area of the mining lease within 4 months of the s 29 notification day and are native title parties in respect of this application:
Colin McLennan, David Miller, David Walsh, Frank Fisher, Patrick Walsh, Dorothy Hustler, Grace Lenoy, Joan Macey, Lorna Collins and Winifred Munns on behalf of the Birri People (Claim No QC98/12), originally registered on 2 April 1998 and again under the amended NTA on 7 February 2000 (‘the Birri native title party’).
James Reid, Vincent Reid, Beverly McKean, Heather Kerr on behalf of the Kudjala People (Claim No QC00/1, registered on 7 February 2000) (‘the Kudjala native title party’).
Good faith negotiations – jurisdiction
Before conducting an inquiry and making a determination the Tribunal must be satisfied that it has jurisdiction to do so and in particular be satisfied that the Government and grantee parties have negotiated in good faith as required by s 31(1)(b) of the NTA. The matter is to be dealt with under the NTA as amended to operate from 30 September 1998. Section 31 contains two obligations:
the Government party must give the native parties an opportunity to make submissions to it, in writing or orally, regarding the future act (s 31(1)(a)); and
the negotiation parties must negotiate in good faith with a view to obtaining the agreement of the native title parties to the doing of the future act with or without conditions (s 31(1)(b)).
Section 36(2) of the NTA 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, the Tribunal must not make a determination.
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. (Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, Hon EM Franklyn QC, 27 August 1999; Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Koara people, NNTT WF99/5, Hon CJ Sumner, 21 December 1999.)
The native title parties contended that the Government party had not fulfilled its obligation to negotiate in good faith. No contention was made in relation to the grantee party nor in relation to the obligation contained in s 31(1)(a).
The hearing
Directions were made for the production and exchange of documents and contentions relating to the good faith issue and a hearing conducted on 11 September 2000. The grantee party was represented by Mr Dominic McGann of McCullough Robertson, lawyers; the Government party by Mr Michael Liddy instructed by Mr Gavin Scott of the Crown Solicitor’s Office; and the native title parties by Mr Chris Athanasiou instructed by Ms Amber Magauran of the Central Queensland Land Council Aboriginal Corporation (‘the CQLC’) and the Inland Land Council Aboriginal Corporation (‘the ILC’).
Affidavits were filed by the native title parties from:
Jodie Maree McFaul, legal officer with the CQLC (the representative body under the NTA for the region that includes the proposed mining lease) who assisted the native title parties in the negotiations;
Sandra Penny Callope, Native Title Coordinator of the ILC who was involved in the negotiations on behalf of the Kudjala native title party; and
Professor Ciaran Seosamh O’Faircheallaigh who was engaged by the Birri native title party as a consultant negotiator.
Affidavits were filed by the Government party from:
Johannes Bednarek, Acting Manager, Negotiation Unit, Native Title Services, Department of Premier and Cabinet and senior negotiator for the Government party in these negotiations;
Paul Travers, Senior State Negotiator, Native Title Services, Department of Premier and Cabinet; and
Peter Reginald Little, Regional Mining Registrar, Northern Region, Department of Mines and Energy (‘the DME’)
Leave was granted for these witnesses to be cross-examined (s 156(5) NTA) and Professor O’Faircheallaigh, Mr Bednarek, Mr Travers and Mr Little were cross-examined.
As this was the first good faith hearing conducted in Queensland the reasons given are more extensive than might otherwise have been the case, given the importance of establishing principles which will assist the parties in the conduct of future negotiations and an arbitral body to make timely decisions in future.
Legal principles
The Federal Court and Tribunal have considered the obligation to negotiate in good faith under the NTA prior to its amendment (when the obligation was only imposed on the Government party) in a number of matters. Although the obligation to negotiate in good faith is now imposed on all parties, the principles enunciated under the old NTA are still relevant. They were summarised in Placer (Granny Smith) & Anor/Western Australia/Harrington-Smith & Ors, NNTT WF99/5, Hon CJ Sumner, 21 December 1999 (at 9):
‘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 parties 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 and grantee parties 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.’
This approach under the new NTA was recently endorsed by the Tribunal in Western Australia/Arthur Dimer & Ors (Ngadju People); Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited, NNTT WF99/10, Ms Patricia Lane, 9 August 2000. 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); 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 amendments to the NTA, now subject to a lesser standard than previously (at 27).
The Njamal indicia are:
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 (Njamal at 224-225).
Other relevant factors have been identified by the Tribunal and are enunciated in Western Australia/Marjorie May Strickland (Maduwongga) & Ors, NNTT WF97/4, Hon CJ Sumner, 10 December 1997 and were considered (and modified in respect of whether there is an obligation on the Government party to make reasonable substantive offers) in subsequent Federal Court decisions. Of particular relevance are the following:
much of the content of negotiations will involve the native title and grantee parties and depending on the circumstances the Government party may have little it is able to offer in resolution of the dispute (Njamal at 225). There is likely to be a significant difference in what is involved in the Government party’s obligation to negotiate in good faith depending on the circumstances of the proposed grant. For instance, is it for an exploration or prospecting licence, or additional mining lease for an established project or a mining lease for a completely new project (NNTT WF97/4 (Maduwongga) at 13).
the obligation to negotiate in good faith should be judged in the context of matters related to or connected with the doing of the future act (Walley v Western Australia [1999] FCA 3, (1999) 87 FCR 565).
the terms of s 39 of the NTA (which set out the criteria which the Tribunal must take into account in making an arbitral determination whether the act may or may not be done) indicate the scope of matters in respect of which negotiations may be conducted (Brownley v Western Australia [1999] FCA 1139, (1999) 95 FCR 152). In that case the
Federal Court said (Lee J at 162 [24]):
‘As was acknowledged by the Tribunal the terms of s 39 of the Act indicate the scope of matters in respect of which negotiations may be conducted. Section 39 alerts a government party to the various interests in respect of which a native title claimant may seek to reach accord with government for the doing of a proposed act in a manner that respects those interests.
If a Government party ignores the requirements of the Act and seeks to exercise powers without considering, and responding to, any submissions put to it by a native title claimant, relevant to the matters referred to in s 39, it will not be negotiating in good faith.’
The native title parties’ principal submission in this matter was that the Government party had failed to advance proposals that were reasonable and addressed the issues in ss 33, 38 and 39 of the NTA. Mr Athanasiou submitted that there was a duty on the Government party to advance reasonable proposals and that its failure to do so meant that it had not negotiated in good faith because there was no genuine attempt to reach agreement with the native title parties. He relied on the Federal Court cases of Strickland v Western Australia (1998) 85 FCR 303, Walley v Western Australia [1999] FCA 3; (1999) 87 FCR 565 and Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152 to support his submissions. In Strickland (at 318-321) the Court upheld a contention by the Government party that the Tribunal erred in law in finding that the s 31(1)(b) obligation included an obligation (on the Government party only at that time) to make reasonable substantive offers. The Court said (RD Nicholson J at 321):
‘The reasoning of the Tribunal that negotiations in good faith require “reasonable substantive offers” requires, as submitted for the Government party, a further and unnecessary level of complexity and application to the interpretation of the words of s 31(1)(b). It is not necessary to have resort to any standard outside the words in the section itself. The question is whether the communications and other events as they have fallen out satisfy the legal standard of negotiating in good faith as required by s 31(1)(b).’
