Taroom Coal Pty Ltd/Ronald Doyle and Ors on behalf of Iman People #2/State of Queensland
[2013] NNTTA 85
•9 July 2013
NATIONAL NATIVE TITLE TRIBUNAL
Taroom Coal Pty Ltd/Ronald Doyle and Ors on behalf of Iman People #2/State of Queensland, [2013] NNTTA 85 (9 July 2013)
Application No: QF2013/0001
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
Taroom Coal Pty Ltd (grantee party)
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Ronald Doyle and Ors on behalf of Iman People #2 (QC1997/055) (native title party)
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The State of Queensland (Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: Helen Shurven, Member
Place: Perth
Date: 9 July 2013
Catchwords: Native title – future acts – application for a determination in relation to a mining lease application – power – jurisdiction – whether grantee party has negotiated in good faith – scope of the obligation to negotiate in good faith (s 31(2)) – grantee party has negotiated in good faith
Legislation:Native Title Act 1993 (Cth), ss 26(1)(c)(i), 28, 29, 30(1)(a), 30A, 31, 35, 36A, 36(2), 38, 151(2)
Cases:FMG Pilbara Pty Ltd v Cox and Others (2009) 175 FCR 141, ('Cox')
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52, ('Gulliver')
Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87, ('Granny Smith')
Western Australia/Arthur Dimer & Ors (Ngadju People) and Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited [2000] NNTT 290, ('Equs')
Western Australia v Taylor (1996) 134 FLR 211, ('Njamal')
Representatives of the Dr Jonathon Fulcher, HopgoodGanim
grantee party: Ms Courtney Smith, Hopgood Ganim
Representative of the Mr Michael Owens, Michael Owens & Associates
native title party:
Representatives of the Ms Bernadette Wrafter, Crown Law
Government party: Ms Leilehua Helu, Crown Law
REASONS FOR DECISION
Background
On 22 September 2010, the Government party, through the Department of Natural Resources and Mines (‘DNRM’), gave notice (‘the notice’) under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of its intention to grant mining lease ML50254 (‘the proposed lease’) to Taroom Coal Pty Ltd (‘the grantee party’). The notice specified 13 October 2010 as the notification day.
The proposed tenement is 27.7 square kilometres in size and situated in the Western Downs Regional Council Local Government area, approximately 35 kilometres west of Wandoan in Queensland.
The notice allows any person who, four months after the notification day, is a registered native title claimant in relation to any of the land or waters that will be affected by the future act, to a procedural right to negotiate in relation to the future act (see s 30(1)(a) and s 31 of the Act). The Iman People #2 were the only claim group in this area on the Register of Native Title Claims as at the day four months after notification, and the claim wholly overlaps the proposed lease. As such, the Iman People #2 (‘the native title party’) are the native title party in respect of these proceedings (see s 29(2)(b)(i) of the Act). It is to be noted that there are some areas within the proposed lease where native title rights and interests have been extinguished; this is outlined in further detail below.
The proposed tenement is a future act covered by s 26(1)(c)(i) of the Act and so, unless there is compliance with s 28, the act will be invalid to the extent that it affects native title. In this case, s 28(1)(g) is the relevant requirement, that is, ‘a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with.’
The section 35 future act determination application
On 11 April 2013, the grantee party made an application for the Tribunal to make a future act determination under s 38 of the Act, because the negotiation parties had not been able to reach agreement of the kind mentioned in s 31(1)(b) and at least six months had passed since the notification day specified in the s 29 notice of the Government’s intention to do the act.
In their application for a future act determination, the grantee party states that the grant will authorise them to ‘mine thermal coal and carry out associated activities subject to the Mineral Resources Act 1989 (Queensland) for an initial term of 40 years, and with the possibility of renewals for a further term not exceeding 40 years’. It appears that the grant of the proposed lease relates to a larger project, called the Elimatta Project, which is discussed in further detail below, when relevant. The notice states that the proposed lease is freehold land apart from Lot 43 on Crown Plan AB222 (a camping and water reserve subject to a pastoral lease for grazing and held by a related body corporate of the grantee party (Elimatta Pastoral Pty Ltd)), and Horse Creek (a boundary watercourse). Crown Plan AB222 is approximately in the centre of the proposed lease. This is the only area on which native title may exist, and in relation to which native title rights and interests may be impacted upon, because the freehold land has extinguished native title on the remainder of the proposed lease. The grantee party future act determination application states that the enjoyment of native title party rights and interests will be temporarily adversely affected by open cut coal mining in terms of activity on Lot 43 on Crown Plan AB222 and Horse Creek.
