Sixmez Pty Ltd and Another v Raymond William Ashwin (dec) and Others on behalf of Wutha
[2018] NNTTA 53
•7 September 2018
NATIONAL NATIVE TITLE TRIBUNAL
Sixmez Pty Ltd and Another v Raymond William Ashwin (dec) and Others on behalf of Wutha [2018] NNTTA 53 (7 September 2018)
Application No: | WF2018/0004 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Raymond William Ashwin (dec) and Others on behalf of Wutha (WC1999/010)
(native title party)
- and -
Sixmez Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 7 September 2018 |
Catchwords: | Native title – future act – s 35 application for a determination – mining lease application M57/637 – jurisdiction – power – whether government party has negotiated in good faith – government party has negotiated in good faith – whether grantee party has negotiated in good faith – grantee party has not negotiated in good faith – Tribunal does not have power to proceed with future act determination inquiry – application dismissed |
Legislation: | Native Title Act 1993 (Cth) Mining Act 1978 (WA) |
Cases: | Brownley v Western Australia [1999] FCA 1139 Empire Resources Limited and Another v Raymond William Ashwin (dec) and Others on behalf of Wutha[2018] NNTTA 27 (‘Empire Resources v Wutha’) Mr Kevin Cosmos & Ors (Yaburara Mardudhunera People)/Mr Jack Alexander & Ors (Kuruma Marthudunera People)/Western Australia/Mineralogy Pty Ltd [2009] NNTTA 35 (‘Cosmos v Mineralogy’) Muccan Minerals Pty Ltd and Another v Taylor and Others on behalf of Njamal [2014] NNTTA 74 (‘Muccan v Njamal #1’) Muccan Minerals Pty Ltd and Another v Taylor and Others on behalf of Njamal [2016] NNTTA 28 (‘Muccan v Njamal #2’) Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87; [1999] NNTTA 361 (‘Placer (Granny Smith) v WA’) Raymond Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) Limited [2006] NNTTA 153 (‘Amangu v Empire Oil’) Rusa Resources (Australia) Pty Ltd v IS (deceased) and Others on behalf of Wajarri Yamatji [2015] NNTTA 15 (‘Rusa v Wajarri Yamatji’) Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Polygon #2 [2018] NNTTA 48 (‘Sheffield v Mount Jowlaenga’) Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’) Western Australia v Taylor (1996) 134 FLR 211 Western Australia/Western Australia Petroleum Pty Ltd & Anor/Hayes & Ors on behalf of the Thalanyji People [2001] NNTTA 18 (‘Western Australia v Thalanyji’) Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 93 (‘Xstrata Coal v Bidjara People’) |
| Representative of the native title party: | Ron Harrington-Smith |
| Representative of the grantee party: | Bob Kozyrski |
| Representatives of the Government party: | Jeff O’Halloran, State Solicitor’s Office Christine Weetman, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This decision considers whether the Tribunal has power to conduct an inquiry into a future act determination application lodged by Sixmez Pty Ltd (‘Sixmez’) for the grant of mining lease M57/637 (‘the proposed mining lease’). Sixmez lodged the application under s 35 of the Native Title Act 1993 (Cth)[1] and the President of the Tribunal appointed me to conduct the inquiry.
[1] Unless specified otherwise, all legislative references are to the Native Title Act 1993 (Cth) (‘the Act’).
The Wutha People (‘Wutha’) are a negotiation party in this matter because at all relevant times the proposed mining lease was and remains over land and waters the subject of their registered native title claim (ss 29(2)(b)(i), 30(2) and 30A).
Wutha contend Sixmez and the State did not negotiate in good faith as required by s 31(1)(b). I must therefore consider whether Sixmez and the State did so negotiate before I can proceed to make a determination on the application. If I am not satisfied that Sixmez and/or the State negotiated in good faith with Wutha, then I must not make a determination (s 36(2)).[2] The Tribunal will not be entitled to deal with the application and the application will be dismissed (s 148(a)). If I am satisfied that both Sixmez and the State negotiated in good faith, then I must proceed to make a determination about the application (s 38).
[2] Section 36(2) prohibits the arbitral body from making a determination if any negotiation party satisfies it that any other negotiation party (other than a native title party) did not negotiate in good faith as required by s 31(1)(b). The Act does not prevent the arbitral body from making its own enquiries about whether there was negotiation in good faith (Ward v Western Australia 215–217).
Proceedings and submissions
Both Wutha and Sixmez were self-represented during the proceedings. Wutha’s spokesperson is Mr Ron Harrington-Smith, husband of Ms June Ashwin (one of the persons listed as the Wutha registered native title claim applicant). Mr Bob Kozyrski is the sole director of Sixmez.
On 20 July 2018, I convened a preliminary conference attended by all parties and Wutha alleged both Sixmez and the State failed to negotiate in good faith. Accordingly, I set directions requiring the parties to lodge good faith submissions. On 31 July 2018, Mr Harrington-Smith emailed Tribunal staff with what appeared to be a request for a one-week extension ‘as I have been on country and also have the case management conference with Barker J’. Neither Sixmez nor the State objected to a one-week extension provided they were also allowed the same and no further extensions would be granted. I allowed the extension given Wutha’s competing commitments and because it did not substantially alter timeframes for the resolution of the inquiry (s 36).
