Peregrine Resources Pty Ltd and Another v Raymond Ashwin and Others on behalf of the Wutha People and Another - [2014] NNTTA 44

NATIONAL NATIVE TITLE TRIBUNAL

Peregrine Resources Pty Ltd and Another v Raymond Ashwin and Others on behalf of the Wutha People and Another [2014] NNTTA 44 (12 May 2014)

Application No: WF2013/0011

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Peregrine Resources Pty Ltd (grantee party/applicant)

- and -

Raymond Ashwin and Others on behalf of the Wutha people (WC1999/010) (first native title party)

- and -

Evelyn Gilla and Others on behalf of the Yugunga-Nya People (WC1999/046) (second native title party)

- and -

The State of Western Australia (Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal:  James McNamara, Member
Place:  Brisbane
Date:  12 May 2014

Catchwords: Native title – future acts – application for a determination in relation to an exploration licence – power to make determination – whether grantee party has negotiated in good faith – whether Government party has negotiated in good faith – scope of the obligation to negotiate in good faith under s 31(2)

Legislation:Native Title Act 1993 (Cth), ss 28, 29, 30A, 31, 35, 36, 38, 84C, 109, 151
Mining Act 1978 (WA)

Cases:Adani Mining Pty Ltd/Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/State of Queensland [2013] NNTTA 30 (‘Adani Mining v Diver’)
FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; [2009] FCAFC 49 (‘FMG Pilbara v Cox’)
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52; [2005] NNTTA 88 (‘Gulliver v Wester Desert Lands Aboriginal Corporation’)
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 (‘Harrington-Smith v Western Australia’)
Minister for Mines, State of Western Australia/Kevin Peter Walley on behalf of the Ngoonooru Wadjari People [1998] NNTTA 4 (‘Minister for Mines v Walley’)
Placer (Granny Smith) Pty Ltd v State of Western Australia (1999) 163 FLR 87; [1999] NNTTA 521 (‘Placer v Western Australia’)
Ashwin v Western Australia (No 2) [2010] FCA 1472 (‘Ashwin v Western Australia’)
Minister for Lands, State of Western Australia/Strickland and Others on behalf of the Maduwongga People and Others (1997) NNTTA 31 (‘Minister for Lands v Strickland’)
Strickland v Minister for Lands (1998) 85 FCR 303; [1998] FCA 868 (‘Strickland v Minister for Lands’)
Western Australia/Champion and Others on behalf of the Gubrun People and Others/Resolute Ltd [1998] NNTTA 6 (‘Western Australia v Champion’)
Western Australia/Evans on behalf of the Koara People and Others/Anaconda Nickel Ltd and Others [1998] NNTTA 17 (‘Western Australia v Evans’)
Western Australia v Dimer (2000) 163 FLR 426; [2000] NNTTA 290 (‘Western Australia v Dimer’)
Western Australia v Taylor (1996) 134 FLR 211; [1996] NNTTA 34 (‘Western Australia v Taylor’)
White Mining (NSW) Pty Ltd v Franks (2011) 257 FLR 205; [2011] NNTTA 72 (‘White Mining v Franks’)
Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 93 (‘Xstrata v Albury’)

Representatives of the Mr David Burton, Peregrine Resources Pty Ltd
grantee party: Mr Matthew Wheeler, Peregrine Resources Pty Ltd

Representative of the Mr Paul Tolcon, Mony de Kerloy
first native title party:

Representative of the Mr Colin McKellar, Yamatji Marlpa Aboriginal Corporation
second native title party:

Representatives of the     Mr Trevor Creewel, State Solicitor’s Office
Government party:         Mr Warren Fitt, State Solicitor’s Office
  Ms Jan Mason, Department of Mines and Petroleum

REASONS FOR DECISION

Background

On 26 March 2008, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’ or ‘NTA’) that it intended to grant exploration licence E20/660 (‘the proposed licence’) under the Mining Act 1978 (WA) (‘Mining Act’) to Peregrine Resources Pty Ltd (‘the grantee party’). According to the notice, the proposed licence comprises an area of 214.39 square kilometres located 57 kilometres north-easterly of Cue in the Shires of Cue and Meekatharra. At the time notice was given, the area was and remains subject to the following registered native title claims:
·Raymond Ashwin and others on behalf of the Wutha people – WC1999/010, registered from 15 June 1999 (‘the first native title party’)
·Evelyn Gilla and others on behalf of the Yugugna-Nya People – WC1999/046, registered from 12 June 2000 (‘the second native title party’)
Since the proposed licence involves the creation of a right to mine, the act will be invalid to the extent it affects native title unless there is compliance with s 28(1) of the Act. As the Government party has not asserted that the expedited procedure applies to the proposed licence, the relevant requirements are an agreement of the kind referred to in s 31(1)(b) of the Act (that is, the agreement of each native title party to the doing of the act) or a determination under s 38 that the act may be done, or may be done subject to conditions. Where an application for a determination is made under s 35 of the Act, the determination must not be made if a negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith (see s 36(2) of the Act). The implications of s 36(2) were explained by the Full Federal Court in FMG Pilbara v Cox (at 143) as follows:
... the statutory prohibition at s 36(2) affects the ‘power’ of the Tribunal to make an arbitral determination rather than its ‘jurisdiction’. The prohibition on exercise of the power only arises when the good faith point is both taken and taken successfully by a negotiation party. If there were no good faith but the point were not taken, the Tribunal would still have jurisdiction and power. The power to make a determination is a function of the jurisdiction conferred on the Tribunal.
Pursuant to s 30A of the Act, the ‘negotiation parties’ are the Government party, the grantee party and the two native title parties.
On 28 August 2013, the grantee party made an application to the Tribunal for a determination that the act may be done. The application was made on the basis that the grantee party had not been able to reach agreement with the first native title party about the grant of the proposed licence within six months of the Government party giving notice of its intention to do the act. It is understood that the second native title party has entered into an agreement with the grantee party in relation to the proposed licence and a Deed for Grant of Mining Tenement was executed and lodged with the Tribunal on 3 September 2010.
On 10 September 2013, President Raelene Webb QC appointed herself to conduct the inquiry into the application and caused a preliminary conference to be held on 19 September 2013. At the conference, the first native title party indicated that it would be seeking to contend that the grantee party had not fulfilled its obligation under the Act to negotiate in good faith. Accordingly, President Webb QC made directions requiring any native title party that took issue with the good faith of the grantee party or the Government party in the negotiations to make submissions to that effect and for the conduct of an inquiry into any allegations made in that regard.
On 17 October 2013, the first native title party provided a statement of contentions alleging that the neither the Government party nor the grantee party had complied with its obligation to negotiate in good faith (‘NTP Contentions’), as well as documentary evidence in support of those allegations. The grantee party provided statement of contentions and supporting documents in reply on 24 October 2013 (‘GP Contentions’), and the Government party provided its own statement of contentions and supporting documents on 25 October 2013 (‘GVP Contentions’). The Government party’s documents include the affidavit of Mr David Thomson sworn 25 October 2013 (‘Thomson Affidavit’). The first native title party provided a further reply on 11 November 2013 (‘NTP Reply’).
Following my appointment to the Tribunal on 31 March 2014, President Webb QC appointed me to constitute the Tribunal for the purposes of the inquiry on 2 April 2014.
I have examined the materials provided by each party and consider it appropriate to determine the matters on the papers pursuant to s 151(2) of the Act. That course of action was supported by the parties.

