Norwest Sand & Gravel Pty Ltd v Ngarluma Aboriginal Corporation RNTBC - [2020] NNTTA 68

NATIONAL NATIVE TITLE TRIBUNAL

Norwest Sand & Gravel Pty Ltd v Ngarluma Aboriginal Corporation RNTBC & Another [2020] NNTTA 68 (16 November 2020)

Application No:

WF2020/0004

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

- and -

IN THE MATTER of an inquiry into a future act determination application

Ngarluma Aboriginal Corporation RNTBC (WCD2005/001)

(native title party)

- and -

Norwest Sand & Gravel Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal:	Nerida Cooley, Member
Place:	Brisbane
Date:	16 November 2020

Catchwords:	Native title – future act – s 35 application for a determination – mining lease application – jurisdiction – power – whether grantee party has negotiated in good faith – grantee party has not negotiated in good faith – Tribunal does not have power to proceed with future act determination – application dismissed
Legislation:	Emergency Management Act 2005 (WA) s 67 Mining Act 1978 (WA) ss 75, 78, 82, 85 Native Title Act 1993 (Cth) ss 24AA, 24AB, 24BB, 24CB, 24DB, 24EB 24IC, 24JAA, 24OA, 26, 26D, 28, 29, 31, 35, 36, 38, 39, 148, 233
Cases:	State of Western Australia/Richard Guy Evans on behalf of the Koara People; Leo Winston Thomas & Ors on behalf of The Waljen People; Quinton Paul Tucker & Ors on behalf of the Ngurludharra Waljan Clan; Dimple Sullivan on behalf of the Tjinintjarra Family Group; Sadie Canning on behalf of the Thithee Birni Bunna Wiya People; Trevor Brownley & Ors on behalf of the Bibila Lungkutjarra; Thomasisha Passmore on behalf of the Milangka-Purungu; Aubrey Lynch on behalf of the Yulbarri Nomad People; Barron Bonney on behalf of the Mugang People; Sadie Canning & Ors (United North East Claim); Pearlie Wells & Anor (Nardoo); Betty O'Loughlin & Anor on behalf of the Nanga People (Youndou Claim); Richard Guy Evans (Koara combined Claim); Ron Harrington-Smith, Leo Winston Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Thomasisha Passmore, Thelma O'Loughlin, Sadie Canning (Wongatha combined Claim)/Anaconda Nickel Ltd; Samson Exploration Nl; Delta Gold Nl; Murrin Murrin East Pty Ltd [1998] NNTTA 17 (‘Anaconda 1998’) Anaconda Nickel Ltd; Murrin Murrin East Pty Ltd; Murrin Murrin Holdings Pty Ltd; and Glenmurrin Pty Ltd; Delta Gold Ltd/Western Australia/Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomasisha Passmore, Thelma O'Loughlin, Sadie Canning (WC99/1 - Wongatha People); Richard Guy Evans (WC95/1 - Koara People) [2000] NNTTA 366; 165 FLR 116 (‘Anaconda 2000’) Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, [2010] NNTTA 53 (‘Australian Manganese’) Charles, on behalf of Mount Jowlaenga Polygon # 2 v Sheffield Resources Limited [2017] FCAFC 218; (2017) 257 FCR 29(‘Sheffield’) FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 (‘Cox’) Marine Produce Australia Limited and Another v Mayala People [2018] NNTTA 28 (‘MPA v Mayala’) Minister for Lands, State of Western Australia/Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga People/Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson and Clem Donaldson for their respective (Gubrun) families/Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of Mingarwee (Maduwonjga) People [1997] NNTTA 31 (‘Minister for Lands v Strickland’) Muccan Minerals Pty Ltd and Another v Taylor and Others on behalf of Njamal [2014] NNTTA 74 (‘Muccan Minerals’) Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people [1999] NNTTA 361; (1999) 163 FLR 87 (‘Placer v Western Australia’) Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli [2018] NNTTA 81 (‘Rusa Resources v Gnulli’) Walley, Kevin & ors v Western Australia [1996] FCA 490; (1996) 67 FCR 366 (‘Walley v Western Australia’) Western Australia/Johnson Taylor on behalf of the Njamal people/Garry Ernest Mullan [1996] NNTTA 34; (1996) 134 FLR 211 (‘Njamal’) Western Australia/Leo Winston Thomas & Ors on behalf of The Waljan People; Ted Coomanoo Evans & Richard Guy Evans on behalf of the Koara People; Quinton Paul Tucker & Ors on behalf of the Ngurludharra Waljan Clan; Dimple Sullivan on behalf of the Tjinintjarra Family Group; Sadie Canning on behalf of the Thithee Birni Bunna Wiya People; Trevor Brownley & Ors on behalf of the Bibila Lungkutjarra (Waljen) People; Thomasisha Passmore on behalf of the Milangka-Purungu (Wongatha) People/Anaconda Nickel Ltd [1999] NNTTA 99; (1999) 164 FLR 120 (‘Anaconda 1999’) Westfield Management Limited v AMP Capital Property Nominees Limited [2012] HCA 54; (2012) 247 CLR 129 (‘Westfield Management v AMP Capital’) Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People) /Queensland, [2012] NNTTA 93 (‘Xstrata v Albury’)
Representative of the native title party:	Chris Terren, Roe Legal Services

Representative of the grantee party:

Paul Tolcon, Austwide Legal Pty Ltd

Representatives of the Government party:

Domhnall McCloskey, State Solicitor’s Office; Donna Vicensoni, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

INTRODUCTION

In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice that it may grant mining lease M47/1566 (lease) to Norwest Sand & Gravel Pty Ltd (Norwest). The notification day specified in the notice was 20 July 2018.
Ngarluma Aboriginal Corporation RNTBC (NAC) holds native title on trust for the Ngarluma People in relation to the whole of the lease area (WAD6017/1996, WAD215/2017).
Consequent upon the s 29 notice, the negotiation parties, being the State, Norwest and NAC, were required to negotiate in good faith with a view to obtaining NAC’s agreement to the grant of the lease (s 31(1) NTA).
The parties did not reach agreement and on 8 May 2020, being more than 6 months after the notification day, Norwest applied to the Tribunal for a determination under

s 38 of the NTA with respect to whether the lease may be granted and if so, any conditions to be complied with by the parties.
I must not make a determination on the application in this matter if NAC satisfies me that the State or Norwest did not negotiate in good faith (s 36(2) NTA).
NAC asserts that Norwest did not negotiate in good faith, but does not make any such assertion about the State.
For the reasons outlined below, NAC has satisfied me that Norwest did not negotiate in good faith. Accordingly, I must not make a determination on Norwest’s application and Norwest’s application is dismissed under s 148(a) of the NTA.

TRIBUNAL PROCEEDINGS

Norwest’s application was accepted by the Tribunal on 14 May 2020.
A preliminary conference was held on 25 May 2020 to discuss directions for the inquiry. NAC indicated its intention to seek a deferral to directions due to the COVID-19 restrictions in place at the time under the Remote Aboriginal Communities Directions (no.3), issued pursuant to s 67 of the Emergency Management Act 2005 (WA). It was discussed whether these restrictions would impact on parties’ ability to comply with directions relating to the good faith inquiry or only the s 39 inquiry and NAC’s representative agreed to seek further instructions on this point. Accordingly, I made directions for both the good faith and s 39 inquiries pending further advice from NAC.
Ultimately, on 8 June 2020, NAC requested a deferral to directions relating to the s 39 inquiry only and sought a one day extension to directions relating to its good faith material. All parties supported the deferral and the extension, and accordingly both were granted.
On 9 June 2020, NAC provided a statement of contentions addressing good faith, together with a number of supporting documents (detailed further below).
On 23 June 2020, Norwest provided its statement of contentions as well as an affidavit from Norwest’s director.
Following a one week extension to directions, NAC provided its contentions in reply on 7 July 2020.
At a directions hearing held on 14 July 2020, Norwest sought and was granted the opportunity to provide brief responsive contentions to NAC’s reply, which it did on 23 July 2020.
Following some conferral with parties, a hearing was held on 11 August 2020 at which parties made oral submissions following the provision of outlines. No witnesses were called or exhibits tendered and all references to oral submissions in this decision relate to submissions made at the hearing.

Good faith material

Below is a summary of the material provided by NAC and Norwest on the good faith issue. The State did not submit any material in relation to Norwest’s good faith but did participate in the hearing.
NAC
(a)Contentions dated 9 June 2020 and reply dated 7 July 2020;
(b)Documentary evidence regarding the negotiations between the parties comprising:

Doc ID

Description

GFD01

NAC, Norwest, Welcome Exploration Pty Ltd and Donald Kimberley North - Exploration and Mining Agreement dated 27 August 2008 (2008 Agreement)

GFD02

Mediation Synopsis by NNTT dated 31 August 2016

GFD03

Email chain between Kim North and Richard Walker (NAC) dated 8 December 2016

GFD04

Email chain between Kim North and Richard Walker (NAC) dated 15 March 2017

GFD05

Email chain between Kim North and Richard Walker (NAC) dated 29 March 2017

GFD06

Email chain between Norwest and Sanoj Xavier (NAC) dated 2 April 2017

GFD07

Email chain between Norwest and Sanoj Xavier (NAC) dated 28 April 2017

GFD08

Letter from Department of Mines, Industry Regulation and Safety (DMIRS) to NAC dated 20 August 2018

GFD09

Letter from DMIRS to Norwest dated 11 October 2018

GFD10

Letter from Austwide Legal (Austwide) dated 4 June 2019

GFD11

Email from NNTT to all Parties dated 19 August 2019

GFD12

Mediation Synopsis by NNTT dated 2 September 2019

GFD13

Email from Roe Legal Services (RLS) to Austwide dated 24 September 2019

GFD14

Email chain between Parties dated 24 September 2019

GFD15

Email RLS to Austwide dated 10 October 2019

GFD16

Email RLS to Austwide dated 11 October 2019

GFD17

Mediation Synopsis by NNTT dated 01 October 2019

GFD18

Email from NNTT to all parties 16 October 2019

GFD19

Email from Austwide to RLS dated 4 November 2019

GFD20

Mediation Synopsis by NNTT dated 5 November 2019

Norwest
(c)Contentions dated 23 June 2020 and reply dated 23 July 2020; and
(d)Affidavit of Mr Donald Kimberley North, Director of Norwest, sworn 22 June 2020 (June affidavit).

