Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli

[2018] NNTTA 81

NATIONAL NATIVE TITLE TRIBUNAL

Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli [2018] NNTTA 81(20 December 2018)

Application No: WF2018/0005

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

- and -

IN THE MATTER of a determination pursuant to s 38 of the Native Title Act 1993 (Cth)

Rusa Resources (Australia) Pty Ltd

(grantee party)

- and -

Sharon Crowe and Others on behalf of Gnulli (WC1997/028)

(native title party)

- and -

State of Western Australia

(Government Party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:

The Hon John Dowsett AM, President

Place:

Brisbane

Date:

20 December 2018

Catchwords:

Native title – future act – s 35 application for a determination - petroleum exploration permit application STP-EPA-0110 – jurisdiction – power – whether grantee party has negotiated in good faith – grantee party has negotiated in good faith – s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect of the act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – determination that the act may be done

Legislation:

ss 29, 30, 30A, 31, 35, 36, 38, 39, 233 Native Title Act 1993(Cth)

Aboriginal Heritage Act (1972) (WA)

ss 5, 9, 29, 38, 43 Petroleum and Geothermal Energy Resources Act 1967 (WA)

Cases:

Charles, on behalf of Mount Jowlaenga Polygon#2 v Sheffield Resources Limited [2017] FCAFC 218

Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690

FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141

Representative of the grantee party:

Mr Chas Lane, Director, Rusa Resources (Australia) Pty Ltd

Representatives of the native title party:	Mr Eldon Stone, Yamatji Marlpa Aboriginal Corporation
Representatives of the State:	Ms Melanie Jorgensen, Department of Mines, Industry Regulation & Safety Ms Sarah Power, State Solicitors Office

REASONS FOR DECISION

INTRODUCTION

1. On 14 April 1997 Gwen Peck and others filed, in the Federal Court of Australia, an application pursuant to s 61 of the Native Title Act 1993 (Cth) (the “Native Title Act”). On the same day the application was entered in the Register of Native Title Claims. The application is made on behalf of the Gnulli People. I shall refer to the applicant in those proceedings as “Gnulli”.

2. At some time shortly before 4 December 2013 the State of Western Australia (the “State”) gave notice pursuant to s 29 of the Native Title Act (the “notification”), that it intended to grant petroleum exploration permit STP-EPA-0110 (the “permit”) to Rusa Resources (Australia) Pty Ltd (“Rusa”), such grant to be pursuant to the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the “PAG Act”). The grant would be a future act as that term is defined in s 233 of the Native Title Act, and so is regulated by Subdiv P of Div 3 of Pt 2 of that Act. In effect Subdiv P confers upon Gnulli the right to negotiate with regard to the proposed future act. Pursuant to ss 29, 30 and 30A of the Native Title Act, Gnulli, the State and Rusa are negotiation parties. Sections 31(1) and 31(2) provide:

   (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 a view to obtaining the agreement of each of the native title parties to:

   (i)        the doing of the act; or

   (ii)the doing of the act subject to conditions to be complied with by any of the parties.

   (2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.

3. The reference to the expedited procedure is not presently relevant.

4. Pursuant to s 35 any negotiation party may apply to this Tribunal for a determination pursuant to s 38 of the Native Title Act, provided that a period of six months has passed since the notification of the proposed grant, and there has been no agreement. The Tribunal may determine that the proposed future act may be done, may be done subject to conditions or must not be done. However, pursuant to s 36(2), if a negotiation party satisfies the Tribunal that any other negotiation party (apart from a native title party) has not negotiated in good faith, the Tribunal must not determine the application. As was pointed out in FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 at 143, the limitation pursuant to s 36(2) is upon the Tribunal’s power, not its jurisdiction. I should add that in Charles, on behalf of Mount Jowlaenga Polygon#2 v Sheffield Resources Limited [2017] FCAFC 218, the majority held that where negotiations continue after an application has been made pursuant to s 35, the good faith obligation may apply to such negotiations.

5. In the present case, negotiation has extended over a number of years, although it has sometimes been sporadic. At all material times, Rusa has been represented by Mr Chas Lane (“Mr Lane”). He is not a lawyer. Gnulli has been represented by Yamatji Marlpa Aboriginal Corporation (“YMAC”). On 17 February 2015 Rusa applied for a determination pursuant to s 35. On 16 July 2015 the Tribunal found that Rusa had not negotiated in good faith. Hence no determination could be made on that application. Negotiations have continued, but no agreement has been reached. On 17 July 2018 Rusa made the present application pursuant to s 35.

   THE PROPOSED FUTURE ACT

6. The permit would authorize Rusa to:

   Explore for petroleum and to carry on such operations and execute such works as are necessary for that purpose in the permit area for a term of 6 years from the date the grant becomes effective and may be renewed for a further two five year terms.

7. In s 5 of the PAG Act, the term “petroleum exploration permit” is defined as meaning:

   … a permit that confers the authority referred to in section 38(1) … .

8. Section 38(1) of the PAG Act provides:

   A petroleum exploration permit, while it remains in force, authorises the permittee, subject to this Act and in accordance with the conditions to which the permit is subject, to explore for petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area.

9. Section 29 of the PAG Act effectively forbids such exploration other than pursuant to a permit under s 38. For the purposes of s 29, the term “explore for”:

   in relation to petroleum … includes to conduct any geophysical survey the data from which are intended for use in the search for petroleum … .

10. Concerning the imposition of conditions, s 43 of the PAG Act relevantly provides:

    (1)A permit may be granted subject to such conditions as the Minister thinks fit and specifies in the permit.

    …

    (2)The conditions referred to in subsection (1) may include conditions with respect to work to be carried out by the permittee in or in relation to the permit area during the term of the permit, or amounts to be expended by the permittee in the carrying out of such work, or conditions with respect to both of those matters, including conditions requiring the permittee to comply with directions given in accordance with the permit concerning those matters.

11. The permit will cover an area which lies entirely within the boundaries of the area covered by Gnulli’s native title application.

    GOOD FAITH

12. Gnulli again asserts that Rusa has not negotiated in good faith pursuant to para 31(1)(b) of the Native Title Act. In determining whether Rusa has negotiated in good faith, I must examine the course of the negotiations. Before doing so, I shall say something about the notion of good faith. It concerns state of mind. As much appears from the observations made by the Full Court of the Federal Court in Cox (supra) at [18]‑[27]. In particular at [19]‑[20] the Court said:

    19The expression ‘negotiate in good faith’ is to be construed in its natural and ordinary meaning and in the context of the Act as a whole:  Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 at 319. Accordingly, the act of lodging an application under s 35, taken alone, cannot be relied upon in order to establish bad faith in the negotiating process (Strickland at 322). If negotiations reach a standoff, notwithstanding attempts in good faith to negotiate within the relevant six month period, there are no further obligations after the completion of the six month period on a party which wishes to lodge a notice under s 35 of the Act. There is no need, for example, to give further warning of the intention to do so.

    20It has been repeatedly recognised that the requirement for good faith is directed to the quality of a party’s conduct.  It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in the negotiations:  see, for example, Brownley v Western Australia (No 1) (1999) 95 FCR 152 at [24]-[25] per Lee J, Strickland 85 FCR 303 at 319-320 and Western Australia/Thomas on behalf of the Waljen People/Anaconda Nickel Ltd [1998] NNTTA 8 at [7]-[18].

13. The Court further observed that:

    ·it is not sufficient, in order that negotiations be in good faith, that the parties merely ‘go through the motions’ with closed minds or rigid or predetermined positions ... (at [24]);

    ·engagement in disingenuous conduct amounting to obfuscation and pettifoggery may lead to a finding of absence of good faith (at [25] and [26]); and

    ·the term ‘Good faith’ is to be construed contextually (that is, it is necessary to identify what the ‘good faith’ obligation is intended to achieve); the ordinary meaning of ‘good faith’ should apply; absence of good faith may be demonstrated where the failure to advance the negotiations is caused by some breach of, or absence of good faith such as deliberate delay, sharp practice, misleading negotiating or other unsatisfactory or unconscionable conduct (at [27]).

14. In the more recent decision of Sheffield (supra), White J said:

    94Negotiating in good faith has been said to involve acting honestly, without ulterior motive or purpose, with an open mind, willingness to listen, willingness to compromise, an active and open participation of the other parties, and the making of every reasonable effort to reach an agreement: Brownley v Western Australia [1999] FCA 1139, (1999) 95 FCR 152 at [20], [23]-[24]; Walley v Western Australia [1999] FCA 3, (1999) 87 FCR 565 at [7]. Delay, obfuscation, intransigence and pettifoggery have been said to be indicia of a want of good faith: Brownley at [25]. Negotiation in good faith is not confined to the making of a reasonable offer: Walley at [15].

    95The conduct of the negotiating parties is to be assessed objectively.  In Western Australia v Taylor (1996) 134 FLR 211, the Tribunal listed a number of indicia (known as the Njamal Indicia) which may bear on the question of whether a party has negotiated in good faith.

    96The obligation imposed by s 31(1)(b) is a single composite obligation. The Negotiating Parties are obliged “to negotiate in good faith” with a view to obtaining agreement of the stipulated kind. Section 31(1)(b) is not to be understood as imposing separately an obligation to negotiate and an obligation to do so in good faith. It may be natural for the purposes of some analysis to separate out these aspects of the obligation. This was the understanding of s 31(1)(b) for which the appellants contended. However, I consider it plain that the statute imposes a single composite obligation.

    97Section 31 does not in terms specify any period during which the obligation to negotiate in good faith remains current. It seems implicit in s 31 that the obligation commences upon the Governing party giving the s 29 notice. There is no reason to suppose that the expiry of the six month period fixed by s 35(1)(a) operates by itself to terminate the obligation. Obviously enough, the obligation concludes on the making of an agreement of the s 31(1)(b) kind.

15. Although White J dissented in the ultimate outcome, there is no reason to doubt the correctness of the above observations. In the present case, negotiation in good faith must be with a view to achieving Gnulli’s agreement to the proposed grant. Such negotiation may address the matters identified in s 33, but is not limited to those matters. Section 31(2) significantly limits the matters about which the parties must negotiate in good faith.

16. Section 36(2) contemplates a negotiation party undertaking the burden of satisfying the Tribunal that another negotiation party has not negotiated in good faith.  The question is not as to the adequacy of the latter party’s negotiation technique or strategy.  The question is whether that party’s behaviour demonstrates that it has not negotiated in good faith.  The conduct of all other parties may be relevant in considering whether a party has been guilty of conduct which is in some way inconsistent with the duty imposed by para 31(1)(b).

    The previous application

17. That the Tribunal has previously held that Rusa failed to negotiate in good faith does not necessarily lead to the conclusion that subsequent negotiations are similarly infected. The Native Title Act seems to contemplate that after such a finding, negotiations may continue. It follows that, notwithstanding an earlier finding of absence of good faith, a party may discharge the obligations imposed by para 31(1)(b) in subsequent negotiations. No suggestion to the contrary has been made by any party to the present proceedings. However Gnulli submits that the prior finding of absence of good faith may be relevant to the present application. For that reason, I should say something about the Tribunal’s earlier decision.

18. In the previous application, Gnulli identified 11 matters said to go to absence of good faith.  In the present application, Gnulli’s allegation of want of good faith is more narrowly based and, in general, addresses events which have occurred since November 2016.  The primary theme in the current proceedings is Rusa’s refusal to accede to Gnulli’s demand that it fund the latter’s costs of participating in negotiations with Rusa.  That matter was also raised in the earlier proceedings.  The Tribunal concluded that Rusa’s conduct in that regard did not, by itself, evidence want of good faith.  Another significant issue in the previous, and the present proceedings was, and is, cultural heritage protection.  A further matter in the current proceedings is whether Rusa should be able to use an exploration method known as “hydraulic fracturing” (“fracking” or “fraccing”).  This concern was not raised in the previous proceedings.  In assessing the subsequent conduct of the negotiation parties for present purposes, I keep in mind the fact that all parties must now be taken to be aware of the matters raised and decided in the earlier proceedings.  Thus matters of which a negotiation party was unaware during the earlier negotiations, must now be well-known to such party.  Below, I identify the matters addressed by the Tribunal in the previous proceedings, and seek to demonstrate the way in which it disposed of each of them, identifying the relevant paragraphs.  In some cases, I simply quote the relevant paragraphs.  In others, I attempt to summarize the reasons.  I need not explain in detail the material considered by the Tribunal.  It is the overall effect of the Tribunal’s decision which is presently relevant.

