Pilbara Stone Pty Ltd/Angelina Cox and Ors on behalf of Puutu Kunti Kurrama & Pinikura 2/Western Australia - [2012] NNTTA 114

NATIONAL NATIVE TITLE TRIBUNAL

Pilbara Stone Pty Ltd/Angelina Cox and Ors on behalf of Puutu Kunti Kurrama & Pinikura 2/Western Australia, [2012] NNTTA 114 (6 November 2012)

Application No: WF12/24

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

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

Pilbara Stone Pty Ltd (grantee party)

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Angelina Cox and others on behalf of Puutu Kunti Kurrama & Pinikura 2 (WC05/4) (native title party)

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The State of Western Australia (Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  6 November 2012

Catchwords: Native title – future acts – application for a determination in relation to a mining lease application – power – jurisdiction – whether grantee party has negotiated in good faith – scope of the obligation to negotiate in good faith (s 31(2)) – grantee party has negotiated in good faith

Legislation:Native Title Act 1993 (Cth), ss 26(1)(c)(i), 28, 29, 30(1)(a), 30A, 31, 35, 36(2), 38, 109, 151(2)
Cases:
Brownley v Western Australia [1999] FCA 1139
Cameron v Hoolihan (2005) 196 FLR 37; [2005] NNTTA 84
Cox v Western Australia (2008) 219 FLR 72
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15
FMG Magnetite Pty Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal [2011] NNTTA 213
FMG Pilbara Pty Ltd v Cox and Others (2009) 175 FCR 141
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52
Mt Gingee Munjie Resources Pty Ltd v Victoria (2003) 182 FLR 375
Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87
State of Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot [2010] NNTTA 152
South Blackwater Coal Ltd v Queensland (2001) 165 FLR 232; [2001] NNTTA 23
Western Australia/Arthur Dimer & Ors (Ngadju People) and Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited [2000] NNTT 290
Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot [2010] NNTTA 55
Western Australia v Taylor (1996) 134 FLR 211
White Mining (NSW) Pty Ltd v Franks [2011] 257 FLR 205

Representatives of the Mr Ken Green, Green Legal
grantee parties:

Representatives of the Ms Catherine McLeish, Yamatji Marlpa Aboriginal Corporation
native title party: Mr Rainer Mathews, Samphire Legal Pty Ltd

Representatives of the Mr Brendyn Nelson, State Solicitor’s Office
Government party: Ms Ruth Lavender, Department of Mines and Petroleum

REASONS FOR DECISION

Background

On 29 June 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of a future act, namely the grant of mining lease application M08/477 (‘the proposed tenement’) to Pilbara Stone Pty Ltd (‘the grantee party’).
The proposed tenement is 3.3699 square kilometres in size and situated in the Shire of Ashburton, 133 kilometres south-west of Pannawonica. The grantee party states it is in an area of ‘dolomitic dimension stone’ and is part of a wider stone project area on the ‘Wadrah Plateau’. The stone is shipped to Europe and South East Asia.
At the conclusion of the s 29 notice period (31 October 2011), the Puutu Kunti Kurrama & Pinikura 2 native title claim ((WC05/4) – registered from 15 August 2006) wholly overlapped the proposed tenement and was on the Register of Native Title Claims. The claim remains on the Register. The registered native title claimant for the claim is the native title party in respect of these proceedings (see s 29(2)(b)(i) of the Act).
The proposed tenement is a future act covered by s 26(1)(c)(i) of the Act and so, unless there is compliance with s 28, the act will be invalid to the extent that it affects native title. In this case, s 28(1)(g) is the relevant requirement, that is, ‘a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with.’

This matter is a complex one, for a number of reasons as outlined in this determination. As such, to provide context in this matter, I also refer to the exploration licence E08/1408, which was granted to the grantee party in May 2004, prior to the native title party registering their claim application over the area. This exploration tenement is referred to throughout parties’ contentions. It covers approximately 70 square kilometres, which is a much larger area than M08/477, with M08/477 located in a south western portion of E08/1408. Through exploration activities on E08/1408, the grantee party has identified stone it wishes to quarry for, in the area of M08/477. When in full operation (it appears in the project area rather than just this tenement), the grantee party has stated it would employ four to six people.
Also for context, I refer to L08/63, which the grantee party has applied for to use as a road to link M08/477 to the Northwest Coastal Highway.

The section 35 application

On 13 August 2012, the grantee party made an application pursuant to s 35 of the Act for the Tribunal to make a determination under s 38 of the Act. The application was made on the basis that the negotiation parties had not been able to reach agreement of the kind mentioned in paragraph 31(1)(b) and at least six months had passed since the notification day specified by the Government party in giving notice of its intention to do the act (as per s 29). On 14 August 2012, I was appointed as Member to conduct an inquiry into the s 35 application.
A preliminary conference was convened on 24 August 2012. At that conference, the native title party contended that the grantee party did not fulfil its obligation to negotiate in good faith and that it would advise whether such contention was made also in respect of the Government party. The native title party subsequently confirmed it contends only that the grantee party has not negotiated in good faith, and does not make such allegation against the Government party. Pursuant to s 36(2), if the native title party satisfies the Tribunal that a grantee party did not negotiate in good faith ‘as mentioned’ in s 31(1)(b), the Tribunal must not make a determination under s 38.
At the preliminary conference, I made directions for the conduct of the inquiry into the native title party’s allegation that the grantee party did not negotiate in good faith. Native title party contentions (‘contentions’) were received on 8 September 2012 and grantee party submissions were received on 28 September 2012. On Monday 8 October 2012, the native title party submitted a reply (‘reply’) to the grantee party submissions. I note that the due date for a reply filed by the native title party pursuant to the directions was Friday 5 October 2012 and an explanation was sought for the late lodgement. The native title party advised on 9 October 2012 that circumstances arose at a Tribunal mediation conference on 5 October 2012, being a mediation involving the present matter running concurrently with the determination application, which was directly relevant to the native title party’s decision whether to file a reply and which prompted the native title party to file such a reply. Taking into account s 109(1) and (3) of the Act, I advised parties on 10 October 2012 that I accepted the late reply in the circumstances, but reminded parties that extensions of time should be sought in advance of a direction milestone as extensions may not always be granted.
The native title party submits in its contentions (at 5) that it has not provided sworn evidence in this matter due to time pressure, however, has indicated that two declarations provided (one by Ms Corbett and one by Ms McLeish) can be sworn if requested. In a submission to the Tribunal dated 8 October 2012, the native title party states that it agreed to the matter being determined on the papers, subject to the declarations being accepted unwitnessed as evidence without prejudice, citing for example, FMG Magnetite Pty Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal [2011] NNTTA 213 (20 December 2011) (‘FMG Magnetite’). I note in that in FMG Magnetite, Member O’Dea outlined that the Tribunal is not bound by the rules of evidence (s 109(3) of the Act) and the Tribunal’s practice with respect to statements not in affidavit form had been summarised by Hon C J Sumner in Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15 (at [18]–[28]). In this instance, I accept the unsworn statements, I am satisfied that Ms Corbett has the authority to speak on behalf of the native title party, and that Ms McLeish has the requisite authority as their legal representative in these proceedings.

The section 150 Conference

Having read all parties submissions and contentions, I requested the President of the Tribunal order a s 150 conference, for the purpose of discussing with parties some parts of the evidence. That conference was held on 24 October 2010. Parties did not have an objection to the proposition that I convene the conference, and that information discussed could be used for the purposes of this determination, as allowed by s 150 of the Act.
The conference was useful in that it clarified some of the negotiation points, and lead to some amendment of documents. For example, item 25, paragraph 2, of the grantee party Statement of Facts should have referred to YMAC’s letter dated 15 June 2012, not 19 July 2012; and paragraph 6.73 of the grantee party contentions should have accepted that the native title party had sought amendments to clauses D1.1 and D1.2 of the draft agreement prior to 7 August 2012.
I considered it appropriate to determine the matter on the papers pursuant to s 151(2), and all parties were in agreement.

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.
Note:The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Negotiation in good faith
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3)If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
On the interpretation of s 31, I adopt relevant legal principles from Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52 (‘Gulliver’) (at 55-60) for the purposes of this inquiry, unless in conflict with the Full Federal Court decision in FMG Pilbara Pty Ltd v Cox and others (2009) 175 FCR 141 (‘Cox’) (see also Mt Gingee Munjie Resources Pty Ltd v Victoria (2003) 182 FLR 375; Western Australia v Taylor (1996) 134 FLR 211 (‘Taylor’)).
Pursuant to s 30A of the Act, the ‘negotiation parties’ are the Government party, any grantee party and any native title party. As noted at [8] above, if any negotiation party satisfies the Tribunal that ‘any other negotiation party (other than the native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b)’ of the Act, the Tribunal must not make a determination (s 36(2) of the Act). That is, all parties need to act in good faith but the question of whether or not the Tribunal is empowered to made the determination sought is only triggered when allegations are made that the grantee party or the Government party did not negotiate in good faith as required.
The practical effect of s 36(2) is to 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 lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on (Placer (‘Granny Smith’) Pty Ltd v Western Australia (1999) 163 FLR 87 (‘Granny Smith’)). The Granny Smith determination also helpfully outlined the meaning of ‘good faith negotiations’ (at [93]-[94] – note that this obligation also applies to the grantee party, hence reference to ‘Government party’ can be read as also being to a ‘grantee party’):
Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’ (Western Australia v Taylor [1996] NNTTA 34; at 219 (‘Njamal’). Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Njamal as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but it is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour. Lack of good faith in the negotiations by the native title party will be relevant to whether the other parties have fulfilled their obligation and may impose a lesser standard on them.
A useful set of indicia, referred to in the extract from Granny Smith in the paragraph above, are outlined in Western Australia v Taylor (1996) 134 FLR 211 (at [224]-[225]) (the ‘Njamal indicia’) which provide a guide to the applicable threshold for negotiation in good faith:
(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 grantee parties;
(vii)Failure to respond to take reasonable steps to facilitate and engage in discussions between the parties;
(viii)Failure to respond to reasonable requests for relevant information within a reasonable time;
(ix)Stalling negotiations by unexplained delays in responding to correspondence or telephone calls;
(x)Unnecessary postponement of meetings;
(xi)Sending negotiators without authority to do more than argue or listen;
(xii)Refusing to agree on trivial matters, for example, refusal to incorporate statutory provisions into an agreement;
(xiii)Shifting position just as an agreement seems in sight;
(xiv)Adopting a rigid non-negotiable position;
(xv)Failure to make counter proposals;
(xvi)Unilateral conduct which harms the negotiating process, for example, issuing inappropriate press releases;
(xvii)Refusal to sign a written agreement in respect of the negotiation process or otherwise; and
(xviii)Failure to do what a reasonable person would do in the circumstances.