In Walley (Carr J at 577 [15]) agreed with this reasoning with one slight reservation:
‘The slight reservation is that I think that if a Tribunal, as part of the overall assessment of whether the Government party has negotiated in good faith, finds it useful to consider whether any particular offer (or all offers for that matter) appears (or appear) to be reasonable, then it is open to the Tribunal to engage in that exercise. But that is not to say that it will always be obliged to do so. Much will depend on the circumstances of the particular matter. The Tribunal will be engaged on a factual assessment of the Government party’s conduct and, in some cases, the reasonableness or unreasonableness of its proposals or offers may be relevant. In other cases there may be a difference between making reasonable offers and being reasonable in negotiating in good faith.’
In Brownley Lee J agreed with the approach of Carr J in Walley when he said (at 165 [35]):
‘In the context of conduct as a whole, failure to advance reasonable proposals may be shown to be part of a pattern from which an inference may be drawn that a government has not engaged in a genuine attempt to negotiate. Later in the reasons, dealing specifically with “substantive offers” made by the State, the Tribunal, (applying an understanding of the law it formed from reading the reasons of this Court in Strickland), stated that it was “not permitted to consider the reasonableness of offers unless they were so unreasonable or contemptuous of the process that [the State was] not acting honestly or genuinely with a view to achieving agreement”. As stated by Carr J in Walley at 576-577, it is not correct to say that the Tribunal is “not permitted” to consider the reasonableness of offers made by government. If consideration of all conduct relevant to determination of the question whether the State negotiated in good faith was restricted by such a misapprehension, an error of law may be shown to have occurred in the making of the decision sought to be reviewed.’
The Tribunal now applies the law as enunciated in Walley and Brownley. While both procedural and substantive aspects of the negotiations can be considered in deciding the good faith issue, there is no requirement that the Tribunal be satisfied that the Government or grantee party has made reasonable substantive offers or concessions to reach agreement. However, the reasonableness or otherwise of such offers or concessions may be taken into account in an overall assessment of a party’s negotiating behaviour.
Background facts
ML 10246 is being sought by Pajingo to enable the mining and processing of gold through an existing treatment plant to continue as part of its Pajingo Operations, which is a joint venture between the two grantee party companies. From September 1987 to March 1996 open cut and underground mining was undertaken on mining lease ML 1575 (Scott Lode and Cindy deposits) which are now being decommissioned. Development of the Vera Nancy Deposit on mining lease ML 10215 commenced in August 1996 and involved a small open cut operation but predominantly underground operations. A gold treatment plant was constructed in 1987 and has since been refurbished and upgraded. Mining on proposed ML 10246 (Vera South deposit), which adjoins ML 10215, will be an underground operation and the expansion of the project involves expansion of the processing plant, new leach tanks, a water pipeline and general upgrade to the site infrastructure. Gold production will be lifted from 90,000 ounces per annum to 200,000 ounces per annum. The number of employees of Pajingo and contractors will increase. The project is located on parts of three pastoral leases, (Britannia, Pallamana and Doongara) all of which are owned by Pajingo and sub-leased for pastoral purposes to third parties.
The negotiations generally
Extensive negotiations have taken place between the parties over a period of some 9 months from the time of the s 29 notification date (8 October 1999) until the s 35 application was made on 20 July 2000. The Government party wrote to the Birri native title party (then known to be a registered native title claimant) on 15 October 1999 explaining the background to the right to negotiate, inviting submissions in accordance with s 31(1)(a) of the NTA and suggesting a meeting at the mine site on 23 November 1999. This meeting was postponed because of the impending claim to be lodged by the Kudjala native title party. On 6 December 1999, the Government party by letter invited the Kudjala native title party to attend a meeting with the other parties on 13 December 1999. The following six meetings were held involving the Government and grantee parties and the native title parties as indicated.
Rockhampton on 1 December 1999 (Birri).
Townsville on 13 December 1999 (Birri, Kudjala and CQLC).
Charters Towers on 27 January 2000 (Kudjala and CQLC).
Aitkenvale Reserve on 28 January 2000 (Birri and CQLC).
Charters Towers on 21 February 2000 (Kudjala).
Townsville on 18 and 19 March 2000 (Birri).
Rockhampton on 15 and 16 April 2000 (Birri and CQLC).
Charters Towers on 6 May 2000 (Kudjala).
Charters Towers on 20 May 2000 (Kudjala and Birri).
Each of these meetings was organised by the Government party and attended by a number of their representatives. The venue and catering were provided by it. The Government party produced draft minutes of the meetings for consideration of the other parties. No agreement has yet been reached but there has been substantial progress in the negotiations between the native title and grantee parties. The topics covered include such matters as land access, environmental land management, cultural heritage clearance and management, employment and training including preference in employment for the native title parties, monetary compensation, educational scholarships and apprenticeships.
It is not necessary to recite all the steps that were taken by the Government party in the negotiations which relate to the Njamal indicia. I find that in general its negotiating behaviour was consistent with them. Considerable financial and human resources were devoted to facilitating negotiations between the parties. In a purely procedural sense there can be little to complain about in the Government party’s negotiating behaviour (I deal below with the complaints of delay). Further, I have no difficulty in finding that the Government party negotiators were honest and sincere in their actions and desire to reach agreement.
The Government party’s proposals
The native title parties’ general contention was that the Government party did not negotiate in good faith because it failed to advance proposals (Njamal indicium (ii)) that were reasonable or which addressed ss 33, 38 and 39 of the Act and failed to respond in a reasonable manner to the requests made by the native title parties (Njamal indicium (xviii)). Further, the offers made by the Government party should have been particularised or developed. The native title parties also contended that the Government party, in relation to some issues, adopted a rigid non-negotiable position (Njamal indicium (xiv)).
Section 33 specifically refers to certain matters which may be included in the negotiations.
‘33 Negotiations to include certain things
Profits, income etc.
(1)Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a)the amount of profits made; or
(b)any income derived; or
(c)any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Existing rights, interests and use
(2)Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:
(a)existing non‑native title rights and interests in relation to the land or waters concerned;
(b)existing use of the land or waters concerned by persons other than native title parties;
(c)the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.’
In relation to a future act determination application s 38(1) of the NTA requires the arbitral body (the Tribunal in this case) to make one of the following determinations:
that the act must not be done:
that the act may be done; or
that the act may be done subject to conditions to be complied with by any of the parties.
Section 38(2) prohibits the making of a determination that would entitle native title parties to payment worked out by reference to the amount of profits made; income derived; or any things produced by the grantee party. This means that such payments can be agreed between the parties as a result of negotiations but cannot be the subject of an arbitral determination.
Section 39 sets out the factors which the Tribunal must take into account in making its determination.
‘39 Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a)the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)any public interest in the doing of the act;
(f)any other matter that the arbitral body considers relevant.’
At the first meeting on 1 December 1999, Mr Travers, in addition to offering funding for meeting venues and catering, outlined the Government Party’s position as being:
to facilitate access to existing Government programs and land in the area;
to ask the Department of Natural Resources (‘the DNR’) to research land available in the area for use the native title party might desire;
to have DNR do mapping for the native title claim;
to contact the Department of Tertiary and Further Education (‘TAFE’) regarding training and employment courses;
possibly to do a skills audit; and
that its interest in the negotiations was that it wanted to grant the mining lease.
At the meeting on 13 December 1999 Mr Travers gave an example of assistance the Government party could provide as identifying Unallocated State Land in the area for transfer under the Aboriginal Land Act 1991 (Qld). He said that while the Government party would be actively involved in negotiations it would not open any new programs.
On 20 January 2000, Ms Callope had a telephone conversation with Michael Jacques (Native Title Research Officer, Native Title Services, Department of Premier & Cabinet) about the Government party’s position in the negotiations. A telephone attendance note made by Mr Jacques recorded the discussions.
