State of Western Australia/M Strickland and J Nudding on behalf of the Maduwongga People; M Forrest, A W McKenzie and M O’Loughlin on behalf of the Karonie People/D R Crook and G K Edson

[1998] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

State of Western Australia/M Strickland and J Nudding on behalf of the Maduwongga People; M Forrest, A W McKenzie and M O’Loughlin on behalf of the Karonie People/D R Crook and  G K Edson, [1998] NNTTA 7 (11 August 1998)

Application No: WF98/5

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

-and-

IN THE MATTER of a Future Act Determination Application

State of Western Australia

-and-

M Strickland and J Nudding on behalf of the Maduwongga People
(First Native Tttle Party)

-and-

M Forrest, A W McKenzie and M O’Loughlin on behalf of the Karonie People
(Second Native Title Party)

-and-

D R Crook and G K Edson
(Grantee Party)

DECISION ON SUBMISSION THAT THE s.35 APPLICATION BE DISMISSED

Tribunal:  Mr Kim Wilson, Member
Place:                   Sydney
Date:  11 August 1998

Catchwords: Negotiation in good faith - actions of Native Title Party in response to grantee party limit capacity to negotiate - whether duty on Government where Native Title Party will not enter negotiation except on their conditions.

Negotiation in good faith requires co-operation of Native Title Party.

Legislation:                    Native Title Act 1993 (Cth), s.29, s.31, S.35

REASONS FOR DECISION ON THE JURISDICTIONAL ISSUE OF NEGOTIATION ON GOOD FAITH

This is a decision arising after an inquiry into a future act determination application regarding the issue of whether or not negotiation in good faith has occurred in the context of an application for a determination under Section 35 of the Native Title Act 1993.

One of the primary issues for the Tribunal in proceedings to deal with in such applications is the question of whether or not there has been negotiation in good faith.  The Native Title Party in this case asserts that there has not been negotiation in good faith.  This is the issue before the Tribunal.

In matters such as this the Tribunal has adopted a set of directions which results in the documentation of most of the issues.

The State of Western Australia filed a document titled Government Parties Documentation Regarding Negotiation in Good Faith and this document contains most of the material relevant to the inquiry.  There were two other documents which were provided to the Tribunal after the hearing which took place by video conference and telephone link on the 23 June 1998. 

The document prepared by the State is a useful guide to the development and history of the proceedings and is relied on by the Tribunal and other parties extensively in applications such as this.

In many recent inquiries the Tribunal has set out what has become to be known as the 'indicia of elements regarding good faith negotiations'.  I do not propose to reproduce these as they originally were formulated by Member Chris Sumner and as they have been added to in a number of recent inquiries.

From my examination of the material contained in the Tribunal's file in relation to this matter and as discussed in the hearing referred to above, the issue in this matter comes down to a question of whether the assertion by the Native Title parties that they would not proceed with any form of negotiation until the grantee party signed a confidentiality clause was a basis which could constitute failure to comply with the notion of good faith negotiation as set out in the Act.

There is considerable history to this matter and there is documented an exchange of letters by the State of Western Australia the grantee parties, and the Native Title parties throughout the period of some two years up until early this year.  There is also documented notes of meetings that took place in an attempt to resolve this matter.

The Tribunal does not propose to set out these documents as they are available in the Tribunal file.

There was some discussion at the hearing in relation to some aspects of these meetings but generally it was accepted that sufficient time in terms of compliance with the time limits of the Act had taken place for the Government party to be able to approach the Tribunal for a Determination under Section 35.

The grantee parties sought to enter into discussions and negotiations with the Native Title Parties.  These did not get off the ground as they were met with a demand by the legal representatives of the Native Title Parties that a confidentiality clause be signed.  They did not agree to sign such a clause.

When this became known to the State of Western Australia, they attempted to have further meetings which resulted in a comprehensive negative response from the legal representatives Messrs Newton Vincent.

The State then approached the Native Title Tribunal in an attempt to hold a mediation conference between the parties.  The legal representatives of the Native Title Parties would not attend such a conference.

The Native Title Parties contend that the State of Western Australia has not negotiated in good faith on the basis that they could have done something more to resolve this impasse..  I take it from their submission that they consider that it would have been appropriate for the State of Western Australia to indicate to the grantee parties that they might consider signing a confidentiality clause.  The Tribunal does not agree that it is the responsibility of the State of Western Australia in circumstances such as this to direct parties as to what position they might take in negotiations.  It appears to the Tribunal that the Native Title Parties through their representatives have laid down a prerequisite to any negotiations occurring and have not been prepared to negotiate in relation to that prerequisite.

This refusal to negotiate included the failure to attend a mediation conference with the Native Title Tribunal, the subject of which may well have been the concerns and issues behind the claimants' position that they would not proceed unless the confidentiality clause was signed.  There is no opportunity for this matter to be resolved due to the actions of the Native Title Parties as indicated through their legal representatives.

The Tribunal finds it hard to accept that the State of Western Australia is able to do anything more in the circumstances I have outlined than what they did do.  The Tribunal was satisfied that they took all reasonable steps to promote the negotiation phase and that the issue that dogged this attempt from the beginning was the complete rejection of any involvement in negotiations by the claimant's legal representatives unless the grantee party signed the agreement referred to in relation to confidentiality.

The Tribunal finds that in the circumstances of this case, the good faith negotiation criteria being a prerequisite to the processing of Section 35 determination has been met. The Tribunal makes this finding on the basis of all the material contained within the documents produced to it and after giving consideration to the contentions made to it by the Native Title parties representatives, the representatives of the State of Western Australia and the grantee parties themselves.

In simple terms, the Tribunal does not accept that Native Title parties can have it both ways.  They cannot adopt a position in relation to the negotiation which effectively precludes any further development in the negotiation and then subsequently claim that good faith negotiations have not proceeded because another party, that is the State in this case, was not able to take action which would have brought about a change in position by the parties they were negotiating with i.e the Grantee Party.  The Tribunal believes that an approach to native title negotiations in the context of the relevant provisions based on this submission is flawed and is not supported by the legislation or by the interpretation that has been given to the issue of good faith negotiation both by the Tribunal over the past 12 months and by the Federal Court.

There may well be an issue in negotiations involving the question of confidentiality.  For this matter to be resolved there has to be some participation by the Native Title Parties in at least describing the issue and allowing the opportunity for a negotiation to occur in relation to the resolution of that issue.  The Native Title Party through their legal representatives in this case were not prepared to even take that step.  The Tribunal would urge the legal representatives of the Native Title Party in this case to reconsider the approach that is being adopted as in the Tribunal's view it is counterproductive to the ultimate outcome that is being sought to be achieved and is not in the spirit of the process of mediation and negotiation which is implicit in the provisions dealing with these matters.

Determination

For the reasons set out above, the Tribunal determines that having considered the issue of good faith negotiations, the Tribunal has jurisdiction to hear the s.35 determination application.

Kim Wilson
Member
11 August 1998