These are by no means a fixed or exhaustive list of indicia, but provide a useful guide to the Tribunal of factors to take into account when making a good faith decision.

It is also useful to bear in mind what is not negotiating in good faith, which includes ‘Delay, obfuscation, intransigence, and pettifoggery’ (see Lee J, at [25] in Brownley v Western Australia [1999] FCA 1139), where I take pettifoggery to mean quibbling over petty details.

Contentions and Evidence

The native title party provided the following submissions in support of its contention that the grantee parties did not negotiate in good faith:
·Statement of Contentions dated 8 September 2012 (‘NTP contentions’);
·Declaration of Ms Catherine McLeish dated 7 September 2012;
·Declaration of Ms Deloures Corbett dated 7 September 2012;
·Reply dated 8 October 2012 (‘NTP reply’); and
·Further Contentions dated 8 October 2012 (‘NTP further contentions’).
The grantee parties’ submissions in relation to the good faith issue comprise the following documents:
·Statement of Contentions dated 28 September 2012 (‘GP contentions’);
·Statement of Facts dated 28 September 2012;
·Grantee Party’s List of Documents dated 28 September 2012;
·Affidavit of Mr Peter Douglas Radford sworn 27 September 2012; and
·CDROM containing copies of above documents and items in List of Documents.
The Government party declined to make submissions on the issue of whether the grantee party failed to negotiate in good faith as alleged by the native title party.
I note that, throughout the submissions, and evidence, parties make various allegations and cross-allegations regarding each other’s conduct and their interpretation of that conduct. Rather than being a party in the thick of the negotiations, the Tribunal has the advantage of having a broad overview of the various stages in the negotiations, as well as a copy of the original, contemporaneous correspondence and notes that were communicated between parties. For that reason, the Tribunal prefers to rely on this original correspondence and notes, rather than the interpretation of that material by parties, unless that interpretation is relevant to the good faith issue and also not inconsistent with the contents of the original, contemporaneous documents.

Period of Negotiations

Early in this enquiry, the issue of how much material was to be put before the Tribunal in this matter was raised. As I understand it, the grantee party’s view was that, on lodgement of the future act determination application (FADA), its obligation to negotiate in good faith ceased, and no further material need be put before the Tribunal.
In relation to that issue I noted the following in an email to parties on 30 August 2012:
a.Paragraph 31(1)(b) of the Act states the negotiation parties ‘must negotiate in good faith with a view to obtaining the agreement’ of the native title party to the ‘doing of the act subject to conditions’ (emphasis added)
b.Even after a FADA is made, parties ‘may continue to negotiate with a view to obtaining an agreement of the kind mentioned’ in s 31(1)(b) NTA, (as per s 35(3) of the Act, emphasis added).
c.Therefore, while there is no obligation to negotiate after the FADA is lodged, if the parties agree to ‘continue to negotiate’ on a voluntary basis after the FADA is lodged, it seems those voluntary negotiations also continue to be conducted in good faith, given that s 35(3) of the Act makes it clear that the aim of the negotiations remains the same as it was before the FADA was lodged and uses the word ‘continue’, i.e. it is a continuation of the obligatory negotiations in good faith but participation in those negotiations is now voluntary.

Parties were invited to make submissions on this point, and no party took issue with this view.

The issue then appears to be whether the Tribunal can take into account the conduct of the parties in negotiations which take place under s 36(3), that is which extend beyond the date of the making of a FADA, if an allegation is made under s 36(2) of the Act.
Subsection 31(4) of the Act states the Tribunal can use information to which it has access only for the purpose of providing assistance under s 31(3) (that is, mediation assistance), for the purpose of ‘establishing whether a negotiation party has negotiated in good faith as mentioned in’ s 31(1)(b) of the Act. The subsection does not draw any distinction between the obligatory negotiations which must occur before the Tribunal can determine a FADA and any voluntary negotiations that take place after it is made. However, s 31(4) of the Act does refer back to s 31(1)(b), that is, to the ‘normal negotiation procedure’, and so would not appear to include any voluntary negotiations taking place pursuant to s 35(3), that is negotiations that take place after a FADA is made.
Other relevant sections of the Act include s 36(1), which states that the Tribunal must make a determination as soon as practicable, and s 36(2), which states that, if there has been a failure to negotiate in good faith by any party (other than a native title party), the Tribunal must not make a determination. However, a fresh FADA can be made for consideration by the Tribunal, provided the parties have negotiated in good faith as required and at least six months have elapsed since the notification day.
The question appears to be, therefore, whether the Tribunal can take into account evidentiary materials going to the conduct of the negotiation parties in any negotiations conducted under s 36(5) when making a ‘good faith’ decision pursuant to s 36(2)? This issue has been considered previously by the Tribunal decisions and it seems there may be a slight divergence of opinion.
Deputy President Sumner was of the view that the obligation to negotiate in good faith ceases on the making of a s 35 application, but went on to say ‘a party’s conduct after a s 35 application is made may be relevant to whether a party has negotiated in good faith before it was made’ – see South Blackwater Coal Ltd v Queensland (2001) 165 FLR 232; [2001] NNTTA 23, [11].
Member Sosso was of the view that ‘[I]t would be … unhelpful, if the Tribunal were to be presented with a running commentary on contemporaneous [voluntary] negotiations’ - Cameron v Hoolihan (2005) 196 FLR 37; [2005] NNTTA 84, [38]. He reiterated this view (as Deputy President) in Cox v Western Australia (2008) 219 FLR 72 at [19], where he found that it is the conduct of the parties prior to the making of the FADA that is the focus of the Tribunal’s inquiry under s 36(2), and that evidence of negotiations subsequent to it being made was neither relevant nor admissible.
When considering the question of good faith in the context of the overall scheme of the ‘normal negotiation’ process as envisaged by s 31 of the Act, I take a middle view.
It does not make sense that the Tribunal would seek to obtain from parties every document from, and every nuance of, negotiations which occurred following the lodgement of a s 35 application, particularly if this has the effect of discouraging the Government or the grantee party from continuing to negotiate after the making of the FADA. Indeed, s 37 of the Act implies that these negotiations should be encouraged.
Equally, it does not seem appropriate that the Tribunal must always refuse to consider information and documentation about negotiations that continue after the FADA is made, even where it is relevant to the existence of its power to determine the application.
I believe this question needs to be dealt with on a case by case basis, depending on all of the facts and circumstances before the relevant Member in a particular matter. Accordingly, the approach I will take in this matter is to rely on the detailed information and documentation in front of me relating to negotiations up to lodgement of the s 35 application, and then to take into account any matters that may be relevant to those pre-FADA negotiations which arise following the lodgement of the FADA, but only in the pre-s 35 context.
At the s 150 conference, the grantee party raised a concern that a grantee party could be disadvantaged if it made certain offers in a s 31(3) mediation process which could then form part of a s 35 determination process. However, under s 31(4), the Tribunal may only use or disclose such information to either provide the requested mediation assistance or establish whether a negotiation party has negotiated in good faith for the purposes of s 36(2). Should parties continue with s 31(3) mediation following a decision under s 36(2) that there has been negotiation in good faith, then anything covered by s 31(4) could only be used or disclosed by the Tribunal with ‘the prior consent of the person who provided the Tribunal with the information’ during the s 31(3) process.

Chronology

On the basis of evidence submitted by the native title party and the grantee party, I accept that the following events occurred following the s 29 notification day and up to the date on which the s 35 application was made, with ‘NTP’ or ‘PKKP’ referring to the native title party and ‘GP’ referring to the grantee party. In addition, other relevant events include a draft claim wide mining agreement between the GP and PKKP in September 2006, and on 9 March 2011, the grantee party lodged the application for M08/477.