On 10 August 2018, Wutha provided their statement of contentions and supporting documents (‘NTP contentions’ ‘NTP1–5’). On 17 August 2018, the State provided their statement of contentions and supporting documents (‘GVP contentions’ ‘GVP1–6’). Sixmez was also required to provide contentions and supporting documents on 17 August 2018 however they failed to comply, nor did they make any contact with the Tribunal regarding their non-compliance. Wutha had the opportunity to provide a statement in reply by 24 August 2018, but elected not to do so. The directions required the parties to provide, by 31 August 2018, an agreed statement of facts and address ‘if the matter is to be heard on the papers’. The State and Wutha advised the Tribunal that the parties were unable to agree on a statement, but submitted they were content for the matter to proceed on the papers. Sixmez did not submit their view.
Section 31(3) mediation outcomes
Tribunal records and the State’s contentions indicate Member Helen Shurven provided parties with s 31(3) mediation assistance and convened mediations on 20 December 2017 (all parties), 25 January 2018 (State and Wutha), 29 January 2018 (State and Sixmez) and 20 February 2018 (all parties). At the 20 February mediation, Member Shurven terminated the mediation assistance. Before providing assistance, the Tribunal requests all parties to agree to the Tribunal’s mediation protocol. The protocol outlines the Tribunal’s process, the Tribunal’s expectations of the parties, and it notes that Tribunal staff will circulate a brief synopsis and agreed outcomes after each meeting (‘mediation outcomes’). The mediation protocol also draws the parties’ attention to s 31(4). Section 31(4) prohibits the Tribunal from using or disclosing information that it has had access to only because it provided s 31(3) mediation assistance except for two purposes: a) for providing that assistance; or b) for establishing whether a negotiation party negotiated in good faith. Further, the Tribunal can use or disclose the information for either of those purposes without the prior consent of the person who provided it. However, in making a determination, s 142 obliges the Tribunal to ensure every party is given a reasonable opportunity to inspect and make submissions on any documents the Tribunal proposes to consider. On 22 August 2018, Tribunal staff emailed the parties seeking their comment on my use of the mediation outcomes, drawing their attention to s 31(4). The State and Sixmez replied they did not have any objection and did not seek to make any submissions. Wutha did not reply.
I will consider the mediation outcomes prepared by the Tribunal because I am permitted to do so under s 31(4)(b). Although there is nothing in s 31(4) that obliges me to state my reasons for doing so, I will provide them. Without the mediation outcomes, there is little relevant evidence before me to determine whether Sixmez negotiated in good faith with Wutha. The mediation outcomes represent the agreed view of the parties’ positions because, following each mediation meeting, Tribunal staff circulated the mediation outcomes to participating parties for comment or amendment.
Inquiry ‘on the papers’
As noted above, the State and Wutha submitted they were content for the matter to proceed on the papers and Sixmez made no submission. However, when parties were attempting to settle the agreed statement, the Tribunal was included in some of their correspondence, including a draft statement (on 29 August 2018). Whilst Sixmez took issue with some of Wutha’s points in the draft statement, I note they did not take issue with the point that the matter could proceed on papers. In the absence of any submission to the contrary, I will assume that Sixmez agrees with the State and Wutha on this point.
I refer to my recent summary of the Tribunal’s common sense approach to evidence in Sheffield v Mount Jowlaenga ([46]-[51]). There is no evidential onus of proof on a party – but each has an ‘evidential choice’ whether to lead evidence on an issue. In this matter, Wutha provided contentions and evidence alleging Sixmez and the State failed to negotiate in good faith. Both the State and Sixmez had the opportunity to exercise their ‘evidential choice’ to lodge contentions and evidence in reply. The State chose to lead evidence to contest Wutha’s allegation against them, and Sixmez chose not to. As stated in Ward v Western Australia at [26], a party ‘might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue’. However, ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’.
Procedural fairness has been afforded because ‘every party’ has had ‘a reasonable opportunity to present his or her case’ (s 142). There is nothing before me which suggests the good faith issue ‘cannot be adequately determined on the papers’ and that I ‘must hold a hearing’ (s 151(2)(b)). In the circumstances, I am satisfied I can determine the issue using the material before me.
Issues for good faith
I will address the following issues in considering whether Sixmez negotiated in good faith with Wutha:
(a)Did Sixmez provide Wutha with sufficient information about the proposed mining lease? If not, did it hinder Wutha’s capacity to negotiate?
(b)Did Sixmez conduct itself with the genuine aim of reaching agreement with Wutha?
(c)Does Sixmez’ overall conduct meet the threshold for good faith?
I will address the following issues in considering whether the State negotiated in good faith with Wutha:
(a)What do Wutha allege?
(b)Does the State’s overall conduct meet the threshold for good faith?
Did Sixmez negotiate in good faith?
(a) Did Sixmez provide Wutha with sufficient information about the proposed mining lease? If not, did it hinder Wutha’s capacity to negotiate?
Failure to provide sufficient information about proposed activities can indicate a lack of good faith if it hampers the native title party’s ability to properly consider the effect of the future act on their registered native title rights and interests and hinders their capacity to negotiate (Brownley v Western Australia at [24]–[25] ‘Brownley Principle’). However, a grantee party can mitigate the effects of insufficient information if they attempt to address the native title party’s concerns in a draft agreement (Muccan v Njamal #1 at [51] and Muccan v Njamal #2 at [12] ‘Muccan Principle’).