    Were Rusa’s responses to Gnulli’s requests for information, sufficient, relevant and timely?

    The delay in providing the financial information was not in itself a breach of good faith. Nevertheless, the fact that Rusa’s true financial position was not disclosed to Gnulli at the outset did colour the negotiations that followed.  If it had been disclosed at an earlier stage, other options might have been put forward and explored.  As it was, the negotiations proceeded on the understanding that Rusa’s project would involve significant financial resources to meet the costs of their $8.1 million exploration work program.  It was not until November 2014 that it became clear to Gnulli that Rusa presently lacked those financial resources.  Even then, it may not have been apparent that Rusa did not have the means to make any immediate financial commitments to Gnulli.  In the circumstances, the failure to disclose this information early on may have led Gnulli to believe that the type of arrangements they sought were capable of being met by Rusa.  Consequently, this had an adverse effect on the way the negotiations were conducted and resulted in Gnulli expending resources they may not otherwise have.  However, I am not satisfied the delay in providing the information of itself constituted a lack of good faith on the part of Rusa.  [At [25]]

    Was Rusa’s financial offer reasonable and realistic?

    Rusa and Mr Lane were aware that the initial offer made to Gnulli was low, by Mr Lane’s own admission and according to Gnulli’s representatives.  However, I am not satisfied on the material before me that the offer was so unreasonable or unrealistic that it could not be regarded as a genuine offer.  [At [33]]

    Did Rusa adopt a rigid, ‘take it or leave it’ approach to the financial offer once it was made?

    In conclusion, whilst Rusa did revise their initial compensation offer, it was made on the basis of a condition to ‘fast track’ negotiations by using a previous agreement as a template.  This conditional form of negotiation placed Gnulli at a disadvantage and to couch the offer in such a way risked good faith: Rusa’s ‘fast track’ position bordered on being rigid and non-negotiable. …  Furthermore, it was poorly executed.  When it was made clear that the ten year old Empire Oil agreement was not a template acceptable to Gnulli, Mr Lane was only able to locate a South Australian conjunctive agreement from the early 2000s as a substitute.  By his own admission the agreement wasn’t suitable in its current form as the task of incorporating the agreed YMAC protocol into it ‘would not be possible without considerable re-writing to merge the two’ (DDF20).  Mr Lane’s skills were evidently limited to adapting existing agreements, and so Rusa made the decision to abandon the YMAC heritage protocol and offer the agreement ‘with its CH [cultural heritage] procedures’ instead.  This offer only confused the negotiations.  At the last meditation [sic] meeting in February 2015, no one disputed that Rusa’s draft agreement required substantial work ‘to get it into a form acceptable to both parties’ and Mr Lane proposed that the term ‘fast track’ no longer be used.  This suggests a degree of awareness that it was no longer reasonable for Rusa to adhere to the approach they had advocated as Mr Lane and Rusa were unable to bring a suitable template agreement to the table and they didn’t have the requisite drafting skills to develop one.  [At [41]]

    Did Mr Lane have authority to negotiate on behalf of Rusa?

    While there is no evidence Mr Lane communicated Gnulli’s counter offer to Rusa’s directors, there is nothing to suggest he had limited authority to negotiate or that particular matters were beyond the scope of his authority.  Mr Lane states he did not have authority to agree to a signature payment without reference to the directors, but did have authority to reject it.  There were clearly limits on what Rusa was prepared to negotiate about in terms of compensation and other financial benefits and Mr Lane acted within those limits.  [At [42]]

    Was Rusa’s position on funding the negotiations reasonable?

    Considering the extensive correspondence between the parties and the obvious logistics involved in organising Mr Lane’s attendance at the working group meetings, Rusa’s assertion that the ‘actual outgoings … of accommodating Rusa at these meetings was nil’ is unreasonable (Rusa Submission 3 page 5).  Although these costs have not been quantified, it can be accepted that time spent on negotiations with Rusa, whether during the meetings or otherwise, was time that could otherwise be spent on other matters.  In this respect, Gnulli made significant concessions on the funding of negotiation meetings.  However, that does not mean that Rusa was required to make similar concessions.  Rusa’s position on funding, is not on its own, evidence of unreasonable behaviour amounting to a lack of good faith.  [At [51]]

    Did Rusa behave reasonably regarding the provision of draft agreements?

    Although Gnulli again rejected the proposal to adopt a previously negotiated agreement, Mr Lane continued to maintain at the fifth mediation meeting on 8 December 2014 that, ‘as parties are fast-tracking the matter, he is able to increase Rusa’s [financial] offer’ … .  The revised offer was not provided until 19 December, in an email to Mr Farrell enclosing a draft agreement based on a conjunctive South Australian petroleum agreement.  On this occasion, it was made clear that ‘the increased compensation payments are offered on the “fast-track” condition, that is that the draft provided here forms the basis of our agreement in a reasonable period of time’ … .  As stated previously at [41], this conditional form of negotiation risked good faith.  [At [58]]

    Did Rusa shift positions on the terms of an agreement?

    Despite stating that Rusa ‘can live with most things’ in the YMAC heritage protocol, when Rusa provided their own draft agreement in December 2014, the agreement included its own cultural heritage procedures.  Mr Lane says he eventually accepted the YMAC heritage protocol at the 11 February 2015 mediation meeting and Mr Farrell then undertook to incorporate the heritage protocol into Rusa’s draft agreement (Rusa Submission 2 page 1).  These shifts in position not only had the effect of frustrating the progress of negotiations, but they also meant the parties had little opportunity to engage on other aspects of a possible agreement.  [At [63]]

    Did Rusa have reasonable expectations about the length, cost and complexity of negotiations?

    As discussed above, Rusa’s limited financial means influenced their position on funding and compensation, but it also seems to have informed Rusa’s decision to insist on adopting a previous agreement, and their subsequent ‘fast track’ proposal.  Motivated by costs and a view that negotiations would be ‘simple’ because their work program was ‘conventional’, Rusa’s strategy was not to provide resources towards meetings and drafting, and to push for a template agreement in an attempt to minimise costs.  From the outset, Rusa attempted to direct an approach that underestimated the complexity of negotiations, especially regarding the development of a workable agreement.  When Mr Lane attempted to adapt a South Australian conjunctive agreement to fit, it should have been clear to Rusa that there was no ‘off the shelf’ agreement to suit the particular circumstances and that their approach was poorly conceived.  It was obvious at this point that Rusa’s flawed plan had failed and not because of any unwillingness on the part of Gnulli.  They still endeavoured to work with Rusa’s chosen approach:  At the last mediation meeting on 16 February, Mr Lane and Mr Farrell agreed that Mr Farrell would undertake the task of ‘building the YMAC heritage protocol into Rusa’s draft exploration agreement’ … .  The following day, Rusa lodged their application for a determination. Mr Lane stated:

    I have submitted a request for determination to the NNTT.  It has become clear from the recent mediation session that reaching an agreement with the Gnulli will not happen in the foreseeable future. …

    [At [69]]

    Did Rusa allocate the financial and technical resources meaningfully to engage in the negotiations?

    [70]The person seeking the benefit should contribute resources towards achieving the agreement of another party.  The appropriate level of resources is of course measured against the potential benefit, which in this matter is a petroleum exploration program in excess of $8 million.  Mr Lane states he is experienced in native title negotiations, however his capability for drafting an appropriate agreement is not apparent.  It is evident that the work required some expertise which Mr Lane did not possess.  Instead, at the last mediation meeting, Mr Farrell agreed to undertake the task of incorporating the agreed heritage protocol into the template agreement provided by Mr Lane.

    [71]Although I make no finding as to whether Rusa had sufficient financial resources to commence negotiations with Gnulli (see [21] above), the issue is relevant to Rusa’s conduct during the negotiations.  Rusa’s limited financial means clearly influenced their position on funding, compensation, template agreements and their subsequent ‘fast track’ proposal.  As I noted above, the only reasonable interpretation of the ‘fast track’ condition was that the increased compensation would only be made if Gnulli agreed to narrow the scope for further negotiation and expedite the grant of the permit.

    [72]In Rusa’s submissions, Mr Lane sought to represent the proposal as a quid pro quo or ‘giving something in return for something back’:  the increase in the financial terms was offered in exchange for Gnulli ‘accelerating’ the process of drafting an agreement by using a prior agreement as a template (see Rusa Submission 3 page 5).  Mr Lane’s characterisation is merely a gloss on the fact that, as a consequence of the limited resources available to Rusa, there was a real prospect of further delay and expense in obtaining the grant of the permit.  More resources were required from Rusa at this point, not less.  If Rusa was not prepared or able to employ the appropriate resources to progress the agreement, it should have allowed further time for Gnulli to use theirs.

    Did Rusa act reasonably when it applied to the Tribunal for a determination?

1. The Tribunal accepted that a party was entitled to apply for a determination, and that such an application cannot, by itself, establish a lack of good faith.  Nor may the adoption of a particular negotiating position found such a conclusion, unless the position is the product of an improper motive, or is so unreasonable that it indicates insincerity.

2. The Tribunal then rejected various submissions made by Rusa concerning Gnulli’s conduct.  It found that Gnulli had accommodated Rusa and negotiated in a timely way.  It found that Rusa had delayed in providing a draft agreement and that, when provided, it was not in an acceptable form.  Gnulli offered to attend to the necessary drafting.

3. The Tribunal considered this conduct in comparison to that in another case and concluded that Rusa had not acted reasonably in applying for a determination.  At [73]‑[80].

   Considering Rusa’s overall conduct, does Rusa meet the threshold for good faith?

4. The Tribunal concluded at [88] and [89] that:

   [88]     Overall, Rusa’s conduct does not meet the threshold for good faith.

   [89]I am not satisfied that Rusa Resources (Australia) Pty Ltd negotiated in the manner required by s 31(1)(b) of the Native Title Act. Therefore the Tribunal is not empowered to deal with the application and the application is dismissed under s 148(a).

5. It is not for me to question the correctness of the approach taken in those earlier proceedings. However it may be that these conclusions reflect the wording of para 31(1)(b) rather than the wording of s 36(2). It is the latter provision which deprives the Tribunal of power to make a determination pursuant to ss 35 and 38. Section 36(2) provides:

   If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make the determination on the application.

6. Clearly, s 36(2) places upon Gnulli the burden of establishing that Rusa has not negotiated in good faith.  It is not incumbent on Rusa, or anybody else to prove that it has negotiated in good faith.

   The Negotiations

7. I am primarily concerned with the course of negotiations following the earlier decision, and until the present time. I accept that my consideration of such negotiations may be informed by the earlier negotiations and, perhaps, the Tribunal’s earlier decision. However Gnulli has not demonstrated any real relationship between the two courses of negotiation, other than by submitting that Rusa is a recidivist in bad faith negotiation. The parties have not assisted greatly in analysing the more recent course of negotiations. In particular, in their submissions, they have been selective in their references to the evidence and, on occasions, unrealistic in their partisan interpretations of events. Some submissions have been potentially misleading. Below, I set out a brief summary of the negotiations as best I can, having regard to the evidence provided. In general, those negotiations are recorded in correspondence between the parties, including documents described as “draft term sheets”, and summaries of proceedings in mediation conferences conducted in the Tribunal. Those summaries have been put into evidence by the parties without stipulating any limitation upon their use. In those circumstances, the limitation contained in s 31(4) does not apply.

8. It seems that following the earlier Tribunal decision, negotiations were in abeyance until 29 November 2016 when Rusa wrote to Mr Trees at YMAC.  At this time, Rusa seems to have expected that a cultural heritage protocol developed by YMAC would be adopted by the parties.  I should say that throughout the material before me, the so‑called protocol is sometimes referred to as a “plan”, an “agreement” or a “template”.  I shall use the word “protocol” to describe any terms concerning cultural heritage protection.  With the letter Rusa forwarded a draft term sheet which contained terms proposed by Gnulli on 31 October 2014 and a revised offer by Rusa.  At a later stage I shall say more about the draft term sheets.  Rusa also offered to pay $2,500 towards the cost of a full day meeting with a “sub-group” of the Gnulli Working Group.  It seems that this letter was re‑sent on 20 December 2016, presumably because there had been no response.  In the documentation the terms “Gnulli Working Group” and “Working Group Meeting” are used frequently, the latter term describing a meeting of the Gnulli Working Group.  I shall use the abbreviations “GWG” and “WGM” which abbreviations are also used in the documentation.