DATE	EVENT
29 June 2011	s 29 notice issued.
17 August 2011	NTP requested information from GP regarding proposals and estimated that negotiations would take 2-3 working group meetings and a Community meeting paid for on a cost recovery basis.
16 September 2011	GP responded seeking an indication of possible costs for meetings.
22 September 2011	NTP responded stating: · That they were arranging for estimate of costs to be provided to GP; That they would take instructions on whether to proceed from the 2006 negotiations or negotiate a new agreement.
13 October 2011	GP responded that they were finding it difficult to agree to fund any meetings without the cost estimates; Government party wrote to other parties, with their standard negotiation letter, inviting submissions pursuant to s 31 of the NTA and requested GP to provide information about its project to the NTP.
18 November 2011	Letter from GP, providing submissions in relation to M08/477, in response to Government Party’s request.
24 November 2011	Letter from NTP provided submissions in relation to M08/477, in response to Government Party’s request.
6 December 2011	NTP emailed GP with cost estimates and stated they estimated that agreement could be reached in 3 working group and 1 Community meeting.
17 January 2012	NTP spoke with GP by phone and then sent follow-up email stating: · That following the discussion, NTP thought negotiation could be conducted in 2 working group meetings in Karratha and 1 community meeting with costs shared with another company; · An invitation for Pilbara Stone to meet the costs of a comprehensive financial report from the economic consultant Mr Meaton at $6000; · An indication of compensation would be helpful; and A suggestion that the parties meet on either 16 February, 1 or 6 March 2012.
8 January 2012	GP wrote to NTP – NTP states that the communication ‘marked a shift from standard process of negotiation on GP’s part to much more aggressive style of negotiation’. The letter: · Provided information requested in Government party’s letter of 13 October 2011 and NTP’s email of 17 August 2011, relating to M08/477.
· Enclosed a copy of the GP’s ’Project Area Agreement’ (including proposed works on M08/477 & L08/63) a 70 page document plus 9 appendices which covered tenements in the area of E08/1408; · Invited NTP to undertake a heritage survey over area of M08/477 and for NTP to provide a budget, timetable and list of participants for that work; Stated that GP was willing to meet with NTP but was unable to agree to provide the funding sought by the NTP as it ‘is a small operator with budget limitations’ [which is acknowledged by NTP]. GP can attend any of the suggested meeting dates and make a payment of $2000 for ‘direct costs paid by YMAC/NTP in connection with a meeting between NTP and Pilbara Stone’ or it would participate in a teleconference or NNTT mediation. Requested NTP’s s 31(1) submission.
24 January 2012	YMAC engaged independent lawyer, Mr Rainer Mathews of Samphire Legal Pty Ltd, to assist and provide advice on the file.
15 February 2012	NTP emailed GP, stating they ‘look forward to hearing of Pilbara Stone’s proposals’. GP replied, forwarding copy of materials sent on 18 January 2012 and asking whether NTP received them and when reply was expected.
29 February 2012	Ms McLeish invited GP to NTP working group meeting on 22 March or 26 April 2012.
1 March 2012	GP agreed to meet in Karratha on 22 March 2012.
12 March 2012	YMAC engaged independent economic consultant, to provide advice on the proposed agreement and provides outline of levels of expected payments for negotiations with GP.
12-20 March 2012	GP and NTP requested and exchanged documents, maps and meeting agenda.
21 March 2012	Mr Mathews provided an analysis of draft mining agreement – recommending limiting agreement to M08/477 and L08/63 and providing a list of recommended heritage fees. Amendment also suggested to clause D1 to make it PKKP specific.
22 March 2012	PKKP working group meeting held in Karratha. PKKP meeting minutes record: · That one of the claimants said they felt intimidated by the GP representative with his hand movements and asked him to ‘speak in a proper sense’, and the representative replied that he felt intimidated by a claimant. · That neither party could find records of any previous agreements nor could they contact the representatives for both parties from 2006. · There was some confusion regarding how much the stone was being sold for. · NTP explained that an agreement that did not deal with future leases would be less complex and that negotiating a broader agreement would take more time. · GP confirmed that their priority was the grant of M08/477, but that a broader agreement would be great. GP invited the NTP to ‘put an offer to us’, presumably in relation to the scope of the agreement.
· Parties agreed to conduct a heritage survey as soon as possible but it doesn’t appear they agreed on the area to be surveyed. · NTP agreed to send GP their standard heritage agreement and heritage survey request form. · NTP undertook to provide an amended draft agreement, but it doesn’t appear on the minutes whether that would be only over M08/477 or a wider area. I note this meeting took only one hour and 45 minutes – the GP were due to attend around noon, and the minutes record a claimant apologising for the rush, saying they needed help with the figures and they hoped an agreement would be reached. The NTP advised it would hold its next community meeting on 26 April 2012.
23 March 2012	NTP emailed Pilbara Stone their standard heritage agreement for E08/1408 and survey request form. Letter attached to email states ‘I confirm that it is the understanding of the parties to yesterday’s meeting that a mining agreement will shortly be negotiated in relation to M08/477 and L08/63, and potentially including other current and future tenure subject to negotiations, and that I will provide you with an amended draft within the next three weeks and as soon as possible’. GP stated conduct of heritage survey was contingent on heritage agreement for E08/1408 and was a substantial document that needed review.
10 April 2012	YMAC record of phone conversation with one of the directors from GP wanting ‘to clarify’ that they were keen to ‘get 477 ASAP’ and it appears some discussion between Ms McLeish and the GP director regarding the heritage process and focus on whether it would be on the wider exploration tenement or the narrower mining tenement. NTP emailed GP a marked up draft of the 18 January agreement restricting it to M08/477 and L08/63 (i.e. removing reference to E08/1408 or future mining tenements in project area),
12 April 2012	and stated PKKP working group would meet to give further instructions on 24 April and asked whether GP would be able to provide a response to the draft before then. The draft also amended D1.
24 April 2012	PKKP working group met on 24 April 2012 (to discuss this matter and one other). No response had been received from GP either in relation to the standard heritage agreement from 23 March 2012, or the amended draft mining agreement from 12 April 2012 (see GP contentions 6.82-6.84). NTP working group reviewed draft and provided further instructions to YMAC and referred matter to a PKKP community meeting.
4 June 2012	GP provided an amended agreement of the 12 April 2012 agreement (called ‘Draft 5 – 4 June 2012’) and did not accept NTP amended agreement (says the NTP). The agreement was amended to limit the area to M08/477 and L08/63. The agreement provided by GP had a clause (B4.2) which required NTP to provide an archaeological survey report and ethnographic survey report prior to 31 July 2012 over M085/477 and L08/63.
15 June 2012	NTP emailed GP a letter: · objecting to the scope of the 5 June 2012 draft agreement as it focussed on future tenure in areas of E08/1408; · Objecting that no response had been received from PKKP’s offer to conduct heritage surveys in E08/1408;
· No comment on the 12 April 2012 draft agreement prior to the 24 April 2012 PKKP meeting; · Objecting that the royalty payments were less than offered in 2006; and · Stating that YMAC was instructed to call a PKKP Community Meeting for 23 or 24 July 2012 to consider authorising the execution of current draft of the agreement on certain terms including: o Limit it in scope to M08/477 and L0/63 o Compensation rate be comparable to 2006 NTP sought response from GP within 7 days so that preparations for the Community Meeting could commence. GP stated the NTP ‘failed to acknowledge the invitation implicit in... clause B4’ (at 6.26 - emphasis added) – that the GP was willing to support a heritage agreement at GP’s cost and NTP also didn’t provide a budget, timeframe or nominated professionals in relation to this.
27 June 2012	NTP sent follow up email.
28 June 2012	GP sent email stating that it would provide a response prior to the proposed Community Meeting. Advised GP representative had been in hospital for several weeks.
12 July 2012	GP provided detailed response to NTP and made 4 proposals ‘with a view to finalising the matter’. Proposal A and B were specifically limited in scope to M08/477 and L08/63 as desired by NTP. Proposal C was limited to E08/1408 and proposal D focussed on the claim area. Stated that if none of the proposals were acceptable then it would assume an impasse had been reached. Stated the NTP heritage material actually complicated negotiations, and the negotiated agreement terms offered in 2006 were not relevant to current terms for a number of reasons including: the 2006 agreement contemplated the grant of all future mining tenements within the PKKP claim; the Australian dollar has appreciated against foreign currencies; domestic costs have increased; and the international market has greatly changed since 2006.
19 July 2012	NTP emailed GP advising that it would take instructions on GP’s 12 July 2012 letter at a Community Meeting on 27 July 2012, ‘particularly ‘Proposal A’’ and invited GP to reconsider compensation aspects of its proposed agreement of 12 July 2012.
23 July 2012	Mr Green emailed NTP to advise that he would be available by phone on 27 July 2012 but otherwise preferred to communicate by email.
27 July 2012	NTP held Community Meeting in Onslow to consider the Pilbara Stone agreement. Community resolved to accept Pilbara Stone’s offer of 12 July 2012 (in terms of proposal A) subject to consideration of 2 conditions (one being clause B4.2 and one being cultural awareness training – clause D1) and subject to of confirmation by members of the community group who were not in attendance at the meeting. Suggested that if agreement is reached, a signing ceremony and BBQ be ‘a good way to begin to establish face-to-face relationships and mend the ill-feeling that has been created through the process of this negotiation’.
7 August 2012	NTP communicated the outcomes to the GP. GP stated it had not realised NTP wanted to amend clause D1 until this letter. I note D1 was amended in the 12 April 2012 version of the draft agreement.
13 August 2012	GP lodged s 35 application.

Native title party’s submissions

The native title party states in its contentions (at 55 and 158) that the grantee party’s conduct, when viewed as a whole, demonstrate a pattern of conduct which is inconsistent with the requirement of good faith.
The native title party relies on the following examples of the grantee party’s conduct outlined as elements ‘a’ to ‘o’ (‘elements’ – at 55):
a)The grantee party’s representations and conduct were unreasonable, inconsistent and sometimes contradictory in relation to the scope of the agreement;
b)The grantee party did not take up the native title party’s offer to conduct a heritage survey during the negotiation period, despite having requested one, and despite insisting on completion of a heritage survey prior to the 31 July 2012 as a condition precedent for payment of a mining commencement payment;
c)The grantee party insisted on completion of a heritage survey within an unrealistic timeframe, as a condition precedent for payment of a mining commencement payment;
d)The grantee party did not negotiate reasonably in relation to compensation payments;
e)The grantee party was conducting ground disturbing exploration works on E08/1408 and on the area of the Mining Lease without conducting prior heritage surveys with the native title party;
f)The grantee party misrepresented the conduct of the native title party at the meeting of 22 March 2012;
g)The grantee party’s lawyer conducted himself in an aggressive and inappropriate manner in attendance at the native title party Working Group meeting;
h)The grantee party refused to acknowledge the cultural distinctiveness of the native title party (as distinct from Aboriginal people in general) for the purpose of the cultural awareness training;
i)The grantee party was unwilling to make reasonable concessions;
j)The grantee party failed in key aspects to respond to the native title party in a timely manner;
k)The grantee party’s legal representative used information about a mining agreement with a third party to which he had been privy in a confidential capacity to try to undermine the native title party’s position;
l)The grantee party held an inflexible bargaining position;
m)The grantee party made an inappropriate threat about negotiations for future mining tenements which is inconsistent with the requirements of the NTA;
n)The grantee party applied for an arbitral body determination at the point when the native title party had made a major concession and the agreement was within reach; and
o)From 18 January 2012 onward the grantee party’s written correspondence was drafted in an aggressive closed style.
The native title party reply makes further submissions regarding each of the elements in response to the grantee party, and I consider these further below in the context of the grantee party’s submissions to which they relate.