Wutha contend they had ‘no idea as to the extent of the proposed mining and future plans by the Grantee Party on the Tenement’ because Sixmez ‘did not provide any substantive information about the proposed future act’. As such, Wutha contend they could not make ‘an informed decision’ about the negotiations (NTP contentions at 5 and 22).
Under s 31(1)(a) the ‘Government party must give all native title parties an opportunity to make submissions to it’ regarding each proposed future act. On 31 March 2017, to meet this obligation, the State wrote to Wutha and Sixmez (GVP1). The letter requested Sixmez provide certain information to Wutha and the State by 12 April 2017 ‘[to] enable the native title parties to make these submissions’. The information requested was: an outline of the proposed work programme (if available); copies of the company’s last annual report (if available); advice about whether Aboriginal heritage surveys are completed or proposed; company policies that might be relevant to native title parties; and a suitable map of the project area (if applicable). The letter also asked Wutha to make their submissions regarding the act by no later than 19 May 2017. On 20 April 2017, the State noted they had not received the required information from Sixmez so they sent a reminder letter, copied to Wutha (GVP Contentions at 21, GVP3). The reminder letter requested Sixmez to provide the information by 4 May 2017. Both the State’s 31 March initial letter and the 20 April reminder letter make it clear that information from Sixmez was necessary ‘to enable the native title parties to make [s 31(1)(a)] submissions’. Despite these letters, there was no formal response from Sixmez.
In response to an email request from the State’s tenure and native title project officer for ‘an update on the progress of negotiations’ (dated 10 August 2017), Mr Kozyrski emailed:
I had a meeting with Ron in South Perth at 3.00pm on Tuesday 8 August, I went over the application in detail with Ron showing him the air photos of the disturbed ground by previous explorers, the mining proposal, the method of mining and rehabilitation [GVP4]
Wutha’s contentions and evidence do not refer to this meeting or its content. Email correspondence attached to the Wutha’s contentions pre-date the meeting – and relate to issues concerning proposed terms of an agreement rather than the provision of information regarding the act. Sixmez did not provide direct evidence to the Tribunal concerning the meeting and its content. However, when parties were attempting to settle an agreed statement for this inquiry, the Tribunal was included in some of their correspondence (29-31 August 2018). In the course of that correspondence, Mr Kozyrski emailed the Tribunal and parties:
Sixmez, disagrees with statements … that it did not provide adequate information to the NTP. Sixmez had numerous meetings and phone conversations of what work was proposed on the tenement, informed the NTP of a POW at the Mines Dept which contains in detail the work program, air photos of the historical mined areas, this proposed POW was subsequently approved by the department. It also informed the NTP of the mining lease application and the extensive documentation supplied to the department in support of this application.
The NTP stated they were familiar with the area as they have their own tenement in the vicinity and would visit the site.The absence of contentions and evidence from Sixmez has made it difficult to be satisfied that Wutha had sufficient information about Sixmez’ proposed mining activities to enable them to negotiate. However, copies of email correspondence from Mr Bob Kozyrski attached to the Wutha contentions dated 16 May 2017 (NTP2), 22 May 2017 (NTP3) and 17 June 2017 (NTP4), together with a document entitled ‘Heads of Agreement’ and dated 12 May 2017 (NTP1) indicate there was sufficient information to engage in negotiations – even though project details may not have been discussed until the meeting of 8 August 2017. Accordingly, I cannot conclude that there was a dearth of information which hampered Wutha’s capacity to negotiate.
In EmpireResources v Wutha, I found that at all relevant times, the parties centred the negotiations on Wutha’s own deferred production agreement. I found it was a starting point for providing certainty in the event that mining activities should occur on Empire Resource’s mining lease. By comparison, in Muccan v Njamal #1, I noted that no agreements were exchanged between the parties and negotiations did not materially progress beyond a discussion about the possibility of a deferred production agreement and a suggestion that Muccan put forward a proposal to the native title party’s working group (at [51]-[52]). As such, in Muccan v Njamal #1, I found that Muccan failed to mitigate any possible effects of insufficient information. In EmpireResources v Wutha, I found that by using an agreement that Wutha proposed, I could not make the same conclusion against Empire Resources.
In this matter, like Muccan v Njamal #1, general ‘terms’ or ‘heads’ were presented, but there was not any material progress towards a draft agreement of any real substance. In May 2017, Wutha forwarded Sixmez a list of eight ‘heads’ for a proposed agreement (NTP1). The document referenced not only mining lease 57/637, but a range of other mining tenements – some of which had already been granted. It appears the ‘heads of agreement’ was to form the basis of a mining production agreement. The list included an upfront payment which would be an advance ‘royalty’ (1 and 2), a consultation fee for Mr Harrington-Smith (3), legal fees ‘for preparation and drafting of a mining production agreement to reflect these terms’ (4), ongoing ‘royalties’ for gold and other minerals (5 and 6), preferential contracts for civil and mining enterprise opportunities (7), and cultural and heritage protection protocols (8). Wutha also forwarded their heritage clearance agreement (NTP4). The evidence of Sixmez’ response to the heads of agreement is:
·an email stating ‘we can not offer your party any cash or royalty’ and offering ‘preferential employment and training for any aboriginal people should any labour be required when the project goes into operation’ (NTP3);
·an email offering to addend terms to Wutha’s heritage clearance agreement which note heritage clearances ‘will only be required where major disturbance on virgin ground that has NOT been previously explored’ and that no heritage clearances will be required for any ‘work around previously mined, disturbed ground’, ‘soil sampling or geo physical survey’, or ‘drilling on existing tracks or where no clearing is required’ (NTP4);
·statements at mediation which confirm the above positions (mediation outcomes 20 December 2017); and
·an offer at mediation of a 3% net royalty on profit (mediation outcomes 20 February 2018).