The obligation to negotiate in good faith

The obligation to negotiate in good faith is set out in s 31 of the Act:
31      Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with the view to obtaining the agreement of each of the native title parties to:
(i)     the doing of the act; or
(ii)    the doing of the act subject to conditions to be complied with by any of the parties.
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph     (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of the paragraph.
Where an allegation of a lack of good faith is made, it is the conduct of only the grantee party and/or the Government party which is relevant to the Tribunal’s power to make a determination under s 38 of the Act. As stated at [2] above, the Tribunal must not make a determination if any negotiation party satisfies the Tribunal that either the Government party or the grantee party did not negotiate in good faith (see s 36(2) of the Act). If the Tribunal were so satisfied, the parties would need to recommence negotiations although it would be possible for a future act determination application to be made again in relevant circumstances.
Whether a native title party has negotiated in good faith is not part of the consideration under s 36(2), though the native title party’s conduct can be taken into consideration when the Tribunal is assessing how reasonable the conduct of the grantee party or Government party has been in the circumstances (see Xstrata v Albury at [65] and Placer vWestern Australia at [30]).
Although the Tribunal is not bound by the rules of evidence (see s 109(3) of the Act), the effect of s 36(2) is to require the party alleging the lack of good faith to produce material to support the allegation. As explained in Gulliver v Western Desert Lands Aboriginal Corporation (at [10]):
The Tribunal has said that the practical effect of s 36(2) is to place an “evidential burden” on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on. (Dempster, Western Australia and Bayside Abalone [1999] NNTTA 235 Hon EM Franklyn QC (at 4, 21); Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 (21 December 1999) (at [21]-[28]).)
Good faith is not defined in the Act, though the description in Placer v Western Australia (at [30]) is informative. The references to the Government party are also applicable to the grantee party. It reads as follows:
Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’: Western Australia v Taylor (1996) 134 FLR 211 at 219. Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Western Australia v Taylor as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour.
The parties are not required to reach any particular stage of negotiations before applying for a determination, however, it is insufficient to merely go through the motions and the quality of the conduct must be assessed (see FMGPilbara v Cox at [20] and [24]). In White Mining v Franks, Deputy President Sosso outlined key elements of the Full Federal Court’s decision in FMG Pilbara v Cox and went on to explain (at [33]):
... it is central to a good faith assessment to have regard to a negotiation party’s state of mind as manifested by its conduct. A party will fail to negotiate in good faith if it proposes a course of action which could be characterised as stalling, and then seeking arbitration after six months when the other party or parties reasonably would have expected that negotiations be on-going. In short, while good faith is not evaluated on the basis of the “status”, “stage” or “substance” of negotiations, it is evaluated on how negotiations are conducted. Consequently, if a party has deliberately taken advantage of another party’s understandable misapprehension that the negotiations would lead to an accord and delays in putting offers on the table or engaging in substantive negotiations to “buy time” so that the six months would elapse and arbitration could be sought, then the Tribunal will find that there have not been good faith negotiations.
In Western Australia v Taylor, Member Sumner (as he then was) provided a series of indicia of conduct to be taken into consideration when assessing good faith, which have been consistently referred to by the Tribunal. The indicia are commonly known as the Njamal indicia. The indicia are not to be interpreted as an exhaustive list and each item does not need to necessarily be present; they rather represent factors to consider, when the Tribunal is assessing the overall conduct in all of the circumstances (see Western Australia v Dimer at [85] and Adani Mining v Diver at [34]). With this in mind, the indicia in Western Australia v Taylor are as follows (at 224-225):
(i)Unreasonable delay in initiating communications in the first instance.
(ii)Failure to make proposals in the first place.
(iii)The unexplained failure to communicate with the other parties within a reasonable time.
(iv)Failure to contact one or more of the parties.
(v)Failure to follow up a lack of response from the other parties.
(vi)Failure to attempt to organise a meeting between the native title party and grantee parties.
(vii)Failure to take reasonable steps to facilitate and engage in discussions between the parties.
(viii)Failure to respond to reasonable requests for relevant information within a reasonable time.
(ix)Stalling negotiations by unexplained delays in responding to correspondence or telephone calls.
(x)Unnecessary postponement of meetings.
(xi)Sending negotiators without authority to do more than argue or listen.
(xii)Refusing to agree on trivial matters, for example, refusal to incorporate statutory provisions into an agreement.
(xiii)Shifting position just as an agreement seems in sight.
(xiv)Adopting a rigid non-negotiable position.
(xv)Failure to make counter proposals.
(xvi)Unilateral conduct which harms the negotiating process, for example, issuing inappropriate press releases.
(xvii)Refusal to sign a written agreement in respect of the negotiation process or otherwise.
(xviii) Failure to do what a reasonable person would do in the circumstances.

Chronology

On the basis of the evidence provided by parties and the Tribunal’s own records, I accept that the following events took place following the notification day and before the date of the application:

DATE	EVENT
24 April 2008	Letter sent from Department of Industry and Resources (‘DoIR’) to Ron Harrington-Smith on behalf of the First Native Title Party enclosing documents relating to the proposed licence and inviting submissions from the first native title party under s 31(1)(a) of the Act
7 May 2008	Letter from Matthew Wheeler (Director and Company Secretary, Peregrine Resources) to DoIR responding to a request to provide information regarding the company’s background, proposed exploration work programme and Aboriginal heritage surveys for the purpose of enabling the native title parties to make submissions
1 October 2008	Letter from DoIR to the grantee party noting that submissions had not been made by the first native title party and suggesting that the first native title party may prefer the grantee party to negotiate an agreement with the second native title party first and use the agreement as a template
5 July 2010	Emails exchanged between the second native title party and the grantee party regarding the conclusion of an agreement on the proposed licence
5 July 2010	Email from Dave Thomson (Project Officer, Department of Mines and Petroleum) to Clive Miller (representative of the grantee party) indicating need for agreement with the first native title party
5 July 2010	Discussion between Mr Thomson and Mr Miller about placing negotiations with the first native title party on hold pending the outcome of an application to strike out the claim under s 84C of the Act
3 September 2010	Deed for Grant of Mining Tenement executed by the grantee party, Government party and second native title party and lodged with the Tribunal
23 December 2010	Section 84C application dismissed by the Federal Court
9 March 2012	Letter from Department of Mines and Petroleum (‘DMP’) to Paul Tolcon on behalf of the First Native Title Party enclosing documents relating to the proposed licence and inviting s 31(1)(a) submissions
19 March 2012	Letter from David Burton (Director, Peregrine Resources) to Mr Tolcon outlining company information and proposed exploration programme
26 March 2012	Letter from Mr Tolcon to DMP and the grantee party outlining proposed scope for negotiations
30 April 2012	Email from Mr Thomson to Mr Burton enquiring about progress of negotiations
1 May 2012	Email from Mr Burton to Mr Thomson indicating intention to make a proposal to the first native title party
1 May 2012	Email from Mr Thomson to Mr Burton providing contact information for Mr Tolcon and other DMP officers
1 July 2012	Email from Mr Burton to Mr Tolcon indicating agreement with the second native title party and attaching draft agreement
2 July 2012	Email from Mr Tolcon to Mr Burton attaching the first native title party’s preferred agreement
3 July 2012	Email from Mr Burton to Mr Tolcon confirming his discussion with Mr Harrington-Smith regarding surveys and legal costs
12 July 2012	Email exchange between Mr Thomson and Mr Burton regarding progress of negotiations
13 July 2012	Discussion between Mr Burton and Mr Harrington-Smith
23 July 2012	DMP referral for mediation under s 31(3) of the Act
23 July 2012	Letter from DMP to the first native title party notifying referral to Tribunal for mediation
30 August 2012	First Tribunal mediation
9 October 2012	Second Tribunal mediation
14 November 2012	Third Tribunal mediation
14 November 2012	Email from Mr Burton to Mr Tolcon regarding size of survey area
4 December 2012	Fourth Tribunal mediation
12 December 2012	Email from Mr Tolcon to Mr Burton attaching estimate of costs
12 December 2012	Fifth Tribunal mediation
19 December 2012	Sixth and final Tribunal mediation
26 July 2013	Email from Mr Tolcon to DMP seeking an update on the matter
29 July 2013	Email from Jan Mason (Project Officer, DMP) to Mr Burton seeking an update on the matter
6 August 2013	Letter from DMP to grantee party indicating that the proposed licence may be refused unless an application is made to the Tribunal for a determination