‘“She asked what the State was bringing.” I said the State could only offer help in gaining access to existing programs and would provide meeting venues and catering. Other than that we could help them to apply for land under the ALA or for commercial leases, etc, we could approach DNR to see what was available in the area. There was no “bag of money”. In addition we could offer administrative support to meetings and help with researching their ideas and making contact with Government agencies. I stated that other groups had found the involvement of the State useful in offering another party to “sit in-between” the Company and the claimants and help to resolve disputes at meetings.’
On 24 February 2000, the CQLC wrote to Mr John Bednarek to seek a response in relation to the Government party’s position on:
whether financial compensation should be a matter within the scope of good faith negotiations; and
its role in the negotiation process given the requirement to negotiate in good faith.
On 15 March 2000, the Government party (Mr Paul Smith) responded by letter:
acknowledging that direct financial compensation is an issue that can be negotiated and agreed and that in-kind compensation may also be considered; and
explained the Government’s role in the negotiations in the following terms:
‘… the State has been seeking to facilitate the Right to Negotiate meetings with the intention of bringing the parties to an agreement. The State Negotiators have endeavoured to provide useful information to the parties and have sought to encourage them to explore areas of possible agreement. Although the State has declared from the outset its interest in granting the lease, it is my view that the State has not adopted a partisan approach to the negotiations.
The State has also contributed to the Right to Negotiate process by providing venues, catering and administrative support to the meetings. We have also offered enhanced access to existing government funding sources and programs. In particular, our State Negotiators have offered to provide more information about transfers of land under the Aboriginal Land Act and information on other government programs such as training courses.’
I do not accept the native title parties’ contention that the delay in replying to the letter of 24 February 2000 was of significance.
The native title parties contended that the Government party’s offers described above were not reasonable and amounted to an abrogation of responsibility leaving the native title parties with no options but to negotiate with the grantee party. The offer to facilitate access to Government programs was nothing more than what the Government party was obliged to provide to the public anyhow under legislation or administratively and was not a legally binding commitment. It was an offer to do something in future which was external to the negotiations. Similarly, the native title parties contended that an offer to prioritise the settlement of the native title claims was of the same character and incapable of realisation because of the conflict between the native title parties and the fact that the offer only covered the native title claim in relation to the area of the proposed mining lease including the three pastoral leases.
In his evidence Professor O’Faircheallaigh said that he and other Birri negotiators repeatedly informed the Government party negotiators that they did not consider the offer to be of value and that the Government party should engage in substantive negotiations. Professor O’Faircheallaigh formed the view, which he repeated in evidence, that a mere offer of information about Government services without the Government working towards an outcome was of little benefit. On the other hand, he said, if the Government party actively intervened to achieve an outcome for the native title parties, this amounted to ‘queue jumping’ or preferential access which would give other parties a right to challenge the Government party’s actions under administrative law or apply political pressure to force the Government party not to proceed. Professor O’Faircheallaigh said that this assessment of the Government party’s approach shaped the negotiating behaviour of the Birri native title party and led them to concentrate their limited resources on negotiations with Pajingo.
I deal more specifically with some of the proposals made by the Government party below but my general conclusion is that the native title parties were unduly precipitate in rejecting the Government party’s offers as of no benefit to them. The offers were of a general nature and needed more particularisation and discussion before they could be finalised and I accept the native title parties contention that the offers as made were not in a form which could result in a legally binding obligation on the part of the Government without further negotiations. However, the negotiations did not progress to the point where this became an issue. I do not find the Government party’s position to be that it would never agree to a legally binding obligation in relation to matters the subject of negotiations.
The problem in these negotiations is that the issues between the Government and native title parties were not pursued. The Birri native title party made a decision to concentrate on what the grantee party had to offer and made substantial progress in discussions with them. It was entitled to do this, but the behaviour of the Government party was not so unreasonable as to leave this as the only option open to the native title parties.
The evidence is quite clear and I have no hesitation in finding that in the negotiations the Government party invited the native title parties to make proposals to it. At the meeting on 13 December 2000, Mr Travers said that the Government party was willing to consider anything put forward and wanted to hear suggestions from the native title parties. He gave examples as commercial leases, tourist leases and land for offices. He said that exploring options wouldn’t be a wasted effort and he would like a clear idea of what the native title parties wanted as soon as possible.
At the meeting on 16 April 2000, Mr Bednarek, in addition to offering prioritisation of the native title claim, requested the Birri native title party to specify what it wanted. Again at the meeting on 20 May 2000, with the Kudjala native title party, Mr Bednarek summarised what the Government party was offering. He offered to look at a commercial venture on the pastoral leases and even though restricted by legislation, offered to create a ‘direct pipeline’ to different Government agencies to consider the proposal. The offer relating to priority for the native title claim was repeated. Mr Bednarek said that, subject to the resolution of the issue of traditional ownership, a native title determination would be possible in six to nine months. Mr Bednarek concluded by saying that without knowing what sort of proposal the native title parties wanted to talk about it was very hard to try and identify how the Government party could assist further. It is clear that Mr Bednarek was of the view that more specific proposals were needed from the native title parties. I find that this was a reasonable position to take in the context of these negotiations.
The Tribunal has previously said that the two obligations contained in s 31(1) are part of the negotiation process (Western Australia/Kevin Peter Walley & Ors, NNTT WF97/5, Hon CJ Sumner, 25 March 1998 at 47). The Tribunal explained its view of the negotiating process (at 65-66):
‘I have concluded that the provisions of s 31(1)(a) and (b) should be read together as laying down a procedural framework for the negotiations. Parliament envisaged that the native title party would make a submission to the Government party regarding the act and that the submission would form a basis upon which the negotiations could proceed. In the future an appropriate way for these matters to be dealt with to optimise the possibility of agreement is as follows:
(1)The Government party will send out its initiating letter with its negotiating protocol and will take all reasonable action in a procedural sense to facilitate the negotiations as between the parties;
(2)The native title party will consider the act that is being proposed (having received details of it from the Government party in its initiating letter) and will then make a submission to the Government party which will detail the native title party's views of the likely effect of the act on native title and the other factors in s 39. It may also advance substantive proposals which the Government party should consider as a part of the negotiations and also may propose matters appropriate for consideration by the grantee party. Submissions of this kind from a native title party will provide some context within which the negotiations can occur and assist the Government and grantee parties to consider appropriate substantive proposals. Obviously the information that should be provided by the native title party would not need to be of the detailed nature that might be necessary in an arbitral determination, but some basic information about the factors in s 39(1)(a) and (c) [old NTA; s 39(1)(a) and (b) of new NTA] would assist the conduct of negotiations. In circumstances where the mining lease involves a proposal for a productive mine then the Government and grantee parties should provide to the native title party full details of the proposal, including its economic significance, details of any public interest in the proposed act proceeding and any assessment carried out under s 39 (1)(b).’ [old Act reference to any assessment of the effect of the act on the natural environment.]
In Brownley the Federal Court said (Lee J at 161[18]):
‘A government is instructed to receive, and deal with, submissions from a registered native title claimant that set out how that party perceives a government Act will affect such rights and interests, and is to negotiate in good faith on those issues to obtain an agreement to the doing of the government act that will address the requirements of government and of the native title claimant.’