In Western Australia/Arthur Dimer & Ors (Ngadju People) and Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited [2000] NNTT 290 (‘Equs’), Member Patricia Lane endorsed the Njamal indicia and considered it appropriate to look at those criteria in light of the kinds of activity that might be undertaken in negotiation, noting that they fall into a series of four related obligations. Adopting a similar approach, I discuss each of the native title party’s elements and the grantee party’s responses below, in the context of these four obligations the Njamal indicia to which I consider they relate:
- An obligation to communicate and respond with other parties within a reasonable time (Njamal indicia (i), (iii), (iv), (v), (vii), (ix));
- An obligation to make proposals to other parties and respond to those proposals (by making counter-proposals or by way of comment or suggestion about the original proposal) with a view to achieving agreement (Njamal (ii), (xv));
- An obligation to seek from other parties appropriate commitments to the process of negotiation or subject matter of negotiation, and a reciprocal obligation to make either appropriate commitments to process, or appropriate concessions as the case may be (Njamal (vi), (x), (xi), (xii), (xiii), (xiv), (xvii));
- An obligation to avoid unilateral conduct which harms the negotiation process and to act honestly and reasonably in the circumstances, with a view to reaching agreement (for example, make necessary inquiries of the other party) (Njamal (xvi), (viii); (xviii).

I will discuss each of these obligations and elements in detail further below.

I also adopt Member Lane’s statement in Equs that:
If the parties do not negotiate because they fail to communicate at all, it is impossible to conclude that they have negotiated in good faith. The requirement of good faith sets the standard for behaviour of the parties in carrying out the activities involved in negotiation. It may be that parties participate reluctantly in the process. However, the statute requires their participation, and the Tribunal must have regard to their conduct viewed as a whole.

Member Lane also stated that each party must act both honestly and reasonably with a view to reaching agreement about whether the act can proceed (at [25] and [31]), and all parties are required to adhere to the same standard of negotiating behaviour, but what they do to satisfy the obligation must be judged by reference to the interests they seek to advance in negotiations, the behaviour of the other negotiation parties and the circumstances in which the negotiations take place (at [26]).

The native title party filed its further contentions on 8 October 2012 which state (at 1) that a mediation conference was convened by the Tribunal in relation to M08/477 which is directly relevant to the matter of whether the grantee party had negotiated in good faith during the negotiation period for M08/477. It states (at 2) that it is open to the native title party to raise new matters in relation to the issue of negotiation in good faith, where new facts arise that are pertinent to the issue, and cite in support State of Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot [2010] NNTTA 152 (however, I do note that it is Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot [2010] NNTTA 55 which is the good faith decision in that matter).
The native title party states (at 3) that at the mediation conference, the grantee party outlined its current position which is that it will not negotiate any further in relation to M08/477 unless a threshold issue is satisfied, being that the native title party must agree to negotiate in relation to M08/477 only as part of a broader negotiation allowing for the grant of any mining lease within the area of E08/1408. The native title party notes (at 4) that this is at odds with the grantee party’s negotiating position prior to the s 35 application, which was that it was prepared to accept an agreement in relation to M08/477 and L08/63.
The native title party contends (at 5) that the grantee party’s position, subsequent to the date of the s 35 application has, therefore, also not been in good faith. The native title party argue that the grantee party’s imposition of the new ‘threshold issue’ immediately subsequent to the lodgement of the s 35 application demonstrates:
- That the grantee party did not want to close a deal in relation or only to M08/477 and L08/63 (at 8);
- Corroboration of the native title party’s claims about the grantee party’s conduct during the negotiation period, in particular that the grantee party:
Taking into account the analysis on [24]-[36] of this determination, I find that this is an instance where good faith negotiations post a s 35 application is admissible and relevant to the overall good faith inquiry (see Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot [2010] NNTTA 55).

GOOD FAITH OBLIGATIONS

In terms of the structure of this determination, I outline below the obligations underlying the Njamal Indicia (as outlined in [18] and [41] above), in the context of the relevant elements (as raised by the native title party in [39]), the evidence as provided by parties, and my conclusions for each of the obligations at the end of each section.

Obligation to communicate with other parties within a reasonable time: elements and evidence

The grantee party insisted on completion of a heritage survey within an unrealistic timeframe, as a condition precedent for payment of a mining commencement payment (element c)

The native title party refers (at 79) to the grantee party’s draft agreement of 5 June 2012, which, at clause B4.1, makes provision for a payment of $25,000 to be paid within 28 days of commencement of mining. It notes that the grantee party had proposed clause B4.2 which stated:
Clause B4.1 has no effect unless the following conditions are satisfied:
(1) The Parties have agreed to a budget (which may be agreed prior to the Commencement Date) for the preparation of an Archaeological Survey Report and an Ethnographic Survey Report, each prepared using a Site Avoidance Survey Methodology in respect of the First Survey Area;
(2) On or before 31 July 2012, the PKKP People deliver to Pilbara Stone an Archaeology Survey Report and an Ethnographic Survey Report, each prepared using a Site Avoidance Survey Methodology, in respect of the First Survey Area.
The First Survey Area is defined as the area of M08/477 (the Inquiry Tenement) and L08/63.
In regard to the above suggested amendment to the draft agreement by the grantee party, the native title party contentions note (at 81-82) that it would require a survey to be completed and reports prepared in a shorter timeframe than the agreed timeframes for completion of heritage work provided for in Part C of the draft agreement which it had proposed, and that the grantee party draft agreement ignored the fact that there was no contractual agreement in place between the parties to facilitate the conduct of surveys. The native title party also notes (at 83) that it was at odds with the grantee party’s representation at the working group meeting of 22 March 2012 that their priority was to conduct heritage surveys in areas of their exploration license outside the area of M08/477. Finally the native title party notes (at 84) that it was unreasonable for the grantee party to make the mining commencement payment conditional on an outcome which the grantee party knew, or ought to have known, was unachievable.
In response to the native title party’s contentions, the grantee party states (at 6.31 – 6.33) that it did not ‘insist’ on any ‘completion of a heritage survey’ by its draft B4.1 and B4.2 clauses. It states that to characterise the inclusion of these clauses in the proposed agreement of June 2012 is to misunderstand the meaning of the word ‘insist’. The grantee party states (at 6.34), it should be commended for responding to the difficulties/ deficiencies of the Heritage Agreement for E08/1408 in a positive manner, providing a commercial incentive for the completion of the proposed heritage survey over M08/477 and L08/63, making clear that the grantee party was willing to agree a budget for the heritage review, and proposing a two month period for the completion of the proposed heritage surveys. The grantee party concludes (at 6.35) that in any event, the provision of the proposed agreement was nothing more than a ‘proposal’ which the native title party was entitled to accept or reject.
In its reply, the native title party states (at 18) that the grantee party ‘insisted’ on the completion of the heritage survey and finalisation of survey reports by 31 July 2012 as a condition precedent to a mining commencement payment because it included that condition in its proposed agreement of June 2012, at no time during the following correspondence did it withdraw or amend the condition, and it was one of only two outstanding issues as at the date of the s 35 application. Further, the native title party reply states (at 20) that the ‘insistence’ was unreasonable because: as at 5 June 2012, the timeframe of completion by 31 July 2012 was unachievable; the grantee party did nothing to progress a heritage survey following the native title party’s letter of 23 March 2012; and as at the date of the grantee party’s s 35 application, the timeframe was impossible to achieve (as the survey report delivery date stipulated in B4.2 of the draft agreement of 5 June 2012 had already passed).
The native title party reply notes (at 21) that if the grantee party was not insisting on completion of a heritage survey as a condition precedent for the payment of a mining commencement payment, then it should have communicated that fact to the native title party.