Material relevant to s 39 NTA

Although the focus of this decision is whether Norwest negotiated in good faith, it is useful to detail the submissions received from parties addressing the s 39 criteria. I have had regard to aspects of that evidence, particularly as regards the description of the lease and the lease area.
At the 14 July 2020 directions hearing, I sought the views of parties on the conduct of the s 39 inquiry. NAC maintained that it was still not reasonably practicable for it to provide contentions and evidence due to the current COVID-19 restrictions, however parties agreed the restrictions did not impact on the State’s or Norwest’s ability to provide initial contentions and evidence. Accordingly, I made directions for the provision of this material and, on 6 and 7 August 2020, the State and Norwest provided the following documents:
State
(a)Contentions dated 6 August 2020 (with some minor amendments as subsequently provided on 7 August 2020);
(b)Documentary evidence regarding the lease, including maps of the lease area and its surrounds, a mining tenement register search, a Tengraph Quick Appraisal, Aboriginal Heritage Inquiry System search reports (AHIS reports), and details of proposed endorsements and conditions to be imposed on the grant of the lease;
Norwest
(c)Contentions dated 7 August 2020; and
(d)Affidavit of Mr Donald Kimberley North, sworn 5 August 2020 (August affidavit).
On 13 August 2020, having sought the views of parties, I reinstated the remaining s 39 directions.
On 18 September 2020, following a short extension, NAC provided its contentions addressing the s 39 criteria as well as a signed but undated witness statement from Mr Richard Walker, a director and heritage officer at NAC. NAC also sought leave to provide additional witness statements that had not been obtained due to a death in the community. After some conferral with parties, directions were amended to allow for this further material and, on 2 October 2020, seven unsigned witness statements were provided. Signed versions were subsequently provided on 8 October 2020 for six of the statements.
On 20 and 21 October 2020, Norwest and the State each provided their s 39 contentions in reply.
On 27 October 2020, Norwest provided a document titled ‘Agreed Statement of Issues and Facts’ signed by Norwest and the State. Norwest advised that, despite conferral, it had not had a response from NAC in relation to any drafts of the statement. On 2 November 2020, NAC advised the Tribunal it had conferred with Norwest in relation to this document and did ‘not propose any changes to the Statement of Facts.’
NAC also provided correspondence between the parties in relation to the 2008 Agreement dated between June and October 2020, which it considered relevant to both good faith and any conditions which might be imposed, in the event I made a determination under s 38(1)(c). Both Norwest and the State objected to me taking that correspondence into account on the grounds of relevance and due to its lateness.
Having regard to the parties’ submissions and the nature of the correspondence, I have not taken this extra material into account. It does not have a bearing on my decision and, given its late provision, it was not necessary to further delay the proceeding to allow Norwest and the State additional time for comment.
NAC also sought an on country hearing in relation to the matters listed in s 39 (which was opposed by the other parties) and asked the Tribunal to issue a summons for additional evidence relevant to the s 39 hearing. In light of my decision in relation to the issue of good faith it is not necessary to further consider those requests.

THE LEASE

The lease is a mining lease proposed to be granted under s 75 of the Mining Act 1978 (WA) (Mining Act). According to the Mining Proposal which is Annexure KN1 to Mr North’s August affidavit, the project title for the lease is the Antonymyre Sand Project. It is located in the West Pilbara, approximately 4 kilometres north-west of Wickham and 25 kilometres north-east of Karratha.
Under s 78 of the Mining Act, the lease would initially be granted for 21 years and it may be renewed. The rights of the holder of a mining lease are set out in s 85 of the Mining Act and are subject to regulation by the Mining Regulations 1981 (WA) (Mining Regulations). In particular, s 82 of the Mining Act, and regulation 28 of the Mining Regulations set out certain statutory conditions to which the lease would be subject.
As noted, the State has also provided details of endorsements and conditions it proposes to impose on the lease.
The area of the lease is 41.06 hectares and the underlying tenure is the Mt Welcome pastoral lease, which the Mining Proposal refers to as a “disconnected section” of that pastoral lease. NAC holds non-exclusive native title to the whole of the area. The AHIS reports show there is a registered Aboriginal site covering about half of the lease area. The site is named WICKHAM 11 and is described as Artefacts / Scatter, Historical, Midden / Scatter.
In his June affidavit, Mr North explains the background to the application for the lease. He says that the lease covers land previously subject to prospecting licence P47/1054 which, for various reasons has been subject to “a string of mining lease applications”. One of these was M47/1463 discussed at [51] to [55] below. I note that P47/1054 is one of the “Exploration Tenements” listed in Schedule 3 to the 2008 Agreement but according to the Quick Appraisal it was withdrawn in 2015. There appear to be multiple tenement applications pending over parts of the lease area but no granted mining tenements.
Norwest’s s 39 contentions include a summary of its proposed operations, as set out in the Mining Proposal, as follows:
9.The mining proposal in summary (as outlined in GFD 10), is to extract sand from a dune located between Cape Lambert and Cape Anketell, approximately 4km northwest of Wickham. Initially, an area of 5 ha is requested for approval comprising ~1 ha for laydown, screening plant and stockpiling and the remaining area as the sand extraction area. See fig 3 at page 37 of annexure KN1 to North Affidavit.
10.The sand resource is ~400,000 tonnes with extraction rates completely dependent upon demand. The anticipated rate of extraction being demand-driven but is expected to be between 5,000 and 25,000 tonnes per annum. The extraction rate is likely to change as the economic climate in the Pilbara improves. The sand is expected to be utilised in infrastructure projects in the Pilbara region. As the project is demand-driven, rates of extraction will vary but is anticipated to be between 5,000 tonnes and 25,000 tonnes per year.
11.Extraction will use a variety of equipment including excavator and front-end loader, with the sand being screened prior to removal of the Lease for selling. Clearing of land and extraction will only occur in response to demand with any topsoil (if present) and vegetation being stockpiled separately and respread when practicable as part of a progressive rehabilitation programme. The completed areas are expected to rehabilitate naturally using seed stock in the topsoil and remnant vegetation. Depth of extraction will vary from less than a metre to 3m. Buffers of approximately 5m to 1 Om will be retained between the edge of the extraction area and the Mining Lease boundaries.
12.The proposed extraction area is not priority agricultural land and the shallow depth of excavation will not involve disturbance of any potential acid sulphate soils. A commitment is made to limit unrehabilitated ground at any one time to a maximum of 5ha.
13.The sequence of extraction has not been determined at this stage and is dependent on preceding summer rains and how they affect the proposed extraction areas. Water for dust management and pre-conditioning of materials will be obtained from an external source of non-saline scheme water at the proponent's property near Wickham. Extraction will occur on a campaign basis and will be restricted to the hours of 0700 - 1900 Monday to Saturday.

PRELIMINARY QUESTION – HAS NORWEST NEGOTIATED IN GOOD FAITH?

Unless otherwise indicated, references below to ‘the parties’ means NAC and Norwest.
President Dowsett summarised the notion of good faith in the present context in Rusa Resources v Gnulli at [12]-[16], and I adopt that analysis for the purpose of this matter.
NAC must satisfy me that Norwest did not negotiate in good faith. That issue must be viewed objectively having regard to the negotiations as a whole.
The parties appeared to disagree on whose conduct is relevant to my consideration of Norwest’s good faith, although I take them to be making slightly different points. NAC submitted that only Norwest’s conduct is relevant to the Tribunal’s power, citing Muccan Minerals at [18]. Norwest says the conduct of all parties is relevant, citing Muccan Minerals at [19].
It is correct that the issue before me is limited to whether Norwest negotiated in good faith. A failure by NAC to negotiate in good faith would not affect the Tribunal’s power under s 38 (see Sheffield at [57]). However, it is also correct that I can take the conduct of NAC and the State into account (see Xstrata v Albury at [65] and Placer vWestern Australia at 30).

The 2008 Agreement

Central to the issues between the parties is an agreement titled ‘Ngarluma Exploration and Mining Agreement’ entered into between NAC, Norwest, Mr North and Welcome Exploration Pty Ltd (Welcome), dated 27 August 2008. This is the 2008 Agreement which is document GFD01 provided by NAC.
I gather from the material that Norwest and Welcome are related entities. Mr North states at 5 of his June affidavit that:
When negotiating the Agreement back then, the fundamental reason for entering into a regional agreement of this kind was to get quick approvals for the grant of new and future tenements from the NTP for my various sand extraction operations over Ngarluma country without objection, need for further negotiation or delay of any kind.
The 2008 Agreement defines Welcome as “the Explorer” and Norwest as “the Miner”. Together with Mr North they are collectively referred to as “the Tenement Holders”.
The 2008 Agreement recites that the parties have entered into the agreement to “set out how Exploration and Productive Mining will be undertaken within Ngarluma Country”. The terms “Exploration” and “Productive Mining” are defined. Ngarluma Country is also defined and shown on an attached map, although the definition contemplates that additional areas may be included by notice from NAC.
The area shown on the map includes the lease area and it is not in dispute that the 2008 Agreement covers the lease area.
The 2008 Agreement appears to deal with a number of specific tenements listed in schedules described as either Infrastructure Tenements, Exploration Tenements or Materials Tenements. The lease would appear to be of a type contemplated by the definition of “Materials Tenement”, being a tenement used for mining construction materials and not for productive mining of precious or base metals. The 2008 Agreement also purports to deal with “Future Tenements” which is defined to mean “tenements of any type applied for and granted after the signing date of this Contract”.
Clause 16 of the 2008 Agreement deals with compensation. Clause 17 provides for the payment of monies to NAC where mining is conducted under certain of the Tenements to which the 2008 Agreement applies as well as payments for legal, heritage and other costs. The payment of amounts under the 2008 Agreement is a cause of dispute between the parties.
In setting out the background and history of negotiations, NAC provides the following summary of what it sees as the relevant clauses in the Agreement:
·clauses 4, 5, 6 and 8 which provide for the conduct of heritage surveys and inspections;
·clause 7.2, which provides that NAC will not object to the grant of future tenements and will give such consents as are reasonably required;
·clause 13, which requires the Tenement Holders to, before making an application for a mining lease, to provide a draft copy of the mining proposal for comment, and to take into account and include those comments in the submitted mining proposal;
·clause 14, which requires the Tenement Holders to provide the final submitted mining proposal to NAC, and for the parties to negotiate in good faith for no less than 100 days with the object of reaching an agreement as to the commencement and ongoing conduct of the productive mining;
·clause 15.1, which requires the Tenement Holders to make certain royalty payments to NAC;
·clause 15.2, which requires the Tenement Holders to provide to NAC all royalty information that is provided to the State; and
·clause 17, which requires the Tenement Holders to pay to NAC certain payments including an annual payment and the payment of certain legal costs.
Clause 7.2 is of key importance to the conduct of the parties in this matter and is worth extracting in its entirety:
The Contract enables the grant to the Tenement Holders, and use by the Tenement Holders, of the Tenements, including any Future Tenements that are wholly or partially within Ngarluma Country. In particular, NAC:
(a) will not object to the grant of Future Tenements under the (Cth) Native Title Act 1993 nor the Mining Act; and
(b) will give such consents as are reasonably required by the Tenement Holders under the (Cth) Native Title Act 1993, the Mining Act and any other legislation.
Clause 22 is a ‘Further Assurance’ clause which provides that each of the parties “shall sign, execute, make and do all such assurances, documents, acts and things as may be reasonably necessary for effectually carrying out” the terms of the 2008 Agreement. Norwest also relies on this clause in requiring NAC to give effect to clause 7.2.

The evidence regarding negotiations between the parties

The evidence from both NAC and Norwest includes events prior to the giving of the

s 29 notice in relation to the lease, although, as I discuss further below, the parties take somewhat divergent views of the relevance of that information.
The parties also raise a number of issues with each other’s presentation of the conduct of negotiations. Where necessary or appropriate I have addressed these issues as they arise in my review of the evidence, as well as considering the material as a whole later in these reasons.

Evidence of events prior to the s 29 notice

Apart from the 2008 Agreement itself, the evidence of communication between Norwest and NAC prior to the s 29 notice for the lease, primarily relates to specific periods of activity.
Mr North deposes that NAC has not complied with clause 22 of the Agreement for “at least the past 5 years”. He says that, over this period, NAC has been objecting to various tenement applications (including miscellaneous licences) made by him, Norwest and Welcome “well before I started questioning the payments I was making to NAC” (North June affidavit at 9). Mr North also mentions a current objection lodged by NAC in relation to miscellaneous licence L47/916 and says he has been awaiting a heritage survey over M47/464 for four to five years.