   Draft term sheets

9. At [12] in the Tribunal’s earlier decision, the history of negotiations between 11 March 2014 and 17 February 2015 are described. The first of those dates was that upon which Rusa sought mediation in the Tribunal. The latter date was the date upon which Rusa made its earlier application for a determination pursuant to s 35 of the Native Title Act.

10. There are five documents entitled “draft term sheet”.  They describe offers and counter‑offers made by Gnulli and Rusa as follows:

    ·31 October 2014:        counter‑offer by Gnulli;

    ·29 November 2016:     offer by Rusa;

    ·7 May 2018:               offer by Rusa;

    ·11 June 2018:              counter-offer by Gnulli; and

    ·15 August 2018:          offer by Rusa.

11. Nothing turns upon the description of any proposal as an “offer” or a “counter‑offer”.

12. The first five items on p 1 of each draft term sheet were the focus of submissions before me.  However there are various other, apparently substantial items to which Rusa has either agreed, or, itself, proposed.  Those other matters include substantial payments for 2D and 3D seismic surveying, and an annual payment of $15,000 for meetings in Carnarvon, involving four nominated Gnulli people and Rusa.  These contemplated meetings were presumably intended to occur in the course of Rusa’s exploration work pursuant to the permit.  Rusa also appears to have proposed, or agreed to terms regarding environmental issues, including paid environmental advice and prior notification of any intentions to conduct fracking, employment and training of Gnulli people and the use of Gnulli contractors for the supply of goods and services.

13. Concerning the first five items, it seems that on 31 October 2014, Gnulli had sought the following amounts from Rusa:

    ·Signature payment - $100,000;

    ·Administration payments - $25,000 per annum;

    ·Cross-cultural payments - $50,000 per annum;

    ·Exploration payments - $30,000 per well; and

    ·Exploration payments on ground expenditure – 5%.

14. These terms were not explained.  Nor was there any explanation of the basis upon which each amount was calculated.  When Rusa sought to recommence negotiations on 29 November 2016, it responded to those proposals.  Concerning signature payments, administration payments and cross-cultural payments, Rusa rejected the proposals, saying:

    Cash payments of this type are not Rusa policy, as it is a private company and shareholder funds are provided by the two directors who are individuals.  Benefits in the form of compensation in commercial activities will flow from the exploration activities following capital raising to adequately fund exploration operations, eg several millions of dollars.

15. Rusa agreed to pay exploration payments of $30,000 per well, but rejected the proposal concerning “exploration payments on ground expenditure of 5%” stating:

    Payments for field operations are a form of compensation for denial of access to land during the surveys and for damage to the land.  Consequently they should be an amount related to area and not subject to variables such as whether mobilisation costs of equipment and other factors that go into exploration expenditure. 

16. On 7 May 2018, Rusa varied its response to the item concerning administration payments.  It offered $5,000 per annum, observing that:

    Rusa has recently completed two other agreements within the YMAC group, and Rusa now makes the same offer that was requested and accepted by those other groups.

17. On 11 June 2018, Gnulli varied its proposal concerning the first three items, reducing:

    ·the signature payment from $100,000 to $80,000;

    ·the administration payments from $25,000 per annum to $10,000 per annum; and

    ·the cross‑cultural payments from $50,000 per annum to $30,000 per annum.

18. With respect to employment, training and contracting, it proposed a further term as follows:

    With regard to contracting, any subsequent successful tender (who is not a Gnulli run business) also have an Aboriginal Employment strategy.

19. The delays between Rusa’s offer of 29 November 2016, its offer in May 2018 and Gnulli's offer in June 2018 were obviously substantial.  Below, I discuss the circumstances in which such delays occurred.

20. On 15 August 2018, Rusa offered the amount of $7,000 for the signature payment, saying:

    This is the sum originally offered to the Gnulli to assist them in attending negotiation meetings.  Now converted to signature payment as discussed.

21. I shall deal with this matter at a later stage.  Rusa refused to raise its offer of $5,000 per annum for administration payments, observing:

    Amount offered and accepted by other NT Parties in the YMAC orbit.

22. I should add that the reference to Rusa’s offer being in the amount of $5,000, not $5,000 per annum, is I imagine, an oversight.

23. As to the amended figure for cross-cultural payments, Rusa refused it, saying:

    There has been no explanation of what these payments mean, nor how the sum has been arrived at, nor why they need to be annual.  On inspection it appears to be rent, and is declined.

24. Between Gnulli’s amended offer on 11 June 2018 and Rusa’s response on 15 August 2018, Rusa filed the current application. 

    Mediation conferences and correspondence

25. Apparently at Rusa’s instigation, on 23 February 2017, the parties attended a mediation conference in the Tribunal.  Mr Lane said that since late 2016, he had been trying unsuccessfully to contact Mr Trees.  Mr Trees said that he had been unable to advance the matter “due to staff issues”.  He offered to arrange a meeting between Rusa and GWG on 15 March 2017.  The conference summary suggests that Mr Lane still expected the YMAC cultural heritage protocol to be adopted.  Mr Trees was unaware of prior negotiations concerning this matter and asked for a copy of the document.  Mr Lane re-asserted Rusa’s inability to pay for a WGM, and suggested the possibility of negotiating with a sub-group of GWG.  Mr Trees doubted whether this would be possible.  He also said that Gnulli would expect Rusa to commit to a “programme of meetings” to work through the relevant issues.  He said that a meeting would usually cost $20,000 to cover travel, staff and venue, and that Rusa’s offer of $2,500 was inadequate.  Mr Trees said that Gnulli and YMAC had only limited funds.  He undertook to prepare a budget for the meeting.  He asked Mr Lane to prepare a presentation.  He expected that the presentation would occur at the first meeting, and that the draft term sheet might be discussed at a later meeting.  The cultural heritage agreement might also be discussed at the first meeting.

26. It seems odd that Mr Trees should have responded to Mr Lane’s statement about Rusa’s lack of resources by speaking of a “programme of meetings”, each of which would cost about $20,000.  He must not have taken Mr Lane’s statement at face value, notwithstanding the fact that the latter had maintained this position for some time.

27. A second mediation conference took place on 1 March 2017.  Mr Trees had prepared a budget for a two hour WGM in the amount of approximately $7,800.  Rusa was willing to attend but wanted a full day’s meeting.  It considered the figure of $7,800 for a two hour meeting to be unacceptable.  Rusa acknowledged that its earlier offer of $2,500 “was no longer sustainable”.

28. Mr Trees said that he did not think that one meeting would provide adequate time for the resolution of all matters.  He suggested that if Rusa were to indicate a figure that it was willing to contribute to the cost of negotiation, Gnulli might be able to design a process around that figure, if it were realistic.  He also indicated that he would seek instructions as to the possibility of establishing a negotiating sub‑group to reduce the cost.  However he did not expect Gnulli to be open to this idea.  Mr Lane had previously agreed to supply the cultural heritage protocol referred to in the previous mediation conference.  Mr Lane said that he had been concerned about confidentiality, and so had not provided it.  He said that he would send an appropriately edited version.  (He did so on the same day.)  Mr Trees said that because of other business, he would be unlikely to receive instructions concerning the cultural heritage protocol at the WGM on 14 March 2017.  Mr Lane said that Rusa was flexible on that matter and would accept any reasonable proposal by Gnulli.  Mr Lane was asked to provide a preferred pathway for negotiation, including funding, by 10 March 2017.  Mr Trees was to take the proposal to Gnulli on 14 March 2017.

29. On 12 March 2017 Rusa wrote to Gnulli, care of YMAC, setting out the history of the matter and offering $7,000 “towards the time and expense of the GWG to fund a meeting or meetings that have the objective of reaching an agreement according to s 31 of the Native Title Act”. Gnulli’s failure to respond promptly to the offer became a matter of some annoyance to Rusa. The offer was ultimately accepted on 11 June 2018.

30. Mr Lane met with the GWG at the WGM on 15 March 2017.  He told them of the $7,000 offer.  On 20 March 2017 Rusa wrote to Mr Trees, indicating that it was willing to enter into a cultural heritage protocol in the form developed by YMAC, but that the GWG had, at the meeting, indicated that it would prefer to prepare its own plan.  Apparently, the meeting was quite short.  As at least some of the GWG members left the meeting early, no relevant decisions were made concerning the cultural heritage protocol or the draft term sheet previously forwarded by Rusa.

31. The next mediation conference was held on 4 May 2017.  Mr Lane recorded his disappointment that at the meeting with Gnulli on 15 March 2017, no decisions were made because some attendees left before the end of the meeting.  Mr Lane said that his attendance had taken up two days, and that he had incurred expenses.  Mr Trees said that such disappointment was the product of the fact that the meeting was not funded, implicitly suggesting that the members of the GWG would have stayed longer, had Rusa paid them to do so.  Mr Trees noted that the cultural heritage protocol had been “flagged” but had not been discussed.  At the WGM Mr Lane had said that the exploration process would involve fracking.  Mr Trees said that the GWG had some concerns about that process and needed more detail about it.  He suggested that the relevant State department might assist by attending the next WGM.

32. Member Shurven asked for an estimate of the amount of funding needed for a WGM.  Mr Lane said that in May 2014, he had been given an estimate of $28,000.  He also said that he had received no feedback concerning his offer of $7,000, and that Mr Trees had told him that meetings with a sub‑group would not be possible.

33. Member Shurven said that the process could be slow and incremental, particularly having regard to the paucity of funding.  Mr Lane said that Rusa was not in a “time sensitive” position.  Mr Trees said that Gnulli wanted to advance the matter but was unsure how to do so, given the absence of the necessary resources.  He said that a proponent who wanted to undertake large projects with minimal funds, “adds a level of difficulty when advancing through the system”.  This statement seems to have prompted the State representative to suggest that the relevant Minister might review the proposal to issue the permit, and that she would advise the parties as to any such review.  I infer that the review was to address the adequacy of Rusa’s resources for the purpose of discharging its obligations under the permit.

34. Unfortunately, the State subsequently asked that the mediation be suspended for an initial period of four months.  The request was granted over Rusa’s opposition.  The four month period expired in September 2017, but the State sought and obtained a further extension of two months.  On 23 November 2017, the State sought, and obtained a further adjournment of the mediation until 22 February 2018.  On that day, the State again obtained another adjournment until 29 March 2018.  It seems that Rusa was unhappy about this further adjournment.  Mr Little, Executive Chairman of Rusa, complained about the cancellation of the rescheduled meeting.  Mr Lane indicated that the State was seeking to review Rusa’s application, and that Rusa and the State were in contact.

35. On 23 March 2018, the State requested a further adjournment of two weeks. The matter was adjourned to 23 April 2018. On 22 April 2018, Ms Chilala (of YMAC) indicated that she would be unable to attend on 23 April 2018, asking for a two week adjournment. She said that she had just taken over the matter from Mr Trees, had not had sufficient time to review the file and was, in any event, not available on that day. The Tribunal decided to go on with the hearing in Ms Chilala’s absence, in order to receive the State’s report on its actions over the lengthy period since the last mediation conference. I understand that there is a summary of that mediation conference, but it has not been provided to me by the parties. Having regard to the terms of s 31(4), I have not read it. The next event was a mediation conference on 7 May 2018.

36. At para 10 of Gnulli’s submissions dated 18 September 2018, it seems to submit that Rusa was in some way responsible for at least part of this delay.  However it is clear to me that this submission is without any factual foundation.  The initial suspension was opposed by Rusa, as was at least one of the subsequent amendments.  Gnulli sought to defer the conference scheduled for 23 April 2018.  All other adjournments were sought by the State.  Rusa had some unspecified dealings with the State concerning the latter’s review of its offer of a permit, but at no time did it seek to delay the mediation.  It is difficult to see how Gnulli could properly have submitted to the contrary.

37. Further, throughout that lengthy period Rusa tried, on numerous occasions, to continue negotiations, notwithstanding the suspension of the mediation process.  Mr Lane wrote to Mr Trees on 23 May 2017 and 21 September 2017, apparently trying to advance the matter.  He wrote again on 12 October 2017, although the text is lost.  Its receipt by Mr Trees was acknowledged by an automatic reply.  On 29 November 2017, Mr Lane wrote, inquiring as to any scheduled or anticipated GWG meeting.  He received no acknowledgement or reply.  On 12 December 2017, in anticipation of the mediation conference scheduled for 22 February 2018, he wrote again, enquiring as to whether GWG had considered:

    ·Rusa’s proposal to contribute $7,000 for negotiation expenses;

    ·development of a culture heritage protocol;

    ·the draft term sheet provided by Rusa on 29 November 2016 and again on 12 March 2017; and

    ·the offer by the State to provide a briefing on fracking or other matters of interest.