The grantee party failed in key respects to respond to the native title party in a timely manner (element j)

The native title party states in its contentions that the grantee party failed in key respects to respond to the native title party in a timely manner in relation to the following:
- The native title party submits (at 138) that the grantee party failed to respond in a timely manner to the native title party’s offer contained in its correspondence of 23 March 2012 to conduct heritage surveys, and the grantee party’s explanation in its letter of 12 July 2012 as to why it had not replied to the native title party’s offer to conduct surveys was ‘inadequate’. The native title party states (at 73) that the grantee party’s response to its correspondence of 23 March 2012 was its letter of 5 June 2012, in which it provided no feedback in response as to whether the standard heritage agreement that had been forwarded on 23 March 2012 was acceptable or not, or whether the grantee party wished to proceed with heritage surveys during the negotiation process. In response to the native title party, the grantee party states (at 6.82, with reference to its contentions at 6.18-6.28) that it did not agree to the heritage survey as proposed because the native title party made that agreement conditional on agreement to the conduct of the ‘Heritage Survey for E08/1408’. Also, the grantee party alleges that the native title party failed to have regard to Ms McLeish’s email of 12 April 2012 and Green Legal’s email of 5 June 2012, which the grantee party states contains a discussion of clause B4.2 of the proposed agreement and comprises a response to the native title party’s letter of 23 March 2012. In its reply, the native title party states that it does not accept that clause B4.2 of the grantee party’s draft agreement comprised a response to the native title party’s letter of 23 March 2012 (at 62) and that the decision to hold the working group meeting on 24 April 2012 was not a unilateral decision as asserted by the grantee party, indicating that the date was discussed by the parties at the previous working group meeting on 22 March 2012 (at 63);
- The native title party submits (at 139) that the grantee party failed to respond to the native title party’s invitation to comment on its amended agreement (contained in its correspondence of 12 April 2012) prior to the native title party’s meeting on 24 April 2012, held for the purpose of considering the grantee party’s agreement (and one other unrelated matter), nor provided a reasonable excuse or explanation for failing to so respond. In relation to the native title party’s letter of 12 April 2012, the grantee party states that it did not respond within the 7 business day period imposed by the native title party prior to its meeting unilaterally scheduled for 24 April 2012, as it was unreasonable to so respond in that period;
- The native title party submits (at 141) that the grantee party provided no timely response to the native title party’s letter of 7 August 2012 prior to referring the matter to the Tribunal. In relation to this, the grantee party notes that the s 35 application was lodged on 13 August 2012, and there was nothing unreasonable about the grantee party’s failure to so respond during that period. In its reply, the native title party states that the failure of the grantee party to respond to the native title party’s letter of 7 August 2012 is significant because that letter contained the outcomes of the community meeting held on 27 July 2012, and prior to that meeting the native title party had invited the grantee party to attend or be available by phone. By email of 23 July 2012, the grantee party stated that he anticipated being available by phone but that he would prefer email correspondence regarding the native title party’s acceptance or otherwise of the proposals contained in the grantee party’s letter of 12 June 2012. The native title party allege that this response created a legitimate expectation that its communication, at least regarding the meeting, would be responded to by the grantee party (at 64).

Obligation to communicate with other parties within a reasonable time: conclusion

In looking at the available evidence and information regarding this proposed licence, the context of the negotiations, and in relation to the obligation to communicate with parties within a reasonable time, I find that negotiations moved relatively quickly on both sides, given the complexity of the issues. The grantee party appears to have endeavoured to respond to communications in as timely a fashion as possible, given a period of ill health, and given a brief period of initial confusion where a Director from the grantee party also had direct communications with the native title party. Communications may also have continued to be timely if both parties had a common understanding of the points they were communicating on, at the same point in time. I do not believe this means the negotiation was not in good faith.

Obligation to make and respond to proposals: elements and evidence

The grantee party did not take up the native title party’s offer to conduct a heritage survey during the negotiation period, despite having requested one, and despite insisting on completion of a heritage survey prior to 31 July 2012 as a condition precedent for a mining commencement payment (element b)

The native title party notes in its contentions (at 68) the grantee party’s letter of 18 January 2012 regarding heritage surveys stated:
2.8 Pilbara Stone is not aware of any Aboriginal heritage undertaken over any area within the Mining Lease...
2.10 Pilbara Stone invites the Native Title Party to undertake a survey over the whole of the Mining Lease and for that purpose to provide a budget, timetable and list of participants for the undertaking of that work. The survey and resulting report must be to a standard acceptable to the Aboriginal Cultural Materials Committee (‘ACMC’) when considering any notice under s18 of the Aboriginal Heritage Act 1972 (WA).
2.11 As part of the ‘good faith’ negotiations prescribed by the NTA, Pilbara Stone would be grateful for confirmation from the Native Title Party including any requirements of the Native Title Party (at 68 emphasis added).
The native title party states in its contentions (at 69) that at the meeting on 22 March 2012, attended in part by the grantee party, the native title party expressed concern about the fact that ground disturbing activities had been taking place on E08/1408 without heritage surveys having been conducted. The native title party undertook to provide the grantee party with a heritage request form and a standard heritage agreement (at 69-71). The native title party states (at 72) that following the meeting on 22 March 2012, the native title party forwarded the grantee party a heritage request form and the native title party’s standard heritage agreement for exploration activities.
The native title party notes (at 73) that the grantee party provided no response to the native title party’s correspondence of 23 March 2012 until 5 June 2012, in which it provided no feedback as to whether the standard heritage agreement forwarded on 23 March 2012 was acceptable or not, or whether the grantee party wished to proceed with the heritage surveys during the negotiation process. However, attached to the grantee party’s letter of 4 June 2012 was an amended mining agreement which included a new clause B4.2 (being a condition precedent to the payment of $25,000 for the commencement of mining), requiring the native title party to deliver to the grantee party an Archaeological Survey Report and an Ethnographic Survey Report, each prepared using a Site Avoidance Survey Methodology, prior to 31 July 2012 (at 73).
The native title party notes (at 74) that by letter of 15 June 2012, the native title party further enquired about the grantee party’s response to its offer in regard to the heritage agreement or any feedback in regard to the agreement, and that on 12 July 2012 the grantee party responded to the native title party’s request to enter a standard heritage agreement to facilitate heritage surveys, stating:
As to paragraph 3 of your letter [of 15 June 2012], the ‘Heritage Agreement’ you forwarded addressed only the conduct of ‘exploration activities’. As was made clear to you, Pilbara Stone intends undertaking mining operations. Indeed, the ‘Heritage Agreement’ went further than simply contemplating heritage surveys. It sought to prohibit Pilbara Stone from undertaking any ‘exploration activities’ without your clients’ agreement or ultimately ‘action...available...under the general law’ (which in the circumstances I confess I do not understand). Rather than facilitating heritage surveys’, in the context of the negotiation concerning the Project Area Agreement, the ‘Heritage Agreement’ complicated the matter.
The native title party states (at 76(a)) that it considers the above statement unreasonable because it indicated at the meeting on 22 March 2012 that its priority was to conduct a heritage survey within E08/1408 but outside the area of the application M08/477, and in that context it was wholly appropriate that any heritage agreement deal with and facilitate exploration activities rather than mining operations. The native title party also asserts (at 76(b)) that that the statement that the heritage agreement ‘sought to prohibit Pilbara Stone from undertaking any ‘exploration activities’ without your clients’ agreement or ultimately ‘action...available...under the general law’ is factually incorrect. That is, it asserts that there is no such prohibition in the standard agreement.
The native title party summarises (at 78) that the grantee party’s failure to progress heritage surveys in relation to the project area during the negotiation period was unreasonable given that it had requested that such surveys take place and it insisted on completion of survey reports prior to 31 July 2012 as a condition precedent for payment of a mining commencement payment.

In response, the grantee party states (at 6.18) that it does not deny that it wished a heritage survey to be undertaken over M08/477, however, notes the native title party’s offer to undertake heritage surveys on the Inquiry Tenement was conditional on the ‘Heritage Agreement for E08/1408’ (‘heritage agreement’) being agreed to by the grantee party, which provisions went beyond the conduct of a heritage survey on M08/477 (at 6.21(1)-(2)). The grantee party states that the heritage agreement addressed only the conduct of ‘exploration activities’, whereas the grantee party made it clear it intended to undertake mining operations, and it sought to prohibit the grantee party from undertaking ‘exploration activities’ on the whole of E08/1408 without the native title party’s agreement or ultimately ‘action...available...under the general law’ (at 6.21(5)-(6)).
The grantee party further responds (at 6.21(7)) that the provisions of the heritage agreement were inconsistent with the Aboriginal heritage provisions contained in the Proposed Agreement, which, in general, had the effect of complicating the negotiations. It states that the grantee party’s first response to the heritage agreement was Green Legal’s letter dated 5 June 2012, which provided a Revised Proposed Agreement, including a new clause B4:
B4        MILESTONE PAYMENT
B4.1Pilbara Stone must pay to the PKKP People $25,000 within 28 days of commencement of Mining Operations on the Mining Lease.
B4.2Clause B4.1 has no effect unless the following conditions are satisfied:
(1)    The Parties have agreed a budget (which may be agreed prior to the Commencement Date) for the preparation of an Archaeological Survey Report and an Ethnographic Survey Report, each prepared using a Site Avoidance Survey Methodology in respect of the First Survey Area;
(2)   On or before 31 July 2012, the PKKP People deliver to Pilbara Stone an Archaeological Survey Report and an Ethnographic Survey Report, each prepared using a Site Avoidance Survey Methodology, in respect of the First Survey Area;
The grantee party asserts (at 6.24) that clause B4 provided both a financial incentive, as well as confirmation that the grantee party was willing to support a heritage survey over the ‘First Survey Area’ on a reasonable basis, including as to cost. The grantee party states (at 6.27) that it is not clear from the native title party’s letter dated 15 June 2012 why the conduct of the heritage survey was of such critical importance to the native title party, as the native title party had met its undertaking providing the heritage agreement. It notes that that document was not expressed to be a condition precedent to the grant of the proposed licence, nor to any agreement for the grant of the proposed licence. The grantee party’s letter dated 12 July 2012 explains why the grantee party declined to agree to the heritage agreement. The grantee party summarises (at 6.29) that the provision of the heritage agreement was not negotiation as contemplated by s 31(1)(b) of the Act, as it was not with a view to the native title party agreeing to the grant of the proposed license, and it conflated a heritage survey over that proposed licence with other matters irrelevant to that proposed licence.
In its reply, the native title party states (at 11) that it sent the grantee party a heritage agreement in relation to E08/1408 rather than just the area of M08/477 because that is what the grantee party requested at the meeting on 22 March 2012. The native title party also state (at 12) that the assertion that the conduct of the heritage survey was contingent on the heritage agreement being signed is not correct as the letter was not expressed in those terms. It states (at 13) that most of the items on the grantee party’s list of reasons why it did not respond to the native title party’s proposed heritage agreement were not raised during the good faith negotiation period, and if they were, could have been addressed at that time. It notes (at 14) that the only issue raised during the good faith negotiation period was the grantee party’s statement that the heritage agreement sought to prohibit the grantee party from undertaking ‘exploration activities’ on the whole of E08/1408 without the native title party’s agreement of ultimately ‘action...available...under the general law’.
The native title party states that it considers this statement misleading as Clause 8.2 and 20 of the heritage agreement contains no such prohibition. The native title party’s reply further states at (15) that the grantee party’s contentions that the revised clause B4 in the proposed agreement of 5 June 2012 constituted a response to the native title party’s invitation to sign the heritage agreement, however, the amended clause contains no such response. Moreover, it is inconsistent with the grantee party’s stated priority which was the conduct of heritage surveys outside the area M08/477.