I also note the 10 August 2017 email from Mr Kozyrski to the State which says:
I also informed Ron that the Mining application for M57/637 is a entirely separate issue from other applications in progress on prospecting licences and a exploration licence and needed to be treated as such.
It was agreed that I now submit a proposal to Ron on M57/637 and separate agreements that cover the Prospecting and Exploration licence applications in line with what was discussed. Ron informed me he would be contacting the department regarding these applications [GVP4]
However, there is no evidence that Sixmez submitted a proposal to Wutha regarding M57/637 and separate agreements for the prospecting permits and exploration licences applications as indicated.
Therefore, like Muccan v Njamal #1, I find that, in failing to advance beyond the above and negotiate or provide a draft agreement, Sixmez failed to mitigate the possible effects of insufficient information about their proposed mining activities. However, like Muccan v Njamal #1, this fact on its own does not amount to a lack of good faith, but it does affect Sixmez’ position in relation to their good faith obligations.
(b) Did Sixmez conduct itself with the genuine aim of reaching agreement with Wutha?
Wutha contend Sixmez did not conduct itself with the genuine aim of obtaining Wutha’s agreement about the grant of the proposed mining lease as required by s 31 (NTP Contentions at 27). As noted above, Sixmez made no reply to Wutha’s contentions and submitted no evidence.
Sixmez’ intent to lodge a s 35 application
Wutha submit that ‘at all material times’ Sixmez negotiated with a view to making a s 35 application to the Tribunal and believed that obtaining a determination was in their ‘best interests’ (NTP Contentions at 27). Wutha assert this is demonstrated by Sixmez’ ‘threatened … intent to take the matter to arbitration about two months from the initial Tenement having been notified’ (at 9-10).
The State notified the proposed mining lease on 8 February 2017 (s 29(4)). The notice indicated the normal negotiation procedure under s 31 applied which, amongst other things, requires the parties to negotiate in good faith with a view to reaching an agreement. As noted above, on 31 March 2017, the State sent its s 31(1)(a) letter to Wutha and Sixmez (GVP1). On 6 April 2017, Mr Harrington-Smith contacted the State’s tenure and native title officer requesting Sixmez’ contact details, and the officer emailed Mr Kozyrski’s details to Mr Harrington-Smith (GVP2).
On 16 May 2017, Mr Harrington-Smith emailed Mr Kozyrski the list of eight ‘heads’ for a proposed agreement dated 12 May 2017 (NTP1). The tenements listed for inclusion in the proposed agreement were the proposed mining lease, prospecting licences P57/1392, P57/1187, P57/1188, P57/1189 and exploration licence E51/1810. The quick appraisal document from the State’s Tengraph mapping system shows Sixmez’ prospecting licences P57/1187, P57/1188 and P57/1189 have been granted and are currently ‘live’, and that portions of these licences underlie the proposed mining lease. Sixmez’ application for the proposed mining lease shows these prospecting licences are the subject of an application for the grant of a mining lease under s 49 of the Mining Act 1978 (WA) (GVP1). As for P57/1392 and E51/1810, the quick appraisal shows these licences do not overlap the proposed mining lease, although State mapping shows P57/1392 abuts the proposed mining lease to the north (GVP1).
On 16 May 2017, in response to Mr Harrington-Smith’s 12 May 2017 list of eight ‘heads’ for a proposed agreement (as discussed at [21] above), Mr Kozyrski emailed:
Hi Ron, can you show me one that you have with other companies? As the agreement stands, economically it makes no sense for me to proceed as there are just alluvial resources I was going to work in my current retirement. Please just send me the heritage agreements. Kindest Regards Bob [NTP2]
On 22 May 2017, Mr Kozyrski sent another email:
Hi Ron further to my recent letter, having reviewed your requests we can not offer your party any cash or royalty. What we will offer is preferential employment and training for any aboriginal people should any labour be required when the project goes into production. Should you not agree within 7 days of this letter I have been advised to take this matter to arbitration. Kindest Regards Bob [NTP3]
At this time, Tribunal records show P57/1392 was the subject of Wutha’s objection to the expedited procedure and status conferences were being held by the Tribunal. Before the State will notify a grant as attracting the expedited procedure, they require a grantee party to sign and send the native title party a Regional Standard Heritage Agreement (RSHA) or show there is an existing heritage agreement in place with the native title party.[3] In asserting the expedited procedure, the State asserts that the normal negotiation procedure required by s 31 does not apply to the grant because the grant is not likely to interfere with native title party’s community or social activities, nor with sites of particular significance nor involve or create rights which involve major disturbance to the land or waters concerned (ss 32, 237). The factual basis upon which the State forms this opinion about individual tenement applications is not apparent. The Tribunal is aware that certain Western Australian native title parties routinely lodge objections to the expedited procedure because they do not agree the RSHA terms are sufficient to protect against s 237 interference and disturbance. They prefer the terms of their own agreements.