2015 – Proposed grant of M47/1463

Mr North’s evidence refers to his own (not Norwest’s) previous application for M47/1463 which was not granted. The Tengraph Quick Appraisal indicates this application was invalid. In his June affidavit at 16, Mr North says M47/1463 was “effectively over the same area of land” as the lease, although that appears to be an overstatement as the Quick Appraisal indicates it related to 58.27% of the lease area.
Mr North says that NAC initially objected to this grant by refusing to sign a s 31 deed but were put on notice by his solicitors. Annexure DKN1 to the June affidavit is a letter from Mr North’s then legal representative to NAC, dated 15 October 2015. This correspondence states that M47/1463 is located in Ngarluma Country as defined under the 2008 Agreement and was notified under s 29 on 22 August 2014. A s 31 deed is enclosed for execution by NAC in compliance with clause 22 and 7.2 of the 2008 Agreement and NAC is invited to advise of any concerns it has with the deed or the 2008 Agreement. However, the final paragraph of the letter states that if a response is not received by 6 November 2015, “Mr North will consider lodging an application under s 35 of the Native Title Act for a determination that M46/1463 may be granted”.
In his June affidavit at 11, Mr North says that NAC ultimately did sign a s 31 deed consenting to the grant of this lease after “the best part of a year”, which broadly matches the period when Mr North says NAC last provided consent in accordance with the 2008 Agreement. This is consistent also with the Tribunal’s records which show that a future act determination application made by Mr North in relation to M47/1463 (WF2015/0027) was accepted by the Tribunal on 21 December 2015 but subsequently finalised on 18 February 2016 following execution of a s 31 deed.
NAC does not dispute that it has consented to previous tenements in the area. As to the relevance of this NAC says (NAC reply at 3-4):
At [15]-[16] of the North Affidavit, North asserts that, because previous tenements were granted which overlap with the Proposed Tenement, the Native Title Party has, in effect, consented to the grant of the Proposed Tenement. The Native Title Party rejects this assertion. The consent to the grant of a prior tenement, does not obviate North’s obligations to negotiate in good faith as to the granting of the Proposed Tenement over a similar area. If this was not so, then the Native Title Party’s rights under the NTA would be entirely defeated in relation to any mining tenements sought to be granted in areas where, for example, low impact prospecting, miscellaneous or exploration licences are already granted and/or have been previously consented to by the Native Title Party. This would defeat the purposes of the NTA entirely.
Even if the Native Title Party’s construction of the NTA is incorrect, each of the tenements listed in the North Affidavit cover only approximately half of the Proposed Tenement.
Norwest rejects any characterisation of M47/1463 as low impact (Norwest reply at 2) although that is not what NAC is saying here. The point being made is simply that consent or agreement to one tenement does not remove any obligation to negotiate in good faith with respect to a later tenement, which is of course correct.

2016 - 2017 Disputes under the 2008 Agreement

NAC says that in the period following the commencement of the 2008 Agreement disputes arose in relation to a number of issues including the Tenement Holders refusing to make royalty payments, their dissatisfaction with heritage survey budgets provided by NAC and communication issues.
The first evidence of these issues dates from 2016. As outlined above, it appears NAC consented to M47/1463 in 2015, although this was over a year after the s 29 notice for that tenement and after Mr North lodged an application under s 35 of the NTA. This suggests there were issues between the parties from at least 2014 or 2015.
Included in NAC’s evidence is a Tribunal synopsis of a two day mediation conference between NAC, Mr North and Welcome held in Karratha on 9-10 August 2016. The synopsis indicates that the tenements which gave rise to the mediation were M47/1483, being an application by Mr North personally, together with E47/3339 and P47/1762, being applications by Welcome. Mr North was in attendance.
The synopsis reveals that parties discussed a range of issues relating to the operation of the 2008 Agreement including existing tenements, communication, survey process, fire breaks, skeletal remains, survey costs, costs and royalties, and heritage issues.
Two of the items discussed appear relevant to future tenements as follows:
Mining proposals, notifications and mine closure plans: In relation to mining proposals and mine closure plans, North agreed to provide NAC with draft versions for comment prior to filing them with the Department of Mines and Petroleum (‘DMP’). Final versions would then be provided to NAC following approval. North also agreed to give NAC 30 business days’ notice prior to commencing work on materials tenements or undertaking any proposed activity on exploration, infrastructure or metals tenements. North is to meet with NAC Board on an annual basis to provide an overview of operations and future projects. These processes are consistent with the process in the existing agreement.
…
Future tenements and negotiations: NAC went through the proposed term sheet and discussed the need for community consultation. It was agreed that parties should negotiate new agreements for mineral tenements; however, materials tenements may only require a variation to the existing agreement. In relation to materials tenements, parties discussed and agreed on the following process of negotiation consistent with the existing agreement:
1.   NAC will carry out a heritage survey over the area
2.   North will attend a meeting of the NAC board to discuss the project and negotiate good faith. Issues that may be the subject of the negotiation include the administration fee, access, environmental management, cultural awareness, and employment and training.
3.   Parties will draft a new agreement or a variation to the existing agreement.
4.   North will pay NAC’s legal costs of any drafting and pro rata costs of the board meeting subject to approving a budget in advance,
It was proposed that parties use the Antonymyre tenements as an opportunity to test the agreed process. It was also suggested that the board meeting could be used as a forum for North to provide NAC with an update on what is happening on other tenements.
North indicated that the application for M47/1483 (Mt Welcome) would be withdrawn.
The stated outcomes of the mediation were:
Outcomes
The Tribunal notes the following to be the outcomes of the mediation:
Parties agreed on:
·a communication protocol
·a process for settling budget estimates
·a process for negotiating new materials tenements
·a heritage inspection process for pre-native title leases
North agreed to:
·provide draft versions of any mining proposal or mine closure plan to NAC for comment as well as final versions once approved
·notify NAC 30 business days before commencing work on material tenements or undertaking any proposed activity on exploration, infrastructure or metals tenements
·email Mr Lockyer photographs of the skeletal remains on M47/389 and contact details for the relevant DAA officer
·review the proposed schedule of rates and provide feedback to NAC
·pay NAC the June royalties
NAC agreed to:
·inform the adjacent tenement holder about the skeletal remains on M47/389
·advise North of the appropriate procedure for managing the skeletal remains on M47/389, once it has consulted with DAA and senior elders
·arrange for Mr Walker to meet with Mr North to discuss the invoice for the survey on L47/170, the quote for the survey on L47/356 and the Welcome Exploration tenements, with or without Tribunal assistance
·discuss at board level its legal costs and the invoice for the survey on L47/170
The Tribunal agreed to meet with Mr Walker to discuss the outcomes of the mediation
It was proposed that parties reconvene for a further mediation in late September – early October 2016.
There is little evidence of which, if any, of these outcomes were actioned by the parties. The synopsis of the Tribunal’s mediation extracted at [95] records Mr Terren as saying that the issues from the 2016 mediation had not been resolved and things have “snowballed since then”. Some issues from the 2016 mediation are also raised in the emails listed below.
NAC says that from November 2016 to April 2017 further disputes arose between the Tenement Holders and NAC and provides by way of evidence correspondence (GFD03 – GFD07) as follows:
(a)email chain between Kim North and Richard Walker (NAC) between 22 November 2016 and 8 December 2016 regarding a range of matters including proposed programs of work, heritage surveys and costs. In this exchange Mr North follows up on matters discussed at the Tribunal’s 2016 mediation including costs for Tribunal proceedings;
(b)email chain between Kim North and Richard Walker (NAC) between 17 February 2017 and 15 March 2017 regarding a budget estimate for heritage survey costs, which are not acceptable to Mr North;
(c)email chain between Norwest and NAC representatives dated 29 March 2017 regarding invoice disputes and heritage costs;
(d)email chain between Norwest and NAC’s senior finance officer between 24 January 2017 and 2 April 2017 initially to follow up on payment of an invoice from August 2016 for a yearly administration payment but subsequently dealing with a range of issues, including Norwest’s request for payment of legal fees as discussed in the Tribunal’s 2016 mediation. The concluding line of the final email from Mr North to Mr Walker is “[i]f your response is going to be negative, and we don’t have to talk or negotiate, don’t bother responding”;
(e)email chain between Norwest and Sanoj Xavier (NAC) between 11 January 2017 and 28 April 2017 regarding various royalty reports. The final email dated 28 April 2017 from Mr North to NAC reads:
The only reason you got paid this quarter, was a clerical mistake.
Until THE NAC want to engage in constructive conversation about the extra costs that NAC have charged me, and the costs involved going to the Tribunal, and are they going to honour our agreement going forward??
Until then, no I won't be sending you the royalties report for March 2017, and nor will I be paying any royalties in the future until this is sorted.

The negotiations in relation to the grant of the lease

On 7 December 2017, Norwest applied for the lease. Its mining proposal was provided to the Mining Registrar on 18 December 2017 (June affidavit Annexure DKN2). As already noted, the notification day for the s 29 notice for the lease was 20 July 2018.
NAC says that, contrary to clauses 13 and 14 of the 2008 Agreement and the outcomes of the 2016 mediation, Norwest did not provide NAC with a draft of the mining proposal nor the final proposal as lodged.
Norwest argues in response that:
(a)its letter of 4 June 2019 (provided as GFD10) can be construed as compliance with clause 13 of the Agreement;
(b)in any event clause 13 only applies to Welcome not Norwest;
(c)clause 14 of the 2008 Agreement does not apply to the lease for a number of reasons including that it is a Materials Tenement; and
(d)in the alternative, Norwest was not obliged to seek or agree to a variation of the 2008 Agreement under the outcomes of the 2016 mediation as the lease is a Materials Tenement not a Metals Tenement.
The 4 June 2019 letter does not enclose the mining proposal and in any event, came well after the mining proposal was submitted to the Department of Mines, Industry Regulation and Safety (DMIRS), so it is difficult to see how that correspondence meets any obligation to provide a proposal.
Clause 13 of the 2008 Agreement does not appear to apply here as it refers to applications by Welcome. The language of clause 14 is less clear although it is not apparent how it would apply on the present facts.
However, I do not accept Norwest’s argument in relation to the outcomes of the 2016 mediation which specifically contemplate provision of draft and final mining proposals and a variation to the 2008 Agreement for a materials tenement. It also specifically states that the parties agreed to test the process on the Antonymyre tenements, which according to the mining proposal includes the lease.
Mr North also deposes that he sent mining proposals to NAC, citing by way of example document GFD03. However, that document is an email which gives notices of programs of work on different tenements. There is no mention of mining proposals and no evidence that Norwest gave NAC a copy of the mining proposal for the lease prior to this proceeding.

Initial correspondence between the parties

On 20 August 2018, the State, through DMIRS, wrote to NAC regarding the process of negotiation under s 31(1)(b) enclosing various information regarding the lease and lease area. The letter states that it was being simultaneously sent to Norwest and noted that the State must give all native title parties an opportunity to make submissions concerning the grant which is a requirement of s 31(1)(a).
To enable NAC to do so, the letter requested that Norwest provide NAC with a range of information about the lease within 14 days, by registered mail, namely:
(a)an outline of the proposed work programme for the tenement area, if available;
(b)copies of Norwest’s last annual report, if available;
(c)advice as to whether Aboriginal heritage surveys within the tenement area are proposed or have been completed;
(d)any company policies or information which might be relevant to native title claimants; and
(e)a suitable map of the project area (if applicable).