The first native title party’s contentions

The first native title party’s contentions regarding the good faith of the grantee party may be summarised as follows:
·The grantee party did not conduct itself with the genuine aim of reaching agreement and maintained a rigid predetermined position from which it refused to move: NTP Contentions, paragraphs 36-40.
·The grantee party failed to make representations to the Government party or the first native title party before 19 March 2012, which indicates an absence of good faith in the negotiations that occurred after that date: NTP Contentions, paragraph 41.
·The grantee party failed to inform the first native title party about the impact of the proposed works in its submission to the Government party before 19 March 2012 and failed to respond to the first native title party’s request for information about its intended activities: NTP Contentions, paragraph 42.
In relation to the Government party’s good faith in the negotiation, the first native title party’s contentions can be encapsulated in the following terms:
·The Government party’s unilateral decision to place negotiations in abeyance while awaiting the outcome of the strike-out application was contrary to its own negotiation protocol and summary of how to negotiate in good faith: NTP Contentions, paragraph 45.
·The Government party should have taken steps to institute regular negotiation meetings: NTP Contentions, paragraphs 49-50
·The Government party was not acting in good faith when it stated on the grantee party’s advice that negotiations had stalled: NTP Contentions, paragraph 52
·The Government party failed to:
o    express a view about the grantee party’s failure to describe the impact of its proposed work programme on the first native title party’s registered native title rights and interests: NTP Contentions, paragraph 53
o    give due consideration to the concerns raised by the first native title party: NTP Contentions, paragraph 54
o    ascertain whether the grantee party’s response satisfactorily answered the request made by the first native title party’s: NTP Contentions, paragraph 55.

Did the grantee party negotiate in good faith?

Did the grantee party conduct itself with the genuine aim of reaching agreement?

The first native title party contends that the grantee party did not conduct itself with the genuine aim of obtaining the agreement of the first native title party. The first native title party submits that the grantee party participated in negotiations with the first native title party with a view to making an application to the Tribunal as soon as possible, and believed that obtaining a determination was in its best interests. To achieve this, the first native title party says that the grantee party maintained a ‘rigid predetermined position’ from which it refused to move. In support of those arguments, the first native title party refers to the grantee party’s reliance on its agreement with the second native title party and what it describes as the grantee party’s failure to use the first native title party’s preferred agreement as the basis for the negotiations.
In reply, the grantee party argues that it entered the negotiations with the first native title party in good faith and in the interest of securing an agreement (GP Contentions, paragraph 15). The grantee party says that it only elected to have the matter determined once it was apparent the first native title party required ‘a large upfront payment’ to secure that agreement (GP Contentions, paragraph 17). The grantee party denies that it adopted a rigid stance during the negotiations, and says that its agreement with the second native title party formed the basis for opening discussions with the first native title party and nothing more (GP Contentions, paragraph 21). The grantee party states that Mr Burton, who conducted the negotiations on its behalf, was ‘entirely unaware’ of the process for making a determination application until the matter was referred to mediation, has never relied on a determination in previous dealings with other native title parties, and only sought advice on the application process after the final mediation session on 19 December 2012 (GP Contentions, paragraph 22).
Though the first native title party’s contentions are in this respect directed to the grantee party’s state of mind during the course of its negotiations with the first native title party, it is necessary to examine the grantee party’s conduct in the negotiations in the context of the prolonged history of the matter. The first point to note as part of that context is the fact the negotiations with the first native title party only commenced after the grantee party had reached an agreement with the second native title party and after the application to strike out the first native title party’s claim was dismissed. I will address the explanations for that delay and its bearing on the good faith issue in more detail later in these reasons. However, the point has some relevance to the present question. That question is whether the grantee party’s decision to open negotiations with first native title party when it did suggests that its participation in those negotiations was not genuinely aimed at reaching an agreement.
Although the grantee party’s initial contact with the first native title party was by letter on 19 March 2012, the negotiations did not properly commence until 1 July 2012, when Mr Burton sent an email to Mr Tolcon attaching a draft agreement based on the agreement it had reached with the second native title party. In the email, Mr Burton states that the grantee party ‘believes that the terms incorporated into that agreement...would also be acceptable to your client.’ The email concludes with the following words:
Trust that this document will allow up to kick-start our negtiations [sic]. Please contact the undersigned [Mr Burton] to discuss once you have reviewed the draft agreement.
In his reply on 2 July, Mr Tolcon indicates that Mr Burton’s email had been sent to the first native title party for instructions, and attaches a copy of the ‘Wutha Heritage Agreement’ for Mr Burton’s comment. In respect of that agreement, Mr Tolcon writes:
It may be that if the attached is not too far from what you have agreed with the Yugunga Nya claimants in which can it can be executed [sic] and we can proceed to finalise this matter.
This exchange was followed by a further email from Mr Burton on 3 July. In that email, Mr Burton states that he met with Mr Harrington-Smith that morning to discuss the grantee party’s proposal and the practicalities involved in coordinating heritage surveys between ‘competing claimants.’ In relation to the Wutha Heritage Agreement, Mr Burton writes that he had ‘a quick look’ at the agreement and observes that it ‘looks similar to the Yugunga Nya agreement apart from the recovery of legal costs to an amount of [$5,000].’ Mr Burton concludes the email by writing that:
This would not be acceptable to us and departs from the normal standard for negotiating [Aboriginal Heritage Agreements] whereby each Party is responsible for its own costs. Suggest we stick with our agreement format and wait for your client’s comments?
There does not appear to have been any further correspondence between Mr Burton and Mr Tolcon until the matter was referred for Tribunal mediation by DMP on 23 July 2012. However, the native title party submits that Mr Harrington-Smith met with Mr Burton on 13 July to discuss the first native title party’s legal and consultation costs. There is no evidence that this meeting took place or what was discussed, as neither Mr Burton nor Mr Harrington-Smith has given evidence in this matter. However, the grantee party does not dispute that a meeting occurred on 13 July or that the topic of legal and negotiation costs was discussed, though it adds that meetings also occurred on 2 and 3 July and included discussions about the timing of heritage surveys and the impacts of different stages of exploration.
Although the issue of costs does not appear to have been resolved when the matter was referred to the Tribunal for mediation, the timing of heritage surveys seems to have been the main item of discussion throughout the mediation. That issue may be characterised as a basic difference between the first native title party’s approach to heritage protection, which required a survey to be carried out over the entire area of the proposed licence area before exploration commenced, and the grantee party’s position, which was that a survey should only be required once the grantee party undertakes what it described as ‘high-impact’ or ground-disturbing activity. It is apparent from the records of the mediation conferences produced by the Tribunal, which were relied on by the grantee party and the first native title party, that this issue was considered at length throughout the mediation. Though the parties were unable to resolve the issue, it is clear that each party was prepared to shift from the positions they originally adopted. In the grantee party’s case, it not only agreed to amend its preferred agreement to include definitions of low-impact and high-impact exploration; it was also willing to consider an initial survey over a smaller area. The grantee party only withdrew from the mediation once it understood the amount of the upfront payment (that is, the legal and consultation costs plus the cost of the initial survey). In this respect, the grantee party’s conduct in the mediation indicates that it was actively engaged in the process and did not treat it as a mere formality on the way to applying for a determination.
The obligation to negotiate in good faith does not require the negotiations to reach a particular stage (see FMG Pilbara v Cox). If the grantee party had no genuine interest in obtaining the agreement of the first native title party, it could have ended the negotiations sooner than it did. The six month period following the s 29 notice had expired long before negotiations with the first native title party commenced. It is always possible to speculate that the grantee party made a calculated assessment that it had met the minimum requirements of its obligation to negotiate in good faith and could proceed with an application to the Tribunal. However, the Tribunal will exercise caution before imputing such motives to a negotiation party, and would only do so if the conclusion is supported by the evidence. In the present matter, it is clear from the grantee party’s conduct that this was not the case. In fact, the grantee party did not immediately proceed with its application, but only did so eight months after the mediation was terminated. The Government party twice threatened to refuse the tenement (in July and again in August) before the application was finally made. This is not the conduct of a party that was purporting to treat the negotiations as simply a prelude to making an application to the Tribunal.
I do not accept that the grantee party maintained a rigid predetermined position throughout the negotiations. It was legitimate for the grantee party to open the negotiations by offering an agreement on the same terms that it reached with the second native title party. The first native title party says the grantee party sought to use that agreement to set a standard for negotiations with the first native title party. However, that it is not supported by the evidence. As the grantee party maintains, the offer simply demonstrated the sort of agreement it might prefer. Though Mr Burton did suggest that the parties ‘stick with our agreement format,’ that suggestion was made in the context of Mr Tolcon’s statement that instructions were being sought from the first native title party. In its subsequent negotiations with the first native title party, the grantee party demonstrated a readiness to depart from that agreement. The grantee party was not obliged to adopt the first native title party’s preferred agreement as the basis for negotiations. The evidence from the mediation indicates that the parties had identified the issues that needed to be addressed. Mr Burton met with Mr Harrington-Smith on at least three separate occasions outside the mediation process to work through those issues. The other terms of the agreement do not appear to have been controversial. Though the grantee party eventually withdrew from the negotiations after learning the cost of the proposed survey, it was not obliged to accept the other side’s position (see Western Australia v Taylor at 15). The grantee party’s decision not to accept the terms proposed by the first native title party is consistent with Mr Burton’s statement at the mediation conference on 30 August 2012 to the effect that the grantee party wanted to reduce any up-front costs.