[3] See >
In this context, Mr Kozyrski’s request ‘please just send me the heritage agreements’ and ‘I have been advised to take this matter to arbitration’ might be read as a reference to Wutha’s expedited procedure objection to P57/1392 and not the proposed mining lease. Alternatively, the request could be read as referring to item 8 of the ‘heads of agreement’ (implementation of cultural and heritage protection protocols) and so it formed part of the negotiations over the proposed mining lease. At this point in time (22 May 2017), Mr Kozyrski would not have been eligible to make a future act determination application for the proposed mining lease – s 35(1)(a) prohibits a party from making an application until six months have passed since the s 29(4) notification day (which was 8 February 2017). Given these circumstances, I am not prepared to conclude that Sixmez ‘threatened’ or signalled an ‘intent’ to lodge a s 35 application as soon as possible or ‘at all material times’ Sixmez negotiated with that in mind (as Wutha contend). However, the statement ‘[s]hould you not agree within 7 days of this letter I have been advised to take this matter to arbitration’ could be characterised as ‘take it or leave it’ rigid behaviour that does not assist Sizmez’ position in my overall assessment of good faith.
Sixmez’ attempts to negotiate
Wutha contend Sixmez did not commence negotiations, ‘but simply allowed the NTP [Wutha] to come to it’ (NTP Contentions at 9) and ‘refused to be proactive and constructive in negotiations at all’ (at 10).
Following the email interchange in May/June 2017 described above (NTP1-4), there is no evidence of any negotiations until August 2017. On 10 August 2017, the State’s tenure and native title project officer emailed Mr Kozyrski, copying Mr Harrington-Smith, requesting ‘an update on the progress of negotiations’ over the proposed mining lease (GVP4). The same day, Mr Kozyrski replied to the officer only:
I had a meeting with Ron in South Perth at 3.00pm on Tuesday 8 August, I went over the application in detail with Ron showing him the air photos of the disturbed ground by previous explorers, the mining proposal, the method of mining and rehabilitation. I also informed Ron that the Mining application for M57/637 is a entirely separate issue from other applications in progress on prospecting licences and a exploration licence and needed to be treated as such.
It was agreed that I now submit a proposal to Ron on M57/637 and separate agreements that cover the Prospecting and Exploration licence applications in line with what was discussed. Ron informed me he would be contacting the department about these applications [GVP4]There is no evidence that Sixmez forwarded any proposal or separate agreement to Wutha.
On 26 September 2017, the State’s tenure and native title project officer confirmed via file note that she had made contact that day with Mr Kozyrski ‘to enquire on the progress of negotiations with Ron Harrington-Smith’ (GVP5). She noted that Mr Kozyrski:
… advised that he is making every attempt to negotiate an agreement with Ron, but is finding it difficult due to the fact that Ron keeps asking for upfront and legal fees in addition to other payments.
I suggested to Bob that it would be best to refer this matter to the NNTT for mediation assistance. Bob agreed to this and requested the Department to lodge this matter with the NNTT on his behalf [GVP5]On 14 November 2017, the State requested the Tribunal provide s 31(3) mediation assistance and on 22 November 2017, they advised Wutha of the request (GVP6).
Despite Mr Kozyrski’s advice (given prior to mediation) that he was ‘making every attempt to negotiate an agreement’ (GVP5), Sixmez did not provide any evidence to support this. As noted above, in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’.
On 20 December 2017, Member Shurven conducted the first mediation. The mediation outcomes note the progress to date was that ‘Mr Harrington-Smith advised he provided a heads of agreement to Mr Kozyrski which contained a breakdown of costs and had also met with Mr Kozyrski in Perth’. This accords with the evidence before me – there was some email interchange regarding ‘heads of agreement’ in May/June 2017 (NTP1-4), an 8 August 2017 meeting between Mr Harrington-Smith and Mr Kozyrski (GVP4), but no direct evidence of any negotiations between August 2017 and the first mediation in December 2017. Further, there is evidence which suggests difficulties in contacting Mr Kozyrski. In April 2017, Mr Harrington-Smith emailed a complaint to the State’s tenure and native title officer that ‘Mr Bob Kozyrski does not answer any body re: emails Texts phone calls he is a hard man to deal with’ (GVP2). In the absence of any evidence to support Mr Kozyrski’s statement that he was ‘making every attempt to negotiate an agreement’, the only inference I can draw is that the evidence before me represents the total sum of the negotiations between the parties. Again, this does not reflect favourably upon Sixmez.
Sixmez’ position – heritage
Wutha contend they forwarded the ‘heads of agreement ‘in an attempt to get negotiations underway’ and initially Sixmez ‘didn’t want to negotiate … but to simple [sic] enter into a heritage agreement’ (NTP Contentions at 6-7).
In response to Mr Kozyrksi’s request for a heritage agreement, Mr Harrington-Smith sent Mr Kozyrski a heritage clearance agreement. The agreement was not submitted as evidence in this matter. On 17 June 2017 Mr Kozyrski emailed:
Hi Ron, I have read your clearance agreement, my comments below.