By the State’s August 2018 letter, the native title party was then requested to make its submissions about the effect of the act on the matters in s 39 to the State’s Tenure and Native Title Branch by no later than 8 October 2018.
On 11 October 2018, DMIRS sent a follow up letter to Norwest seeking the requested information by 25 October 2018. That letter noted that if no response was received by the due date, any party may refer the matter to mediation in accordance with s 31(3) of the NTA. The relevance of the due date is not apparent as s 31(3) is not subject to any time constraint.
It appears that there was no further progress until well into 2019. Mr North’s June affidavit states at 16–17:
The NAC have previously agreed to the grant of the Mining Lease because of the Agreement and in any event and as mentioned earlier, have entered into a State Deed over the grant of the abovementioned former application M47/1463, which is effectively over the same area of land as the Mining Lease.
When asked about providing submissions on the Mining Lease I contacted the Government Party through DMIRS from in or about March to May 2019. I let them know that I had an agreement with the NTP. I asked my solicitors to follow the matter up with DMIRS. They received a letter from DMIRS, a true copy of which is attached herewith dated 22 May 2019 and marked DKN3.
The letter from DMIRS to Austwide dated 22 May 2019 opens by saying “[t]here seems to be some confusion in relation to the documents required to enable M47/1566 to progress through the RTN process in good faith.” It then goes on to refer to the State’s obligation under s 31(1)(a), its previous correspondence of 20 August 2018 and 11 October 2018 seeking information from Norwest, and the lack of response.
DMIRS then writes:
As at the 20/03/2019 this information was not received and a S111A refusal letter was sent.
In response to this letter, on the 29/03/2019 Mr North called Christine Weetman and advised that the NTP are aware of what is to be done on the tenement and that he has an agreement that the NTP will not sign. Christine Weetman requested a copy of the ancillary agreement which was emailed to her shortly after.
There are a couple of issues to address here;
1. The State believes this application is a candidate for a S35 determination. The GP has indicated that there is an agreement in place with the NTP however the NTP refuse to sign the State Deed to enable grant.
2. Whether or not you believe the attached agreement is sufficient to address the requirements of S31 of the NTA (and whether this has been forwarded to the NTP as such), because if "good faith" is challenged during or prior to the determination, this may be raised as an issue.
As you are aware, if a challenge to good faith is upheld by the Tribunal, the application will return to negotiation stage. If you fail to provide the requested information in our S31 submission request letter, you run the risk of being found to be not negotiating in good faith. The Tribunal has no jurisdiction to hear the matter if this occurs and they will terminate the determination proceedings.
Please either provide the documents required to enable S31 of the NTA to occur or if you believe you have covered the requirements in the agreement please advise as such. I look forward to hearing from you in relation to your intention to apply for a determination through the NNTT.
DMIRS’ correspondence reveals that the State had taken action to refuse the application for the lease under the Mining Act which prompted Mr North to contact DMIRS to advise them of the 2008 Agreement.
It was after DMIRS’ letter of 22 May that Norwest provided the information requested by the State. This was done by letter dated 4 June 2019 from Austwide to the Chief Executive Officer of NAC and copied to DMIRS (NAC’s Contentions at 13.1 incorrectly date the letter 20 July 2018). NAC says this is the first communication it received from Norwest in relation to the lease (NAC contentions at 21.3). NAC also points out that the letter did not make any offers or proposals or seek to facilitate or express a willingness to meet (NAC contentions at 20). Norwest says there was no requirement for it to do so and agreement on terms had already been reached under the 2008 Agreement (Norwest contentions at 38).
The 4 June 2019 letter refers to the 2008 Agreement, and sets out the terms of clause 7.2. It then proceeds to respond to the matters requested by the State. The letter encloses a map of the lease as well as two AHIS reports.
Item 3 of the letter addresses the question of Aboriginal heritage surveys. It states that:
(a)Norwest will conduct its activities in accordance with the conditions of grant and that surveys would be conducted as and when required;
(b)Norwest is aware of and would respect the privacy of the Traditional Owners should the Traditional Owners wish to independently discuss sensitive cultural matters during a heritage survey; and
(c)three previous heritage surveys have been conducted over the area and identifies the known heritage site.
No mention is made of Norwest’s heritage commitments under the 2008 Agreement, which does seem odd given its reliance on the 2008 Agreement in the same correspondence. However, this may be because of the scope of the question as put by the State.
Item 4 goes to the question of company policies or other relevant information. The response states that:
Norwest does not have any relevant company policies or information, however it recognises and respects the rights of the native title owners and the local Aboriginal inhabitants. Norwest is committed to the expeditious grant of the Application and fully intends to negotiate an agreement in good faith with the native title party.
As to the reason why it took nine months for Norwest to provide the requested information, Norwest says in its contentions at 6 that this was “due to valid extensions” given by the State. NAC disputes this characterisation and says the State did not allow extensions but simply set new deadlines (NAC reply at 8).
Of course, each party has an obligation to negotiate in good faith. It is not necessary for the grantee and native title parties to rely on the State to dictate how or when they communicate with a view to reaching agreement. What appears evident from this material is that Norwest did not consider it was necessary for it to take any further steps, such as providing the information requested by the State, because NAC had already provided its consent in the 2008 Agreement. It took until the State had initiated refusal action for Norwest to provide the requested material.
Norwest’s contentions at 7 go on to say that NAC’s submissions were “due” on 17 July 2019. There is nothing in evidence to indicate the source of that date, although it is not disputed by NAC.
The following day, 18 July 2019, Ms Treasure of Austwide wrote to DMIRS in the following terms (North affidavit Annexure DKN5):
My client wishes to progress this agreement and has complied with all necessary initial steps of the native title process. It has been very difficult to get a response from the native title party, despite multiple efforts by both the client and the Grantee's legal representative. The native title party has not responded to requests by DMIRS for the procedural submissions under s31 of the Native Title Act. The Grantee now requests the assistance of the NNTT to, facilitate mediation between the parties to commence a dialogue that would enable the agreement of the native title party to the grant of this tenement. We ask that DMIRS communicate this request to the NNTT.
There is no evidence of the “multiple efforts” by Norwest or its legal representative mentioned in this email. Also, the alleged “lack of response” by NAC must be viewed in the context that Norwest was requested to provide information about the lease in order for NAC to provide a submission and Norwest only did so on 4 June 2019. There is no evidence of any requests from DMIRS to NAC after that time.
Mr North’s June affidavit goes on at 22:
As the grant of the Mining Lease did not proceed as agreed, DMIRS sent a letter to the Grantee Party on 19 July 2019 advising the application for the Proposed Lease had been referred to the National Native Title Tribunal for mediation assistance.