Does the grantee party’s delay in making representations to the other parties demonstrate a lack of good faith?

The first native title party further contends that the grantee party’s failure to make representations to the Government party or the native title party about the grant of the proposed licence before 19 March 2012 indicates an absence of good faith in respect of the negotiations that followed. In reply, the grantee party argues that it could not commence negotiations with the first native title party until the outcome of the strike-out application was known. The grantee party contends that the delay associated with the strike-out application is immaterial and does not suggest the grantee party was unwilling to enter negotiations with the first native title party (GP Contentions, paragraph 20).
The proposed licence was notified on 26 March 2008. On 24 April 2008, the Government party sent a letter to the other negotiation parties inviting submissions from the native title parties in accordance with s 31(1)(a) of the Act. The letter also requested the grantee party to provide information about its proposed work programme, the extent to which heritage surveys were proposed or had been completed in the area, and about the company itself to the native title parties within 14 days of the letter. The grantee party responded to the letter on 7 May 2008, though it is not clear whether the response was provided to the native title parties, either by the grantee party or the Government party. According to the affidavit of Mr Thomson, who was employed as a project officer at DMP and was responsible for the proposed licence at the relevant times, submissions were received from the second native title party but not from the first native title party. Mr Thomson says that the Government party sent a letter to the grantee party on 1 October 2008 advising it of that fact and suggesting that the first native title party ‘may prefer the grantee to negotiate an agreement with Yugunga Nya first and [then] use this as a template for agreement with Wutha’ (Thomson Affidavit, paragraph 18 and DT9). Mr Thomson states that his recollection is that Mr Harrington-Smith ‘expressed a general preference for negotiations to be placed on hold pending negotiations with other native title claim groups’, though he does not recall any specific discussions with Mr Harrington-Smith to that effect (Thomson Affidavit, paragraph 19). I will address that point in further detail once I come to the question of the Government party’s good faith in the negotiations.
The grantee party’s negotiations with the second native title party concluded in July 2010, though a state deed was not executed until 3 September 2010. According to Mr Thomson, the first native title party was ‘not a party to these negotiations nor the resulting agreement’ (Thomson Affidavit, paragraph 20). Consequently, Mr Thomson sent an email to Mr Miller on 5 July, who was then acting as the grantee party’s representative, noting that an agreement would need to be reached with the first native title party to enable the grant of the proposed licence (Thomson Affidavit, paragraph 21 and DT10). It appears that Mr Thomson subsequently spoke with Mr Miller on the same day, and they resolved to place the negotiations with the first native title party on hold pending the outcome of the strike-out application. Those proceedings concluded on 23 December 2010. However, there does not appear to have been any correspondence or other communication between the grantee or Government party and the first native title party until 9 March 2012, when the Government party sent a letter to the other parties ‘recommencing’ the negotiations. In response to that letter, the grantee party contacted the first native title party by letter on 19 March 2012, though the negotiations did not properly commence until Mr Burton’s email to Mr Tolcon on 1 July 2012.
The Tribunal has previously considered the issue of delay in the context of commencing good faith negotiations. In Minister for Lands v Strickland, the Government party waited until the end of the two-month notification period (as it then was) before it commenced negotiations with the native title party. In that matter, Deputy President Sumner considered the delay was of no consequence, as the negotiations ‘went on well beyond the six month statutory period.’ However, Deputy President Sumner noted that the Government party ‘should conscientiously attempt to avoid delay, even of the relatively small kind which occurred here.’ In relation to other delays that occurred subsequent to the commencement of negotiations, Deputy President Sumner observed that Government party should ensure they are kept to a minimum ‘if it wishes the statutory framework to be adhered to.’ Nevertheless, in the view of Deputy President Sumner, those delays ‘assumed much less importance given the extra time devoted to negotiations.’ On appeal, the Federal Court did not disturb the Tribunal’s findings on the initial delay, and noted that the Tribunal was required to consider the history of the Government party’s efforts to bring about discussions and the fact that the negotiation period had extended well beyond the statutory period (see Strickland v Minister for Lands at 323).
In Western Australia v Champion, the Tribunal again considered the issue of delay in commencing negotiations. In that matter, the Government party did not commence negotiations until after the close of the three-month notification period, and then only proposed a meeting six months after its initial letter to the native title parties. The reason given for that delay was the need for the Government party to consider the scope of its obligation to negotiate in good faith following the Tribunal’s decision in Western Australia v Taylor. Member Lane accepted that as a reasonable explanation for the delay, and endorsed Deputy President Sumner’s observations in Minister for Lands v Strickland, Member Lane also accepted the Government party’s submission that delay in the early stages of negotiation did not preclude a finding that the Government party had negotiated in good faith, noting that the period of inactivity was followed by a period of active engagement by the Government party. In any event, Member Lane rejected the native title party’s submission that the Act required the Government party to negotiate continuously for six months.
The first native title party’s submission is made on a slightly different basis, namely, that the grantee party’s failure to communicate with the parties before 19 March 2012 indicates an absence of good faith in the negotiations that occurred after that date. I do not accept that submission. The evidence suggests that, when the grantee party initiated discussions with the second native title party, it was acting on Mr Thomson’s advice that the first native title party may prefer the grantee party to conclude an agreement with the second native title party and use that as a basis for the negotiations. Mr Thomson did suggest the grantee party contact Mr Harrington-Smith to discuss the matter, and there is nothing to suggest that it did. While the grantee party’s apparent failure to confirm that advice could not be considered ideal negotiating behaviour, it does not support the conclusion that the grantee party never legitimately intended to pursue an agreement with the first native title party. Nor was it necessarily illegitimate for the grantee party to conclude negotiations with one native title party before it commenced them with the other. The grantee party appears to have acted on the Government party’s advice again when it agreed to hold negotiations in abeyance until the strike-out action had been resolved. I will address the implications of that decision later in these reasons, but for the time being it will suffice to note that it seems the grantee party was guided by the advice given by DMP. It is reasonable to presume that the Government party would have discussed the circumstances of the strike-out application with the grantee party and how the outcome of the application might affect its obligation to negotiate with the first native title party. The grantee party presumably supported that decision, though as I discuss below there were legitimate reasons for doing so. Even so, the statements made by the grantee party during this inquiry (and in particular, its contention that negotiations with the first native title party ‘could not be commenced until’ the outcome of strike out application had been determined) suggests a degree of confusion about the process.