These negotiations suffered from the fact that, except in very general terms, the native title parties did not seek to put before the other parties a submission about their native title rights and other interests which would be affected by the grant of the mining lease. They chose to raise some general matters with the Government party and put a list of proposals to the grantee party but there is no evidence of a submission about the native title parties’ native title rights or other matters in s 39(1)(a) which could be affected by the grant of the mining lease. An agreement between parties can deal with matters which go beyond what the Tribunal is empowered to decide by way of an arbitral determination (s 33 is a statutorily sanctioned example). A native title party may choose to put forward its proposals without making a submission about the impact of the grant on the matters in s 39(1)(a). It may achieve agreement about them. However, the failure to make a submission about the effect of the future act on their interests is relevant to whether the Government party has negotiated in good faith. A detailed submission from a native title party outlining the affects of the future act on their native title rights and interests, way of life, freedom of access and sites of particular significance and proposals to deal with them is likely to require a more detailed response from a Government or grantee party than if there is no submission or only one of a general nature. The importance of such a submission is also highlighted by s 33(2) of the NTA which specifically acknowledges that the existing rights and use of the land by non-native title parties is a legitimate factor to be taken into account. In the arbitral phase, s 39(2) requires the Tribunal to take into account these factors in assessing the effect of the future act on the native title party’s interests specified in s 39(1)(a). A submission which attempts to identify these issues during the negotiations may assist in making the negotiations productive. In this case not only was there no submissions about the effects of the grant but, as will become apparent from the discussion below, the proposals made by the native title parties were not very specific and in some cases not related to the grant.
I acknowledge that the native title parties may have problems with the resources available to them. However, the matters in s 39(1)(a) are all (generally at least) within their own knowledge and should be capable of being identified and presented in the negotiations. Certainly in the arbitral phase evidence of these issues will need to be produced, as they will if a determination of native title is to be obtained.
I can accept that the native title parties had concerns about the proposed grant of the mining lease and its impact on their native title rights and cultural heritage interests and accept that there have been cumulative adverse impacts of many years of mining and pastoral development in the Charters Towers region and a consequent high level of social dysfunction in the Aboriginal society (see letter from Department of Families, Youth and Community Care to Mr Rod Coe, Principal Environment Officer – dated 7 March 2000). On the limited evidence before me I cannot say whether I accept Professor O’Faircheallaigh’s opinion that there is likely to be a major environmental and social impact issue associated with this particular development. One of the objectives of negotiations and arbitration is to try to identify more specifically the social and environmental impacts that are related to the criterion in s 39 of NTA and consider proposals to deal with them. In this case the Tribunal and parties are concerned with the grant of a mining lease for underground mining to supply an already existing processing plant. It is this future act which must be considered, not impacts which previously occurred. This grant may lead to some related additional impacts following from the exercise of the right to mine itself and any increase in the size and output of the plant and works related to it. However, what those impacts are have not been specifically identified in these proceedings.
In NNTT WF97/5 (cited above) the Tribunal said (at 47):
‘The starting point for consideration of this issue is the subject matter, scope and purpose of the Act. In Koara [ReKoara People (1996) 132 FLR 73] (at 93) the Tribunal concluded that the wide discretion given to make an arbitral determination and impose conditions is exercised by reference to the criteria in s 39 and 'controlled by the subject matter, scope and purpose of the Act' (Hot Holdings Pty Ltd v Creary (1996) 134 ALR 469 at 484). It applied the same principle to consideration of s 39(1)(f) when it said that a matter can only be relevant if it falls within the subject matter, scope and purpose of the Act.
It is my view that the scope of negotiations which the Government party is required to conduct (as opposed to those which may be voluntarily undertaken) must also be limited by reference to the subject matter, scope and purpose of the Act. The subject matter of the Act is indisputably native title. It was passed in response to the High Court decision in Mabo v State of Queensland (No.2) (1992) 175 CLR 1 which for the first time in Australian common law recognised that native title could continue to exist. One of the considerations taken into account by Parliament in enacting the Act was that Aboriginal people and Torres Strait Islanders are as a group the most disadvantaged in Australian society as a consequence of the progressive dispossession of their lands. However, this does not mean that the Act purports to deal with all aspects of disadvantage and social and economic deprivation suffered by Australia's indigenous people. It is concerned with one, albeit very important, measure to deal with that disadvantage - the recognition and protection of native title. All of the paragraphs of s 3 of the Act refer to native title and confirm that this is its principal focus. As far as future acts are concerned, the policy of the Act, in the Prime Minister's words, is to accord a right to indigenous people to be asked about actions affecting their land. That right arises because what the Government party proposes may affect native title. Obviously, negotiations can and an arbitral determination must include consideration of issues which go beyond the affect of the act on native title, but it is important to bear in mind that the central purpose of the Act and trigger for consideration of those issues is the affect of the act on native title.’
The letter of 7 March 2000 from Families Youth and Community Care referred to a concern about missed opportunities to negotiate for positive benefits from the proposal, benefits which could in turn lead to a lessening of the previous adverse impact of mining and pastoral development in the Charters Towers region. Of course, it is possible for the parties to consider, in the negotiations, whether positive benefits can flow to native title parties from the grant of the mining lease to help overcome past injustice or current disadvantage but the actual obligation on the Government party and grantee party to negotiate in good faith only extends to dealing with issues which are related to the doing of the future act and which fall within the subject matter, scope and purpose of the NTA.
My conclusion is that the Government party did not behave unreasonably in the conduct of these negotiations. The offers which the Government party made were of a general nature but reasonable in circumstances where there were no submissions from the native title party on the effect of the grant on the s 39(1)(a) criteria or proposals to deal with them. The failure to make more substantive offers is not fatal to negotiations in good faith in this case.
I also consider that the offer to give priority to the determination of native title was not necessarily the empty gesture which the native title parties considered it to be. Even with the difficulties involved because of the conflict between the native title parties and limiting the determination to the area of the pastoral leases, useful work could have been done in mapping, tenure history and connection to country issues at an earlier time than would otherwise be the case. Native Title Services had authority to instruct other government departments to give priority to research of this kind.
Commercial activities on the pastoral leases
Professor O’Faircheallaigh gave evidence that the Birri native title party had unsuccessfully attempted to negotiate access to the Britannia, Pallamana and Doongara pastoral properties for commercial uses such as ecological or cultural tourism. The question of commercial or tourist leases had first been raised by Mr Travers at the meeting on 13 December 1999 as an example of suggestions which could be made by the native title parties. On 28 January 2000, Professor Faircheallaigh raised the issue in general terms. In response, Mr Bednarek said he would seek the views of the DNR but said that the Government party may have concerns about subdividing pastoral properties. Professor O’Faircheallaigh gained the impression that any agreement in which the Government party was involved would not include a change in land use beyond what was permitted by the pastoral leases. He regarded this as an ‘important and negative’ development in the negotiations. Mr Bednarek’s evidence in relation to the pastoral properties is that he advised that a change from pastoral purposes would need to be considered by the appropriate Minister under the Land Act 1994 (Qld) and that he invited the native title party to submit a written proposal to enable consultation with the Minister. No written proposal was received, presumably because Professor O’Faircheallaigh regarded the Government party’s approach to this issue as negative. When the issue was raised on subsequent occasions Mr Bednarek pointed out the difficulties of setting up a business on a pastoral lease. An outcome of the meeting on 18-19 March 2000 was that the Government party was to consider the rights it may need to exercise in relation to the proposal for access to the pastoral holdings. The Government party drafted some clauses to be included in an agreement to reflect its position. Three options were proposed, all of which limited the exercise of access rights to those permitted by Queensland law. One option referred to the need ‘to obtain any licences, permits, authorities or approvals’ required by the laws of Queensland. It is obvious, as the native title parties contended, that the proposal to insert clauses of this kind in the agreement did not amount to a substantive offer by the Government party but neither did it close off any proposal permitted by Queensland law, including one which required the approval of the Minister. As indicated above, the Government party at the meeting on 20 May 2000 remained open to receiving proposals about commercial activities on the pastoral leases. There are a number of things to be said about this aspect of the negotiations. First, it is not clear from the evidence whether this proposal was related to the grant of the mining lease. The only connection seems to be that the activity was proposed to take place on pastoral leases, on small parts of which the Pajingo mine is located. Although not necessary to further consider this issue, as the evidence is not clear, there are obviously questions about whether the Government party was obliged to negotiate about this issue. Had the native title party made submissions as contemplated by s 31(1)(a) the position would have been clearer. Second, I find that the Government party did not adopt a rigid non-negotiable stance in relation to the proposal. It quite properly pointed out the legislative and administrative constraints but at no time closed off considering a proposal under existing Queensland legislation. Third, although what the Government party was offering in this respect was within the confines of existing legislation and administrative procedures and not in policy terms anything new, there was still the need to work through the practicalities of any such proposals. Offering priority for consideration of this issue by government departments could have been helpful to the native title parties.