Mediation by the Tribunal

The Tribunal wrote to the parties on 19 August 2019 to advise that the State had referred the matter to mediation.
The first mediation conference held on 27 August 2019 was attended by all parties. NAC was represented by Mr Walker. Mr North did not attend but was represented by Ms Treasure from Austwide. The Tribunal’s synopsis includes the following summary of the discussions and outcomes:
Member McNamara opened the conference and discussed the mediation process with the parties. He then confirmed with the parties they had read the Tribunal’s mediation protocols and asked if the parties agreed to abide by them. The parties agreed. Member McNamara then went through the history of the matter as it appeared from the documents provided to the Tribunal, and the parties considered the letter sent from Austwide Legal to NAC on 4 June 2019 which outlined Norwest’s proposed works. The parties confirmed that Patrick Churnside, who once was Chair of NAC, is no longer there.
Ms Treasure outlined Norwest’s proposed works on the tenement area, which involve sand extraction, and advised NAC and Norwest have an agreement between them executed in 2008 that appears to cover the grant of the current tenement.
Mr Walker advised there are some unresolved issues that NAC has with Norwest and Mr Kim North that are causing NAC to hesitate in moving towards the grant of the current tenement. Mr Walker advised there are outstanding administration fees due to NAC from Mr North and there has been a lack of information coming from Mr North and his companies in relation to production that is preventing NAC from calculating the payments it is owed pursuant to the 2008 agreement. Mr Walker also advised that Mr North has carried out heritage surveys without using the appropriate Ngarluma people. Mr Walker advised the parties engaged in mediation to resolve issues that had arisen between them under the 2008 agreement, where the issues of payments, communication and transparency were raised. (NB. Investigation by the Tribunal reveals NAC and Mr North were involved in a future act determination application matter WF2015/0027 for M47/1463 which was commenced by Mr North in 2015, but Tribunal records show that the parties were able to reach agreement not long after the second preliminary conference and the application was withdrawn.)
Mr Walker said there are some things about the 2008 agreement that are not working and if Mr North wishes to renegotiate the agreement then he would take that to the NAC Board. Ms Treasure confirmed Mr North does not wish to renegotiate the 2008 agreement but wishes to know what can be done to progress the current tenement under that agreement.
Ms Treasure asked that a copy of any correspondence in this matter that has gone to Mr North or Norwest directly be provided to her. Mr Walker agreed to send a request to senior NAC management for a search of NAC’s computer systems in relation to this and also to liaise with Mr Sheiner about achieving this. Ms Treasure also asked Mr Walker if the issues around payments, communication and transparency can be resolved, would NAC then assist to progress the tenement to grant. Mr Walker said he would brief senior management.
Mr Walker advised there is a huge registered site that covers close to half the tenement. Ms Treasure referenced the State’s s 31 negotiation letter dated 20 August 2018 which requested the native title party to provide various sorts of information, including about sites of significance in the tenement area. Ms Treasure asked if Roe Legal could send her a letter which sets out the nature of the site, heritage requirements, concerns, and other relevant information as set out in the State’s s 31 negotiation letter as well as respond to Austwide’s letter of 4 June 2019. Mr Walker said he would arrange for that to happen. Ms Treasure advised it would be helpful is she could get a sense of how this matter can be resolved or moved forward.
Outcomes
The Tribunal notes the following to be the outcomes of the mediation:
•    Mr Walker is to make internal enquiries in relation to any correspondence sent to Mr North or Norwest directly in this matter by close of business on 30 August 2019.
•    Mr Walker or Paul Sheiner are to provide a copy of any correspondence in this matter that has gone to Mr North or Norwest directly to Ms Treasure by close of business on 10 September 2019.
•    Mr Walker is to ask Mr Sheiner to provide correspondence to Ms Treasure by close of business on 10 September 2019 which addresses the matters raised in the State’s ‘s 31 negotiation letter’ of 20 August 2018 and Austwide Legal’s letter of 4 June 2019.
•    Ms Treasure is to provide a response to Mr Sheiner by close of business on 24 September 2019.
The next day, 28 July 2019, Ms Treasure wrote to Mr Walker in the following terms (June affidavit Annexure DKN4):
Dear Richard,
Further to the Mediation Conference held at the NNTT in Perth yesterday before Member McNamara, I am sending you a scan of the executed Exploration and Mining Agreement between Kim North, Norwest Gravel and Sand Pty Ltd, Welcome Exploration Ply Ltd and Ngarluma Aboriginal Corporation dated 27 August 2008. I look forward to receiving NAC's s31 submission in response, along with an indication of what is required to get this tenement granted. As the Member pointed out, there is no intention to renegotiate the existing 2008 agreement, just to clarify the issues that can make it work better. In particular, the Member queried whether the issue is really about communication and heritage surveys.
As discussed yesterday, if there is any correspondence that has been sent directly to Kim North or Norwest Gravel and Sand Pty Ltd (the Grantee) by either NAC staff or your legal representatives at Roe Legal, then please forward that to me as well.
Please note that the date for NAC to respond is 10 September 2019; the date for the Grantee to respond that NAC's submission is 24 September; and the next mediation conference is scheduled for 26 September.
Thanks and kind regards,
Wendy
On 24 September 2019, an email was sent to Ms Treasure by Mr Terren from Roe Legal on behalf of NAC (GFD13). The email notes the mediation that is scheduled for two days’ time and that NAC seeks to discuss the outstanding payments owing to it under the existing agreement at the mediation. The email goes on to state:
In this regard, we expect your client to be in a position to discuss those matters at the mediation. To facilitate that discussion, I confirm that we expect your client to have available at the mediation the following information:
1.Details of the royalties paid/payable to the State by your client for the past 5 years for the relevant tenements covered by the existing agreement;
2.Details of amounts paid by your client to NAC in respect of royalties; and
3.Details of amounts paid by your client to NAC in respect of the annual administration payment (as distinct from royalty payments).
We look forward to discussing this matter further at the mediation.
NAC’s GFD14 is an email chain between the Tribunal, Roe Legal and Austwide in relation to the associated mediation and another mediation matter that involved the same representatives but a different tenement and grantee party. In that chain of correspondence Mr Terren provided an update to the Tribunal on 24 September 2019 (copying all parties), in which he confirmed NAC has ‘sent through the relevant historical correspondence to the Grantee Party but has not yet provided a response to the s 31 letter.’ Mr Terren states that he has obtained instructions on that point today and hopes to be able to address some of those issues at the mediation. He also advises that he has written to Norwest ‘seeking that they have the necessary royalty information required to have a discussion about the outstanding amounts owing under the agreements which was raised at the last mediation’ (presumably a reference to the email at GFD13). Later that day, Ms Treasure responded to Mr Terren’s email as follows:
Dear All,
Further to Roe Legal’s email below and separate emails received this afternoon, I have checked the outcomes recorded for both matters and royalty discussions were definitely not among them. In case there was any doubt, I have attached those outcomes again.
As per the synopses dated 2 September, I have provided to Ngarluma Aboriginal Corporation and Roe Legal copies of the required correspondence and documents. By close of business today, 24 September, I was to provide responses to Mr Sheiner’s correspondence addressing ‘the matters raised in the State’s s31 negotiation letter(s) and Austwide Legal’s letter of 1 March 2019 [for M47/1566] and 4 June 2019 [for M47/1534]’.
Unfortunately I have not received any response from Mr Sheiner/Roe Legal to the s31 submission letters, nor have I received copies of any correspondence sent from Roe Legal to either of my clients. I am therefore not able to do any more than I have done.
Should Roe Legal be able to provide responses to the s31 submissions then I will certainly endeavour to respond in the limited time remaining.
Kind regards,
Wendy
The second mediation conference was held on 26 September 2019 and was attended by all parties. NAC was represented by Mr Walker and Mr Terren. Norwest was again represented by Ms Treasure. The Tribunal’s synopsis includes the following summary of the discussions and outcomes:
Member McNamara opened the conference and reviewed parties’ progress since the last conference. Ms Treasure confirmed she had received copies of correspondence sent by NAC directly to Mr North, but not any correspondence sent by Roe Legal directly to Mr North. Ms Treasure also advised that Roe Legal had flagged in an email to her yesterday that it wished to discuss the outstanding royalties issue at the conference.
Mr Terren advised that NAC has issues regarding outstanding royalty payments with Mr North and his companies. He advised the 2008 agreement had a provision for royalty payments that mirrored the State royalty payments. Mr Terren proposed that if Mr North could provide royalty statements for the last five years then the parties would be able to assess the outstanding amount. He advised the parties underwent mediation in 2016 involving the Tribunal and one of the outcomes required payment of the outstanding royalties. Ms Treasure advised she was not aware of the prior mediation and doesn’t have information in relation to this. She advised her client did not mention outcomes from the 2016 mediation and her impression from her client is that payments were made in the past but because NAC was not responsive to inquiries and requests for action on various matters, those payments stopped. Ms Treasure also noted that issues regarding heritage surveys with non-NAC people was raised at the last conference.
Member McNamara advised the current mediation process is in relation to the proposed grant of the current tenement, however it does appear the outcomes of the 2016 mediation have not been met. Member McNamara reminded parties that issues of non-compliance with the 2008 agreement and outstanding payments by Mr North were raised at the last conference but the Tribunal does not have a copy of the 2008 agreement. He also posed the question of how to progress discussions in the current matter, and whether this involves resolving issues around outstanding payments.
Mr Terren expressed NAC’s view that progress goes hand in hand with resolving the payments issues as Mr North can’t insist on NAC complying with the 2008 agreement when he is not complying with it himself.
Ms Treasure asked what the 2016 mediation was about. Mr Walker advised it was in relation to much the same issues arising in the current matter. He expressed his view that the matters from the 2016 mediation have not been resolved and things have snowballed since then with parties back where they were in 2016 with issues around information sharing. Ms Treasure advised she will take the conference’s discussions back to her client but he is very frustrated.
Mr Terren indicated the current matter would be resolved if the issues with compliance with the 2008 agreement by Mr North are resolved. He expressed his view that the payment issues would be the easier one to resolve.
Member McNamara said that maintaining a standoff will not assist parties to resolve this matter and push forward with using the 2008 agreement means that past issues will need to be resolved. Member McNamara suggested some sort of stocktake of payments will be necessary for the parties to restore their relationship otherwise these same issues will arise for each tenement Mr North applies for in Ngarluma country. He also suggested that to move forward will require the parties picking up from the outcomes of the 2016 mediation. Member McNamara suggested that Mr North look at his records for what royalty payments have been made and NAC look at their accounts received so that the parties can compare their records and move towards resolving the payments issue and the communication issue.
Mr Terren advised that there are three grantee parties to the 2008 agreement, being Mr North, Norwest Sand and Gravel and Welcome Exploration Pty Ltd. The two companies are owned by Mr North. Mr Terren advised NAC is looking to resolve the outstanding payments issue in relation to Mr North and both companies.
Ms Treasure advised she will seek instructions from her client in relation to this, however expressed that it is a huge undertaking and subject to instructions she will provide all the information she can. In return Ms Treasure advised she wishes to receive a response from NAC in relation to the State’s s 31 letter and look at the protocol around communication that arose from the 2016 mediation outcomes. She also advised Mr North would like information in relation to whether NAC has done any heritage surveys work for the current tenement. Mr Terren asked if Ms Treasure could check if Mr North has made any requests to NAC for heritage surveys over the current tenement.
Outcomes
The Tribunal notes the following to be the outcomes of the mediation:
·NAC are to conduct an audit of their accounts received to check what payments have been received from Mr North, Norwest and Welcome Exploration pursuant to the 2008 agreement and advise Ms Treasure and the Tribunal by close of business on 10 October 2019.
·Mr North, Norwest and Welcome Exploration are to audit their records to check what payments have been made pursuant to the 20008 agreement and advise Mr Terren by close of business on 24 October 2019.
·The parties are to look for the outcomes from the 2016 mediation conference and the communication protocol agreed at that conference, and exchange this information by close of business on 10 October 2019.
·NAC is to provide a response to the State’s s 31 letter by close of business on 10 October 2019.
·Mr Walker and NAC are to check what heritage surveys have been completed in relation to the area covered by M47/1566 and provide this information to Ms Treasure by close of business on 10 October 2019.
·Ms Treasure is to check if Mr North or Norwest have made any requests to NAC for heritage surveys over the area covered by M47/1566 and advise Mr Terren by close of business on 24 October 2019.

On 11 October 2019, NAC provided a response to the State’s s 31 letter and Norwest’s 4 June 2019 letter, setting out its concerns regarding mining activity in the lease area, particularly in relation to the risk of destruction of artefact scatters that are part of the registered site. The letter expresses concern that impact on the registered site is almost inevitable given approximately half the lease overlaps the site.
On 16 October 2019, Roe Legal sent Ms Treasure a copy of the heritage survey results over M47/1566. Although the attachments are not provided, GFD18 indicates that on the same date Roe Legal also sent Ms Treasure copies of the communication protocol and outcomes from the 2016 mediation. The correspondence also advised that Mr Walker had reviewed NAC’s heritage surveys and confirmed the following:
Survey 28538 and 102465 were undertaken in relation to the Anketell Port;
NAC is not aware of the survey 21593 and why it was undertaken; and
NAC has not completed any survey in relation to M47/1566.
The third mediation conference was held on 4 November 2019 and was again attended by Mr Walker, Mr Terren and Ms Treasure. The Tribunal’s synopsis includes the following summary of the discussions and outcomes:
Member McNamara opened the conference and reviewed parties’ progress since the last conference. Ms Treasure advised she had taken instructions from her client in relation providing information regarding past payments to NAC. Ms Treasure said that while her client doesn’t dispute the amount owed, he has previously provided this information to NAC.
Member McNamara asked about the previous provision of the information. Ms Treasure advised it was provided for the 2016 mediation. She expressed her client’s frustration with NAC and what he sees as the lack of service by NAC in return for the payments that have been made. Ms Treasure advised her client is happy to conduct surveys with Ngarluma people and the required experts, however he doesn’t wish to interact with NAC. She also advised that her client is willing to meet with the NNTT if requested.
Ms Treasure raised the issue of the cost of conducting heritage surveys and advised her client had received a quote from NAC to conduct a 1.5 day heritage survey for $62,000. Ms Treasure advised there is no costs schedule in the 2008 agreement and some costs were set out in loose terms under clause 17 of that agreement. Mr Terren advised he could enquire with NAC about the basis for that survey quote.
Mr Terren advised NAC has completed its response to the State’s s 31 letter and provided it to Ms Treasure on 11 October. Mr Terren also advised NAC completed its audit and no payments have been received from Mr North or his companies since 2017 in relation to admin fees or royalties. Mr Terren then clarified that there are three different types of payments under the 2008 agreement, being administration fees of $5,000 per year, royalties payable at the State rate and costs for heritage surveys. Mr Terren advised NAC is frustrated as it can’t determine the amount of royalties owed as this information can only come from Mr North and information pertaining to royalty payments to the State is not publically accessible. Ms Weetman confirmed that royalty payment information is not available to the public. Member McNamara advised parties that any information that can help parties to understand the amounts owed will assist parties to move forward. Ms Treasure indicated she could try to overcome her client’s frustrations with NAC and get him to provide the information.
Ms Treasure advised that her client is frustrated in general with the costs charged by NAC, including $8,000 to attend a board meeting that was also attended by other companies. She indicated there is an issue with the lack of quantification of costs in the 2008 agreement. Member McNamara asked if the dispute resolution clause in the 2008 agreement had been invoked. Mr Terren advised it had to varying degrees.
Mr Terren said that if the parties are on the same page about the outstanding admin fees and royalty payments, then if the intention is to get a survey of M47/1566 Mr North can place a survey request with NAC. A quote will then be provided which Mr Terren advised could then be discussed. Mr Terren also indicated it would be good to discuss including a costs schedule in the 2008 agreement to find a way forward. Ms Treasure agreed with this and that there are various parts of the 2008 agreement that need tightening.
Outcomes
The Tribunal notes the following to be the outcomes of the mediation:
·Ms Treasure is to discuss providing the outstanding royalty payment information to NAC with her client by close of business on Friday 8 November 2019.
·Mr Terren is to discuss the $62,000 heritage survey quote with NAC and understand the basis for it.
·Ms Treasure is to obtain instructions from her client about placing a formal heritage survey request for M47/1566 with NAC and forming an agreed practice for the future by close of business on Friday 8 November 2019.
·Should Mr North place a formal heritage survey request, Mr Terren is to liaise with NAC for the preparation of a budget for the heritage survey then provide it to Ms Treasure by close of business on Friday 29 November 2019.
·Ms Treasure is to take instructions from her client and provide a response to the heritage survey budget outlining any issues and concerns to Mr Terren by close of business on Friday 13 December 2019.
On 4 November 2019, following the third mediation conference, Ms Treasure sent Ms Forest an email (also copied to Mr Terren, Mr Sheiner (both of Roe Legal) and Mr Walker) as follows:
Hi Kelsi,
I’m following up on your email of 16 October and the provision of information based on the Aboriginal Heritage Inquiry System. The information and attachment are the same as I provided to you on 11 September. Two of the surveys do not indicate the relevant tenements so I am unsure if they have anything to do with Kim North’s tenements. My notes from the 26 September mediation conference are that I requested a list of payments received and heritage surveys done. I was already aware that no surveys had been done on M47/1566.
I know that Chris didn’t receive that list of payments information until 1 November and is still going through it, but are you (or Chris) able to confirm from NAC the details of any heritage surveys requested or done for Norwest Sand and Gravel or the other entities that are a party to the August 2008 agreement (Kim North and Welcome Exploration Limited)?
Chris, I’m waiting for my client to formally request a heritage survey for M47/1566 and I will arrange for that to be sent to you as well as NAC. I hope to get that in the next day or two.
Thanks
Wendy
On 7 November 2019, in response to the Tribunal’s synopsis and outcomes from the third mediation, Ms Treasure emailed all parties and the Tribunal to advise she had met with Mr North and, in the following week, he intends to: collate a list of payments made to NAC covering royalties and the annual administration fee; and email Mr Walker to request a heritage survey and budget for the lease.
On 24 November 2019, Mr North emailed Mr Walker a heritage survey request form and map for the lease, asking that a quote be provided.
On 10 December 2019, in response to the Tribunal’s request for an update, Ms Treasure advised that Mr North had sent her a number of emails relating to payments but she had not had the opportunity to confirm with him if he wants her to collate the payments into a tidy list. She also advised no response had been received to Mr North’s request for a heritage survey and budget. Ms Treasure flagged that Austwide was currently short staffed and, under the circumstances, requested the mediation scheduled for 16 December 2019 be adjourned. Following conferral with parties, the fourth mediation conference was subsequently adjourned by the Tribunal with a date to be fixed.
On 22 January 2020, Mr North sent a follow up email to Mr Walker asking if there was any update on the survey request quote. On 5 February 2020, Mr Walker responded to say he had just returned to work that day and would contact NAC’s lawyers to seek an update on this matter.
On 20 February 2020, Mr Walker responded to Mr North stating “[i]t’s my understanding that this matter is with the NNTT. Your representative from Austwide Mining may be able to give you an update?” Mr North replied the following day, stating “I think you should check with your lawyer because it’s my understanding that NNTT have requested a quote for heritage survey and we are waiting on you to get it organised.”
NAC contends that in or around December 2019 or January 2020, Ms Treasure left Austwide and Norwest’s legal representation ceased to take any further action (NAC contentions at 39). Norwest dispute this fact, stating Ms Treasure left Austwide on 14 February 2020.
On 3 February 2020, the Tribunal emailed parties stating “[t]he Member has considered the circumstances in this mediation. As parties are not responding to the mediation outcomes, Member McNamara has terminated the mediation as of 3 February 2020.”
Although the copy of the email provided as GFD25 is undated, NAC states that on 13 May 2020, Mr Walker emailed Mr North as follows:
Dear Kim,
Re: Acquisition of mining tenement M47/1566 and associated tenements.
We are writing to inform you of the Ngarluma community concerns with the development of this tenement and associated tenements.
As you may be aware, roughly half of M47/1566 sits within site 641, a registered site that contains sensitive cultural material of importance to the Ngarluma people.
This site is a midden and traditional camping place, centred on the tidal area and the sand dunes that you are looking to extract resources from.
Managing these fragile sites into the future is the key responsibility of the NAC and of me as the NAC’s heritage Officer.
As such, I would ask you to consider:
-     The site boundaries as registered are flagged as an avoidance area within our prospective heritage agreement.
-     A detailed environmental and fauna survey of the area is undertaken by NAC at your cost to fully document the impact of a development on such a sensitive coastal area.
-     The site is managed into the future by an agreed CHMP, to ensure any peripheral activities into the future do not have an impact on this place.
-     A detailed heritage survey of the area to be impacted is commissioned through NAC to understand that impacts that the project will have on the place and to inform the agreement making and management processes moving forward.
Regards,
Richard Walker
On 8 May 2020, as noted above, the Tribunal received Norwest’s application for a determination under s 38 of the NTA and subsequently accepted the application on 14 May 2020.