In any event, as the first native title party rightly observes, the grantee party did not initiate contact until 19 March 2012, approximately 15 months after the resolution of the strike-out action. The explanation for that additional delay was not made explicit, and given the length of the delay I do not accept the grantee party’s assertion that it acted to reinstate the negotiations ‘as soon as practicable.’ However, once that contact was made, it was a further 16 months before the present application was made. During that period, the parties were involved in a formal negotiation process for at least 10 months, and were engaged in active negotiations for at least six months, including four months of mediation. As I noted above, the grantee party actively engaged in that process. Though the first native title party argues that Western Australia v Champion concerned a delay of six months as opposed to four years, the fundamental issue is whether, in the context of the negotiations as a whole, the grantee party discharged its obligation to negotiate in good faith. It is apparent from the grantee party’s conduct after 19 March 2012, and particularly following Mr Burton’s email of 1 July 2012, that the grantee party did make a genuine effort to reach agreement. The fact that negotiations commenced in earnest four years after the issue of the notice, while unusual and not ideal, is of less consequence given the parties were engaged in active negotiations between July and December 2012.
The Government party submits that the first native title party has not suffered any prejudice as a result of the delay, whereas the first native title party says it has been prejudiced by the delay and associated costs arising from the situation created by the Government and grantee parties. In Western Australia v Champion, Member Lane considered that prejudice may be relevant where it is alleged that the delay has amounted to a lack of good faith. However, as in Western Australia v Champion, there is no evidence before me to suggest that the first native title party was prejudiced by the delay, or that it suffered no prejudice at all. That said, the first native title party made no apparent attempt to initiate discussions with the grantee party: the first native title party did not respond to the Government party’s initial call for submissions, and the first piece of correspondence from the first native title party came after the grantee party’s letter of 19 March 2012. The grantee party may not have not followed up on this lack of response, but nor did it go ahead and seek a determination. In this context, there is little to distinguish this situation from one where, for instance, the grantee party had an existing agreement with another claim group before the issue of the notice and offered the same terms to other claim group shortly after the notice had been issued. The important point is that, in the six month period during which active negotiations occurred, there is nothing to suggest that the grantee party did not make a genuine effort to reach an agreement.

Did the grantee party fail to provide information about its intended activities and, if so, does it demonstrate a lack of good faith?

The first native title party contends that the grantee party failed to provide information about the impact of the work proposed. It is also contended that the grantee party failed to respond to the first native title party’s request for information about the activities it intended to carry out on the proposed licence or the financial structure of those activities. The grantee party did not specifically respond to the contention.
The first limb of the contention is closely related to the question of whether the grantee party’s delay in commencing negotiations constituted a lack of good faith. As noted above, the Government party invited submissions on the proposed licence on 24 April 2008. The grantee party responded to that invitation on 7 May 2008, though it is unclear whether that response was also provided to the native title parties. The first native title party did not make any attempt to initiate discussions following the call for submissions and did not request any information about the proposed works. The first native title party did not ask for that information until after the grantee party’s response to the Government party’s second call for submissions on 9 March 2012. Whether or not the grantee party’s response to the first call for submissions was provided to the first native title party, active negotiations did not commence until July 2012. As I concluded above, that delay was inconsequential in light of the subsequent history of negotiations. It follows that the grantee party’s apparent ‘failure’ to provide the first native title party with information about the proposed works before 19 March 2012 was not a breach of its obligation to negotiate in good faith.
In relation to the second limb of the contention, the first native title party’s request for information followed the grantee party’s letter of 19 March 2012, which outlined the grantee party’s intentions for the proposed licence and the negotiations. In that letter, Mr Burton states that:
Peregrine intends to secure a Native Title Agreement with the area’s traditional owners to permit first stage exploration entailing detailed airborne and ground magnetic surveying, mapping, rock and soil sampling and shallow, low-impact RAB/RC drilling of target areas. It is envisaged that more intensive RC or diamond drill targeting will ensue in Years 3-6 of the licenses subject to initial results.
The first native title party’s letter of 26 March 2012 acknowledges the grantee party’s letter of 19 March 2012. In the letter, Mr Tolcon submits on behalf of the first native title party that:
[t]o protect and maximize the [first native title party’s] registered native title rights and interests, any agreement taking into account the activities that are or may be permitted under a mining licence, must as a condition precedent use best endeavours to reach agreement on the registered native title rights and interests ... and not only on what the Grantee Party has indicated are its current or future plans.
The letter goes on to state that the first native title party ‘believe[s] that such an agreement should address matters including, but not limited to ... [f]ull information about the grantee party’s proposed activities.’ However, the letter does not specify exactly what information is required.
The grantee party did not respond directly to the first native title party’s letter of 26 March 2012, though Mr Burton did contact Mr Tolcon by email on 1 July 2012 in an attempt to initiate negotiations with the first native title party. While Mr Burton’s initial email did not mention the grantee party’s proposed exploration programme, he does note in a subsequent email on 3 July that he met with Mr Harrington-Smith that morning and ‘discussed Peregrine’s immediate plans (i.e. low impact work for the first year or so before requiring any heritage surveys for exploration drill clearance).’ It is not apparent whether Mr Harrington-Smith or Mr Tolcon was satisfied with this information. Nevertheless, the Tribunal’s record from the first mediation conference on 30 August 2012 does indicate that Mr Harrington-Smith advised those present that the first native title party was aware of the type of exploration the grantee party proposed to undertake. This comment was apparently made in the context of discussing the timing of the heritage survey. Discussion between the parties in subsequent conferences centred around this issue, and to the extent that the grantee party’s proposed work programme was discussed, it was in the context of the effect that low-impact exploration may have on sites of significance to the first native title party.
In Western Australia v Taylor, the Tribunal identified the failure to respond to reasonable requests for relevant information within a reasonable time as one of the indicia suggesting an absence of good faith. The question is whether the request was reasonable. The letter refers to ‘full information’ about the grantee party’s proposed activities, but does not specify the kind of information that is sought. The grantee party had already indicated the methods it planned to undertake, as well as rough indication of the timing. In this context, it is unclear what further information the first native title party required. In the context of the information already provided by grantee party, ‘full information’ could have meant a specific timeline of activities, an indication of the areas to be targeted or an explanation of access routes. That information may or may not have been known to the grantee party at the time the request was made. Whatever the case, it may not have been clear to the grantee party what ‘full information’ meant. The grantee party may not have realised that the first native title party’s had even made a request, as the letter only refers to information about the grantee party’s proposed activities in the context of matters the first native title party felt should be addressed in an agreement. In this regard, any failure by the grantee party to respond to the request is quite explicable given the way in which the ‘request’ was framed.
In any event, the evidence suggests that the grantee party did provide further information about its proposed activities. It is apparent from Mr Burton’s email to Mr Tolcon on 3 July 2012 that he spoke to Mr Harrington-Smith about the grantee party’s proposal. It also appears that Mr Burton met with Mr Harrington-Smith on 13 July 2012, although there is no evidence as to what topics were discussed. It appears that Mr Harrington-Smith had some idea of the types of exploration the grantee party intended to pursue at the first mediation conference on 30 August 2012, and the request does not appear to have been repeated either during or outside the mediation process. The grantee party contends that Mr Burton discussed its exploration programme in further detail with Mr Harrington-Smith and June Ashwin (one of the registered claimants) during a meeting at Perth Airport on 24 September 2012. Though the first native title party did not contest that point, in the absence of evidence from Mr Burton, Mr Harrington-Smith or Ms Ashwin, I make no finding as to whether the meeting occurred or what was discussed. Nevertheless, I find that the grantee party did provide additional information about its proposed activities to the first native title party, if not directly then at least indirectly through the disclosures made to Mr Harrington-Smith. There is no evidence that the first native title party was unsatisfied with those disclosures, and it did not pursue the issue. In the circumstances, I am not satisfied that the grantee party failed to negotiate in good faith because it did not directly respond to the first native title party’s request.