38. Again, there was no reply.

39. On 19 February 2018, again in anticipation of the mediation conference scheduled for 22 February 2018, Mr Lane enquired about those four matters but received no reply.

40. At the mediation conference on 7 May 2018, Mr Stone, a solicitor, attended on behalf of Gnulli, as did Ms Jessica Pollock.  Mr Lane identified the four issues mentioned in the unanswered correspondence, with respect to which he had provided material.  The summary of the meeting was otherwise relevantly as follows: 

    Mr Stone advised YMAC have received this material, plus some additional background information on what has been happening with this matter.  He noted a working group meeting (WGM) is scheduled for 15 and 16 May 2018 where he will be running the above issues by Gnulli and seeking instructions.  Ms Pollock stated this matter has been allocated time at the upcoming meeting, but noted this was a big matter to deal with.  A follow up meeting is likely to occur be held [sic] where Rusa will be invited to attend.

    Ms Pollock stated the offer of $7000 from Rusa appeared to be broad.  Mr Lane clarified this is the total contribution from Rusa towards negotiations which Gnulli can use how they see fit.  He advised there is no room to move on this offer.  Mr Stone noted these comments and advised he will need to seek instructions from Gnulli regarding this and the term sheet proposal.  Ms Pollock said she will also send through a preferred cultural heritage protocol template to Mr Lane.

    Mr Barnett stated he would follow up to see if [the State] had provided a briefing on hydraulic fracturing to Gnulli previously.  Ms Pollock believed they had, but would ask the group if they would like a follow up session.  Mr Barnett encouraged parties to contact the State if they required any further assistance.

    Mr Lane stated he was happy to proceed with negotiations for this matter outside of mediation.  All parties agreed to this course of action.  Member Shurven scheduled a further mediation for July to check in with parties, but advised this can be vacated if it is not required.  Parties were asked to keep the Tribunal and the State updated in the mean-time.

    Outcomes

    The Tribunal noted the following to be the outcomes of the mediation:

    •Ms Pollock to send the preferred cultural heritage protocol to Mr Lane.

    •Ms Pollock and Mr Stone to seek instructions at a WGM on 15 and 16 May 2018.

    •Ms Pollock and Mr Stone to provide feedback to Mr Lane regarding the outcomes from the meeting.

    •Mr Lane to attend a follow up WGM once it has been scheduled.

    •Parties to provide the Tribunal and the State with any relevant progress updates.

1. On 10 May 2018, Mr Lane wrote to Mr Stone concerning the matters addressed at the mediation conference.  He noted that there had been no response to Rusa’s offer of $7,000, nor to the amended draft term sheet which Rusa had provided.  He pointed out that he had previously supplied the YMAC cultural heritage protocol which was “petroleum specific”.  Mr Lane had previously suggested adoption of this document.  He again indicated Rusa’s acceptance of the document and invited Gnulli to adopt it.  He also noted that at the meeting on 15 March 2017, the chairman of the WGM had indicated that this was a matter to be “acted on quickly”, but that there had been no subsequent action.

2. Finally, Mr Lane noted that at the mediation conference, it had been indicated that Gnulli had a “strong position on hydraulic fracturing”, although the position was not disclosed.  Mr Lane said that no such position had previously been identified, although there had been interest in the process.  He pointed out that community concern was about fracking in connection with coal seam gas exploration, an activity which Rusa was not undertaking.  He noted that the State had offered a presentation on the issue.  He said that if Gnulli would not accept fracking on its land, that position should be made clear to Rusa.  There was no response. 

3. On 30 May 2018 YMAC advised as follows:

   …

   The Gnulli Working Group (“Gnulli”) recently held a meeting where they provided instructions concerning the abovementioned application and its proposed Terms Sheet.

   At this stage Gnulli request that Rusa Resources (Australia) Pty Ltd fund an Economic Advice, to assist with negotiating and coming to an agreement.  This advice will help Gnulli know what compensation will be expected for any exploration and production activities, which may affect Gnulli’s native title interests.

   If this request is not acceptable, Gnulli seeks an explanation from Rusa within 4 weeks of receiving this letter.

   …

4. It is difficult to describe Gnulli’s response as being other than dismissive of the four issues raised by Rusa over the preceding six months or more.  Further, the request for an “economic advice” was, to say the least, unhelpful by virtue of its lack of specificity.  It referred to compensation for “production activities” when the purpose of the permit was to ascertain whether there would be any such production.  No attempt was made to identify any basis for calculating compensation for exploration activities.  It is difficult to conclude otherwise than that Gnulli was asking Rusa to pay for a fishing expedition.  Mr Lane’s negative response dated 31 May 2018 reflects that view.

5. As I have said in discussing the draft term sheets, on 11 June 2018, Gnulli made a further offer (or counter-offer) significantly reducing the amounts sought by way of signature payment ($100,000 reduced to $80,000), administration payments ($25,000 per annum reduced to $10,000 per annum) and cross‑cultural payments ($50,000 per annum reduced to $30,000 per annum).  It is worth noting that no explanation has ever been offered concerning the calculation of those relatively large sums.  In the same email, Gnulli accepted “Rusa’s offer for the $7,000 for time and expenses for negotiations”.  Such acceptance occurred 15 months after Rusa’s offer.

6. On 15 June 2018, there was an exchange of emails between Mr Lane and Mr Stone.  Mr Lane wrote:

   Hi Eldon,

   [A] few days ago I asked you if the statement “Gnulli does not support fracking on their country” means that the Gnulli will not enter into an agreement that provides for fracking.

   I would appreciate a prompt response, because this is a major change to the negotiation framework and if it is the case, Rusa will have to consider its options.  When I asked the Gnulli some four or so years ago if they had objections to fraccing, there were none.

   For instance, one of the matters that has been on the table for some considerable time is the offer by DMIRS to brief the Gnulli on the technology of hydraulic fracturing.  I am not aware that this offer has been taken up.

   Fraccing is a normal part of petroleum exploration and development, not just in the coal seam gas environment, and restricting the use of fraccing thereby restricts the exploration for and development of petroleum reserves.  If fraccing were not able to be carried out as required under our agreement, then there will be no point in Rusa pursuing the Gnulli’s agreement to the grant of the permit.  This is notwithstanding the State Government’s policy on fraccing now or in the future.

   Regards,
   Chas

   Mr Stone replied:

   Yes that is correct Gnulli do not support fracking on their country, and it is unlikely that they will agree to it.

   Isn’t there alternatives to fracking for exploration?

   Can you please make a proposal to the counter offer provided?  I have re-listed the terms below, for your convenience.

   ·     Signature payment of $80,000;

   ·     Annual Admin Fee of $10,000 per annum;

   ·     Cross Culture payment of $30,000;

   ·     Exploration payments on ground expenditure to remain at 5%;

   ·     Employment training and contracting – with regard to contracting, any subsequent successful tender (who is not a Gnulli run business) also have an Aboriginal Employment strategy.

   If you need further clarification I will call you to discuss.

   Eldon Stone
   Lawyer

7. In his affidavit dated 2 September 2018, Mr Stone said that on 13 June 2018, he and Mr Lane met, at the instigation of the Tribunal.  Mr Lane said that this meeting occurred on 13 July 2018.  He also says that the meeting was not at the instigation of the Tribunal.  In a chronology supplied by Mr Stone, he acknowledged that the meeting occurred on 13 July 2018.  Mr Stone suggested that the sum of $7,000 might be used to pay for the economic advice.  However he had no instructions from Gnulli concerning that proposal.  Mr Lane agreed to “move forward” with that approach.  There was also discussion concerning fracking.  Mr Stone confirmed that Gnulli “did not support” it.  Mr Lane said that if so, Rusa might as well withdraw its application.  He also said that Rusa might “roll the dice” and seek a determination.  Mr Lane agrees that he may have used the expression “roll the dice” in connection with a determination application, but says that it had first been used in that context by Mr Trees. 

8. The present application was filed on 17 July 2018.  Rusa’s decision to file the application must be seen in the context of:

   ·Gnulli’s failure to respond to its attempts to recommence negotiations;

   ·the long delay between May 2017 and May 2018;

   ·Gnulli’s apparent failure to respond to its attempts to continue negotiations during that period;

   ·the lengthy delay in responding to the offer of $7,000 towards the cost of negotiation; and

   ·the somewhat vague request on 30 May 2018 for the “economic advice”, without any reference to the four points which Mr Lane had been stressing for months.

9. In those circumstances, it seems quite likely that the emergence of fracking as a serious issue, without any explanation as to why it had become an issue, led Mr Lane to seek a determination pursuant to s 35.

10. At the mediation conference on 30 July 2018, Member Shurven noted that the s 35 application had been filed but indicated that mediation might continue. Mr Lane indicated that he was happy to continue working towards an agreement. In addition the summary states:

    Mr Stone acknowledged he met with Mr Lane.  He stated the discussions included the use of initial funds for economic advice, and moving away from a term sheet.  Mr Stone advised he wished to include those terms in a draft exploration agreement instead.  Mr Stone noted Gnulli’s position on hydraulic fracturing was firm and this issue would require further negotiation.  Mr Barnett said the State have offered to speak to Gnulli about fracking, and would be happy to attend a WGM if invited.

    Mr Stone explained the economic assessment was not about potential resources, but getting a third party opinion on what Gnulli should expect regarding terms and conditions plus financial aspects.  Mr Stone and Mr Lane agreed to meet later this week to discuss this and the draft exploration agreement.  Mr Lane noted Rusa would prefer to reach agreement, and saw this as an opportunity to get an understanding of how parties can progress forward.

11. Mr Stone’s statement that “Gnulli’s position on hydraulic fracturing was firm”, seems inconsistent with the statement that, “this issue would require further negotiation”.

12. The summary of the mediation conference held on 29 August 2018 discloses that:

    …

    Mr Lane advised he recently sent a counter offer to Gnulli.  Mr Stone noted he received the counter offer, but stated that it wasn’t clear what amendments had been made and requested Mr Lane email him the specifics.  As part of Rusa’s counter offer, parties discussed the status of the $7000 offer made by Rusa.  There was discussion around whether it was a signature payment, for use for an economic assessment, or for meeting costs.  There was some discussion around this issue, and it was unclear as to Rusa’s view on the $7000 payment.  Mr Lane asked for clarification of what the economic assessment would be used for.  Mr Stone outlined that an economic assessment would involve a third party opinion regarding terms and financial aspects of the negotiations.  Mr Lane agreed to email Mr Stone the specifics of his position.  Mr Stone stated he would then need to seek further instructions.

    Mr Stone noted Gnulli’s position on not supporting hydraulic fracturing (fracking) in their claim area remained firm, and this issue would require further negotiation.  Mr Lane advised that fracking was an important issue for Rusa.  Ms Jorgensen advised she would speak to the petroleum team about holding a presentation for Gnulli about fracking.  She noted Gnulli would need to make a formal request before the logistics can be organised.  Mr Little confirmed Rusa would not meet the costs of such a meeting.  Mr Stone advised this would therefore need to occur at a working group meeting (WGM), but currently did not have a date for the next meeting.  Mr Stone stated he would need to seek instructions as to whether the presentation could be slotted in to the next WGM.  Parties agreed that it would be helpful if Rusa attended this meeting.  Mr Little noted the issue regarding fracking will need to be clarified before further discussions on terms of the agreement take place.

    Outcomes

    The Tribunal notes the following to be the outcomes of the mediation:

    •Mr Lane to email the specifics of his position regarding Rusa’s counter offer to Mr Stone.

    •Parties to seek instructions on holding a forum for Gnulli on hydraulic fracturing.

    …

13. On 29 August 2018, Mr Lane forwarded an email to Mr Stone, as follows:

    Hi Eldon,

    this is to clarify some issues raised at mediation this morning.

    …

    If you care to prepare a brief for that independent person you mentioned and obtain a quote, I will still consider it and if I think it is worthwhile I will agree to it.

14. A second email of the same date appears to be the “clarification” in question.

15. On 31 August 2018, Mr Lane forwarded a further email to Mr Stone as follows:

    Hi Eldon,

    if you send me the contact for this economic assessment person you know, or someone at YMAC knows, I’ll give them a call and get this going.

    btw, I see there is a typo in my email below, now corrected and highlighted for your review.