Events since Norwest’s s 35 application

The Full Court of the Federal Court held in Sheffield that the obligation to negotiate in good faith extends to negotiations between the parties after the lodgement of a s 35 application (Sheffield at 56-70).
During the preliminary conference, Mr Tolcon suggested that mediation may be of assistance as the parties already have an agreement and all that is required is for NAC to sign a s 31 deed. NAC agreed to participate in mediation and the Tribunal made contact with the parties for that purpose.
Annexure DKN7 to Mr North’s June affidavit is a letter dated 28 May 2020 from Norwest’s legal representative to NAC’s legal representative which states as follows:
We refer to the preliminary conference in matter WF2020/0004 before Member Cooley on 25 May 2020, where we attended on behalf of our client Norwest Sand and Gravel Ply Ltd (Norwest).
As outlined at the preliminary conference, we referred to the Ngarluma Exploration and Mining Agreement between Ngarluma Aboriginal Corporation (NAC), Donald Kimberley North, Norwest Sand and Gravel Pty Ltd and Welcome Exploration Ply Ltd dated 27 August 2008 (Ngarluma Agreement).
Norwest has applied for Mining Lease 47/1566 (M47/1566) which is located within Ngarluma Country as that term is defined in the Ngarluma Agreement. M47/1566 was notified under section 29 of the Native Title Act 1993 (Cth) (Native Title Act) and is a "Future Tenement" for the purposes of the Ngarluma Agreement, being inter alia, a tenement that was applied for after the date of the Ngarluma Agreement (see clause 1 of the Ngarluma Agreement).
Pursuant to clause 7.2 of the Ngarluma Agreement, NAC must not object to the grant of Future Tenements (see clause 7.2(a)) and must give all consents as are reasonably required by Norwest under the Native Title Act, the Mining Act 1978 (WA) and any other legislation (see clause 7.2(b)), for the grant of Future Tenements.
Clause 22 of the Ngarluma Agreement further requires that NAC will inter alia, execute all such documents and do all things as may be reasonably necessary for the effectual giving of NAC's consent to the grant of M47/1566 under clause 7.2(b).
We enclosed a State Deed in Word version, providing for NAC's consent to the grant of M47/1566. In accordance with NAC's obligations under clause 7.2(b) and 22 of the Ngarluma Agreement, please arrange for the State Deed to be executed on behalf of NAG in triplicate and returned to us at your earliest convenience.
During the good faith listing hearing, in response to a question from me, Mr Tolcon advised that mediation was not proceeding while the good faith challenge was on foot.

The relevance of the 2008 Agreement to Norwest’s good faith negotiations for the lease

As seen from the course of conduct outlined above, the 2008 Agreement has been central to the negotiations between the parties about the lease.

The future act regime under the NTA and the right to negotiate

Before I further consider the contentions made by the parties on the question of good faith, and the relevance of the 2008 Agreement, it is useful to revisit the purpose of the right to negotiate process in the context of the future act regime contained in Part 2 division 3 of the NTA.
The future act regime prescribes the circumstances in which future acts, as defined in

s 233 NTA, may be validly done (see s 24AB) and also sets out any procedural rights which apply. Future acts, such as the proposed grant of the lease, which are done other than in compliance with the NTA, are invalid to the extent they affect native title (s 24OA NTA).
A future act covered by any of the sections listed in s 24AA(4)(a) to (k) is not covered by a section lower in the list. There is an exception for certain acts which could be covered by both ss 24JAA(1) and (12) or s 24KA, but the lease is not such an act.
Accordingly, for the most part, it is not open to a person doing a future act to self-select which provisions of the future act regime apply.
Importantly, however, the future act ‘hierarchy’ outlined above does not apply to an act done under an Indigenous Land Use Agreement (ILUA) entered on the Register of Indigenous Land Use Agreements under the NTA. Under s 24AB an act done under such an ILUA is not covered by any of the paragraphs listed in s 24AA(4)(a) to (k). It is possible for an ILUA to provide consent for classes of future acts (see ss 24BB, 24CB and 24DB) such as future mining tenements within the ILUA area. Section 24EB(1)(c) must be satisfied to exclude the application of Subdivision P. ILUAs are subject to specific statutory approval and registration processes. I note that NAC, as a registered native title body corporate, would be required to comply with the relevant consultation requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 before it could agree to any act that would affect the native title rights or interests of the common law holders. There is no evidence regarding whether those requirements were met for entry into the 2008 Agreement.
Absent an ILUA, any proposed future act must be assessed against the future act provisions (in order) to determine whether and how it may be validly done.
The 2008 Agreement is not, and does not purport to be, an ILUA, and it is not entered on the Register of Indigenous Land Use Agreements under the NTA. During the good faith hearing, Mr Tolcon acknowledged the 2008 Agreement is not an ILUA but was unaware of the background as to why this was not something pursued by parties.
In this case, and in the absence of a registered ILUA covering the lease, the State has determined that the lease is an act to which the procedures in Subdivision P (of div 3, part 2) apply. Subdivision P applies to certain acts to which ss 24IC and Subdivision M apply (see s 26). There are a number of exclusions to the application of Subdivision P (e.g. s 26D), however there is no suggestion that any of those exclusions apply in this case.
Critically, an act to which Subdivision P applies is invalid to the extent it affects native title unless, before it is done, one of the paragraphs listed in s 28(1) is satisfied. In this case, if the parties had been able to reach an agreement of the kind mentioned in

s 31(1)(b), they would have satisfied s 28(1)(f). A determination by the Tribunal as sought by Norwest in this proceeding would be covered by s 28(1)(g).
Courts have repeatedly opined on the significance of the right to negotiate procedure under the NTA. The majority in Sheffield stated at [54]:
There can be no dispute that the right to negotiate has been, and remains, an important part of the fabric of the NT Act since its enactment. This reflects the explicit reference in the Preamble that future acts which affect native title should only be able to be validly done “if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate” (emphasis added). That is balanced by the reference in the Preamble to the importance to the broader Australian community of “certainty” that such acts may validly be done. In North Ganalanja at 637 McHugh J described the right to negotiate as a “valuable” one. And in Cox, Spender, Sundberg and McKerracher JJ accepted at [18] that “the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act and that it is not to be narrowly construed”.
In its outline for the good faith hearing (at 13), Norwest states that “the NAC Agreement is not dissimilar in intent and purpose as to what an ILUA was designed for in relation to inter alia, future act matters proceeding expeditiously, without objection and or unnecessary waste of time and cost.” Mr North’s evidence extracted above at [38] shows his understanding that entry into the 2008 Agreement would ensure “quick approvals” for future tenements, “without objection, need for further negotiation or delay of any kind”.
However, as the above analysis shows, the fundamental difficulty with Norwest’s stated intent and purpose is that, as far as the NTA is concerned, the 2008 Agreement is incapable of meeting that objective. Despite Norwest’s contentions, entry into the 2008 Agreement by Norwest and NAC was not effective to secure NAC’s consent to the grant of the lease under the NTA because it is, relevantly, neither a registered ILUA nor a s 31(1)(b) agreement between the negotiation parties (which includes the State). Something more is required to comply with the NTA.
It would have been open to Norwest to take action to enforce the 2008 Agreement in a Court. Whether clause 7.2 has any contractual effect apart from the NTA would be for a Court to decide. To the extent it purports to secure consent or non-objection to future acts other than in accordance with the NTA, there may be a question whether it is ineffective or void on public policy grounds (see for example discussion in Westfield Management v AMP Capital at [46]; cf the discussion regarding ILUAs in Cox at [41]–[42]).
Nonetheless, for so long as the parties were content with the arrangement for “Future Tenements” it could work satisfactorily. Once a s 31 deed was signed, no further issue would arise. That would be the case whether or not any negotiation in good faith occurred (see Cox at [11]).