Living areas on the pastoral lease
The Kudjala native title party contended that the Government party rejected its request for living areas on the Britannia, Pallamana and Doongana pastoral properties. The evidence on this point is limited and unclear. Ms Callope’s affidavit says: ‘Some of our people would like living areas on those cattle stations but John Bednarek refused this.’
Mr Bednarek in his oral evidence said that there was no request for living areas on the pastoral leases and that the request for access for non-commercial purposes did not go beyond camping and hunting. It appears from the minutes of the meeting on 21 February 2000 that the issue of living areas was raised in general terms. I find that while no specific proposal was advanced by the Kudjala native title party they did express a general desire for living areas on the pastoral leases. The Government party’s response during the negotiations was that there may be some capacity to allow outstations but this would not be resolved until after native title was determined. In evidence Mr Bednarek said that excision of living areas from a pastoral lease required the consent of the lessee, the approval of various authorities and was not something that could be done readily. My conclusion on this issue is similar to that on the proposal for commercial activities on the pastoral lease. A general desire was expressed but no specific proposal made by the native title parties; the Government party did not reject the proposal out of hand but said it would need to be considered after native title was determined. Again, there is no clear evidence of how the proposal was related to the grant of the mining lease.
Offers of access to information and Government programs
During the negotiations the Government party outlined Government programs which could be of assistance to the native title parties and offered to facilitate access to them. This included the tailoring of suitable TAFE courses to enable people to receive appropriate qualifications to be employed in the mining industry or non-mining industries; community development planning assistance coordinated by the Department of Aboriginal and Torres Strait Islander Policy and Development, and contact with a business adviser from the Department of State Development in Rockhampton. The native title parties contended that the offers of providing information and contact with government departments were not indicative of negotiations in good faith as the information was already in the public domain and was no more than it would provide to the general public. In my view the offering of this information and assistance is consistent with negotiating in good faith. The weight to be given to it will depend on the circumstances of the negotiations overall but it is a relevant and positive consideration. Again no specific proposals were advanced by the native title party in relation to these matters so it is difficult to assess whether the Government party would have been obliged to negotiate about them. A proposal from the native title parties for tailored TAFE courses to assist members of the native title claim groups to obtain skills to work in the mine would, on the face of it, be related to grant of the tenement and come within the legitimate scope of negotiations. In the event, no proposal was made on the topic by the native title parties. The native title parties also contended that these offers were indicative of a lack of good faith because they had not been sought by the native title parties. In my view there is no weight in this contention. The native title parties cannot on the one hand assert that the Government party should make substantive proposals and on the other complain that proposals made were not sought by them. It is difficult to envisage circumstances where the making of a proposal by the Government party, even if not specifically sought by the native title parties, would amount to acting in bad faith. Placing matters on the table for discussion by the Government party even where not requested by the native title parties would normally be consistent with negotiation in good faith.
I do not regard an offer to facilitate access to Government programs as worthless. Although the programs may be available to the general public under the general law, it is obvious that in relation to a particular proposal there may need to be extensive discussions, obstacles to be overcome, departmental and Ministerial discretions exercised and funding considered. Depending on the circumstances, facilitation of consideration of these issues through the numerous government departments may be of considerable benefit in advancing a native title party’s proposal. I come to the same conclusion in relation to a similar complaint about the Government party’s proposals for the facilitation of access to other government services, funding sources and programs, environmental protection, heritage programs and employment and training.
Land transfers under the Aboriginal Land Act 1991 (Qld)
At the meeting of 13 December 1999, Mr Travers said that the identification of Unallocated State Land for transfer under the Aboriginal Land Act was an example of what the Government party could offer. This issue was the subject of further discussions in particular between Ms Callope and Mr Michael Jacques (of Native Title Services, Department of Premier and Cabinet) on 20 January 2000 when the suggestion was again put by Mr Jacques. With respect to this suggestion, the native title party again contended that the transfer of land was not sought by the native title party. I have dealt with this issue above and my comments are equally applicable to this situation. Second, the Kudjala native title party said that they did not readily have the means to locate available Crown land and that any land was unlikely to be fit for their purposes. Ms Callope said in her affidavit that land which the Kudjala people already held under the Aboriginal Land Act could not be developed because of lack of resources and the offer of further land without resources was not helpful. I do not consider the suggestions made by the Government party in this respect as inconsistent with negotiation in good faith. There were no specific substantive proposals but this is not fatal to negotiation in good faith. The Government party was entitled to raise the issue. The native title party chose not to pursue it in detail.
It is also not clear that the Government party would have been obliged to negotiate in good faith about this issue as it is not clear how it is related to the grant of the tenement. Again the evidence on this point is unclear. Presumably, if it had been developed to the point of excising land from the pastoral leases as was suggested at one point in the negotiations for the purposes of ameliorating the effect of the grant on the native title parties it could have fallen within the scope of matters about which negotiations are obligatory. There can be no complaint about the Government party’s raising an issue about which it is not strictly required to negotiate in order to achieve an agreement. In this instance the proposal was not well developed and I give little weight to it. However, it certainly does not demonstrate that the Government party did not negotiate in good faith.
Problems with the EMOS
Section 245(1)(p) of the Mineral Resource Act 1989 (Qld) (‘the MRA’) requires that an application for the grant of a mining lease be accompanied by an environmental management overview strategy (‘EMOS’) acceptable to the mining registrar stating strategies for - protecting the environment and managing environmental impacts on, and in the vicinity of, the land covered by the proposed lease; and progressive and final rehabilitation of the land.
Mining Lease Application MLA 10246 was lodged at the Mining Registrar’s office at Charters Towers on 31 March 1999. The Mining Registrar was satisfied that the application complied with the MRA (s 252(1)) and issued a Certificate of Application on 1 April 1999. Section 252 (7) and (8) of the MRA require the application to be notified to (among others) the owners of land to which the proposed mining lease relates (s 252(7)(c)(i)) and by an advertisement in a newspaper circulating in the mining district (s 252(7)(d)). There is provision for objections to the grant of the mining lease to be lodged. The Certificate of Application for MLA 10246 was advertised on 9 April 1999 in the Northern Miner and on 10 April 1999 in the Townsville Bulletin and included a closing date for objections. No request for a conference convened by the Mining Registrar under s 254(1)(b) nor any objections to the grant of MLA 10246 were received. Although registered native title claimants are not owners of the land under the MRA objections to the grant of a mining lease can be made by them.