1. No clearance survey required as a condition of withdrawing objection. Excluding 20.(b) from agreement.
2. No clearance to be required for work around previously mined, disturbed ground.
3. No clearance to be required for soil sampling or geo physical survey
4. No clearance to be for drilling on existing tracks or where no clearing is required.
5. Clearance will only be required where major disturbance on virgin ground that has NOT been previously explored.
I can add the above as an addendum and sign. This whole area around the Six Mile project has been extensively worked since 1902, see google earth or visit the site.
Kindest Regards Bob [NTP4]Regardless of whether the 17 June 2017 email referred to P57/1392 and/or the proposed mining lease, it was clear that, by the first Tribunal mediation on 20 December 2017, the above position concerned the proposed mining lease. The mediation outcomes note Mr Kozyrski stated ‘a heritage survey should not be required’ over previously disturbed areas and only ‘should be completed if the works do extend to undisturbed areas’. Wutha did not submit their heritage clearance agreement in this matter, however, I do note that Sixmez’ heritage proposal offers substantially less than the Goldfields RSHA.[4] It is also clear from the mediation outcomes that Sixmez’ heritage proposal was not acceptable to Wutha – ‘Mr Harrington-Smith stressed the importance of a heritage survey being conducted over the area’.
[4] See >
In Cosmos v Mineralogy, the Tribunal noted ‘the greater the possible impact of the “doing of the particular future act” on registered native title rights and interests, the greater the obligation imposed on the non-native title parties to negotiate about those possible impacts’ (at [32]). On the evidence, Sixmez counter-offered heritage conditions for the proposed mining lease that were considerably less than the minimum heritage conditions required by the State to assert the expedited procedure over exploration and prospecting licences in the Goldfields region. Although there ‘is no requirement that the Tribunal be satisfied that … [a] party has made reasonable offers or concessions to reach agreement’, I am ‘permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour’ because the Tribunal must look at the conduct of the party ‘as a whole’ (Placer (Granny Smith) v WA at [30]). Despite Wutha’s concerns, Sixmez’ position on heritage surveys did not appear to be negotiable. Again, this does assist Sixmez in my overall assessment of their conduct.
Sixmez’ position – other offers
Wutha contend Sixmez ‘gave little consideration to or a proper counter offer to the heads of agreement’ (NTP Contentions at 9). The Tribunal has noted that a negotiation party has an obligation to ‘give genuine consideration’ to any proposal from a native title party – but there is no obligation to ‘capitulate in order to reach agreement’ (Western Australia v Thalanyji People at [37]).
I note that Wutha’s ‘Heads of Agreement’, sent in May 2017 at the start of the negotiations, was likely ambit in nature. Sixmez’ May 2017 reply was ‘we can not offer your party any cash or royalty. What we will offer is preferential employment and training…’ and ‘please just send me the heritage agreements’ (NTP2-3).
The mediation outcomes from the first mediation on 20 December 2017 note ‘Mr Kozyrski advised the project may make a small profit after the costs of equipment etc have been recouped but the company is not in a position to agree to up-front payments or to cover Wutha’s legal fees’ which were ‘not sustainable for small operators’. As for ‘royalties’, ‘Mr Kozyrski noted the grade and quantity of material to be mined does not warrant the payment of royalties and such’ to Wutha but ‘indicated Sixmez can offer preference to Wutha people for any employment opportunities that arise from the mining operations.’ This represents no change in Sixmez’ position from May 2017. As such, it raises the question as to whether Sixmez gave ‘genuine consideration’ to Wutha’s proposal (Western Australia v Thalanyji People at [37]).
At the first mediation, the parties also agreed to a schedule for two separate-party mediations on 25 January 2018 (with Wutha and the State) and 29 January 2018 (with Sixmez and the State), followed by one joint mediation (with all the parties) on 5 February 2018.
At the two separate-party mediations, the ‘Heads of Agreement’ was discussed. The mediation outcomes for the joint mediation on 20 February 2018 record Mr Kozyrski’s position:
· In relation to clauses 1, 3 and 4, the grantee party does not have funds available to pay an up-front payment, consultation fees or Wutha legal fees;
· In relation to clause 5, the grantee party is offering a 3% net royalty on profit.
The mediation outcomes note Mr Harrington-Smith ‘advised the counter-offer is not acceptable … Wutha are looking for a gross royalty on profit at a percentage based on advice from their economist’. Member Shurven ‘noted the parties are still far apart and if there is no more room for movement, mediation will not be able to assist’. The State noted ‘the next step would be pursuing a future act determination’. As a way forward, Mr Harrington-Smith offered to ‘amend the figures in the Heads of Agreement to a lower amount.’ Mr Kozryrski declined and ‘advised the reduced figures would not be sufficient as he does not have any funds available and indicated he will lodge a future act determination application with the Tribunal’. Member Shurven ‘confirmed the mediation will be terminated.’
There is no evidence of any further negotiations between 20 February 2018 (when s 31(3) mediation was terminated) and 12 June 2018 (when Sixmez lodged their s 35 application).