However, that is not the case here because neither NAC nor the State has signed an agreement or deed under s 31(1)(b) and NAC has challenged Norwest’s good faith in negotiations.

The negotiations in issue are those after the s 29 notice – the rest is context

It follows that the period of negotiations relevant to whether Norwest has negotiated in good faith are those after the giving of the s 29 notice for the lease. These are the negotiations about the grant of the notified tenement as contemplated by

s 31(1)(b). The scheme of the NTA requires that notice is given and that the parties negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act (whether or not on conditions). How could the parties negotiate in good faith in accordance with s 31(1)(b) about a grant which has not yet been notified under s 29?
In that respect a clear distinction can be drawn between the right to negotiate procedure and the ILUA provisions which enable consent to be given for classes of future acts, subject to the safeguards and processes which apply to entry into an ILUA and subject to it being registered at the time the act is done. In the absence of an ILUA, the right to negotiate process must be followed according to its terms which requires notice and negotiation and then, if agreement is not reached and at least 6 months has passed, the possible consideration by the Tribunal.
The relevant period of good faith negotiations for the grant of the lease was the subject of discussion during the course of the inquiry, including during the hearing.
Norwest’s submissions on this issue are somewhat inconsistent. Norwest clearly seeks to rely on the negotiations and entry into the 2008 Agreement as evidence of its good faith negotiations for the grant of the lease. This appears to be because of clause 7.2. (See Norwest contentions at 23-25).
However, it also acknowledges that the good faith negotiations start following the issue of the s 29 notice (see Norwest reply at 4). I specifically queried Mr Tolcon on this point during the hearing. In response Mr Tolcon acknowledged that it is “technically” the date of the s 29 notice although his own view is that it was dealt with under the 2008 Agreement.
In my view it must be the case that the negotiations start following the s 29 notice. It is difficult to see how parties could be held to an obligation to negotiate in good faith about a specific tenement prior to the s 29 notice being given, particularly given the 2008 Agreement does not satisfy the requirements of the NTA. In Sheffield at [97], White J stated that it seems implicit that the obligation commences upon the giving of the s 29 notice. While His Honour dissented in that matter, there is no reason to doubt the correctness of the statement. A similar approach is reflected in early Tribunal decisions regarding delay in commencement of the negotiations (see Minister for Lands v Strickland at 24). The Full Court in Cox accepted that negotiations for an ILUA could satisfy the obligation to negotiate in good faith. However, the negotiations considered in that case were negotiations which occurred after the relevant s 29 notice (Cox at 42).
That is not to say the 2008 Agreement is irrelevant. Both parties rely on the 2008 Agreement and their associated dealings and disputes to varying degrees. In my view the correct approach is to take the 2008 Agreement into account as part of the context in which the parties entered the good faith negotiations. The parties did not come to this matter in a vacuum and the 2008 Agreement, whatever its flaws, was a key part of their relationship. A similar approach has been followed by the Tribunal on numerous occasions. See for example the discussion in MPA v Mayala at [51]-[52]. This was also the view put by the State during the hearing.
The parties spent some time on the relevance of the 2008 Agreement in this matter. Aside from its reliance on NAC’s commitment in clause 7.2, Norwest argued that the 2008 Agreement must be given significant weight citing Anaconda 1999 at 31 (Norwest hearing outline at 14).
However, in that case, the Tribunal was considering the weight to be given to agreements in the context of the matters in s 39 and any conditions to be imposed in a determination under s 38(1)(c). It is not analogous to the present case. It is not uncommon for the Tribunal to take account of matters agreed between the parties in that context (as it is required to do under s 39(4)). However, such cases often involve circumstances where the s 31 deed has not been signed by all members of a registered native title claimant (for example because a person is deceased or lacks capacity) but where all parties are otherwise agreed. That is certainly not the case here where there is a history of disputes. During the hearing Norwest also referred to Anaconda 1998, however again, that decision does not assist on the present facts.
NAC accepts that a previous agreement may be relevant, citing Australian Manganese, but distinguishes that decision on the basis that the relevant agreement was reached after the relevant s 29 notice. I agree with that analysis and note also that the Tribunal in that matter was satisfied as to the grantee party’s good faith regardless of the agreement in issue. I do not consider that decision assists on the facts of this case.
NAC also relied on the Anaconda 2000 decision to argue by analogy that whether the 2008 Agreement is legally binding is a relevant factor in the negotiations. Again, the context in Anaconda 2000 was different, being in relation to conditions to be included in a determination under s 38(1)(c).
I have already explained the way in which I consider the 2008 Agreement is relevant to the issue of good faith here. I do not accept that entry into the 2008 Agreement, some 10 years prior to the s 29 notice in this matter, or negotiations between the parties regarding entry into that agreement, can satisfy Norwest’s obligation to negotiate in good faith under s 31(1)(b). In my view, to accept that approach would be to disregard the statutory scheme of the NTA.
Similarly, Norwest’s arguments in its hearing outline (at 27) citing Cox at [38] are not apposite as the relevant whole of claim or project ILUA negotiations occurred following the s 29 notice in that case.
There is no evidence as to why the parties did not enter into an ILUA at the time of the 2008 Agreement. I accept that Mr North may have thought he had secured an agreement akin to an ILUA which would deliver him, Norwest and Welcome certainty for the grant of future tenements. However, as far as the NTA is concerned, he was mistaken in that understanding.

NAC’s good faith contentions

NAC argues that Norwest did not negotiate in good faith because its negotiations were insufficient and amounted to “merely insisting on NAC’s consent” under the 2008 Agreement.
NAC submits that this does not meet the good faith obligation because Norwest by its conduct:
(a)evinced an intention to secure benefits from the 2008 Agreement, without complying with its obligations under the Agreement;
(b)did not show a willingness to listen to and did not respond to NAC’s concerns regarding the 2008 Agreement and the lease;
(c)did not meet with NAC and stated that it did not wish to do so other than through its legal representative;
(d)did not make any reasonable effort to reach agreement;
(e)took and maintained a rigid pre-determined position;
(f)unreasonably delayed any communication with NAC until the State referred the matter to mediation;
(g)failed to respond to NAC’s reasonable requests for information during mediation; and
(h)failed to progress the mediation or negotiations at all following the departure of its legal representative in December 2019 and the cancellation of the mediation in February 2020.
As outlined above, NAC’s evidence includes the 2008 Agreement and subsequent dealings between the parties. Mr North’s evidence includes the background to entry into the 2008 Agreement and a number of events following.
However, NAC draws a distinction between what it calls the 2008 Negotiations (being the negotiations surrounding the execution of the 2008 Agreement and communications during at least the first few years of its operation) and the 2019 Negotiations (being the negotiations surrounding and specifically related to the lease). NAC argues (NAC contentions at 13) that the negotiations relevant to the lease are GFD10, the three mediation meetings in late 2019 and subsequent correspondence. It argues that Norwest’s 4 June 2019 letter was the first correspondence about the lease after a delay of over 12 months (although in fact it is about 11 months from the notification day).
NAC points out that Norwest failed to address any part of the breakdown of the relationship and failed to follow the agreed outcomes of the 2016 mediation. It says that NAC has consistently raised issues with the Tenement Holder’s compliance with the 2008 Agreement, particularly around the provision of royalty information and payments to NAC (NAC contentions 50-51).
NAC contends that Norwest did not address the royalty issue or the specific heritage concerns regarding the overlapping registered Aboriginal site at all during the 2019 negotiations. It says Norwest maintained a rigid position that NAC should consent to the grant of the lease because of the 2008 Agreement, did not make any offers or proposals and did not provide the requested information or respond to specific requests for information. Further, neither Mr North nor any other officer of Norwest participated in the mediation and it was expressly stated that Mr North did not want to meet with NAC.
NAC also argues (NAC contentions at 56) that Norwest’s negotiations were being driven by its legal representatives and not by Mr North or Norwest. Norwest or Mr North never attended a mediation or met or offered to meet with NAC. When Norwest’s legal representation ceased, the entire negotiation process was halted. It says that Norwest was therefore “going through the motions” with a closed mind and a rigid or predetermined positon (citing Cox at [24])
At its highest, NAC says the negotiations were for a period of less than 3 months from 27 August 2019 to early November 2019 (NAC contentions at 57). No action was taken by Norwest or its legal representatives to progress the matter after November 2019. No action (other than the initial letter) was taken to progress the matter prior to 27 August 2019. In NAC’s submission, “merely sending your legal representatives to three mediations which were held at the request of the State, and not complying with the relevant outcomes of those mediations does not amount to negotiating in good faith.” (NAC contentions at 57)
NAC argues that I can infer from Norwest’s conduct that it was seeking to simply assert an entitlement under the 2008 Agreement whilst openly refusing to comply with any of its obligations under that agreement in relation to the lease (including matters that had been agreed in the 2016 Mediation) and/or did not have an open mind to resolve obvious issues or reach agreement in relation to both the 2008 Agreement and the lease.
NAC also sought to rely on authorities regarding whether a party to a contract could seek specific performance where they are themselves in breach. As I have already explained, the currency or enforceability of the 2008 Agreement is not particularly relevant to this proceeding because those are matters for a Court to determine. The Tribunal’s present concern is whether Norwest has negotiated in good faith. I understand that NAC is seeking by analogy to argue that I should not hold it to its previous consent because Norwest is in breach of the contract and, at least according to NAC, the contract is probably at an end. However, as I have already explained the Tribunal is not a body through which the 2008 Agreement can be enforced.