Obligation to make and respond to proposals: conclusion

In conclusion in relation to this obligation, I do not find the grantee party failed to make and respond to proposals in good faith. The grantee party did put various proposals to the native title party, who also responded to those proposals in good faith. It appears the speed with which these negotiations were conducted, and the underlying confusion between parties over whether the negotiations focussed on the underlying exploration tenement or the proposed mining tenement M08/477, did not help parties negotiate in a way that would facilitate agreement during the normal negotiation period. For example, the meeting of 22 March was arranged relatively quickly, with the grantee party evincing a commercial imperative behind this, and the native title party also evincing a desire to move the matter toward agreement. However, I note the grantee party representative and his clients, and the native title party representatives and their clients, had only one hour and 45 minutes to discuss these complex matters at that meeting. Minutes record a claimant apologising for the rush, saying they needed help with the figures and they hoped an agreement would be reached. It appears then there may be a prospect for an agreement through the s 31 mediation process, which is running parallel to this FADA process, if parties can clarify the scope of the agreement, the heritage issue in relation to that scope, and any further issues regarding clause B.4.

Obligation to seek and apply appropriate commitment to the process of negotiation or appropriate concessions: elements and evidence

The native title party submits that the grantee party’s representations and conduct were unreasonable, inconsistent and sometimes contradictory in relation to the scope of the agreement (element a)

The native title party submits in its contentions (at 56) that the grantee party’s representations and conduct were unreasonable, inconsistent and sometimes contradictory in relation to the scope of the agreement. It states that the grantee party insisted on negotiating in relation to a broad agreement while maintaining that its priority was the grant of M08/477 and that the grantee party failed to: agree to extend negotiation timeframes to accommodate a larger area; provide any information about its proposed works outside the area of M08/477 and L08/63; take up opportunities offered to it to engage further with the native title party during the negotiation period; or provide the resources required to conduct a broader negotiation.
The native title party states that prior to 18 January 2012, the grantee party did not indicate that it wished to negotiate an agreement over any area other than M08/477, and all correspondence prior to 18 January 2012 was conducted on the basis that negotiations were to take place only in relation to M08/477 (at 57). It states that the grantee party’s letter of 18 January 2012 provides detail about the grantee party’s proposed works on the area of M08/477 and L08/63, but does not mention that the grantee party seeks an agreement over a broader area (at 58-59). The grantee party letter contains the following statement:
As you will appreciate, Pilbara Stone wishes to advance negotiations for the grant of the Mining Lease [M08/477] as expeditiously and cost effectively as is reasonable and sensible

The native title party alleges that it is only in the ‘Proposed Agreement’ which is attached to the letter that the desire of the grantee party to negotiate an agreement over a much larger area is evident (at 61), and argues that the portion of the grantee party’s letter of 18 January 2012 outlined above is ‘completely at odds’ with the content of the Proposed Agreement, which was complex and broad in scope, dealt with a much larger area than M08/477 and which would be time consuming to negotiate (at 62).

The native title party states (at 63) that at the meeting on 22 March 2012, it explained an agreement dealing only with M08/477 and L08/63 would be less complex and that negotiating a broader agreement would take more time. The native title party states that the grantee party confirmed its priority was the grant of M08/477, but it would be pleased with a broader agreement. The native title party states (at 64) that it undertook to provide an amended draft agreement, dealing with only M08/477 and L08/63, to Pilbara Stone within three weeks. It states (at 64) that at no point in any subsequent correspondence did the grantee party accept it was unreasonable to insist on negotiating a broad agreement without: agreeing to extend negotiations beyond the Act’s statutory timeframe to accommodate a larger area; providing any detailed information about its proposed works outside the area of M08/477 and L08/63; or providing the resources required to conduct a broader negotiation.
The native title party submit that, at the same time, the grantee party failed to take up other opportunities to engage further with the native title party. For example, the grantee party did not take up the native title party’s offer to conduct heritage surveys on the grantee party’s project area during negotiations, or offer to provide feedback to the native title party prior to its meeting on 24 April 2012 (at 65). It states that, in pressing for a broader agreement, the grantee party slowed the progress of what might otherwise have been a straightforward negotiation (at 66). The native title party states (at 67) that it was unreasonable for the grantee party to insist on negotiations in relation to a broad agreement whilst maintaining that its priority was the grant of M08/477.
In reply, the grantee party states (at 6.4) that it is difficult to ascertain from the native title party’s contentions what ‘representations’ and/or ‘conduct’ by the grantee party are said to be ‘unreasonable’, ‘inconsistent’ and/or ‘contradictory’. It asserts (at 6.5) that at no time did it ‘insist’ on negotiating in relation to a ‘broad agreement’, but rather, states that whilst the Proposed Agreement provided on 18 January 2012 contemplated the grant of mining leases within the area of E08/1408, the amended Proposed Agreement provided on 5 June 2012 contemplated the grant of mining leases within that portion of E08/1408 which is south of the Ashburton River. That is, the grantee party was willing to compromise and amended its Proposed Agreement to something less than a ‘broad agreement’. The grantee party notes that ‘Proposal A’ and ‘Proposal B’ set out in its letter of 12 July 2012 to the native title party was specifically ‘limited in scope to the area of M08/477 and L08/63’ as desired by the native title party. While Mr Radford’s affidavit states he believes that Ms McLeish did not say at the March 22 meeting that she intended to provide an agreement limited in scope to M08/477 and L08/63, clearly by 5 June 2012, the grantee party understood that was the focus of the native title party.
The grantee party further submits (at 6.6) that there is nothing objectionable about the grantee party ‘negotiating in good faith with a view to obtaining the agreement of each of the native title parties’ by way of a ‘project area agreement’ or ‘whole of claim agreement’, noting that this approach was endorsed in Cox at [37]. The grantee party states (at 6.9) that, additionally, the native title party did not object to negotiations including discussion with a view to the parties agreeing a ‘project area agreement’, noting in particular the native title party’s letter dated 23 March 2012, which states in part:
I confirm that it is the understanding of the parties to yesterday’s meeting that a mining agreement will shortly be negotiated in relation to M08/477 and L08/63, and potentially including other current and future tenure subject to negotiations, and that I will provide you with an amended draft within the next three weeks and as soon as possible.
The grantee party states (at 6.11) that they do not understand the native title party’s argument about extending statutory timeframes as the period referred to in s 35(1)(a) of the Act expired on 29 December 2011, and the grantee party’s s 35 application was lodged some seven months after the expiry of that period. It also states (at 6.13) that the native title party never requested the grantee party provide any information about the proposed works outside the area of M08/477 and L08/63. The grantee party states (at 6.14) that it is not clear how the heritage survey referred to would have had any effect on negotiations in good faith or increase the likelihood that the parties might have improved the foundation of the relationship. The grantee party further states that at no time did it give a commitment to respond prior to the meeting or encourage the native title party to hold the meeting at the planned time. The grantee party states (at 6.15) that at no time did the native title party request funding for the purpose ‘to conduct a broader negotiation’. The grantee party alleges (at 6.16) that the native title party cannot ignore the ‘2006 negotiations’ and say it was unaware of the desire to ‘negotiate an agreement over any area other than M08/477’, yet at the same time allege (‘as it does in element d’) that the ‘2006 negotiations’ did occur and that the royalty offered in 2012 was unreasonable in comparison to what was offered in 2006.
In reply, the native title party states (at 4) it acknowledges that by letter of 12 July 2012 the grantee party made an offer in relation to M08/477 and L08/63, however, the great proportion of that letter was concerned with pressing the issue of the broader agreement. The native title party states in its reply (at 6) that it agrees with the grantee party that it is preferable to consider a series of related future acts together rather than individually, however, states that this cannot be obligatory where it is impracticable to do so. It also states in its reply (at 9) that it was clear what it was referring to in relation to extending timeframes based on the following series of negotiations with the grantee party:
- On 17 August 2011, Ms Woods for the native title party emailed the grantee party estimating that it would take between two to three Working Group meetings and one Community meeting to finalise an agreement;
- On 6 December 2011, Ms McLeish for the native title party emailed the grantee party and estimated that the negotiation, in relation to the mining lease only, could be completed with three Working Group Meetings and one Community meeting;
- On 17 January 2012, Ms McLeish for the native title party emailed the grantee party and suggested that, following discussion with the grantee party, it might be possible to complete the negotiation, in relation to the mining lease only, in two Working Group meetings and a Community meeting;
- On 18 January 2012, the grantee party acknowledged by letter that the native title party estimated that negotiation in relation to M08/477 only could be finalised with two working group meetings and one community meeting. The grantee party offered to contribute $2,000 to the direct costs of one meeting. By the draft agreement attached to the same letter, the grantee party communicated that its intention regarding a broad agreement. However, its letter also stated that it ‘wishes to advance negotiations for the grant of the Mining Lease as expeditiously and cost effectively as is reasonable and sensible’.
In regard to the relevance of the 2006 negotiations, the native title party state in reply (at 10) that, by stating that ‘prior to 18 January 2012 the grantee party did not indicate that it wished to negotiate an agreement over any area other than M08/477’, it was referring to the time period prior to 18 January 2012 during the negotiation in good faith period for M08/477. It further states that the 2006 negotiations are relevant to the current matter but do not themselves form part of the good faith negotiation for M08/477 (see Cameron v Hoolihan (2005) 196 FLR 37; [2005] NNTTA 84 at [47]).