During the objection period the Minister may require an environmental impact statement to be prepared under s 261 of the MRA but chose not to do so in this case. As no objection to the grant had been received, the Warden under s 270 of the MRA, dispensed with a hearing in relation to the application and recommended to the Minister, on 16 April 1999, that the grant be made. Section 270A of the MRA says that the Minister must approve the final form of the EMOS before recommending to the Governor in Council that a mining lease be granted.
Under the MRA each mining lease is subject to a condition (among others) that:
the holder submit a plan of operations consistent with the EMOS (s 276(1)(b));
the mining activities be conducted in accordance with the EMOS and current plan of operations (s 276(1)(c));
the holder conduct an environmental audit for any proposed plan of operations (s 276(1)(d)(i)); and
the holder submit an environmental audit report with the plan of operations (s 276(1)(d)(ii)).
The requirement for conditions prescribed by s 276(1)(d) may be dispensed with by the Governor in Council (s 276(2)). The mining lease is also subject to such other conditions as are prescribed (s 276(1)(o)) and as the Governor in Council determines (s 276(1)(p)). Under s 291(1) of the MRA the holder of a mining lease must give to the Minister a plan of operations for mining; and an environmental audit statement about the plan’s consistency with the accepted EMOS.
With that necessary background I turn to the contentions made by the native title parties in relation to the EMOS. They were that:
the Government party’s proposal for the native title parties to comment on the EMOS was made in circumstances where:
· the EMOS should have been provided to the native title parties much earlier;
· the incorporation of MLA 10246 into the EMOS was not clear;
· the Government party stated that it was ‘not mandatory to seek stakeholder review’ of the EMOS;
· the Government party restricted the process to the provision of comments by the native title parties in relation to the EMOS;
· the Government party allowed the native title parties only one month to respond; and
· the Mining Registrar had accepted the EMOS six months prior to its delivery to the native title parties.
and
the Government party delayed provision of important information to the native title parties in that it failed to provide the native title parties with vital information in relation to environmental management of the application area until late in February 2000, when it delivered the EMOS to them, approximately 5 months after the notification date in the s 29 Notice.
The EMOS which was lodged with MLA 10246 was dated December 1995 and is the same EMOS that had been lodged when the application for a mining lease to mine the Vera Nancy deposit (now ML 10215) was made and the development of which commenced in August 1996. Although the Mining Registrar regarded the 1995 EMOS as acceptable for MLA 10246, Pajingo prepared another EMOS dated June 1999. The preface written by Resident Manager of Pajingo (Mr J McKinstry) says that the document is a revised version of the original approved EMOS designed to make it clearer, more readable and more permanent. He said that the commitments are the same as in the December 1995 EMOS and that the revised format would enable ease of referencing between the EMOS and the Plan of Operations (which would be reviewed annually). I accept the native title parties submission that there are some differences between the two EMOS’s but do not regard them as of significance in deciding on the native title parties’ contentions on this point.
At the meeting on 13 December 1999, the Government party advised that the time for impact assessment objections had passed. On 28 January 2000, Professor O’Faircheallaigh proposed that an independent person be appointed to review the EMOS. Mr McKinstry’s response was that Pajingo was reluctant to pay for another audit when there is already an independent audit required to be carried out which had community involvement. Mr Bednarek suggested that someone from DME or the Environmental Protection Authority (‘the EPA’), who are the agencies responsible for audits of rehabilitation, could attend a meeting to discuss the process and that the agreement could include a provision for traditional owners to accompany the EPA or DME on such an audit. Mr McKinstry agreed in principle for some involvement of the native title parties in the environmental audit process. The Government party confirmed that the EMOS may not be able to be changed and agreed to send a copy to the Birri native title party. Pajingo lodged the June 1999 EMOS with DME and by letter dated 24 February 2000 (received on 28 February 2000) the June 1999 EMOS was sent to Ms Jodie McFaul at the CQLC by Mr Rod Coe, Principal Environmental Officer of DME at Charters Towers. The letter said that:
while it was not mandatory to seek stakeholder review of a level 2 project the company considered it desirable to seek comments in relation to this lease application process; and
comments were to be received no later than 28 March 2000, which would be considered prior to the final EMOS being approved by the Minister.
On 17 February 2000, Ms McFaul received a letter from Pajingo which:
‘actively’ sought comments on the EMOS commitments;
said that DME would be seeking comments from the Dalrymple Shire, the EPA and current land managers for the area, which although not a mandatory process, Pajingo believed was worthwhile in allowing concerned parties to comment on the commitments applicable to the mining lease;
said that comments would be sent to Mr Coe who would review comments and submit them to Pajingo for consideration; and
set a deadline of 28 days for comments.
The question of the EMOS was again raised by the Birri native title party at the meeting on 19 March 2000 but the Government party confirmed its reluctance to change it as environmental safeguards had been approved by the Minister.
On 24 March 2000, Mr Little, the Regional Mining Registrar, informed Ms McFaul that a mistake had been made. He subsequently confirmed this in a letter of 24 March 2000 which said:
it is not possible to alter the EMOS as it had been submitted with the application, subject to an objection period and the Wardens Court had considered it in making its recommendation to the Minister.
while future legislation may permit changes it is not currently possible to do so.
it would not be appropriate to change the EMOS as natural justice would be denied to those who may have objected to the mining lease application with a different EMOS.
In his evidence Professor O’Faircheallaigh complained about the Government party’s negotiating behaviour in that:
he presumed that environmental and social impact of the mining lease would be open for negotiation but that this could not occur if the EMOS was already finalised; and
that negotiations with Pajingo for an independent audit of the EMOS were rendered pointless when it was made clear that the EMOS could not be changed. The process engaged in by the Government party was confusing and time wasting which denied the Birri native title party any involvement in the EMOS. As a consequence the Birri native title party sought to address environmental impact and management concerns with Pajingo.
There is no doubt that the Government party’s error in seeking comment about the EMOS when in fact it had already been the subject of the necessary procedures under the MRA and approved by the Minister was unfortunate. It caused the negotiations to be side-tracked to some extent. However, there is also no doubt that this was a genuine mistake on the part of the officials concerned. There was no conscious attempt to mislead the other parties or any other suggestion of bad faith in what happened.
With respect to the Government party’s negotiating behaviour generally in relation to the EMOS and environmental and social impact issues the following comments are relevant. First, the impact of the future act on the ‘natural environment’ is no longer a specific criterion in s 39(1)(a). It was deleted by the amended NTA. Environmental issues (including social issues) may still be relevant to the other criteria in s 39 but the Tribunal (in arbitration) and the parties (in negotiation) are not required to consider the environment at large. However, I acknowledge that the definition of ‘environment’ in the MRA (which comes from the Environmental Protection Act 1994(Qld)) is broad enough to encompass most of the criteria in s 39(1)(a). Had the Minister decided to require an environmental impact statement it could have included consideration of these matters. Second, if a Government party is operating properly within the constraints of existing legislation, it cannot be accused of not negotiating in good faith. The Government and other parties must accept the legislative framework determined by Parliament. What occurred in this case prior to the issuing of the s 29 is a neutral factor in determining whether the Government party has negotiated in good faith. Had the native title parties been aware of the proposed grant of ML 10246 they could have objected to it, sought a conference about it and a hearing by the Warden. They could have requested the Minister to require an environmental impact statement. The fact that they did not cannot be held against them and is of no weight in determining the good faith issue. On the other hand, the Government party went through the statutory procedures laid down in the MRA. The Mining Registrar considered the December 1995 EMOS to be acceptable even though it did not expressly address the expansion of the project into ML 10246 and it appears from the evidence that an archaeological report prepared when the Pajingo mine was first established (Hollingsworth Consultants – Pajingo Project: Environmental Baseline Studies: Archaeology, Brisbane, April 1986) may not have covered the area of ML 10246. The Government party was not obliged to give notice to the Birri native title party (who were registered native title claimants at the time) as it is common ground that they did not fall within the definition of ‘owner’ under the MRA. Whatever criticisms can now be made about that process (and I make no judgement on them) it was conducted in accordance with the terms of the MRA and, in the absence of objection, the Government party decided to grant the tenement.