Conclusion

I am not satisfied on the evidence before me that the grantee party’s conduct, viewed in the context of the history of negotiations, demonstrated a lack of good faith in its negotiations with the first native title party.

Did the Government party negotiate in good faith?

Did the Government party’s decision to place negotiations on hold amount to a lack of good faith?

The first native title party contends that the Government party’s decision to place negotiations in abeyance while awaiting the outcome of the strike-out application was a breach of its obligation to negotiate in good faith. The first native title party contends that the decision was unilateral and contrary to the principles of good faith negotiation outlined in the Government party’s own negotiation protocol.
In response to that contention, the Government party says that it and the grantee party agreed to place negotiations with the first native title party on hold pending the outcome of negotiations with the second native title party, as it believed this was the first native title party’s preferred approach (GVP Contentions, paragraph 25). Once those negotiations were concluded, it was decided that negotiations with the first native title party should remain on hold until the resolution of the strike-out application, to prevent time and money being ‘thrown away’ on negotiations (GVP Contentions, paragraph 26). The Government party acknowledges that the first native title party did not respond to its initial letter on 28 March 2008, but says it did not follow up the lack of response because of what it understood to be the first native title party’s preferred approach and the subsequent Federal Court proceedings (GVP Contentions, paragraphs 24-25).
In reply, the first native title party submits that there was no evidence that this was the first native title party’s preferred approach and there was no reasonable basis for the Government party to believe this was the case (NTP Reply, paragraphs 7-8, 12). The first native title party says that the Government and grantee parties determined among themselves to negotiate an agreement with the second native title party without reference to the first native title party, and had formed the view that any agreement reached should then be reached with the first native title party (NTP Reply, paragraph 9).
In his affidavit, Mr Thomson states that the Government party advised the grantee party in October 2008 that the first native title party had not responded to the Government party’s call for submissions and ‘may prefer the grantee to negotiate an agreement with [the second native title party] first and [then] use this as a template for agreement with [the first native title party]’ (Thomson Affidavit, paragraph 18 and DT9). Mr Thomson states that he does not recall any specific discussions on this point, but believes Mr Harrington-Smith had expressed a ‘general preference for negotiations with the [first native title party] to be placed on hold pending negotiations with other native title claim groups, such that any agreement resulting from those negotiations might subsequently serve as a basis for an agreement with the [first native title party]’ (Thomson Affidavit, paragraph 19). In the absence of evidence from Mr Harrington-Smith, there is no way to verify whether he did in fact express that preference to Mr Thomson. In that regard, there is no basis for me to conclude whether Mr Thomson’s belief was reasonable. However, I do accept that the belief was genuinely held. In any event, I do not consider there had been any other motive for the Government party’s advice to the grantee party.
As for what is referred to as the second period of abeyance, which is said to have commenced after negotiations with the second native title party had concluded, Mr Thomson says he was aware that an application had been made in the Federal Court to strike out the first native title party’s claim. Mr Thomson states that, while he does not remember doing so, a handwritten note suggests he spoke with Mr Miller about the need for an agreement with the first native title party, and the two ‘resolved’ to place the negotiations on hold pending the outcome of the strike-out application (Thomson Affidavit, paragraph 22 and DT11).
In the case of the ‘first’ period of abeyance, it cannot be said this was the mutual decision of the Government and grantee parties. The advice given to the grantee party was that the first native title party ‘may’ prefer to await the completion of negotiations with the second native title party. In giving that advice, the Government party was acting on what it genuinely believed to be the first native title party’s preferred approach, and Mr Thomson suggested that the grantee party contact Mr Harrington-Smith to confirm, though this does not appear to have happened. In relation to the ‘second’ period of abeyance, it is apparent from Mr Thomson’s account that this was a bilateral decision made by representatives of the Government and grantee parties. In this respect, the first native title party is quite correct to say that it was not consulted about that decision. The question is whether that decision was reasonable in the circumstances.
In the Government party’s submission, the reasonableness of that decision should be viewed in the context of (a) the real benefit to be obtained by waiting, including the avoidance of unnecessary negotiations; (b) the fact there was no prejudice to the first native title party; (c) the fact that the first native title party must have known about the proposed grant, had been invited to participate in negotiations but had not responded; and (d) the balance of the Government party’s conduct, which tended to show that the Government party was aware of, and had every intention of giving effect to, the first native title party’s right to negotiate. As to the first point, while it was not ideal to place negotiations with the first native title party on hold, I accept there were valid reasons for doing so. As an application was then before the Federal Court to strike out the claim, it was reasonable for the Government and grantee parties to await the outcome of that application before investing time and effort in negotiations with the first native title party. As discussed above, I make no finding as to the prejudice suffered by the first native title party as a result of the decision. However, the fact that the first native title party can be taken to have known about the proposed licence and had not responded to the Government party’s call for submissions suggests that the decision to await the outcome of the strike-out application was inconsequential so far as the first native title party was concerned. The Government party concedes that, in an ordinary case, the Government party would follow up on a native title party’s failure to respond to an initial negotiation letter. Nevertheless, I accept that there were legitimate reasons for placing the negotiations on hold in the first instance.
A question arises as to the timing of the Government party’s decision to recommence negotiations with the first native title party. As noted above, judgment was handed down on the strike-out application 23 December 2010, though the Government party’s letter recommencing negotiations is dated 9 March 2012. Mr Thomson does not specifically address this further period of delay. A possible explanation for this further period can be found in the letter itself, which states that the negotiations ‘were subsequently placed in abeyance pending a Federal Court Determination regarding the authorisation of the Wutha People’s claimant application.’ The letter goes on to state that ‘[a]s it is unknown when a Determination will be made by the Federal Court and the Wutha People currently retain the right to negotiate over the grant of this licence application, the Government hereby wishes to give notice of the recommencing of these negotiations.’ It appears from the reasons of the Federal Court in dismissing the strike-out application that, although the Court did not accept the State’s contention that the claim should be struck out or dismissed on the basis of Lindgren J’s findings in Harrington-Smith v Western Australia, it nevertheless indicated that it would hear parties on directions for the trial of the preliminary issue of whether the claim was lawfully authorised and, if not, whether it should be dismissed on that account (see Ashwin v Western Australia at [20], [28]). Although evidence concerning the procedural history of the claim was not placed before the Tribunal, it is apparent that the Government party was awaiting a determination regarding the authorisation of the claim before recommencing negotiations with the first native title party.
The first native title party argues that, while the Government party is entitled to have a view about its chances in having native title recognised and its ‘relative numerical strength’, this does not mean that the Government party can refuse to negotiate with the first native title party once its claim has been registered. However, it is not possible to conclude from the Government party’s conduct that it had altogether refused to negotiate with the first native title party. The first native title party suggests that the course of action adopted by the Government party was a stalling tactic. If an application was made to the Tribunal before the Government party’s second letter of 9 March 2012, that conclusion may well have been open. However, given the negotiations that occurred after the second letter, it cannot be said that the Government party had merely sought to stall the negotiations while waiting for the six-month period to expire. As the Government party contends, it delayed the commencement of negotiations because of what it understood to be the first native title party’s negotiation position and the challenge to the underlying claim. Once the agreement with the second native title party had been concluded and it became apparent that a decision could not be expected in relation to the first native title party’s claim, the Government party took steps to recommence negotiations, and referred the matter to mediation when it appeared the negotiations were faltering. This was not the conduct of a party intending to deprive the first native title party of its right to negotiate. Though the Government party did not immediately move to recommence negotiations following the outcome of the strike-out application, the delay was consistent with the initial rationale for placing the negotiations in abeyance. Nonetheless, the delay does not seem to have had a material effect on the negotiations that subsequently took place.