The grantee party did not negotiate reasonably in relation compensation payments (element d).

There was some confusion in relation to the interpretation of the dollar amounts of compensation payments in the native title parties initial contentions, which were resolved by some amendment’s put forward by the native title party in their reply. In broad terms, the native title party submitted that the grantee party did not negotiate reasonably in relation compensation payments for the following reasons:
·In 2006, the grantee party sought a claim wide agreement which would allow for the grant of any mining tenement within the native title party’s claim, with payments to the native title party of $5.00 per cubic metre of marble mined and sold from within E08/1408 (and another tenement) and $7.50 per cubic metre for marble sold from the claim outside that area.
·The native title party had then sought an agreement for the grant of tenements within E08/1408 (and another tenement) at $5.00 per cubic metre.
·That taking into account the increase in the consumer price index, the amount now being offered in 2012 was worth substantially less than what had been offered in 2006 (for example, the native title party contend the grantee party’s offer in the draft agreement of 18 January 2012 was 38 per cent of what was being offered in real terms in 2006, and the draft agreement of the grantee party dated 5 June 2012 offered approximately 51 per cent of that put forward in 2006).
·The rate of payment recommended as reasonable was almost the same as the rate offered by the grantee party in the 2006 negotiations.

The grantee party stated in their letter dated 12 July 2012, that the reasons for the differences in offers included that: the document discussed between parties in 2006 (which the grantee party states (at 54) covers an area exceeding 18, 500 square kilometres compared with the E08/1408 which covers an area of approx 70 square kilometres) was a whole of claim agreement; the Australian dollar has appreciated against foreign currencies; domestic costs have increased; and the international market for the grantee party’s product has changed since 2006.
The native title party do not accept these explanations and say rather the grantee party’s position is an arbitrary reduction in royalty payments. The native title party also contend that when they accepted the compensation offer, outlined in agreement option A as put forward by the grantee party, despite it being below Pilbara norms, the grantee party did not respond other than by making an application to the Tribunal under s 35.

The grantee party misrepresented the conduct of the native title party at the meeting of 22 March 2012 (element f)

The native title party states that the grantee party misrepresented the conduct of the native title party at the meeting of 22 March 2012, as outlined elsewhere in this determination.

The grantee party’s lawyer conducted himself in an aggressive and inappropriate manner when in attendance at the native title party working group meeting (element g)

The native title party alleges (at 125) that at the meeting on 22 March 2012, Mr Maher, the native title party’s Community Liaison Officer and employee of YMAC, asked the grantee party representatives whether the native title party were aware that the grantee party had been conducting exploration works in the area. The native title party states that Mr Green responded aggressively in a way that made some members of the native title party working group ‘intimidated and wary to speak’. The native title party state (at 126) that the working group members felt that the grantee party’s behaviour was intimidating and indicated that the grantee party did not appreciate the sensitivities involved in indigenous to non-indigenous communication and negotiation, which is relevant to the overall context of negotiations and the grantee party’s conduct.
In reply, the grantee party states (at 6.62-6.65) that the declarations of Ms McLeish and Ms Corbett reveal discrepancies as to who asked the question about exploration, what the question was and why Ms Corbett felt intimidated. It states (at 6.65) that there is no evidence that any other person in the room felt intimidated, including Ms McLeish.
On this point, I prefer the evidence outlined in the minutes of the meeting provided by the native title party, where it is recorded that both the native title party and the grantee party representative reported feeling intimidated by the responses or questions of the other. There is no question that the way parties negotiate is an important part of relationship building, and affects the likelihood of reaching an agreement, and I deal with this further in my conclusion regarding this obligation, below.

The grantee party refused to acknowledge the cultural distinctiveness of the native title party (as distinct from Aboriginal people generally) for the purpose of cultural awareness training (element h)

The native title party states in its contentions (at 128) that one of the two outstanding issues as at the date of the grantee party’s s 35 application was the content of the clause in the draft agreement regarding cultural awareness training. It states (at 129) that the grantee party’s preferred clause was as follows:
D1.1 Pilbara Stone must develop and implement an Aboriginal cultural induction program for its employees who engage in Mining Operations within the Project Titles.
D1.2 Pilbara Stone must use reasonable endeavours to ensure that its contractors and agents engaged in Mining Operations within the Project Titles develop and implement an Aboriginal cultural induction program.

The native title party’s preferred clause was as follows:

D1.1 All Pilbara Stone’s employees and contractors who work for an extended period of time within the Project Titles must complete a cultural induction program (of at least half a day duration) to be developed and implemented by the PKKP People.
D1.2 All Pilbara Stone’s employees and contractors who access the Project Titles but who do not stay for an extended period of time must be given a cultural information pack prepared by the PKKP People and containing brief introduction to the PKKP People their country, culture and traditions.
D1.3 Pilbara Stone and the PKKP People will work together to ensure that the obligations in this clause are undertaken in an efficient and cost effective manner and are performed in a way that is convenient to both parties.

The native title party contend (at 131) that it was unreasonable for the grantee party to insist, for the purposes of a cultural induction program, on conflating the native title party with Aboriginal people generally. It also states (at 132) that it is unreasonable for the grantee party to resist providing a role for the native title party in the preparation and presentation of a cultural induction program, noting that the grantee party does not have the expertise to conduct such a program.
In reply, the grantee party state (at 6.72) there is no evidence to support this allegation. It states (at 6.73) that until the native title party’s letter of 7 August 2012, the grantee party was unaware of any desire of the native title party to amend clause D1 of the grantee party’s proposed agreement. This contention was subsequently amended at the s 150 conference, as outlined at paragraph [12] of this determination, when the grantee party conceded that the native title party had sought to amend clause D1 prior to 7 August 2012.
In reply, the native title party states (at 50), that if this issue was not in contention, the grantee party should have communicated this fact to the native title party, noting that this was one of only two outstanding issues as at the date of the s 35 application. The native title party also responds (at 51-57) that the grantee party’s assertion (at 6.73) that the native title party had not previously sought to amend the clause relating to cultural awareness training is incorrect, and cites examples of prior amendments. This issue was addressed by the grantee party as stated at [85].

The grantee party was unwilling to make reasonable concessions (element i)

The native title party allege that the grantee party was unwilling to make reasonable concessions, as outlined elsewhere in this determination.

The grantee party held an inflexible bargaining position (l)

The native title party state (at 146) that the grantee party held an inflexible bargaining position because:
- The grantee party only made one offer to the native title party in relation to an agreement limited in scope to the area of M08/477 and L08/63, being that contained in ‘Proposal A’ and ‘Proposal B’ of Mr Green’s letter of 12 July 2012;
- The letter of 12 July 2012 contained two further options, Proposal C being an agreement limited in scope to the area of E08/1408, and Proposal D, being a claim wide agreement, and the letter contained a statement that:
If your clients are unable to agree to any of the above proposals, then I will assume the parties have reached an impasse.
In reply the grantee party state (at 6.89) that ‘Proposal A’ and ‘Proposal B’ are two mutually exclusive proposals, not ‘one offer’, and that the grantee party’s letter of 12 July 2012 contained four separate proposals, which represents a flexible position.

The grantee party made an inappropriate threat about negotiations for future mining tenements inconsistent with the requirements of the Act (element m)

The native title party argue at (150) that the grantee party made an inappropriate threat about negotiations for future mining tenements inconsistent with the requirements of the Act, as follows in the grantee party’s email of 23 July 2012:
I reiterate the comments in my letters dated 5 June 2012 and 12 July 2012 that Pilbara Stone believes the proposed agreement identified on its cover as ‘Draft 5-4 June 2012’ (‘Draft 5’) represents significant concessions on its part. The vast majority of the amendments proposed by your clients have been accepted. If agreement is not reached between the parties, then a similar agreement is unlikely to be offered in respect of future mining tenement
The native title party contend (at 151-152) that the threat contained in the last sentence of the email above is inconsistent with the grantee party’s obligation to negotiate in good faith in respect of future mining tenements, in so far as they fall within the scope of s 31 of the Act, and as such is inappropriate and unreasonable.

The grantee party applied for an arbitral determination at the point when the native title party had made a major concession and the agreement was within reach (element n)

The native title party contentions state (at 153) that the grantee party applied for an arbitral determination immediately following the point at which the native title party agreed substantially to the grantee party’s offer, and when there were only two relatively minor outstanding issues to be resolved. As noted elsewhere in this determination, these were clause B4.2 and D1. The native title party submits (at 154) that the time at which the grantee party makes an application can, in certain circumstances, be indicative of bad faith (see White Mining (NSW) Pty Ltd v Franks [2011] 257 FLR 205 at [33]. I agree that this will depend on the circumstances of each case.
In the grantee party’s reply, it contends (at 6.97) that an agreement was not ‘within reach’. The native title party’s letter of 15 June 2012 implies that agreement was within reach with the native title party agreeing to hold a community meeting on the basis that the:
current draft of the agreement provided that the draft is amended such that:
(a)     It is limited in scope to the area of applications M08/477 and L08/63;
(b)    The compensation rate is comparable to that previously offered by Pilbara Stone in 2006; and
(c)     The agreement allows for mandatory mediation of dispute under the agreement where one party requests it

It appears that, as at 15 June 2012, the above were the outstanding issues. The grantee party states that its letter of 12 July 2012 contained four proposals, two of which met the criteria in (a) and (c) in the above extract.