Third, the fact that the EMOS had already been approved does not mean that the Government party could refuse to negotiate about issues contained in it which were relevant to the s 39(1)(a) criteria. Native title parties are given a statutory right to negotiate once the Government party has decided to grant the mining lease and those negotiations may deal with the criteria in s 39(1)(a) whether or not they have been the subject of consideration in the statutory procedures which are required prior to the issue of the s 29 notice.
In summary the Government party may not need to exhibit a willingness to amend the EMOS (something which Mr Little said on his legal advice was impossible) in order to be negotiating in good faith but it could not refuse to negotiate about legitimate areas of concern raised by a native title party which fell with the criteria in s 39(1)(a). If there were legitimate issues raised, the Government party might need to find a way to deal with them outside the EMOS process. In this respect, I note that the MRA contains powers for additional conditions to be imposed. Mr Little’s evidence was that an agreement between the native title parties and grantee party which was gravely different from the EMOS may need a special condition approved by the Minister to be placed on the mining lease, but otherwise they could reach agreement on issues which were additional to those contained in the EMOS. On the evidence I find that the Government party refused to consider amending the EMOS but did not refuse to discuss environmental issues related to the criteria in s 39(1)(a). In this respect, my findings about the general conduct of the negotiations are applicable. The native title parties did not develop proposals for consideration by the Government parties and the negotiations did not reach a stage where the Government and native title parties were effectively engaged in discussions on these issues. The native title parties pursued their concerns with Pajingo and the Government party was aware of this.
The native title parties also contended that the Government party had failed to require the grantee party to carry out an environmental and social impact assessment under the MRA and failed to provide reasons for this decision. This issue has been dealt with above. The fact that the Minister had decided that such an assessment was not necessary during the normal procedures for granting a mining lease is not in this case indicative of a lack of good faith. The s 39(1)(a) criteria embrace social impact issues and there is an opportunity to consider them in the right to negotiate process either during negotiations or an arbitral inquiry.
I now turn to the contention that the delay in the Government party providing the EMOS to the native title parties was indicative of a failure to negotiate in good faith. The facts on this issue were not clear from the evidence given at the hearing and I subsequently invited the parties to agree the relevant facts or provide further information. Affidavits were filed by Amber Magauran, Principal Legal Officer with the CQLC, Henrietta Hunter and Kenneth Charles Ramsay (both employees of Pajingo who were involved in the negotiations) and Dominic McGann, the solicitor for Pajingo who was also involved in the negotiations.
As stated above, following an undertaking given at the meeting of 28 January 2000 the Government party sent the June 1999 EMOS to the CQLC on 24 February 2000. There is no evidence to suggest that the Government party provided the EMOS to the native title parties earlier than this. It also appears that it was never specifically provided to the Kudjala native title party by either the Government or grantee party. However, the evidence of the Pajingo employees and Mr McGann establishes that at the meeting on 1 December 1999, a variety of documents, maps and plans were made available to the participants and referred to during the discussions. The participants were invited to peruse the documents or take them away. This included copies of the May 1999 EMOS (which is the same in content as the June 1999 EMOS).
Ms Magauran’s evidence is that neither Ms McFaul nor any other officer of the CQLC was present at the 1 December 2000 meeting although it appears that Ms McFaul was at the meeting location for some of the time. Further, of the Birri people that Ms Magauran was able to contact who were at the meeting, none had any recollection of receiving an EMOS. One participant (Grace Lenoy) has in her possession an EMOS dated May 1999 but cannot recall at which meeting she received it or who gave it to her. She did not read it because of its complex and technical nature.
In my view there is legitimate cause for the complaint by the native title parties about the failure of the Government party to provide the EMOS at an earlier time. The EMOS potentially had some relevance to issues about which the Government party is obliged to negotiate and should have been part of the background information provided to the native title parties at the commencement of negotiations. The problem was partially overcome by Pajingo providing it to the Birri native title parties at the 1 December 1999 meeting but it appears that the participants at that meeting were not aware of its significance and it was not specifically made available to their legal representatives. I suggest that in future the Government party include background documents about the mining project, including any relevant EMOS to the native title parties (and to those representing them) at the same time as it invites submissions from them under s 31(1)(a) of the NTA. I note that this is the procedure suggested by the Tribunal in NNTT WF97/5 cited above.
The question is whether this lapse in appropriate negotiating behaviour amounts to a failure to negotiate in good faith. My conclusion is that it does not. Looking at the overall approach of the Government party to the negotiations, there is no suggestion of a conscious attempt to delay negotiations or indeed any pattern of behaviour involving a failure to provide information requested of it in a timely manner. There was still time after the EMOS was delivered in late February 2000 for the native title parties to consider issues raised in it that were relevant to the s 39(1)(a) criteria and to have taken them up with the Government party.
Areas or sites of particular significance
The native title parties contended that the Government party did not make reasonable proposals to protect areas or sites of particular significance to them where the Government party and native title parties had concerns that the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 did not provide adequate protection for them. Again, there were no specific proposals put to the Government party in relation to this issue and it did not occupy a great deal of time in the negotiations between the Government and native title parties. Ms McFaul’s evidence was that in her letter of 24 February 2000 to Mr Bednarek (referred to above) she enclosed a copy of a letter sent to Mr McKinstry dated 18 February 2000 which enclosed a Memorandum prepared by Professor O’Faircheallaigh dated 16 February 2000 dealing with the archaeological report prepared when the Pajingo mine was first established by Hollingsworth Consultants (see above). In this Memorandum Professor O’Faircheallaigh was critical of the adequacy of the study and its relevance to the current project. He described it as ‘seriously deficient as a basis on which to ensure effective identification, management and protection of Aboriginal cultural heritage’ and recommended that the issue be pursued with the company [my emphasis] as a matter of urgency. Ms McFaul’s evidence was that she expected that heritage concerns would be dealt with at the next meeting. No legitimate complaint can be levelled against the Government party in not responding to Professor O’Faircheallaigh concerns. Ms McFaul’s letter did not request a response to this issue. The native title parties could have raised it specifically with the Government party at subsequent meetings but did not do so. The issue of the protection of cultural heritage was the subject of discussions between Pajingo and the native title parties and there is provision to deal with it in the draft agreement. The Government party were aware that the issue was being addressed by the other parties. The Government party’s contentions denied that it had informed the native title parties that it had concerns about the effectiveness of the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 and there is no evidence to suggest that it did. Mr Little’s evidence was that the minimum requirement of an EMOS was compliance with the Cultural Record (Landscapes Queensland and Queensland Estate) Act. Both EMOS’s commit Pajingo to protecting sites of cultural significance.
Plan of Operations
The native title parties contended that the Government party failed to provide the Plan of Operations for the Pajingo mine to them. The evidence established that a Plan of Operations for MLA 10246 would not be prepared until after it is granted. The evidence does not show that any request for a copy of the Plan of Operations for the existing mine was made to the Government party. Some background documents relating to the current mine operations were provided to the Birri native title party on 1 December 1999. This contention does not assist to show that the Government party had not negotiated in good faith.