Norwest’s contentions

NAC’s contentions as outlined above are disputed by Norwest. Norwest has agreed to certain facts stipulated by NAC in its contentions but it rejects NAC’s characterisation of its conduct.
Norwest says, relying on the June affidavit and the documentary evidence, that it did negotiate in good faith over a long period of time in person and by phone, letter or email. It says that the good faith negotiations go back before 2008 and the evidence shows that it intended to and did reach agreement (being the 2008 Agreement).
Norwest’s primary argument is that the negotiations in relation to the 2008 Agreement satisfies its good faith obligation in relation to the grant of the lease. It says the negotiations go back to 2008 and “were inter alia in person and in presentation to the NAC Board in Karratha, by telephone, by exchange of emails and by exchange of draft agreements” (Norwest contentions at 24). It says the negotiations related to and included all “Future Tenements” as defined including the lease. In the alternative, Norwest contends that it negotiated in good faith for the grant of the lease in any event (Norwest contentions 23–26).
I have already explained why I do not accept that the negotiations for, or entry into, the 2008 Agreement are capable of satisfying Norwest’s obligation to negotiate in good faith in relation to the grant of the lease, some 10 years later.
In its reply, Norwest disputes NAC’s characterisation that negotiations started when it sent its letter dated 4 June 2019. It says that the good faith negotiations start on the issuing of the s 29 notice being about a year earlier (Norwest reply at 4). I have already addressed that issue and agree the s 29 notice is the starting point. I also agree that there is no requirement for engagement lasting 6 months (reply at 6) and that the negotiations do not have to have reached any particular stage prior to the s 35 application (see Cox at 23). The question is what negotiations occurred after the s 29 notice and were they in good faith.
The evidence of negotiations since the notification day are set out above. There is no evidence that Mr North has presented to NAC Board since that time, despite what appears to have been agreed at the 2016 mediation. Norwest also says that both parties put through proposals, but there is no evidence of that in negotiations for the lease. Some actions were agreed during the 2019 mediations but I do not think they could be properly characterised as proposals.
Norwest also takes issue with NAC’s reply at 9 and 13 which argues that Norwest is conflating the 2008 Negotiations and the 2019 Negotiations. In its reply at 5-10, Norwest states as follows:
5.In reply to paragraph 9 (and 13), the NTP contentions and supporting documentary evidence originally referred to negotiations as a whole. It did not refer to specific negotiations pertaining to the Mining Lease. This was pointed out at paragraphs 23-26 and pleaded at paragraphs 30-32 of the Grantee Party contentions. Despite this fact the Grantee Party must respond to the NTP's contentions as submitted. The Grantee Party and the NTP have had many telephone conversations, emails and meetings since the Agreement was executed, and it is misleading to suggest otherwise. See paragraph 20 of the North affidavit. Mr Norths' affidavit is the evidence. If the NTP insists otherwise, then Mr North may need to be called.
6.Communications between the parties didn't (and couldn't stop), upon execution of the Agreement some 12 years ago but continued in one form or another up to this Inquiry. This is clear inter alia, from the NTP's own documentary evidence. Tenements have been granted and other obligations under the Agreement have been met which could not have been completed without regular interaction and communication between the parties.
7.In reply to paragraph(s) 10-13, the Mining Lease has not been granted and no productive mining has commenced. There is therefore no basis for any payments to be made.
8.Further to the above and in reply to paragraph 13(c) specifically, where it is noted that it is misleading to conflate the two negotiations; the whole basis of the NTP's original statement of contentions was based on the original Agreement. See for example NTP contentions at paragraphs 4-10 and reference to mediation outcomes and history relating to the Agreement itself.
9.The NTP cannot approbate and reprobate at this late stage that there were no negotiations leading up to and continuing after the original agreement was made. The good faith negotiations and proposals continued throughout the past 12 years, including in relation to the Mining Lease. The Agreement was reached to facilitate the grant of current and future tenements. Repeated breaches and noncompliances with the terms of the Agreement by the NTP, which have been tolerated by the Grantee Party, have ultimately led to this and previous enquiries and mediations.
10.After first conflating historical concerns in relation to the operation of the Agreement with the application for the Mining Lease in its contentions, the Native Title Party has now resorted to subject specific tenement negotiations in a further attempt to cloud the true issue, which is the failure of the NTP to fulfil its obligations under the Agreement and allow the Mining Lease to be granted.
However, there is a good deal of inconsistency in Norwest’s approach to the 2008 Agreement and I accept NAC’s contentions on this issue. Norwest has repeatedly relied on clause 7.2 to say that NAC must give its consent, yet it says that issues raised by NAC such as in relation to royalty information are irrelevant because they relate to different tenements subject to the 2008 Agreement (Norwest contentions at 30). Mr North admits that he has stopped making payments under the 2008 Agreement, yet Norwest argues above, without a hint of irony, that it has ‘tolerated’ NAC’s repeated breaches and non-compliances with the terms of the Agreement which have led to this and previous inquiries.

Conclusion

It is clear from the evidence and its own contentions that Norwest came to the negotiations in this matter under the mistaken belief that it was not required to negotiate because of clause 7.2 of the 2008 Agreement. To put it another way, having already reached agreement in 2008 for all future tenements, Norwest did not consider it was required to do so again.
In Norwest’s own words it had negotiated and reached agreement about the grant of the lease. (Norwest contentions at 32 and 54; Norwest reply at 9).
Item 10 of the Form 5 Future Act Determination Application requires a statement that the parties have not been able to reach agreement. Under this item Norwest referred to the 2008 Agreement, specifically clause 7.2(b) and stated:
It is submitted that the NAC Agreement is one that satisfies s 31(1)(b) of the Native Title Act 1993 (“NTA”) on the basis that the agreement allows for the grant of the Mining Lease as a future tenement.
We request that the State grant the Mining Lease in view of the NAC Agreement.
Despite the NAC Agreement, the parties have not been able to reach agreement about the grant of the mining lease 47/1566 within 6 months of the notification date.
The inconsistency in these statements is self-evident but it neatly illustrates the crux of the issue.
I have already explained why Norwest was mistaken in this view in terms of the requirements of the NTA. If Norwest believed that it had a contractual commitment from NAC which was enforceable apart from the NTA, it could have taken action to enforce the contract in a court, but it cannot look to the Tribunal to do so. Subject to the question of good faith, the role of the Tribunal is limited to making a determination under s 38 of the NTA.
What is relevant for present purposes is whether, taking account of the history and context including the 2008 Agreement and the parties’ previous dealings in relation to it, Norwest has negotiated in good faith for the grant of the lease.

Norwest may have believed that it had NAC’s consent in 2008 but on Mr North’s own evidence NAC has not been consenting to tenements for “at least the past 5 years”. The evidence also shows that the parties have been at odds on key issues for some time. The relationship appears to have started to fracture in about 2014/2015 and both NAC and Mr North (for the Tenement Holders) each accept that they have breached obligations. Mr North is unhappy with the costs being charged for heritage surveys, consultants and fees. NAC says the Tenement Holders are not meeting their royalty obligations, in particular, and that no royalties have been paid under the 2008 Agreement since 2017. Mr North states openly that he stopped making payments under the 2008 Agreement and acknowledges that this has “upset” NAC. While some emails are polite and professional there is also a degree of frustration, and even hostility, evident in some of the parties’ communications.
That does beg the question why Norwest approached this negotiation expecting any different result to that which Mr North says has been the situation under the 2008 Agreement for at least 5 years?
There is nothing in the material to indicate that any party took action to enforce the 2008 Agreement. However, Mr North and NAC did participate in a two day mediation in 2016 at which they discussed a broad range of issues and agreed on a way forward for a number of key issues, including the grant of future tenements.
It would have been entirely reasonable for Mr North to approach negotiations regarding the grant of the lease under s 31(1)(b) taking account of what it already knew about the issues between the parties. During the hearing I asked NAC if it considered the 2008 Agreement remained on foot. Mr Terren said that was a difficult question and NAC’s position is that it is “more or less at an end” with fundamental breaches on both sides but no relevant Court decision. Conversely, Mr Tolcon for Norwest did not accept there was a breakdown because communication has been ongoing, for example for heritage surveys, as recently as February this year (for example Annexure DKN6 to the June affidavit).
However, NAC has not approached this matter on the basis that the parties had to start again. Its contentions and its approach to the negotiations as shown in the material took account of the parties’ existing relationship and the issues that had long been raised. In contrast Norwest largely ignored those issues and sought, once again, to rely on clause 7.2 without regard to the status of the relationship between the parties at that time. That is despite stating in the 4 June 2019 letter that it “fully intends to negotiate an agreement in good faith with the native title party” (see para [83] above).
I do acknowledge that Norwest participated in mediation through its lawyer and engaged with NAC on aspects of its concerns. However, the synopsis from the first mediation suggests that Ms Treasure came to it with limited instructions or knowledge of the history between the parties. She had no background to the 2016 mediation. I also find it unusual that Ms Treasure should be asking NAC to provide correspondence with her client. The material suggests a distinct lack of meaningful engagement by Norwest on the issues.
By the time of the second mediation conference, Ms Treasure had obtained further instructions, and reflected Mr North’s frustrations with NAC’s non-compliance. It was made clear that Mr North would not deal directly with NAC, which does not scream of an intention to reach agreement. There were outcomes agreed in mediation and some were actioned, but overall there is little evidence of any intention on Norwest’s part to resolve the issues raised. The actions taken are piecemeal and seem only to progress the issues of concern to Norwest, such as the heritage survey. The issue of the provision of royalty information is initially deflected by Ms Treasure saying it had previously been provided. While steps appear to have been taken to progress the exchange of information, nothing eventuates and the matter then proceeded to a s 35 application. Moreover, at each available opportunity, including in the preliminary conference and in its correspondence of 28 May 2020 (DKN7 of June affidavit), Norwest has continued to insist on compliance with clause 7.2.
I appreciate that Mr North did not understand the limitations of the 2008 Agreement. However, that does not relieve Norwest of the obligation to negotiate in good faith about the grant of the lease.
In its contentions at 27, Norwest outlines the legal principles relating to the question of good faith and cites Cox at [20] as follows:
It has been repeatedly recognised that the requirement for good faith is directed to the quality of a party’s conduct. It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in the negotiations: see, for example, Brownleyv Western Australia (No 1) [1999] FCA 1139; (1999) 95 FCR 152 at [24]- [25] per Lee J, Strickland 85 FCR 303 at 319-320 and Western Australia/Thomas on behalf of the Walgen People/Anaconda Nickel Ltd [1998] NNTTA 8 at [7]-[18].
In my assessment, the quality of Norwest’s conduct in this matter is found wanting. In terms of Norwest’s ‘state of mind’, I am left with the overwhelming impression that it did not accept a need to negotiate because it had already reached agreement in 2008. Any doubt about that view is expunged by Norwest’s continued assertion of its rights under clause 7.2 without any acknowledgement of the history of disputes leading into negotiations about the lease.
Against an understanding of the operation of the NTA and the history of this matter, I do not accept that was a reasonable position for it to take. Norwest’s attitude did not allow room for the parties to meaningfully engage and reach agreement on the identified issues.
Accordingly, I am not satisfied that Norwest negotiated in good faith. I would encourage the parties to acknowledge the limitations inherent in the 2008 Agreement and endeavour to work together in a meaningful way to resolve their differences and negotiate in good faith with a view to obtaining NAC’s agreement to the grant of the lease.

Decision

For the reasons outlined, I am satisfied that Norwest did not negotiate in good faith as required by s 31(1)(b) and therefore I must not proceed to make a determination under s 38. Accordingly, I dismiss Norwest’s s 35 application under s 148(a) but note that a further application may be made at a later time.

Nerida Cooley
Member
16 November 2020

Doc ID	Description
GFD01	NAC, Norwest, Welcome Exploration Pty Ltd and Donald Kimberley North - Exploration and Mining Agreement dated 27 August 2008 (2008 Agreement)
GFD02	Mediation Synopsis by NNTT dated 31 August 2016
GFD03	Email chain between Kim North and Richard Walker (NAC) dated 8 December 2016
GFD04	Email chain between Kim North and Richard Walker (NAC) dated 15 March 2017
GFD05	Email chain between Kim North and Richard Walker (NAC) dated 29 March 2017
GFD06	Email chain between Norwest and Sanoj Xavier (NAC) dated 2 April 2017
GFD07	Email chain between Norwest and Sanoj Xavier (NAC) dated 28 April 2017
GFD08	Letter from Department of Mines, Industry Regulation and Safety (DMIRS) to NAC dated 20 August 2018
GFD09	Letter from DMIRS to Norwest dated 11 October 2018
GFD10	Letter from Austwide Legal (Austwide) dated 4 June 2019
GFD11	Email from NNTT to all Parties dated 19 August 2019
GFD12	Mediation Synopsis by NNTT dated 2 September 2019
GFD13	Email from Roe Legal Services (RLS) to Austwide dated 24 September 2019
GFD14	Email chain between Parties dated 24 September 2019
GFD15	Email RLS to Austwide dated 10 October 2019
GFD16	Email RLS to Austwide dated 11 October 2019
GFD17	Mediation Synopsis by NNTT dated 01 October 2019
GFD18	Email from NNTT to all parties 16 October 2019
GFD19	Email from Austwide to RLS dated 4 November 2019
GFD20	Mediation Synopsis by NNTT dated 5 November 2019