16. A slightly amended copy of the second email dated 29 August 2018 followed.  The email, in its amended form, reads as follows:

    ...

    [T]his is to clarify some issues raised at mediation this morning.

    The $7,000

    At the request of Cameron Trees, who asked Rusa how much money they could contribute to meeting costs, Rusa, based on the experience with another NT Party within the VMAC orbit, offered $7,000 towards the costs of meetings that would lead to reaching an agreement.  How the Gnulli would spend that money was up to them, but it needed to be in the context of sufficient time at the table to negotiate an agreement.  In the normal scheme of YMAC budgets, $7k would purchase about an hour’s meeting time, and that would be clearly insufficient, so it was up to the Gnulli as to how they would apply that money.

    This offer was made on 12 March 2017, nearly 18 months ago.  On 7th May ‘18 I clarified: The offer of the $7,000 contribution from Rusa is for the negotiation and conclusion of a s31 Deed, and if accepted, I expect a reply to detail how and when the money will be spent. It is my expectation that it be spent primarily on the expenses of members of the WG and if any leftover, for the time of people involved. How they spend the money is up to them, but I would like to know the plan.

    It was only in your email of 11th June 2018 that you stated “Gnulli accepts Rusa’s offer for the $7000.00 for time and expenses for negotiations.”

    At our meeting of 13th July you said that the Gnulli would be unable to receive the $7,000 until after an agreement had been signed, due to their trust arrangement.  ( I did not and still do not understand that position, as YMAC has previously asked for upwards of $30,000 to hold meetings, and I do not see what the practical difference is between Rusa contributing $7,000 and $30,000.)  I thought at the time that if we reached agreement in the course of events, then that $7k could be equate to a signature fee, and that is why it is put as such in the most recent offer.  It doesn’t matter to me.

    Nevertheless, we discussed applying some of that $7k towards some form of “advice” that could be provided to the Gnulli by a third party, as to the merits of the offer Rusa has made to the Gnulli.  This was an alternative to the “economic advice” requested in your email of 30th May 2018, that was in the context of compensation, and to which I had responded in the negative with reasons.

    It is not correct to say that I had agreed to it, as there has been no proposal from the Gnulli as to the terms of reference of that advice or who was proposed to undertake it.  As I understand it this idea to vary the advice from compensation to an opinion on our offer came from you and not the Working Group, correct me if I am wrong.  Either way I took it on board but after discussion with the Rusa Directors we decided the issue of fraccing needed resolution before applying money to other matters that in the end might be wasted.

    If you care to prepare a brief for that independent person you mentioned and obtain a quote, I will still consider it and if I think it is worthwhile I will agree to it.

    In the meantime, the $7,000 remains on the table for meeting expenses, including some time for the State to give its presentation on fraccing.  Repeating my qualification on this: It is my expectation that it be spent primarily on the expenses of members of the WG and if any leftover, for the time of people involved.

    Hydraulic fracturing

    At the first meeting I attended with the Gnulli working group, I asked if there was any objection to fraccing, and there was none.  There were questions asked, and I explained fraccing as it applied to shale gas and shale oil, while emphasising that we were not considering coal-seam gas fraccing, which is the focus of current community concern.  At my most recent attempt to meet with the working group, on 20th March 2017, I again gave an explanation of fraccing and its application to Rusa’s exploration projects.  Again, there was no mention of the Gnulli being against fraccing.

    It was only in your 11th June ‘18 reply to Rusa’s long-standing offer dated 29th November 2016 that you advised that the “Gnulli does not support fracking”, and that they were unlikely to enter into an agreement that permitted fraccing. I do not know on what basis the Gnulli have formed this opinion, but it came completely out of the blue, and is either under-informed, given that the Gnulli have not received nor asked for a briefing from the State on the technology, a briefing that has been on offer from the State for years, or is informed by the information provided by me at the two meetings and other information they have obtained from elsewhere. Whatever the reason, because Rusa cannot enter into an exploration project without being able to apply the common technology involved in petroleum exploration to its operations, it was this refusal that left Rusa no option but to apply for a s35 determination.

    Offer dated 15 August and sent to you on the 20th

    This offer was sent to you, with an invitation to call me if you required any clarification.  You did not contact me, so I assumed everything was understood, but in today’s mediation you said you didn’t understand some things (outlined above).  Mediation is a particularly bad place to try to discuss matters, especially with you being on the phone from your office, maybe 10 minutes’ walk from the NNTT.

    So, reading down,

    The signature payment has been discussed above.  It can be $7000 or nil, or applied to a meeting.  Up to you to decide.

    Admin Payments are explained.  We offer $5000 as being “normal” for the region, in Rusa’s experience.

    Cross-cultural payment.  As explained clearly.

    On-ground expenditure.  As explained clearly.

    We re-state our offer on seismic surveying, which has not been accepted nor rejected.

    We re-state our offer on:

    Monitoring and liaison
    Environmental Protection
    Aboriginal Heritage

    none of which have been accepted nor rejected.  I point out that the heritage protocol was taken up by the Gnulli as their responsibility at our meeting of 12 March 2017, but nothing more has been heard about it.

    Employment, Training and Contracting

    Rusa has accepted your condition about an Aboriginal Employment Strategy, the rest of the term is unchanged and we assume has been agreed to.

    Please call if any of the above requires clarification.  I am available to talk to you or the Gnulli at any time.

17. I may have inadvertently omitted to refer to some aspects of the negotiation.  However I am satisfied that the above summary gives a fair representation of relevant events.  There has been quite recent correspondence concerning cultural heritage protection, to which matter I now turn.

    Cultural heritage protection and management

18. Gnulli did not, in its submissions dated 2 September 2018 and 18 September 2018, rely on Rusa’s conduct in connection with cultural heritage matters as going to the question of absence of good faith.  On 2 November 2018, Gnulli provided two further sets of submissions.  One contained a submission that Rusa had “agreed” to the draft cultural heritage protocol forwarded by Mr Lane to Mr Trees on 1 March 2017 and that the permit should be subject to its terms.  The second set of submissions goes to good faith.  It repeats earlier submissions, but para 12 is as follows:

    [Gnulli] argues that [Rusa] has adopted a rigid non-negotiable position in respect of the [cultural heritage management plan (“CHMP”)].  By stating that it does not accept the CHMP proposed by [Gnulli] demonstrates an unwillingness to negotiate or receive any input from [Gnulli].  Also [Rusa] had created an adversarial approach to [Gnulli].  [Rusa] had offered to contribute to the costs of a working group meeting but did not anticipate the extent and complexity of the negotiations in that one meeting would not be sufficient to complete the negotiations.

19. These submissions are surprising, to say the least.  On 1 March 2017, Rusa had provided to Gnulli a proposed cultural heritage management protocol.  At the meeting held on 15 March 2017, Gnulli’s position was that it, alone, would draft any such agreement.  It seems not to have taken any such step prior to 12 October 2018 when it made submissions concerning cultural heritage protection conditions to be imposed on the proposed grant.  At that time, this matter was scheduled for hearing on 19 October 2018.  Those submissions concerning cultural heritage protection assert the inadequacy of available statutory and/or regulatory protection and urge that a:

    [M]ore satisfactory method of heritage protection and detailed heritage survey be conducted … which should be subject to the proposed conditions … .

1. The proposed terms seem to borrow from the protocol forwarded by Mr Lane on 1 March 2017, although the documents are by no means identical.  Neither Gnulli nor Rusa saw fit to make detailed submissions concerning those proposed conditions.  Rusa proposed its own conditions.   Again, neither side chose to address them in detail.  The State opposed the imposition of any such conditions.  Gnulli’s conditions prohibited fracking.  Rusa rejected that proposal.  It also submitted that some of the proposed terms did not “pertain to native title rights and interests”.  Although Rusa had proposed conditions to which it would agree, in light of the State’s opposition to any conditions, Rusa has now adopted that position.

2. By email dated 29 October 2018, 10 days after the hearing of this matter, Mr Stone, on behalf of Gnulli, asserted that Rusa’s draft “limits [Gnulli’s] ability to protect itself”, whatever that means.  Mr Stone proposed that the parties revert to the agreement proposed by Rusa on 1 March 2017.  Rusa replied on 30 October 2018, rejecting the proposition that its draft limited Gnulli’s ability to protect itself.  It also refused to enter into an agreement in the terms forwarded by it on 1 March 2017, saying that they were onerous and cumbersome.  On 30 October 2018, Mr Stone replied, suggesting changes to that document.  In Rusa’s submissions, it says that negotiations are “continuing”.

3. Whilst I accept that negotiations which occur after the filing of a s 35 application should be in good faith, I see nothing in the negotiations concerning cultural heritage protection that suggests an absence of good faith. It is true that Rusa has departed from its position concerning the document supplied on 1 March 2017. However Gnulli has also changed its position by reverting to that document which it had rejected at the meeting on 15 March 2017. It is hardly surprising that, after 20 months, and so little co-operation from Gnulli, Rusa’s position should have altered, just as Gnulli’s has. Further, there is something to be said for the State’s submission that there is no reason to believe that the existing law in connection with cultural heritage matters offers insufficient protection. Rusa submits that it is bound to comply with such law. The State will be responsible for the enforcement of any conditions imposed upon the permit, and so its views must be given weight, particularly given the vagueness of any connection between Gnulli’s proposed conditions and its claimed native title rights and interests.

4. Finally, Gnulli has not attempted to explain why this course of negotiation demonstrates absence of good faith.  The mere rejection of a proposal says little about good faith.  The parties to any negotiation are entitled to keep in mind their respective interests.  In any event, as Mr Lane points out, the recent exchange of correspondence was prompted by my attempt, at the hearing on 19 October 2018, to achieve some agreement about a matter which seemed largely uncontroversial.  This opinion seems to have been erroneous.

5. I do not accept Gnulli’s submission that Rusa adopted a non-negotiable position with respect to cultural heritage.  Gnulli’s submission starts with the propositions that Rusa provided a draft on 1 March 2017, and that Gnulli responded in October 2018, having previously rejected it.  Other aspects of Gnulli’s conduct made it unlikely that negotiation on any issue would proceed smoothly, if at all.  Gnulli’s delay in responding to Rusa’s offer of a contribution of $7,000 suggested that Gnulli was not interested in negotiating unless a larger amount was forthcoming.  When Rusa made that offer, it substantially resiled from the position which it had taken prior to the earlier Tribunal decision.  Despite Mr Trees’ budgets, I am far from satisfied that a negotiation programme could not have been developed, involving fewer Gnulli representatives and longer meetings, maximizing the benefit of the not insubstantial cost to Rusa of having Mr Lane attend any meeting or meetings.  In other words, the offer of $7,000 cannot be simply written off as being insufficient, or unreasonable, particularly having regard to the fact that Rusa would also have had to meet its own expenses of attending.

6. In the current proceedings, Mr Lane’s position concerning cultural heritage protection differed substantially from that considered by the Tribunal in the earlier proceedings.  Given that in March 2017 he provided an agreement which Gnulli rejected, but now accepts, it is difficult to see how Rusa’s prior conduct can be relevant to this aspect of the case.

7. It is not clear whether Gnulli’s opposition to fracking relates to cultural heritage protection or to broader issues.  There has been no explanation as to why fracking is now a major issue, although apparently still negotiable.  Mr Lane says that he had explained this matter at a very early stage in the negotiations, that is prior to the earlier proceedings, and again on 15 March 2017.  It may be that Gnulli’s concern was prompted by recent public controversy concerning fracking.  However, in the absence of any demonstrated relationship between fracking and native title rights and interests, it may well be that the issue is not directly relevant to the question of good faith.  I discuss this question later in these reasons.  In any event, fracking was not an issue in the earlier proceedings, and so those proceedings do not assist in assessing Rusa’s approach to it in these proceedings.  I see no benefit, for present purposes, in considering the matters concerning cultural heritage protection which were considered by the Tribunal in the earlier proceedings.

8. Gnulli’s submissions provide no basis for the assertion that Rusa has adopted a “rigid, non‑negotiable” position with respect to cultural heritage matters.