In Muccan v Njamal #1 (at [70]), the Tribunal observed that Muccan seemed to devolve responsibility for drafting an agreement to the native title party, and observed this expectation was not supported by the obligations outlined in s 31 of the Act. The Tribunal noted the options explored between the parties during mediation were not defined in any substantial way by Muccan and in failing to provide offers or proposals, Muccan’s actions fell short of good faith (at [74]). Similar comments were made in Rusa v Wajarri Yamatji where the Tribunal observed Rusa appeared to expect the native title parties to provide the agreement. In this matter, Sixmez did not provide any assistance towards drafting an agreement and declined to contribute towards legal fees for such.
With reference to Xstrata Coal v Bidjara People at [339] and Rusa v Wajarri Yamatji at [116], Sixmez’ overall offer at the conclusion of mediation cannot be considered a meaningful response or offer. Although Mr Harrington-Smith offered to ‘amend the figures in the Heads of Agreement to a lower amount’, Mr Kozryrski declined to negotiate further. Again, this raises the question as to whether Sixmez gave ‘genuine consideration’ to Wutha’s proposal (Western Australia v Thalanyji People at [37]). In effect, Wutha was left with no opportunity to progress negotiations on a s 31(1)(b) agreement.
(c) Does Sixmez’ overall conduct meet the threshold for good faith?
I bear in mind the following observation made by Deputy President Sosso in Amangu v Empire Oil [at 72]:
Assessing whether there have been good faith negotiations requires the Tribunal to look at all circumstances and the totality of the negotiations. This is particularly the case when the parties appearing before the Tribunal do not have the monetary and human resources of the Crown or large mining companies. … So it is very important to assess negotiations recognising that the Tribunal is considering the behaviour of real people, often working in very difficult circumstances, without many resources, sometimes with major financial constraints and often with both a less than perfect understanding of their obligations under the Act and of their respective aspirations and concerns.
At [21]-[22] I found that in this matter, like Muccan v Njamal #1, general ‘terms’ or ‘heads’ were presented, but there was not any material progress towards a draft agreement of any real substance. At [23] I found that, in failing to advance beyond a statement and negotiate or provide a draft agreement, Sixmez failed to mitigate the possible effects of insufficient information about their proposed mining activities. At [31] I was not prepared to conclude that ‘at all material times’ Sixmez negotiated with an intent to lodge a s 35 application. However, I noted their May 2017 reply to Wutha’s ‘heads of agreement’ was accompanied with the statement ‘[s]hould you not agree within 7 days of this letter I have been advised to take this matter to arbitration’(NTP3). I noted this could be characterised as ‘take it or leave it’ rigid behaviour. At [38] I considered the total evidence of the negotiations between the parties and noted the evidence did not support Mr Kozyrski’s statement that he was ‘making every attempt to negotiate an agreement’. At [41]-[42] I noted that Sixmez’ counter offer to Wutha’s heritage clearance agreement offered terms that were substantially less than the Goldfields RSHA, that Wutha ‘stressed’ their concerns about this offer, and that Sixmez’ position appeared to be not negotiable. At [43]-[51] I compared Sixmez’ position at the start and conclusion of the negotiations. I considered Sixmez’ behaviour against other Tribunal cases and questioned whether Sixmez met the obligation to give genuine consideration to Wutha’s proposals and to make meaningful responses and counter offers.
Taking all of these matters into account, I find Sixmez’ overall conduct falls short of their obligation to negotiate in good faith.
Did the State negotiate in good faith?
(a) What do Wutha allege?
Citing Western Australia v Taylor good faith indicium (vii), Wutha contend the State failed to take reasonable steps to facilitate and engage in discussions between the parties. They submit the State issued the notice for the proposed mining lease and ‘presumably wrote to parties to encourage negotiations and obtain submissions from parties, as part of its own negotiation protocol’, but ‘in the end failed to adhere to [it]’ (NTP Contentions at 28).
Citing Western Australia v Taylor good faith indium (xvii), Wutha contend the State failed to do what a reasonable person would do in the circumstances. They submit a reasonable person with the statutory duty of the State to negotiate in good faith, ‘would have taken steps to institute regular negotiation meetings and follow up or assist other parties’ (NTP contentions at 29). In support of this argument, Wutha say the State failed to:
·ascertain whether Sixmez’ satisfactorily answered the State’s request for submissions and information (33);
·‘express a view’ about Sixmez’ lack of submissions and description of how its proposed work programme would affect Wutha’s native title rights and interests (32); and
·follow up concerns or make its own enquiries and ‘chose to do nothing’ (34).
(b) Does the State’s overall conduct meet the threshold for good faith?
Subsection 31(1) provides that unless a s 29 notice includes a statement that the Government party considers that the future 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 the doing of the act (with or without conditions to be complied with by any of the parties).
As discussed above, on 31 March 2017, the State sent a s 31(1)(a) letter to Wutha and Sixmez. ‘To enable the native title parties to make these [s 31(1)(a)] submissions’, the State requested Sixmez to provide Wutha within 14 days: an outline of the proposed work programme (if available); copies of the company’s last annual report (if available); advice about whether Aboriginal heritage surveys are completed or proposed; company policies that might be relevant to native title parties; and a suitable map of the project area (if applicable).