On 17 April 2013, President Webb appointed me as the Member to conduct the inquiry into the future act determination application and I accepted the application according to s 77 of the Act. Pursuant to s 36(2), if the native title party satisfies the Tribunal that a grantee party did not negotiate in good faith ‘as mentioned’ in s 31(1)(b), then s 38 states that the Tribunal must not make a future act determination.
A preliminary conference was convened on 1 May 2013. At that conference, the native title party representative stated that he was seeking instructions as to whether or not they would be contending the good faith issue. Directions were issued on 1 May 2013 encompassing both the good faith and the substantive issue, on the understanding that directions relating to the good faith issue would be vacated if that issue was not taken up by the native title party. At the preliminary conference, the native title party did not specifically outline whether they would be alleging a lack of good faith on the part of the grantee party and the Government party or just one of these parties.
Directions were amended on 23 May 2013 at the request of parties, and in compliance with those directions, native title party contentions were received on 14 June 2013, Government party contentions were received on 21 June 2013 and grantee party contentions were received on 21 June 2013.
No party has provided sworn evidence in this matter.
At the preliminary conference on 1 May 2013, parties agreed that a s 150 conference may assist parties in the resolution of the matter. It was decided that the s 150 conference would run parallel to the future act inquiry directions issued on that day. On 1 May 2013 President Webb appointed Member O’Dea to conduct the s 150 conference. Section 150 conferences were convened on 8 May, 28 May and 30 May. On 30 May 2013, Member O’Dea advised no agreement had been reached and terminated the s 150 process.
I considered it appropriate then to determine the matter on the papers pursuant to s 151(2), and no party objected.
The obligation to negotiate in good faith
The obligation to negotiate in good faith is set out in s 31 of the Act:
31 Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with the view to obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any of the parties.
Note:The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Negotiation in good faith
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3)If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
On the interpretation of s 31, I adopt relevant legal principles from Gulliver (at 55-60) for the purposes of this inquiry, unless in conflict with the Full Federal Court decision in Cox.
Pursuant to s 30A of the Act, the ‘negotiation parties’ are the Government party, any grantee party and any native title party. As noted at [7] above, if any negotiation party satisfies the Tribunal that ‘any other negotiation party (other than the native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b)’ of the Act, the Tribunal must not make a determination (s 36(2) of the Act). That is, all parties need to act in good faith but the question of whether or not the Tribunal is empowered to make the determination sought is only triggered when allegations are made that the grantee party or the Government party did not negotiate in good faith as required.
The practical effect of s 36(2) is to place an evidential burden on the party alleging lack of good faith negotiations, which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof, but any party alleging lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on (see Granny Smith). The Granny Smith determination also helpfully outlined the meaning of ‘good faith negotiations’ (at [93]-[94] – note that this obligation also applies to the grantee party, hence reference to ‘Government party’ can be read as also being to a ‘grantee party’):
Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’ (Western Australia v Taylor [1996] NNTTA 34; at 219 (‘Njamal’). Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Njamal as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but it is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour. Lack of good faith in the negotiations by the native title party will be relevant to whether the other parties have fulfilled their obligation and may impose a lesser standard on them.
A useful set of indicia, referred to in the extract from Granny Smith in the paragraph above, are outlined in Taylor (at [224]-[225]) (the ‘Njamal indicia’) and provide a guide to the applicable threshold for negotiation in good faith. In this matter, the native title party has not specifically adopted the Njamal criteria in its approach to the lack of good faith allegations. Rather, it relies on the overall approach that the grantee party’s conduct, when viewed as a whole, demonstrates a pattern of conduct which is inconsistent with the requirement of good faith. As such, I will not replicate the Njamal criteria word for word in this decision.
In Equs, Member Patricia Lane endorsed the Njamal indicia and considered it appropriate to look at those criteria in light of the kinds of activity that might be undertaken in negotiation, noting that they fall into a series of four related obligations. In the absence of a structure from the native title party contentions around specific good faith requirements or criteria, I adopt a similar approach to Member Lane, discussing the native title party’s contentions and the grantee party’s responses below, in the context of those four obligations, which are:
- An obligation to communicate and respond with other parties within a reasonable time;
- An obligation to make proposals to other parties and respond to those proposals (by making counter-proposals or by way of comment or suggestion about the original proposal) with a view to achieving agreement;
- An obligation to seek from other parties appropriate commitments to the process of negotiation or subject matter of negotiation, and a reciprocal obligation to make either appropriate commitments to process, or appropriate concessions as the case may be;
- An obligation to avoid unilateral conduct which harms the negotiation process and to act honestly and reasonably in the circumstances, with a view to reaching agreement (for example, make necessary inquiries of the other party).