   Gnulli’s submissions concerning good faith

9. Gnulli submits that Rusa’s conduct must be seen in light of the conduct which was the subject of the Tribunal’s previous decision, and its conduct in another matter concerning a proposed future act on Wajarri Yamatji and Malgana country. I accept that the previous dealings between Gnulli and Rusa may be relevant to the question of good faith. However, that earlier decision concerned events which occurred in 2014 and 2015. Rusa’s conduct since November 2016 demonstrates a desire to reach agreement, although not at any cost. Gnulli seems to have assumed that it was entitled to insist upon payment of its negotiation expenses. It is difficult to avoid the conclusion that the history of this matter since November 2016 reflects that view, and that Gnulli has had little interest in negotiating on any other basis. The conduct of those GWG members who left the meeting on 15 March 2017 suggests such an attitude. If that was Gnulli’s position, it should have said so. Rusa could then have applied pursuant to s 35, and the Tribunal could have determined the question of good faith.

10. As to the Wajarri Yamatji and Malgana matter, it is difficult to take that adverse finding into account without having regard to the facts of the case.  No attempt has been made to assist me in that regard.  In my view, little is demonstrated by the mere fact that such a finding was made.  In any event, Rusa’s conduct over the period since November 2016 bears no resemblance to the conduct addressed in the earlier proceedings.  On the other hand, Gnulli has not, since that time, been particularly responsive to Mr Lane’s efforts.

11. In its submissions dated 2 September 2018, Gnulli submits that lack of good faith is demonstrated by reference to:

    ·Rusa’s reluctance to make reasonable financial contributions to Gnulli’s costs of negotiations;

    ·Rusa’s “rigid approach” to the negotiations; and

    ·Rusa’s failure to provide a “reasonable proposal”.

12. In submissions dated 18 September 2018, in response to Rusa’s submissions, Gnulli sought to clarify its positions on funding, the economic advice, fracking, the delay between May 2017 and May 2018 and Mr Tree’s authority to negotiate.  In submissions made on 2 November 2018, Gnulli complains that Rusa has continued to be “adversarial” in the negotiations by:

    ·refusing to contribute financially to meetings;

    ·sending a “funding article”; and

    ·arguing about minor matters.

13. As I have already mentioned, Gnulli also raises the negotiations concerning cultural heritage as demonstrating that Rusa had a “rigid non‑negotiable position” with respect to that matter.  I have already rejected that submission.

    Reluctance to make contributions to Gnulli’s costs of negotiations

14. Gnulli points out that Rusa’s proposed work programme involves an expenditure in excess of $8 million over six years.  Further, it asserts that Mr Little is said to have raised substantial amounts of money for other companies.  As much appears from Mr Little’s curriculum vitae provided in connection with the application to the State for the permit.  No doubt, the inclusion of such information was intended to demonstrate that Mr Little’s capital‑raising skills were available to Rusa.  However it does not follow that such capital is presently available to Rusa, given that the permit has not been granted, and in the absence of demonstrated petroleum reserves.  One can well understand that those controlling Rusa might be careful about expending substantial amounts in advance of the grant of the permit.  Nonetheless, one might also expect that some “seed funding” would be available.  However it is difficult to see that Mr Little’s personal capacity to raise money is of any real relevance for present purposes.

15. Inevitably, all negotiating parties are likely to have significant outgoings in connection with any negotiation, given the relatively remote location of the area in question, and assuming that the traditional owners are residing and working in that general area.  It should not be assumed that Rusa will necessarily bear all, or a significant part of Gnulli’s costs.  There was, in the Tribunal’s previous decision, a suggestion that as Rusa is seeking a benefit, it should pay the negotiation expenses.  However, to suggest that only Rusa is seeking a benefit is to take too narrow a view of the proposed transaction.  It must be inferred that the State sees a public benefit in granting the permit.  It must also be inferred that Gnulli is seeking a benefit.  At one level, the benefit may be protection of its cultural heritage but, fairly clearly, the draft term sheets demonstrate that it is seeking other substantial benefits.

16. Rusa has incurred significant costs in sending Mr Lane to negotiate in a remote area and would have had to meet the expenses of his attending any further meetings.  It is difficult to identify a rational basis for determining whether it was unreasonable for Rusa to resist making any contribution to the payment of Gnulli’s expenses, and whether the offer of $7,000 discharged any such obligation.  The resources available to the respective parties may be a relevant consideration.  It is easy to fall into the trap of generalized expectations, in this case, that a company such as Rusa necessarily has sufficient funds at its disposal for it to be expected to contribute to the payment of Gnulli’s expenses.  Similarly, it is easy to assume that Gnulli has no funds from which to pay such expenses.  It has been made clear, and I accept that Gnulli does not receive funds, presumably from government, for the specific purpose of negotiation.  However it is not clear that Gnulli has no other source of funds.  In any event, one would expect that all parties would seek to minimize costs.  An “estimate” of meeting costs was prepared for a proposed meeting on 29 May 2014.  It seems to have been proposed that a Gnulli working group of 12 members should attend, with three YMAC staff.  The cost of a five hour meeting was said to be $27,782.46.  It is not for me to speculate about the actual amounts.  However there can be little doubt that the attendance of 15 people, representing or advising Gnulli, reflected a somewhat uneconomical approach, especially if Gnulli expected Rusa to pay for it.  It is hardly surprising that Mr Lane should have been cautious about making any contribution to Gnulli’s costs, particularly as Mr Trees insisted that there would be more than one meeting, and that there could be no negotiation with reduced Gnulli representation. 

17. Mr Trees made some effort to accommodate Rusa’s reluctance by offering a budget of $7,800 for a two hour meeting, but Mr Lane considered that such a short meeting was undesirable, a view which his subsequent experience justified. Nonetheless, on 12 March 2017, Rusa offered a contribution of $7,000 towards Gnulli’s expenses in negotiating a s 31 agreement. It is not at all clear why Gnulli waited 15 months before accepting that offer. One can only infer that it hoped to extract a larger sum. Whilst regard must be had to traditional decision‑making processes, one would expect that Gnulli could have streamlined the process in order to minimize costs. This was the approach taken by Mr Lane when he suggested that negotiations might be conducted by a sub‑group on Gnulli’s behalf. Mr Trees and Gnulli seem to have rejected this proposal. It is not clear to me that it has ever been given proper consideration.

18. As I have said, if Gnulli could not, or would not negotiate unless it was supported financially by Rusa, and if Rusa was unable or unwilling to provide such support, then Gnulli should have said so quite some time ago.  Mr Lane has always been quite clear about Rusa’s position.  If Gnulli had given such an indication, it would have enabled Rusa to proceed to a s 38 determination.  Instead, Gnulli effectively did very little about the negotiations.  The departure of GWG members from the meeting of 15 March 2017, without any real consideration of the issues raised by Mr Lane, demonstrated a casual attitude to the negotiations and to the cost to Rusa of Mr Lane’s attendance, particularly having regard to Mr Trees’ view that there would have to be a series of meetings.  Even if Rusa were willing to make some contribution, as it eventually was, there would have been a question as to the amount.  Gnulli could not reasonably have expected Rusa simply to pay whatever sum it claimed in order to satisfy its perception as to how negotiations should proceed in the best of all possible worlds. 

19. Gnulli also complains about an article forwarded to Mr Trees by Mr Lane.  It is entitled “Goodbye my Funding”.  It appeared in the New Yorker magazine on 15 May 2017.  It is, in effect, a parody directed at the reliance by some organizations upon external funding provided by government or other sources, generally on a charitable, or other non‑commercial basis.  Gnulli purports to take offence at Mr Lane’s conduct in sending the article, saying that it “discolours the negotiations”, and demonstrates that Rusa had “improper motives in its approach to fund a working group meeting”.  I reject that submission.  One can understand that Mr Lane may have been amused by the article.  His desire to share it with Mr Trees probably reflects goodwill rather than ill‑will.

20. Gnulli submits that Rusa should have allowed it further time in which to work out how it could utilize the amount of $7,000 and its own resources in order to fund the negotiations.  This submission seems to overlook almost every aspect of the parties’ mutual dealings since November 2016.  First, even setting aside the delay prior to November 2016, once negotiations had re‑commenced, and Mr Trees was able to respond to Mr Lane’s enquiries, Mr Lane virtually immediately responded to Member Shurven’s encouragement by offering $7,000.  Gnulli may well have considered the amount to have been low, but such a view does not explain the failure to respond, perhaps by indicating that there could be at least one meeting, which would have involved Rusa in also funding its own representation.  It may then have been easier to assess the number of meetings which might be necessary, perhaps testing Mr Trees’ view concerning the inadequacy of one meeting.  Further, if the amount was so unsatisfactory, one must speculate about Gnulli’s reasons for not rejecting it out of hand and ultimately, accepting it.  If they were willing to marshal their own resources to fund their involvement in the negotiations, one would have expected them to have said so at some time between March 2017 and June 2018.

21. It is true that Gnulli accommodated Rusa to the extent of allowing it to attend the meeting on 15 March 2017 without charge.  However it is not likely that such indulgence involved Gnulli in any significantly increased expenditure.  In any event, as I have demonstrated, nothing was achieved.  Gnulli suggests that it tried to help Rusa by preparing two budgets for the costs of a meeting.  There was one budget prepared in 2014 for in excess of $27,000.  At a mediation conference on 23 February 2017, Mr Trees estimated a cost of $20,000 for a one day meeting.  He calculated the cost of a two hour meeting at $7,807.87.  It must be kept in mind that Mr Trees was urging a series of meetings, in face of Mr Lane’s reluctance to make any financial contribution.  The meeting on 15 March 2017 demonstrated that a two hour meeting was pointless.

22. I have dealt with this matter at some length because it seems to lie at the heart of the problem.  I do not mean to suggest that Gnulli should have expended substantial amounts of its undoubtedly limited resources on funding negotiations with Rusa.  However, as it is accepted that there is no absolute obligation on one party to negotiation to fund another party, Gnulli should have made it clear that it was not willing to negotiate on the basis urged by Mr Lane, a position which, I infer, it had adopted.  Had it done so, the present proceedings would have occurred some time ago, almost certainly effecting savings for all parties.

23. Further, I doubt whether refusal to negotiate concerning the payment of negotiation expenses is about matters related to, “the effect of the [proposed future act] on [Gnulli’s] registered native title rights and interests” for the purposes of s 31(2). That provision should probably be construed as meaning that failure to negotiate on an “unrelated matter” cannot, alone, be a basis for a finding of lack of good faith. Such failure may, however, be a relevant circumstance in considering whether the relevant party has otherwise established absence of good faith. I adopt that position.

24. Gnulli also seeks to rely on the discussion between Mr Stone and Mr Lane at the meeting on 13 July 2018.  Gnulli submits that at that meeting, it requested Rusa to pay for an opinion from an independent consultant, suggesting that some of the $7,000 might be so applied.  The advice was to address the terms of the draft term sheet.  Although some such topic was discussed, the evidence demonstrates that no such offer was made by Gnulli.  Mr Stone made a “without prejudice” offer, expressly saying that he had no instructions from Gnulli.  According to Mr Stone, the discussion was as to an economic advice.  According to Mr Lane, Mr Stone said that Gnulli could not receive the sum of $7,000 for negotiation expenses until an agreement had been signed, itself a curious proposition if the amount was to be used to meet negotiation expenses.  This led to discussions concerning the possibility of diverting some of the $7,000 to obtaining the economic advice which Gnulli had sought on 30 May 2018.  Mr Lane says that he suggested a “signature payment”.  The evidence concerning the meeting is a little difficult to follow, partly because Mr Stone and Mr Lane were exploring various options, none of which was clearly identified.

25. I should add that after the filing of the current application, Mr Lane enquired, on 16 August 2018, whether he and Mr Stone should continue to negotiate, indicating that if so, he would submit a counter‑offer.  Mr Lane said that he understood that any offer made by Rusa would be rejected unless Gnulli changed its position on fracking.  Mr Stone replied on 20 August 2018, “If you have an offer please send it through for review”. 

1. As to Gnulli’s position concerning fracking, in the letter of 10 May 2018, Mr Lane points out that “at a mediation conference on 8 May 2018, [Ms Pollock] mentioned that the Gnulli have a strong position on hydraulic fracturing”, but did not identify that position.  The conference in question occurred on 7 May 2018.  There is no reference in the relevant summary to such a statement by Ms Pollock.  However Mr Lane’s assertion has not been disputed.