The first native title party maintains that the decision to place the negotiations on hold was contrary to the Government party’s own negotiation protocol, which included a summary of how to negotiate in good faith. The Government party says that the document merely summarises the indicia of good faith negotiations to assist parties to discharge their own obligations, and does not displace the broader principles of good faith negotiations identified in decisions of the Tribunal and the Federal Court. I accept that submission, and have not given any weight to the issue.
In conclusion, I am not satisfied that the Government party’s decision to place negotiations in abeyance amounts to a breach of the Government party’s obligation to negotiate in good faith with the first native title party.

Should the Government party have taken steps to institute regular meetings?

In addition to its contention that the Government party did not act in good faith when it decided to place the negotiations on hold, the first native title party also contends that the Government party’s failure to institute regular negotiation meetings was a breach of its obligation to negotiate in good faith. In this regard, the first native title party argues that a reasonable person with a statutory duty to negotiate in good faith such as the Government party would have taken steps to institute regular negotiation meetings.
The Government party says this contention should be rejected, as it would amount to a duty on the Government party to institute regular negotiation meetings in every case (GVP Contentions, paragraph 37). The Government party argues that both the Federal Court and the Tribunal have ‘set their faces’ against such an absolutist approach and maintain that it was appropriate in the circumstances to place the negotiations in abeyance.
As the Full Federal Court held in FMG Pilbara v Cox (at [38]), the Act does not prescribe the manner in which negotiations are conducted or require the parties to negotiate in a particular way. Rather, the Tribunal must have regard both to the party’s state of mind as manifested by their conduct, and to what was reasonable in the circumstances. In this case, the Government party made a reasoned decision to postpone the commencement of negotiations with the first native title party in consideration of what it believed to be the first native title party’s preferred approach and, subsequently, the proceedings before the Federal Court. That decision was reasonable in the circumstances, having regard to the information known to Government party at that time. To institute regular meetings when the first native title party was thought to be awaiting the conclusion of negotiations with the second native title party and had not even responded to the Government party’s initial call for submissions, and later, when proceedings were on foot to dismiss the underlying claim, would have resulted in unnecessary costs and wasted effort for each of the parties, including the first native title party.
The reasonableness of the Government party’s conduct is further supported by the fact that, once agreement had been reached with the second native title party and it had become clear that the underlying claim would not be determined in the near future, the Government party recommenced the negotiations. When it seemed to the Government party that the negotiations between the grantee party and the first native title party required additional support, the Government party took steps to institute regular negotiation meetings under the auspices of Tribunal mediation. Those steps were consistent with the Government party’s general approach to future act negotiation and demonstrate that, once the circumstances had changed, the Government party made genuine efforts to support negotiations between the grantee party and the first native title party. In the circumstances, I do not find that the Government party breached its obligation to negotiate in good faith by failing to institute negotiation meetings in the first instance.

Was the Government party acting in good faith when it referred the matter to mediation?

The first native title party also contends that the Government party was not acting in good faith when it stated in its request for Tribunal mediation that the negotiations had stalled merely because it had been told so by the grantee party. Although the contention was not obviously directed at the request itself, the Government party responded to it on the basis that the first native title party had sought to impugn the good faith of the Government party when it chose to refer the matter to the Tribunal on the basis that negotiations had stalled. This is at least implicit in the first native title party’s reply, where it contends that the Government party’s submission was baseless and insists that the Government party, acting in concert with the grantee party, ‘had sought that the future act progress as quickly as [possible] either by negotiation with the First Native Title Party or by way of mediation or inquiry in order to obtain the grant of the subject future act.’ In light of that further elaboration, it appears to me that the nub of the contention is the allegation that Government party had not been acting in good faith when, just a few months after negotiations were reactivated, it referred the matter to mediation on the premise that the negotiations had stalled.
The Government party rejects the suggestion that it was acting on the grantee party’s instructions. Rather, the Government party says that it monitored the progress of negotiations between the grantee party and the first native title party following the recommencement and negotiations and formed an independent judgment that negotiations had stalled based on information it had received and the lack of contact from the parties (GVP Contentions, paragraph 43). Specifically, the Government party refers to Mr Burton’s response to Mr Thomson’s email of 12 July 2012 requesting an update as to the progress of negotiations. That response was brief and it is helpful to set it out in full:
Hi Dave,
Peregrine amended its existing agreement with Yamatji and sent a draft to Paul to review in mid-June whereupon he sent a completely different AHA requesting that we cover Wutha’s legal expenses ($5K up front).
Spoke to Ron Harrington Smith and Paul and believe that Wutha are now reviewing Peregrine’s Draft.
Awaiting Wutha’s feedback so we can move forward. Would like to get the EL’s granted in my lifetime
David.
On the face of the email, there does not seem to be enough to support the conclusion that the negotiations had stalled. Although the email does raise the issue of legal costs, it also suggests that the first native title party was in the process of reviewing the grantee party’s proposal. Mr Thomson states that the decision to refer the matter to mediation was made because he ‘had not heard anything further from the Grantee Party.’ However, the referral was only made 11 days after Mr Burton’s email. Although Mr Burton’s closing reference to the grant of the tenements could perhaps be interpreted as an expression of frustration with the state of affairs, that was not necessarily a reflection of the status of the negotiations and may well have been directed at the overall process, which was then in its fourth year.
Nevertheless, the referral to mediation needs to be seen in the context of the Government party’s previous contact with the grantee party. For example, Mr Thomson emailed Mr Burton on 30 April 2012 to enquire about the progress of negotiations with the first native title party. In reply, Mr Burton said that the grantee party ‘was prepared to accept identical terms to those incorporated within the Yugunga Nya agreement as precedent’ but ‘remains unsure as to how to manage two separate agreements over the same tenements [with respect to] heritage surveying.’ This would have placed the Government party on notice that the grantee party was hesitant about how an agreement with the first native title party would interact with its existing agreement with the second native title party and needed further guidance as to how the agreements would work in practice. After Mr Thomson received Mr Burton’s response on 12 July 2012, which alluded to potential issues with a competing proposal, it is reasonable to infer that the Government party formed the view that the parties required further support in their negotiations and decided to refer the matter to mediation. That conclusion was open to the Government party on the information available at the time. There is no evidence to support the contention that the Government party was acting on the advice of, or acting in concert with, the grantee party.
In any event, I do not accept that the referral was a breach of the Government party’s obligation to negotiation in good faith. Section 31(3) of the Act specifically provides for referral to the mediation. As the Government party argues, the purpose of mediation under s 31(3) is to assist in obtaining the agreement of the parties (GVP Contentions, paragraph 42). Any negotiation party is entitled to refer a matter to the Tribunal for mediation at whatever stage of the negotiations. As Deputy President Sumner observed in Minister for Mines v Walley, it is difficult to envisage circumstances in which a referral to the Tribunal would demonstrate an absence of good faith, except perhaps where the parties had previously agreed not to refer the matter. Although the referral may have been premature in the sense that the parties did not necessarily require the Tribunal’s assistance at that stage, the Tribunal’s role in mediation is to facilitate an agreement rather than dictate the outcome or expedite the process. Though referral to mediation does not discharge the Government party’s obligation to negotiate in good faith, it is ordinarily consistent with that obligation: Western Australia v Evans. In the present case, there is nothing in the Government party’s decision to refer the negotiations to the Tribunal that suggests the Government party was not acting in good faith.