Member Lane also stated that each party must act both honestly and reasonably with a view to reaching agreement about whether the act can proceed (at [25] and [31]). She held that all parties are required to adhere to the same standard of negotiating behaviour, but what they do to satisfy the obligation must be judged by reference to the interests they seek to advance in negotiations, the behaviour of the other negotiation parties and the circumstances in which the negotiations take place (at [26]). I adopt these principles for the purpose of this decision.
Contentions and Evidence
It appears that the negotiating entity for the grantee party is the Northern Energy Corporation ('NEC'). It also appears that the grant of this proposed lease is related to a larger project known as the Elimatta Project, although no party clearly outlines the relationship between the grantee party and NEC, or between the proposed lease and the Elimatta Project, in any detail.
The native title party contentions include annexures consisting of: the minutes of a meeting on 10 August 2011 between the NEC and the native title party; a copy of a PowerPoint presentation which appears to have been created by the NEC regarding the Elimatta Project dated 10 August 2011; and minutes of meetings dated 28 September 2011, and 21 June 2012, between the NEC and the native title party. On 28 June 2013, the native title party also lodged a reply to the contentions of the grantee party.
The grantee party’s submissions in relation to the good faith issue are in the form of: contentions with annexures of a chronology of events; a file note dated 9 September 2010 regarding the Elimatta Project and various emails between the grantee party and the native title party dated between November 2010 and June 2012.
The Government party contentions include: a copy of the s 29 notice; a topographical map of the proposed lease; an overlap analysis report for the proposed lease and an extract from the Native Title Tribunal Register of Native Title Claims.
Native title party submissions
The native title party does not appear to be making good faith allegations against the Government party but rather refers only to good faith allegations against the grantee party. They indicate that they do ‘not intend to embark upon an examination of the good faith negotiating indicia as referred to’ in Granny Smith but rather ‘intends to focus on the overall behaviour of the Grantee Party in support of its contentions that the Grantee Party has not negotiated in ‘good faith’ and in doing so has not satisfied the requirements of s 31(1)(b) NTA.’
The native title party states that the grantee party did not seek to discuss or understand native title rights or interests to the area in question or what impact the proposed lease would have upon the exercise of native title rights and interests of the native title party. The native title party states that the proposed lease has an area of land of 122 hectares in the middle of the lease, and that there are large areas of extinguishment in the form of freehold land surrounding the native title claim. The native title party states (at 2b) ‘as such the native title party viewed any remnant areas of ‘claimable land’ such as that covered by the proposed tenement to be of considerable higher value.’
The native title party says that the grantee party refused to fund expert assistance to help the native title party value the land. They also say they did make a counter offer to a grantee party royalty rate payment offer on 21 June 2012, but no response to that counter offer was received from the grantee party.
The native title party states that the grantee party was misleading in its representations about the Elimatta project in that it was actually dependent upon other projects. The native title party alleges that ‘there is sufficient evidence for the Tribunal to infer that the grantee party has deliberately engaged in deceptive and misleading conduct in the hope that it would be able to lower any monetary element of an agreement’ (at 5(n)). It alleges that the grantee party was merely going through the motions by participating in these negotiations and has never been genuinely motivated to meet the indicia in s 31 of the Act. The native title party refers to the grantee party’s approach as being ‘surface bargaining’ (at 7).
In summary, the native title party contends that the grantee party has ‘not been open and honest with the Native Title Parties [sic] nor has it made a genuine attempt to reach an agreement to allow the doing of the proposed future act’, and ‘the grantee party has acted disingenuously throughout the negotiations and at all times since the meeting of 21 June 2012.’
I note that the minutes of the meeting between the NEC and the native title party dated 10 August 2011 show discussion took place about the purpose of the meeting being:
...to discuss an Indigenous Land Use Agreement (ILUA) for the Elimatta Project. This has changed since the last meeting when we were talking about a right to negotiate (RTN) process with a s 31 deed.
The minutes point out that ‘the reason for the change in approach is that if we don’t do an ILUA, we may have to do further RTN if aspects of the project change.’ I note the minutes of the meeting also include the chair of the meeting (an NEC representative) indicating that NEC has a good reputation to uphold when undertaking these negotiations ‘and they intend to negotiate in good faith.’ It is also noted in the minutes that the grantee party states that there are some acts that cannot be done under a right to negotiate process, for example, dealing with camping and water reserves within the native title unclaimed area.