The State’s letter enclosed a copy of the tenement application, a topographical plan of the tenement, a copy of the search of the Register of Aboriginal Sites, an extract of s 39(1) and:
An outline of the Government Party’s proposals … being:
·a copy of the draft conditions and endorsements for this tenement/s in accordance with the Mining Registrar’s recommendations;
·a copy of four additional conditions for discussion;
·a copy of “Administration and Operation of Exploration Licences, Prospecting Licences, Mining Leases, General Purpose Leases and Miscellaneous Licences in Western Australia”;
·“Fees and Charges: Information on Mining Tenements”; and
·A summary of approvals and responsibilities required by Government before activities can commence on the mining tenements.
The letter requested Wutha to make their submissions regarding the act, including their views on s 39 impacts, by no later than 19 May 2017, and to copy their submission to each negotiation party. Finally, it says that:
Thereafter, all parties are at liberty to contact each other directly in connection with any matter that will advance the negotiations. All parties are encouraged to actively pursue these negotiations. Meetings may take place without all of the parties being present if issues to be discussed concern only some of the parties. However, to ensure that all parties are kept informed of progress, it is suggested that all correspondence should be copied to each of the parties for their information – unless the communication is personal or confidential.
The letter also enclosed additional information including a copy of the State’s Negotiation Protocol.
The State contend they complied with their obligation under s 31(1)(a) by writing to Wutha and inviting them to make submissions in relation to the proposed lease. When Sixmez did not provide the requested information, they sent a reminder letter to Sixmez (GVP3). As for s 31(1)(b), the State maintain they monitored the status of negotiations which they evidence in emails and a file note attached to their contentions (GVP2, 4, 5). They also note they referred the matter to mediation and wrote to Wutha to advise them so, and they asked Wutha to contact them ‘[s]hould you have any queries’ (GVP6).
The State argue my comments in Empire v Wutha (at [78]) apply in this matter:
In deciding on the reasonableness or otherwise of the State’s actions … I need to take into account the fact that the good faith obligation is imposed on the Government party while much of the content of the negotiations and any agreement mainly involves the native title and grantee parties. Depending on the circumstances, it may be that the Government party has little to offer in resolution of a dispute. The practice developed in each State/Territory influences the content of the negotiations with the Government party.
They assert ‘the usual practice in Western Australia is that the Government Party does not have a more direct role in negotiations … until an agreement is reached … and a section 31 Deed is prepared’. They assert they ‘actively participated in discussions to the extent … able to’ given their ‘limited role in the negotiations’ (GVP Contentions at 40-45).
The State also argue my comments in Empire v Wutha (at [69]) apply in this matter:
It is a well-worn phrase that negotiations do not occur in a vacuum - they must be about proposals. An opportunity is provided for a native title party to make submissions about the doing of the act (s 31(1)(a)) which is an opportunity for them to put forward proposals for negotiation. If a native title party makes no proposals on an issue to the Government or grantee parties, it is difficult to see how the other parties can be accused of not negotiating in good faith with them.
They contend ‘it is significant that the NTP did not make any submissions … in response to the Government Party’s invitation’ and assert ‘[i]t follows that the Tribunal can take into account the NTP’s failure to make those submissions’ in determining whether the State negotiated in good faith (GVP Contentions at 47-49). However, I note that the State’s s 31(1)(a) letter requested Sixmez to provide information about their proposed works ‘to enable the native title parties to make these submissions’ (GVP1) – a phrase the State repeated in their reminder letter to Sixmez (GVP3). As such, it is difficult to accept the ‘significance’ of Wutha not making s 31(1)(a) submissions to the State when they did not have the information the State considered would ‘enable… [them] to make these submissions’ in the first place.
Again, referring to Empire v Wutha (at [74]), the State argue that ‘Wutha was represented by someone well versed in future act negotiations and familiar with the State’s process and practices’. As such, they argue Wutha ‘was at all times in a position to contact the Government Party in relation to the negotiations and seek the Department’s assistance’. They also note the closing paragraphs of their letters advise the parties ‘to contact the Government party with any queries or suggestions as to how the Department could assist in the negotiations’ and ‘[t]hat invitation could have been acted upon by the NTP at any time’ (GVP Contentions at 50-52).
On the evidence I find the State:
(a)informed Wutha about the grant of the proposed mining lease, of Wutha’s entitlement to make submissions to the State and about other aspects of the right to negotiate process;
(b)invited parties to make ‘queries or suggestions’ as to how they could assist in the negotiations;
(c)attempted to assist the progress of negotiations between Sixmez and Wutha by writing to Sixmez seeking information to assist Wutha in their submissions to the State;
(d)followed up with a reminder to Sizmez when the above was not received;
(e)provided Wutha with Sixmez’ contact details;
(f)sought progress update reports from the parties;
(g)wrote to the Tribunal requesting s 31(3) mediation and participated in four mediation meetings; and
(h)consistent with usual practice in Western Australia, the State would not usually have a more direct role in the negotiations until an agreement is reached and a s 31 Deed is prepared.
Accordingly, I conclude that the State acted reasonably. Wutha has not satisfied me that the State failed to negotiate in good faith.
Determination
In relation to the grant of mining lease M57/637 and the requirement to negotiate in good faith under s 31(1), I am satisfied the State of Western Australia negotiated in good faith. I am not satisfied Sixmez Pty Ltd negotiated in good faith. The Tribunal does not have power to make a determination on the application and the application is dismissed (s 36(2) and s 148(a)).
Mr JR McNamara
Member
7 September 2018
0
12
0