Should the Government party have taken any action following the request for information?

The first native title party also seeks to challenge the Government party’s good faith on the basis that it:
·failed to express a view about the grantee party’s lack of description on how its proposed work programme would affect the rights and interests of the first native title party;
·did not give due consideration to the concerns raised by the first native title party in its letter of 26 March 2012;
·failed to ascertain whether or not the grantee party’s response satisfactorily answered the Government party’s request for information; and
·did not follow up on the concerns outlined by the first native title party or make its own enquires.
The Government party maintains that, consistent with the ‘dual deed’ system operating in Western Australia, it adopted a ‘facilitatory’ role during the negotiations (GVP Contentions, paragraph 44). If it failed to express a view about the grantee party’s proposed work programme, the Government party says it is unclear how that failure could be indicative of a lack of good faith, as to do so would have been inconsistent with that role. As to whether the Government party gave due consideration to the concerns raised in the letter of 26 March 2012, the Government party says that the letter did not request its assistance and it is not clear what action it was expected to take (GVP Contentions, paragraph 45). As to whether the grantee party’s response to its own request was adequate, the Government argues that there was no indication that the first native title party considered the response to be inadequate, and it was reasonable for the Government party to expect that any further enquiries would be made to directly to the grantee party (GVP Contentions, paragraphs 46-47). Finally, the Government party submits that, to the extent the letter of 26 March 2012 expressed concerns, it was not apparent that the first native title party required the Government party’s assistance.
In relation to its role in the negotiations and the implications of the dual deed system, the Government party’s relies on the Tribunal’s recent decision in Xstrata v Albury. In that matter, then President Neate made the following observations in relation to the practice in Queensland, which also adopts a dual deed system:
It is the usual practice for native title parties and grantee parties to negotiate an Ancillary Agreement dealing with, among other things, any compensation payable to the native title party. The Government Party is generally not involved in the negotiation of Ancillary Agreements and is rarely provided with copies of them as they are usually regarded by the parties as being commercial-in-confidence. Following the finalisation of such an agreement, the State will enter into a Section 31 Deed with the native title parties and the grantee parties. The Section 31 Deed is a tripartite agreement between the negotiation parties which is essentially a ‘bare’ deed to comply with the requirements of s 31(1)(b) of the Act. Hence, much of the Government party’s involvement in negotiations occurs after the other parties have finalised an Ancillary Agreement.
President Neate went on to add:
The practical implications of the ‘dual deed’ system in Queensland for the role usually played by the Government party does not relieve the Government party of its statutory obligation to negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the future act. The Government party might reconsider the appropriateness of its standard procedures in light of the circumstances of particular negotiations. For example, it might consider follow up where there is a lack of response to its standard letters to a native title party, and it might take reasonable steps to facilitate and engage in discussions between parties rather than simply await an invitation to participate.
The first native title party did not essentially dispute this characterisation of the Government party’s role in the negotiations, and I have already addressed the specific example cited by President Neate. However, the first native title party contends that the Government party nevertheless could and should have addressed the concerns expressed by the first native title party as well as the adequacy of grantee party’s response to those concerns and the Government party’s request for information.
In relation to the first point, I do not accept that the Government party was under any obligation to express a view about the possible effect of the grantee party’s proposed work programme on the first native title party’s registered native title rights and interests. The Government party’s letter of 9 March 2012 requested the grantee party to provide the first native title party with an outline of its work programme so that it could make submissions to the Government party regarding the grant of the proposed licence. The grantee party provided that information on 19 March 2012. Nothing stands out about the information provided by the grantee party that could be expected to have put the Government party on notice that further enquiries should be made. As the Government party quite rightly notes, the first native title party was in the best position to comment on the possible impact of the grantee party’s proposed work programme on its native title rights and interests. If any aspect of the information provided by the grantee party was inadequate, the first native title party could have made enquiries with the grantee party directly.
Similarly, there was nothing about the grantee party’s reply that suggested it was not a satisfactory response. If the first native title party considered the information to be inadequate, it could have raised that issue with the Government party. Although the first native title party’s letter of 26 March 2012 states its preference that an agreement address ‘full information about the grantee party’s proposed activities’, it is not immediately obvious that it regarded the grantee party’s response as unsatisfactory. In any case, this is a matter that the first native title party could and should have pursued with the grantee party. The grantee party’s letter of 19 March 2012 had invited the first native title party to contact Mr Burton ‘should you require further information.’ It is not clear whether the first native title party took up that invitation; however, I do not accept that the Government party was obliged to ascertain whether the grantee party’s response was satisfactory.
As for the contention that the Government party ‘failed to give due consideration’ to the concerns raised by the first native title party in its letter of 26 March 2012, it is unclear what this required the Government party to do. The concerns identified in the letter were expressed in terms of matters the first native title party felt should be addressed in an agreement on the proposed licence. However, no concrete proposal was made for the Government party’s consideration. If a proposal had been made to the Government party, it would have been under an obligation to consider that proposal. As it was, it is not clear from the letter that the first native title party had expected the Government party to take any particular action and at no point did it approach the Government party concerning the issues outlined in the letter. Similarly, if the first native title party required the Government party’s assistance or required a response in relation to those matters, it could have contacted the Government party. As it was, the first native title party chose to conduct bilateral negotiations with the grantee party without the Government party’s involvement. In the circumstances, I do not consider that good faith required the Government party to follow up on or make its own enquiries into the specific matters identified in the letter. It is clear that the Government party monitored the negotiations, both in correspondence with the grantee party and in subsequent mediation, and I do not accept that more was required in the circumstances.

Conclusion

Based on the evidence before me in this matter, I find that the Government party’s decision to place the negotiations in abeyance did not constitute a breach of its obligation to negotiate in good faith with the first native title party, and its conduct in the negotiations was consistent with that obligation.

Decision

I am not satisfied that the grantee party or the Government party did not negotiate in good faith as required by s 31(1) of the Native Title Act 1993 (Cth). The Tribunal has power to make a determination under s 38 of the Native Title Act 1993 (Cth).

James McNamara
Member
12 May 2014