Co-management of national parks
The Kudjala native title party made a proposal for joint management of White Mountain, Porcupine Gorge and Great Basalt Wall national parks and jobs at these parks. They contend that the Government party refused this. In my view the minutes of the meeting of 27 January 2000 where this matter was raised do not support a contention that the Government party refused to discuss it. The Government party’s position was that there was a major review of national parks which was looking at joint management and that, without funding, it couldn’t make any commitments about joint management at that stage. However, Mr Bednarek said that he would consider specific proposals, could refer them to Queensland National Parks and Wildlife Service and suggested that QNPWS could attend a meeting to discuss any ideas.
In my view this behaviour is not indicative of a failure to negotiate in good faith. In any event it is not clear that the Government party was obliged to negotiate about any such proposal. The national parks are some 100 kilometres to the west of the mine site and it is not clear how the proposals of the native title parties in relation to them are connected with the grant of the mining lease.
Direct financial compensation
The native title parties contend that requests for direct compensation from the Government party were rejected. In one respect this is clearly correct. The Government party would not agree to direct financial compensation in the form of a portion of royalties from the mine being paid direct to the native title parties as Government policy was that such royalties go to consolidated revenue and are used for the benefit of all Queenslanders. However, the Government would not close the door to other requests for compensation ‘in kind’. At the meeting of 27 January 2000, Mr Bednarek raised the possibility of compensation in the form of jobs or other commitments. It is obvious that had proposals for assistance within existing programs come to fruition that could have involved a financial commitment from the Government.
There is no doubt that in relation to the payment of royalties by it, the Government party adopted a rigid non-negotiable position but a refusal to negotiate on this one issue does not mean that the Government party did not negotiate in good faith overall. The Tribunal has dealt with negotiations about the royalty type payment referred to in s 33 in other matters. In Western Australia/Leo Winston Thomas & Ors/Anaconda Nickel Ltd, NNTT WF98/7, Hon CJ Sumner, 4 September 1998 the Tribunal (at 45):
noted the policy of the Government party (Western Australia) not to provide for royalty type payments as compensation; and that Australian law generally provides that minerals are the property of the Crown and royalty payments are made to the Crown and not individuals; and
held that this approach to compensation did not reveal a failure to negotiate in good faith.
In Brownley v Western Australia [1999] FCA 1139 (1999) 95 FCR 152 the Federal Court declined to overturn this finding. The Court said (at 169-170 [51-57]) that the Government party ‘may’ not be negotiating in good faith if:
it had a policy that it would not facilitate an agreement between registered native title claimants and the grantee party for the making of payments described in s 33 [54]; and
maintained an inflexible position that it ‘would not pay compensation’ and declined to engage in negotiations in respect of matters provided for in s 33. The Court added that the Government party is not obliged to reach agreement on such matters but is required to receive, and consider, a proposal from a registered native title claimant in a manner that has regard to the particular facts of the case and to the merits of the proposal in all the circumstances [55].
My conclusion is that the Government party’s approach to the issue of compensation does not amount to a failure to negotiate in good faith in the overall circumstances of the case. In coming to this conclusion I have had regard to the following factors. First, it was only one aspect of the Government party’s negotiating behaviour. Second, the Government did not preclude the possibility that compensation other than the type provided for in s 33 might be paid. Third, the Government party did accept that the grantee party and native title parties could enter into such an agreement and knew they were negotiating about it. Fourth, there was no specific proposal advanced by the native title parties which was tailored to the specific circumstances of this case. Fifth, a similar decision made by the Tribunal in Brownley was not overturned by the Federal Court.
Memorandum of Understanding (‘MOU’)
The Kudjala native title party contended that the Government party did not support it entering into a Memorandum of Understanding with Pajingo which would have provided resources (including an independent expert) to enable it to better participate in the negotiations. A Memorandum of Understanding to govern the conduct of the negotiations had been signed by some of the Birri native title party group and Pajingo. The evidence on this point is unclear. Ms Callope’s evidence was that Mr Bednarek did not support the signing of a MOU because he thought they should go straight ahead and sign a final agreement with Pajingo and the Government party. Mr Bednarek said that he did not advise the Kudjala native title party not to sign it but was more concerned to concentrate on the substantive agreement given the limited timeframes involved. He told the Kudjala native title party that they would need to obtain professional advice before executing any final agreement. In my view this evidence does not reveal any bad faith in the negotiations by the Government party. There was not active hostility to or an undermining of the Kudjala native title party’s wish to enter into a MOU by the Government party, but a different view of how the negotiations should proceed.
The Government party’s interests in the negotiations
The native title parties submitted that the Government party’s expressed interest in the grant of the mining lease (see comment of Mr Travers at meeting of 12 December 1999 and letter from Mr Paul Smith dated 15 March 2000 to Ms McFaul) meant that its efforts concentrated on achieving that result rather than negotiating in good faith in that it was nothing more than a bystander or facilitator of the process. There is nothing exceptional or unacceptable in the fact that the Government party saw its interests to be the grant of the mining lease. The giving of the s 29 notice clearly reveals the Government party’s position. It is indisputable that it has an interest in promoting the mining industry and the orderly grant of mining tenements for that purpose. It is not a neutral party in the process. It has interests which it is entitled to advance. What it must do is behave fairly and honestly in the way it conducts its negotiations in support of those interests and, as Lee J said in Brownley (cited above), attempt to reach an agreement that will address its requirements and certain interests of the native title claimants which may be affected.
General conclusion
In reaching the conclusion that the Government party has fulfilled its obligation to negotiate in good faith I have had regard to its overall conduct in the circumstances of the case. These circumstances included first, that there were two native title claims lodged over the area of the mining lease and the native title parties were in dispute. The Government party attempted to accommodate this situation in the negotiations by agreeing to meet with the native title parties separately and subject to confidentiality requirements to keep them informed of discussions. The offers it made were generally applicable to both native title parties. However, it is inevitable that where there is a dispute between Aboriginal parties about whose country or whose native title rights and interests are affected, this will influence the course of negotiations. There are obvious difficulties in presenting a united front to the Government and grantee parties on their interests, proposals, opinions or wishes (s 39(1)(b) NTA) and making proposals which reflect the criteria in s 39(1)(a). Despite the dispute, the Government party did not ‘take sides’ and adopted an even handed approach to both native title parties. It is reasonable to assume that if there had been one claim or agreement among the claimants, they would have been in a better position to make the submissions contemplated by s 31(1)(a).
The second circumstance was that the negotiations were about the grant of a mining lease for an existing mine. This was not a greenfields proposal where the Government party was involved in offering infrastructure (such as roads or urban facilities) to support the project or negotiating about benefits for the local community generally or otherwise actively promoting the project through State legislation.
The third circumstance was that the Government party was aware of substantial negotiations between Pajingo and the native title parties and that considerable progress was being made including about issues which had also been raised with the Government party. This knowledge does not relieve it of the obligation to negotiate in good faith but is a relevant circumstance. If an issue is satisfactorily resolved by agreement between the grantee and native title parties there may be no need for the Government party to intervene with further proposals.
Decision
The Government has fulfilled its obligation to negotiate in good faith as required by s 31(1)(b) of the Native Title Act 1993 (Cth) and the Tribunal has jurisdiction to conduct an inquiry and make a determination.
The Hon C.J. Sumner
Deputy President
29 September 2000
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