In those same minutes, there is some discussion about: the Iman Standard Agreement; comments which had been sent through; the general ILUA process; and the number of meetings that would be likely to be needed to reach agreement. I also note that the quotes the native title party have taken from these minutes and used in their contentions do not provide the context of the discussion - the context points to the grantee party and the native title party having negotiations about commercial terms and the value of the land. For example, an NEC representative states, ‘...we’re not a charity, if it’s not commercially viable...’ and the native title party representative says ‘...well, we’re not exactly just going to hand it to you either...’, then the NEC representative stating ‘I wouldn’t expect you to. While we aren’t going to make promises we can’t keep by promising x number of jobs, we can definitely use best endeavours. At this stage we still don’t know how the project will unfold.’
In addition, I note that specific offer terms were put at the meeting, and that the PowerPoint attached to the native title party contentions was created by NEC and relates to the Elimatta Project, stating that NEC is acting through Taroom Coal. The date of the PowerPoint is 10 August 2011. The PowerPoint refers to a parallel right to negotiate and ILUA processes, and to ML50254 as well as several other mining and exploration leases. It notes that there was a change in the Iman applicant group in July 2011. On one slide it also states that ‘NEC intends to negotiate in good faith to obtain Iman People’s agreement to the grant of the mining lease.’ It mentions that NEC is seeking a project consent to deal with the grant of these several mining leases and any other consents that may be required to allow the project to proceed.
The PowerPoint contains a slide entitled ‘what negotiation is about’ and the contents of that slide state:
...in discussion and through negotiation, we have to work out what the impact of the project and the grant of the mining leases is on your native title rights and interests.
Another slide states:
...this is not about what we think it is worth, or even what you think it is worth BUT what we can agree on, together, it is worth.
The PowerPoint outlines certain offer terms, including what was apparently circulated in draft agreements on 22 November 2010, including education contribution, training/apprentice opportunities, liaison committee and so on.
The minutes of the meeting dated 28 September 2011 indicate, again, that members of the native title party attended as well as Mr Rowe from Hopgood Ganim Lawyers, representing the grantee party through NEC, and Mr Owens representing the Iman People. I also note that minutes of the previous meeting were circulated to Mr Owens - he states in the native title party contentions that there were inaccuracies in these minutes but it is not clear whether he, or anyone else from the native title party, raised those when the minutes were circulated. Minutes show that the grantee party did not want to fund an academic expert but that they were willing to hear from the native title party and ‘would be interested in funding a marketability study if the Iman People were interested’ in relation to an accommodation proposal raised at the last meeting.
I note also that a summary of the requests from the Iman People developed during the meeting were listed at the end of those minutes. The minutes note that one of NEC’s action items was, once the native title party had confirmed the accuracy of the requests from the Iman People as listed in the minutes, then NEC would consider and provide a formal response.
The minutes from the 21 June 2012 meeting show that members of the native title party were present as well as Mr Rowe and Mr Owens. It appears that, as for the previous minutes provided, there was some discussion about Horse Creek and that the grantee party can’t mine it while it is still a camping and water reserve and that they were seeking to have the State grant freehold over the reserve. Mr Rowe notes that ‘we are obligated to compensate Iman for the area of the camping and water reserve – but the other benefits will be for the whole area.’ Various discussions are recorded, particularly in relation to offer terms, and there are various negotiations between these two parties reflected in the minutes. Offers and counter offers are made, and issues were raised at that meeting that NEC had not contemplated or which had not been raised previously.
The native title party response further clarifies some of its allegations, including concerns that:
a)activity in relation to this lease was reliant on another mine at Wandoan proceeding, and a rail line being constructed;
b)the native title party was not advised of this reliance;
c)the meetings of minutes as provided to the Tribunal were not an accurate record of the meetings; and
d)its offers to the grantee party were ignored.
Grantee party submissions
The grantee party marks out a detailed chronology of the negotiations of the matter, which commences on 25 June 2010 when it requests a meeting with the native title party, and concludes on 13 April 2013 when the grantee party lodges the future act determination application. The chronology stretches over 12 pages and shows that various meetings were arranged between the native title party and the grantee party, budgets were put forward and revised, and documents were exchanged of both a standard and non-standard nature including offers and counter offers. For example, there is a line in the chronology which refers to 27 September 2011, relating to five previous emails from NEC to Michael Owens following up not yet received standard documents and a response in relation to native title party preferences as to compensation, employment strategy, contracting etc.