2. In effect, Rusa submits that the only subjects about which the parties are pursuant to s 31, obliged to negotiate in good faith are:

   1.The cultural heritage aspects, acknowledged by Rusa and left in [Gnulli’s] hands at their request for management and production of a [cultural heritage protocol]; and

   2.The temporary restriction of access to the land due to exploration works.  Such restriction applies to the public in general.  For this reason payments related to these works have been offered [Gnulli], however the parties currently disagree on the amounts.

   3.Should fraccing be undertaken in Rusa’s drilling operations, it will take place at depths of over 2000m and will be isolated from aquifers that could potentially impinge on surface waters and the land … .

3. It will not be necessary for me to consider this submission in connection with the good faith issue, save to the extent that I have already done so in connection with the question of the application of s 32(2) to the issues of contributing to negotiation expenses and fracking.  Rusa submits that Gnulli has not negotiated in good faith.  There may well be substance in that submission.  However it is not necessary that I consider that question.  A finding that Gnulli has not negotiated in good faith will have no relevant effect. See s 36(2).  However Gnulli’s conduct is relevant in considering whether Rusa has failed to negotiate in good faith.

4. Rusa criticizes the State for reviewing its application for a permit, and for asking that mediation be suspended during such review.  Whilst I consider that the State’s conduct had unfortunate consequences, such consequences could have been dealt with, at least to some extent, had Gnulli been willing to continue to negotiate. I have no reason to believe that the State acted other than in good faith.

5. Rusa submits that the desirability of fracking is a matter for the “whole community” represented by the State, not Gnulli.  There is substance in this submission, given that Gnulli has advanced no argument in support of its opposition to fracking and in particular, has not sought to identify any specific connection between fracking and its claimed native title rights and interests.

   Has Gnulli established want of good faith?

6. I find it difficult to attribute to Rusa, responsibility for any of the delay in negotiations since November 2016. As between Gnulli and Rusa, there can be no doubt that whilst Rusa was attempting to advance the matter, Gnulli was generally unresponsive. It is unfortunate that the mediation in the Tribunal ceased for such a lengthy period of time, and that Gnulli did not respond to Rusa’s attempts to continue the negotiations. I do not consider that events which occurred prior to November 2016 detract in any way from Rusa’s efforts to advance negotiations thereafter. I see no basis for inferring absence of good faith in Rusa’s conduct. In particular, I see no basis for impugning its conduct in making the s 35 application. The matter had simply dragged on for too long. Gnulli’s submissions, taken individually or collectively, cannot justify a finding of absence of good faith on Rusa’s part.

   THE SECTION 39 DETERMINATION

7. Pursuant to s 38(1) I must make one of the following determinations:

   1.        that the proposed future act may not be done;

   2.        that the proposed future act may be done; or

   3.that the proposed future act may be done subject to conditions. 

8. Section 39 provides:

   (1)In making its determination, the arbitral body must take into account the following:

   (a)       the effect of the act on:

   (i)the enjoyment by the native title parties of their registered native title rights and interests; and

   (ii)the way of life, culture and traditions of any of those parties; and

   (iii)the development of the social, cultural and economic structures of any of those parties; and

   (iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

   (v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

   (b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

   (c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

   (e)any public interest in the doing of the act;

   (f)any other matter that the arbitral body considers relevant.

   …

   (2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

   (a)existing non‑native title rights and interests in relation to the land or waters concerned; and

   (b)existing use of the land or waters concerned by persons other than the native title parties.

   …

   (3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

   …

   (4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree.  If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

   (a)must take that agreement into account; and

   (b)need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.

9. I do not understand Gnulli to make any submission as to the appropriateness of the proposed grant, apart from its submissions concerning want of good faith.  However Gnulli submits that I should impose numerous conditions.  Rusa has also proposed a number of conditions to which it would agree, subject to the views of the State.

   The State’s submissions

10. As the State points out, any condition imposed pursuant to para 38(1)(c) will be a condition imposed upon the grant of the permit. Enforcement of any such condition will be the responsibility of the State. Gnulli has made broad assertions concerning its claimed native title rights and interests, but has said virtually nothing about its current or proposed exercise of such rights and interests, or about how Rusa’s proposed activities would affect those matters, having regard to the criteria identified in s 39 of the Native Title Act. Rusa opposes any limitation on its use of fracking and has otherwise offered its own conditions. However it has also indicated that it will accept the State’s position concerning the imposition of conditions. It is virtually impossible for me to assess either set of proposed conditions in the absence of any detailed submissions as to the reasons for imposing such conditions, and the likely effects upon all parties of imposing, or not imposing them.

11. The State makes two weighty submissions.  I have already referred to the first of these submissions: that the State will be obliged to enforce the conditions, many of which are unclear and therefore difficult to enforce.  The second weighty submission focusses on the extent to which the permit area is already subject to lawful occupation and/or use by persons other than Gnulli, combined with the absence of any evidence concerning past, present or proposed exercise of native title rights and interests by the Gnulli People.  The State points out that 98.4% of the permit area is already covered by 11 pastoral leases.  Much of the balance is covered by other leases, reserves, freehold land and other interests.

12. Subparagraphs (i)-(iv) of para 39(1)(a) focus on the effects of the proposed future act on the exercise of native title rights and interests and associated matters. Only subpara 39(1)(a)(v) relates to the effect of the future act on the permit area itself, limited to sites of particular traditional significance. Paragraph 39(1)(b) addresses the interests, proposals, opinions and wishes of native title parties concerning the management, use or control of relevant lands or waters which will be affected by the future act. The other provisions contained in s 39 address broader interests, not limited to those of native title parties. Whilst petroleum exploration would have some physical effect on the permit area, it does not follow that the exercise and enjoyment of native title rights and interests and the associated matters (as identified in subparas 39(1)(a)(i)-(iv)) will be affected by such exploration. Gnulli seems not to have appreciated this distinction. As a result there is virtually no evidence about such effects. I do not understand it to suggest that any site is of particular significance for the purposes of subpara 39(l)(a)(v).

13. The State summarizes the rights which will be conferred by the proposed grant as follows:

    31.The rights which will be conferred by the proposed title (if granted) are set out in s 38 of the Petroleum and Geothermal Energy Resources Act as follows:

    (1)A petroleum exploration permit, while it remains in force, authorises the permittee, subject to this Act and in accordance with the conditions to which the permit is subject, to explore for petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area.

    32.A permit remains in force for an initial term of 6 years and is renewable for a period of 5 years subject to conditions, although a grant may not be renewed more than twice.

    33.The rights conferred by the proposed permit may be exercised on all land within the permit area (regardless of whether it is Crown land or private land) subject only to the Petroleum Act and any conditions that are imposed on the permit: s 15(1).  This includes any conditions imposed pursuant to section 91B(2) which provides for a condition prohibiting the holder of a permit from entering specified land within the permit area.  One limitation on the exercise of rights is that the consent of the Minister is required, in writing, to enter any lands reserved, declared or otherwise dedicated under the Land Administration Act 1997 (WA) or any other written law for the purpose of exploring for petroleum: s 15A(l). Other limitations apply with regards to “private land”, meaning land alienated from the Crown or subject to any lease (with a few exceptions): ss 16, 17 and 20(1).

    34.The rights of the permit holder prevail over any other rights, including native title rights but otherwise coexist with existing rights.  That is, a permit does not confer a right of exclusive possession over the whole of the surface, because:

    (a)Prima facie, a permit does not confer a right of exclusive possession as a lease does.

    (b)Permits are typically granted over large areas of land (especially compared to a mining lease) so as to cover the geological trends necessary to determine the area’s petroleum potential.  However, the level of surface disturbance involved is generally minimal.

    (c)Section 14(1) of the Petroleum Act gives people the right to carry out certain activities on the land the subject of a permit, subject to the approval and written consent of the Minister.  This provision reflects the fact that exclusive possession over the area of a permit is not necessary because the land can be put to other concurrent uses.  If a road or tramway is constructed for example, it follows that persons will use the road or tramway.  The consent of the Minister is necessary to ensure that the rights of the permit holder to conduct petroleum exploration activities will prevail.

    35.Section 117 of the Petroleum Act requires a permit holder to carry out operations in a manner that does not interfere with the surface of the land or any improvements thereon “to a greater extent than is necessary for the reasonable exercise of the rights and performance of the duties [of the permit holder]”.

    36.Pursuant to ss 95 and 115 of the Petroleum Act, the Minister has the power to issue directions to a permit holder at any time. Directions that are issued under s 95 may relate to any matter with respect to which regulations may be made, including matters relating to the preservation of environmental harm due to petroleum: for example, see s 153(2)(e), (f) and (fa) with regards to controlling the flow of petroleum or water, discharge of any mixture and the clean-up of any escaped petroleum. Compliance with any such directions is mandatory for permit holders and failure to comply is a punishable offence: see s 95(6).

    37.A petroleum exploration permit may also be granted subject to certain conditions: s 43(1) of the Petroleum Act.  The Government Party proposes to impose the conditions outlined at page 4 of Annexure 4 on STP-EPA-0110.

    38.The exercise of rights conferred by the proposed title will also be regulated by both State and Federal regulatory regimes.  Among the State laws that will regulate the exercise of the rights conferred by the proposed title are:

    (a)Environmental Protection Act 1986 (WA);

    (b)Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);

    (c)Aboriginal Heritage Act 1972 (WA);

    (d)Petroleum and Geothermal Energy Resources (Environment) Regulations 2012 (WA);

    (e)Petroleum and Geothermal Energy (Management of Safety) Regulations 2012 (WA);

    (f)Wildlife Conservation Act 1950 (WA); and

    (g)Rights in Water and Irrigation Act 1914 (WA).

    39.The Department of Mines, Industry Regulation and Safety (DMIRS) (on behalf of the Minister) is required to refer any “significant proposal” (that is, a proposal likely to have a significant effect on the environment if implemented) to the Environmental Protection Authority (the Authority) to consider for assessment, unless the permit holder has already done so: section 38(5) Environmental Protection Act 1986 (WA).

    40.By regulating impacts on various aspects of the environment and Aboriginal heritage, it is submitted that each of these laws plays a role in regulating and minimising any impacts on the exercise and enjoyment of native title rights and interests (as well as the other factors identified in section 39(J)(a)).

    41.      Among the Federal statutes that provide protection are:

    (a)Environment Protection and Biodiversity Conservation Act 1999 (Cth); and

    (b)Aboriginal and Torres Strait Islanders Heritage Protection Act 1984 (Cth).

    42.If the Tribunal determines that the act may be done, the NTA will protect any native title rights and interests through the application of section 24MD(3) (the ‘non-extinguishment principle’) and section 211 (which preserves the exercise of certain native title rights and interests), among others.

    (Footnotes omitted.)

14. Concerning the economic or other significance of the act to Australia and Western Australia as contemplated by para 39(1)(c) and the public interest pursuant to para 39(1)(e) the State submits:

    67.The potential development of the proposed title area, through the grant of STP‑EPA-0110 (and possible subsequent grant of a petroleum retention of production licence) could be extremely significant to the State’s economy and, to a lesser extent, the local area.

    68.In summary, the project is important in an economic sense because:

    (a)Western Australia’s economy is energy intensive, with around half of the State’s energy supply being gas;

    (b)currently, the State is largely dependent on natural gas that is sourced from remote fields in the offshore North-West region, a supply which is vulnerable.  This was evidenced by the explosion on Varanus Island in June 2008 which interrupted the State’s gas supply and caused many problems;

    (c)future economic growth is dependent on sufficient gas supplies;

    (d)the domestic demand for gas in Western Australia may exceed supply from present sources in the near future; and

    (e)exploitation of petroleum resources including natural gas energy sources, especially those that were previously inaccessible such as shale and tight gas, is considered to be one of the most attractive options for addressing the potential shortfall in domestic gas supply.

    69.The public interest would be strongly served by the grant of the proposed title, for the reasons identified above.  Perhaps most significantly, the development of a gas field could play a crucial role in alleviating potential domestic gas shortages in the near future.  The development of a field would mean an entirely new energy source in Western Australia, having the potential to diversify the economy and provide new employment opportunities.

    70.The benefits that will accrue at a local, State and national level, to both the resources industry and economy, fall within the description of “public interest” and are a relevant factor to consider.

    Rusa’s submissions

15. According to Rusa the proposed work programme for the six year term is as follows:

    ·Year 1 – geological, geophysical and environmental studies;

    ·Year 2 – field mapping and geological, geophysical and environmental studies;

    ·Year 3 – 100 kilometres of 2-D seismic acquisition, processing and interpretation;

    ·Year 4 – drill 1 exploration well;

    ·Year 5 – geological, geophysical and environmental studies; and

    ·Year 6 – drill 1 exploration well.