The grantee party does not specifically state what its view was of (b) above at that time, but from other submissions made by the grantee party, it appears the grantee party was not going to make such an offer. The native title party’s letter of 7 August 2012 then raised the issues:

(a) that the grantee party should pay the native title party $25,000 following commencement of mining operations on the Inquiry tenement without having completed heritage surveys (as a consequence of deleting clause B4.2); and
(b) a new clause D1 which provided for a new ‘cross-cultural awareness program’.[1]
[1] Noting comments elsewhere in this determination that this was not in fact a ‘new’ clause, as a similar clause had been raised previously.

Also, the native title party clarify (at 71) that the ‘concession’ it referred to was that it had agreed to enter into an agreement that included compensation substantially lower than what its independent financial advisor said was reasonable. The native title party indicate (at 72-73) that its agreement was subject to clause B4.2 being deleted, because the native title party considered it unreasonable, as well as being subject to amendment of the cross cultural awareness program (clause D1) because the native title party believed the original clause to be culturally inappropriate, created little cost burden on the grantee party, and that the amendment was of mutual interest to the parties.

Obligation to seek and apply appropriate commitment to the process of negotiation or appropriate concessions: conclusion

In conclusion in relation to this obligation, I make a number of observations. As referred to earlier, Brownley outlined some of the things which were not good faith negotiation techniques, including delay, obfuscation, intransigence, and quibbling over petty details. I do not see clear evidence of such in this matter. Rather, I see a grantee party working within an environment of commercial imperative, and a native title party working within a complex decision making environment, and both parties working toward reaching an agreement which meets each of their needs.
I am concerned about the native title party allegation that the grantee party appeared aggressive and inappropriate, including at the 22 March 2012 meeting. As noted above, minutes of the meeting from the native title party record both parties feeling intimidated at some stage. This is certainly not an ideal environment in which to negotiate. Due to the nature of the decision making process used by the native title party, many people can be present at a negotiation meeting, which can be intimidating to a grantee party representative or their clients. On the other hand, the manner in which a grantee party or their representative conduct themselves must be of the utmost sensitivity, including cultural sensitivity to the norms of any group to which the grantee party is addressing remarks or answers to questions. If a member of that group reports feeling intimidated, the grantee party is bound to explore that sensitivity, because failing to do that could undermine the negotiations. I do not believe in this case such communications were from a lack of good faith on the part of the grantee party representative, but certainly there appears to have been statements made in a manner which did not facilitate the negotiation process. This is something that any negotiator needs to take into account, and adjust their presentation accordingly, should they wish to create an environment which has the best chance to facilitate the reaching of an agreement.
Making a s 35 application in itself is not an indicator of lack of good faith. In this matter, the grantee party did amend timeframes, provide counter offers, and provide information about the proposed licence and the wider working environment of E08/1408 (see for example, the grantee party’s original application for the M08/477 in March 2011 and the 18 November 2011 information provided to the native title party at the request of the Government party, which did cover proposed works for the area of E08/1408). The grantee party did not agree to fund any meetings, beyond a fixed amount, and previous determinations of the Tribunal establish this is not an issue of lack of good faith.
The change in position of the grantee party from the 2006 negotiations is explained by the grantee party in terms of changes in circumstances, which appear reasonable given the changes in the world economy, and do not appear to be arbitrary. Similarly, by the grantee party indicating that similar offers may not be made in the future, or drawing a line in the sand in relation to how far negotiations can progress from one parties point of view, I would see as a negotiation technique, rather than an expression of lack of good faith.
I do not find the grantee party exhibited behaviour which went as far as to say it demonstrated a lack of good faith in relation to this obligation.

Obligation to avoid unilateral conduct which harms the negotiation process and to do what a reasonable person would do in the circumstances: elements and evidence

From 18 January 2012 onwards the grantee party’s written correspondence was drafted in an aggressive closed style (element o)

The native title party allege in a general statement (at 156-157) that from 18 January 2012 onwards the grantee party’s written correspondence was drafted in an aggressive, closed style. In response, the grantee party submit (at 6.104) that to the extent that the Tribunal might consider correspondence ‘style’ (as opposed to substance), this is not a factor relevant to assessing whether a party has negotiated in good faith. Alternatively, it submits that that the grantee party’s correspondence was not of a style which could be characterised as ‘aggressive’ or ‘closed’. The grantee party further submits that the native title party adopted an overly sensitive approach to negotiations, allowing itself to be improperly influenced by such sensitivities.

The grantee party was conducting ground disturbing works on E08/1408 and on the area of the mining lease without conducting prior heritage surveys with the native title party (element e)

The native title party states in its contentions (at 102-105) that the grantee party was conducting ground disturbing works on E08/1408 and on the area of the mining lease without conducting prior heritage surveys with the native title party. It states (at 107) that ensuring the conduct of heritage surveys prior to undertaking ground disturbing works is a fundamental concern to the native title party as there are yinta sites, within or within the near vicinity of E08/1408 of high cultural significance, as evidenced by the declaration of Ms Corbett. It contends that the grantee party’s failure to conduct heritage surveys (or comply with the relevant Department of Indigenous Affairs’ guidelines) is demonstrative of a careless attitude to heritage issues which is a relevant part of the context of the negotiations.
The grantee party contends (at 6.50) that whether it has undertaken heritage surveys is irrelevant to the question of whether it negotiated in good faith, and should not be confused with the fact that the grantee party did negotiate in good faith with a view to undertaking the heritage surveys over the proposed tenement.
In response, the native title party states (at 36) that the grantee party’s conduct in regard to this element is relevant because:
·   In the ordinary course of events when a proponent applies for a mining lease there will already have been some on-ground heritage surveys conducted as part of the exploration process, and the native title party will therefore have some idea about where the proposed works are located and whether there are sites or other important landscape features in the area;
·   No such surveys had been conducted in the current matter and the native title party had to rely only on maps of the area, which can be difficult to interpret for older Aboriginal people with limited literacy;
·   The native title party was keen to conduct heritage surveys in the area during the negotiation period but this was not accommodated by the grantee party. Notwithstanding this, the grantee party insisted on completion of a heritage survey within an unreasonable time period as a condition precedent for a mining commencement payment; and
·   The fact that the grantee party has been conducting ground disturbing works without first doing heritage surveys demonstrates that the grantee party does not follow normal industry practice nor adopt usual risk management systems in relation to heritage matters.

The grantee party’s legal representatives used information about a mining agreement with a third party to which he had become privy in a confidential capacity to try to undermine the native title party’s position (element k)

The native title party contend (at 143) that the grantee party’s legal representatives used information about a mining agreement with a third party to which he had become privy in a confidential capacity to try to undermine the native title party’s position, with reference to the grantee party’s letter of 12 July 2012 as follows:
I...do not understand why you see any of the reasons set out in your paragraph 10 (of the native title party’s letter of 15 June 2012) as prohibiting your clients from completing an agreement which contemplates the grant of future mining tenements. Could you please advise me whether your clients have ever entered into such an agreement. Indeed, could you please advise me whether your clients entered into agreement during July 2012. In this regard, you may wish to speak with Ms Huia Woods of your office.
The native title party states (at 143-145) that the fact that the native title party entered into an agreement with an unrelated third party that allows for the grant of future tenements is not in the public domain (but was known to the grantee party because he was involved in those negotiations), and it was inappropriate for him to disclose confidential information in this manner.
In response, the grantee party states (at 6.85-6.86) that the native title party have not sufficiently particularised their allegations in regard to the reference to, and disclosure of, confidential material, or how the native title party’s position has been ‘undermined’ as a result (at 6.87).

Obligation to avoid unilateral conduct which harms the negotiation process and to do what a reasonable person would do in the circumstances: conclusion

In conclusion in relation to this obligation, I refer to my comments earlier in this determination regarding sensitivities in communications between negotiation parties. These comments were made largely in relation to conduct at the 22 March meeting, but apply equally to written correspondence. It is not clear whether the native title party brought their concerns about the style of correspondence to the attention of the grantee party prior to this arbitration process. Even had they done so, I do not believe such goes as far as to be negotiating in the absence of good faith. However, to persist in such communications, where one party has reported those communications to be problematic for themselves or their clients, could go to the issue of good faith in some circumstances, and all parties to a negotiation should be sensitive to that possibility.

In relation to the issues of heritage surveys, once again this highlights the problematic nature of these negotiations in general, where parties did not seem to have a common understanding of whether it was the underlying exploration tenement E08/1408, or the mining tenement M08/477, which was the subject of negotiations at any one time. Finally, in relation to the allegation regarding confidential information, I agree that the issue does not appear to have been made out sufficiently for me to comment on it further.

Overall Conclusion

On the available evidence, I consider that both parties believed they were communicating, having discussions, or conferring with a view to reaching an agreement, in the Njamal indicia sense. While both parties understood the actual issues which were the subject of the negotiations (for example, the scope of the agreement, heritage issues, compensation issues), they appeared to lack a common understanding of the issues they were actually negotiating about at any one point in time. Offers were put, and counter offers were made on both sides which missed the mark of the offers. Time pressures, commercial imperatives, and the complex decision making process which necessarily is used in such matters all added to the complexity of these negotiations, and the parties’ inability to reach agreement, up to the present time. If parties can sit down with a common understanding of their respective interests on any one issue, at the same point in time, there is hope that an agreement could be reached prior to an arbitral determination of this Tribunal.
For the reasons set out above, I find that the arguments advanced by the native title party in support of its allegation that the grantee party has failed to negotiate in good faith have not been made out.

Decision

The grantee party negotiated in good faith with the native title party in relation to the proposed tenement M08/477, as required by s 31(1) of the Native Title Act 1993 (Cth). Consequently, the Tribunal has power to exercise its jurisdiction in relation to the future act determination application brought by the grantee party on 13 August 2012.

Helen Shurven
Member
6 November 2012