16. It is said that there is a firm commitment to years 1 and 2 but there are “no firm wells”.  By way of explanation Rusa offers the following summary of what is involved in “seismic surveying”:

    •Typically the first field work carried out is seismic surveying.  This surveying maps the sub-surface layers and identifies drilling targets.

    •Cultural Heritage Surveys are carried out in advance.

    •Seismic lines are about 4 metres wide and as long as required, with 500m – 1,000m between the lines.

    •The 100km seismic survey in 2021 will take about two weeks to carry out.

    •Line restoration and rehabilitation generally leaves little trace of seismic lines after a few years.

17. It seems that these are minimal work commitments rather than limitations upon the work which may be done.  Rusa estimates that the time to complete work on the ground is about eight weeks out of the total period of 313 weeks.  It submits that the impact upon the land will be limited to quite small areas with insignificant, if any effect on Gnulli’s way of life, culture and traditions.  It also submits that its activities will have insignificant, if any effect upon the development of Gnulli’s social, cultural and economic structures.  It submits that during field operations it may be necessary to restrict public access to work sites, but this will be limited to small areas, for relatively short periods of time.  With the assistance of traditional owners, field operations will be located and designed to have little or no impact on land or waters of particular significance to native title parties.

1. Rusa sees economic significance to the State and the area in the expenditure of money on exploration operations, and the economic benefits that the expenditure will entail.  It is estimated that the work programme will cost about $4 million, and that Australia will benefit in the form of income tax arising out of that expenditure.  As the proposed permit is an exploration permit only, no value or benefit can be attributed to any potential resource, other than to the expectation that substantial benefits would flow from any commercial discovery.  There will be no specific economic or other significance to aboriginal people living in the area.  It submits that mineral exploration generally is acknowledged by all Australian governments as being in the public interest.  Most of the application area is covered by pastoral leases, with a small amount of unallocated Crown land, reserves and aboriginal heritage sites.  These matters must be taken into account in considering the effect upon Gnulli.

   Gnulli’s submissions

2. In its submissions dated 12 October 2018, Gnulli identifies 15 registered aboriginal sites and 21 other heritage places within the boundaries of the application, but asserts that there may be other unrecorded sites.  The State submits that there is no suggestion that these areas are of particular significance, or any basis for concluding that they cannot be protected by existing statutory and/or regulatory provisions.  Gnulli submits that if the application is to be granted, there must be a satisfactory method of heritage protection and a detailed heritage survey over the permit area, and that a condition to that effect should be imposed on the permit.  Gnulli also submits that the right to use and enjoy resources will be suspended, extinguished or otherwise impaired by allowing Rusa to enter the land and “use and enjoy” the resources for its own benefit.  It says that in exercising its right to control the use and enjoyment by others of the resources of the land, it will agree to Rusa’s undertaking exploration activities only in accordance with proposed conditions.  It further submits that the scope of those proposed conditions must take into account the effect of the proposed activities on registered native title rights and interests, and Gnulli’s ongoing enjoyment of those rights and interests, including:

   ·the right to possess, occupy, use and enjoy the area;

   ·the right to make decisions about the use and enjoyment of the land;

   ·the right of access to the land;

   ·the right to use and enjoy resources of the land; and

   ·the right to maintain and protect places of importance on the land under traditional laws, customs and practices.

3. Gnulli submits that in order to maximize the continuing enjoyment of Gnulli’s rights and interests, and to minimize the impact of the proposed activities, the following matters should be acknowledged:

   ·that native title is a right to the land and Gnulli’s rights and interests arise out of, and are dependent upon that native title; and

   ·the nature of mining petroleum exploration itself, the potential for disturbance of the land, the entry onto the land by strangers and the risk of damage to areas of cultural significance will have an impact on native title.

4. It is said that one must consider the totality of activities permitted under a petroleum exploration permit over a period of six years and possible extensions.  It is said that Gnulli has no way of knowing, with any certainty, which areas may be exploited or disturbed.  However Rusa submits that the areas are relatively small, that it will co-operate with Gnulli in identifying areas of particular significance and that it will comply with all legal safeguards.  Gnulli says that it will require Rusa to observe conditions to be imposed by Gnulli concerning the manner in which it may have access to and use of the land and other matters including, but not limited to:

   ·respect and acknowledgment of Gnulli’s title;

   ·respect for their wishes and aspirations;

   ·full information about proposed activities;

   ·rules about the protection of areas of significance and for limiting, restricting or monitoring the proposed activities;

   ·rules for clearing areas to allow the conduct of petroleum exploration activities;

   ·benefits to Gnulli in consideration of access to the land;

   ·the right to maintain and protect places of importance on the land under Gnulli’s traditional laws and customs;

   ·benefits and consideration of the impairment of Gnulli’s rights and interests; and

   ·any other conduct that may impact upon native title rights and interests.

5. Gnulli proposes that the permit be subject to the terms contained in an attached document.  The document provides that there will be no fracking without Gnulli’s prior consent.  It also deals with:

   ·a heritage protocol;

   ·notice of commencement of exploration programmes;

   ·reviews and committee meetings;

   ·environmental protection measures;

   ·exclusion zones presumably pursuant to the Aboriginal Heritage Act (1972) (WA) (the “Heritage Act”);

   ·ministerial consent under s 18 of the Heritage Act;

   ·employment and contracting; and

   ·cultural awareness training.

6. The document has four schedules headed respectively:

   ·Petroleum Heritage Protocol;

   ·Environmental Obligations;

   ·Survey Request; and

   ·Contents of Final Survey Report.

7. The document borrows substantially from the protocol provided by Rusa in March 2017, but it differs in some ways, particularly the inclusion of the prohibition on fracking.  There is no suggestion that a proposal in these terms was provided to Rusa at any time prior to the delivery of Gnulli’s submissions dated 12 October 2018.  Rusa indicated qualified acceptance of the conditions, save for the requirement that there be no fracking without Gnulli’s consent and provisions relating to preferential employment.  It also provided alternative terms.  However, as I have said, it has indicated that it will defer to the State’s position that no conditions be imposed upon the permit as proposed.

   Other submissions

8. The State submits that the nature of any apprehended interference is unclear, and that no sites of particular significance are identified.  It submits that the State’s own regulatory regime, in particular the Heritage Act, offers sufficient protection for any such sites. The State submits that Gnulli has not provided any evidence concerning its specific cultural heritage interests, proposals, opinions or wishes in relation to the management, use or control of the land.

9. Concerning the imposition of conditions the State submits that the Tribunal must not act beyond power and contends that I should determine that the grant may be made without the imposition of any conditions. This is particularly so, given that there is no evidence to demonstrate that any native title rights and interests are currently being exercised in the proposed permit area, or concerning the other aspects of connection to the permit area identified in para 39(1)(a). The State makes a number of other points concerning the proposed conditions and expresses doubt as to the Tribunal’s power to impose at least some of them. The State is particularly concerned that it would not be able to enforce a number of the proposed conditions. In summary it submits that many of them are inappropriate for inclusion in its grant, although they might well have been agreed between the parties. Given that agreement has not been reached, it submits that it is not appropriate to impose such provisions as conditions of the grant. The State submits that any conditions imposed must have regard to the criteria in s 39, and that the proposed conditions appear not to be drafted with this consideration in mind. I do not understand s 39 to limit my consideration to the matters identified in that section. However I accept the State’s submission that s 39 may inform my decision concerning conditions.

10. I have already referred to the State’s submission concerning the public interest in the grant of the permit.  I have also referred to the non-indigenous rights and interests existing over the permit area and their inevitable effect upon Gnulli’s exercise of any native title rights and interests in that area.

11. As I have said, Rusa has provided its own proposed conditions.  Were it not for the State’s opposition, I would have been inclined to work through the conditions identified by Gnulli and Rusa, with a view to identifying common ground.  However, in light of the State’s position, which I accept, such an approach would be inappropriate.  The reality is that the evidence does not support the imposition of any conditions upon the grant.

12. As late as 2 November 2018, and notwithstanding the conditions proposed in its submissions dated 12 October 2018, Gnulli made further submissions concerning conditions to be imposed upon any grant.  As I have mentioned, it submits that Rusa has agreed to the cultural heritage protocol provided by Rusa to Gnulli on 1 March 2017, and that the terms of the protocol should be conditions of the grant.  I have already rejected this submission. 

13. It may be that many of the bald assertions contained in Gnulli’s submissions should be treated as being expressions of interest, proposals, opinions or wishes for the purpose of para 39(l)(b). Section 39(1) requires that I take such matters into account. Where the evidence shows that such assertions reflect the views of the relevant indigenous group, great weight should be given to them. However, where they are in the form of submissions, they may not be quite so persuasive. Where they are supported by logical explanations, or by reference to traditional laws and customs, they may again be of great weight, but again, bald assertions are not so persuasive. I have, of course, taken into account Gnulli’s submissions.

14. The major issues to be addressed in deciding whether the permit should be subject to conditions are fracking and cultural heritage protection. I shall deal with them separately. As to the balance of Gnulli’s submissions, I treat paras 4-9 as addressing the matters identified in paras 39(l)(a) and (b) of the Native Title Act. As the State has submitted, there is no evidence concerning current or likely future use and enjoyment of native title rights and interests. It is therefore impossible to conclude that there is any real likelihood that the limited activities to be undertaken by Rusa will suspend, extinguish or otherwise impair such use and enjoyment.

15. The existence of other interests in the relevant land highlights and explains the absence of evidence concerning present or future use and enjoyment of native title rights and interests.  Similar comments apply to the other matters identified in subparas 39(1)(a)(i‑iv).  As to subpara 39(1)(a)(v), no area of particular significance has been identified.  In any event, there is no reason to believe that Rusa’s relatively limited activities will impinge upon any such areas or cause any significant interference with them.

16. As I have said, Gnulli’s submissions may disclose interests, proposals, opinions and wishes concerning management, use and control of lands and waters in respect of which native title is claimed.  However these matters comprise very general assertions which fail to take into account the limitations upon Gnulli’s use and enjoyment of native title rights and interests imposed by the existence of other land users, and the interests of the State in connection with exploration, as well as Rusa’s potential interest to be derived from the State.  In particular, Gnulli seems not to realise that the parties are now engaged in an arbitration, not in negotiation.  Hence assertions as to the terms upon which Gnulli will agree to Rusa’s engagement in petroleum exploration are of only marginal relevance.  Generalized assertions as to the impact of petroleum exploration are also of little assistance.

17. Gnulli has expressly excluded from its native title application any claim to minerals, petroleum or gas vested in the Crown in right of the Commonwealth or State. Section 9 of the PAG Act vests such rights in the State. As to para 6 of the submissions, no acknowledgment of the nature of native title is necessary. That matter is established by the Native Title Act. As to para 8, the proposed conditions deal with matters, many of which were never raised in the course of negotiations. They are vague and would be difficult or impossible to enforce, as the State has submitted. Paragraph 9 repeats matters raised in earlier paragraphs.

18. Other than any contribution to Gnulli’s negotiation expenses, two matters seem to have dominated the negotiations in their later stages: fracking and cultural heritage protection.  As to fracking, it is common knowledge that the State has been considering the subject, and is in the process of developing a policy concerning it.  Gnulli has given no explanation as to why it opposes fracking, whether by reference to its effect on its native title rights and interests or otherwise.  It concedes that its opposition is based upon limited information.  Fracking is a form of exploration for petroleum.  In the absence of any opposition specific to Gnulli’s claimed native title rights and interests, it seems to me that the matter should be left to the State to decide, having regard to the interests of Western Australia as a whole.

19. As to cultural heritage protection, in the absence of any identified deficiency in the relevant legislation and regulatory framework, state and federal, I consider that it is appropriate that such framework apply.  In the absence of any specific reason to doubt the adequacy of such framework for present purposes, the imposition of any condition would be an unwarranted incursion upon the legislative and executive functions of government.  As McKerracher J said in Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690 at [145], it is entirely appropriate that the Tribunal should take into account existing protective measures. I must also take into account the public interest in the grant of the permit as outlined by the State, and Rusa’s reasonable expectations. In the circumstances, I decline to impose upon the proposed grant, any conditions concerning fracking, cultural heritage protection or other subjects.

20. I determine that the State may grant the relevant permit in the proposed form.

    The Hon John Dowsett AM

    President

    20 December 2018