Also recorded in the chronology is an email of 17 December 2012 from NEC to Michael Owens regarding the grantee party’s intention to apply for a future act determination pursuant to s 35(1) of the Act, to which Mr Owens did respond on 8 January 2013. Neither Mr Owens nor the grantee party have provided copies of these actual documents (the draft agreements, emails etc) for the consideration of the Tribunal. However, Mr Owens has provided quoted extracts from these communications in the native title party contentions. This outlines that the NEC email stated 'Despite numerous meetings between our respective clients and extensive good faith negotiations, Taroom Coal Pty Ltd and the Iman People are yet to reach agreement on the grant of ML 50254...', and goes on to state they are instructed to apply for a future act determination application.
I am satisfied that this chronology and the documents provided in support of certain items listed in the chronology do support that the grantee party made efforts to negotiate in good faith with the native title party about the proposed act. The documents supporting the grantee party contentions show that the grantee party did investigate the viability of a number of options which were put to the native title party as offers. The grantee party notes that the minutes (other than the minutes of the 9 September 2010 meeting) were sent to the native title party after each meeting and were not disputed at the time.
The grantee party states that the offers that were made were broken down into various categories and ‘were made on the basis of an assessment of other known native title agreements in Queensland for similar or comparable projects.’ The grantee party also points out that four offers were made to the native title party during the negotiation period and that it did not mislead the native title party about the nature of the project or its dependence on other projects proceeding.
The grantee party states that the native title party itself has not negotiated in good faith and outlines a number of grounds including: that the native title party did not identify the effect that the proposed act would have on its native title rights and interests; the native title party did not provide any substantive response to the grantee party’s offers; and general other issues related to costs and failing to respond to the grantee party offers and proposals over the course of the negotiations.
The grantee party concludes that the native title party contentions merely show that parties disagreed about the compensation to be provided to the native title party for its consent to the doing of the proposed act.
Government party submissions
The State adopts the principles as set out at paragraphs 2.6 and 2.9-2.17 of the native title party’s statement of contentions on the basis that they ‘are regularly included in the State’s statement of contentions in relation to good faith made before the Tribunal’ (at 3.4). These principles set out the legal requirements of future act determination inquiries, and have not been challenged by any party.
The Government party states that the native title party made no allegations regarding the lack of good faith negotiation by the Government party, and so they do not make any further contentions apart from providing a copy of the s 29 notice, a topographical location map, an overlap analysis report, and an extract from the National Native Title Tribunal Register of Claims. I note that the extract from that Register shows that the members of the native title party applicant group were largely those people who attended the NEC and Iman People meetings, according to the minutes of those meetings which have been provided to the Tribunal.
Good faith obligations
There is no actual evidence which has been presented in this matter, in terms of sworn statements supporting contentions and documents provided. As such, I have only the contentions and reply of the native title party representative, and some supporting documentation, to examine in relation to the native title party allegation of lack of good faith negotiations against the grantee party. The grantee party has responded to these allegations in a similar fashion, with general contentions and no affidavit evidence. As such, the examination of the material is fairly straightforward, and as outlined above, will be done within the context of the four obligations characterised by Member Lane.
Obligation to communicate and respond with other parties within a reasonable time
It appears that both parties listened to each other, put forward offers and counter offers, and set an approximate timeline for negotiations, including an approximate number of meetings. When negotiations failed to reach agreement by the expected time, or within the expected number of meetings, the grantee party lodged a future act determination application. I see nothing unreasonable about this, or anything that would indicate communications by the grantee party were not done in a timely fashion. The grantee party alleges that the native title party did not respond substantively to the grantee party offers, but there is very little in the materials provided to enable me to reach a conclusion on this point.
Obligation to make proposals to other parties and respond to those proposals with a view to achieving agreement
I do not find the grantee party failed to make and respond to proposals in good faith. The grantee party did put various proposals to the native title party, who also responded to those proposals, although it is not clear in what detail these responses were provided. It appears there may have been some confusion between parties about the process within which they were conducting these negotiations - for example, were they negotiating an ILUA or where they negotiating within the right to negotiate process? This would not have assisted the negotiation process, however, from the limited materials which have been made available to the Tribunal, it appears that the points which they were negotiating, including monetary compensation, education programs, and other subtleties often included in such negotiations, were outlined and information exchanged on these points. Parties simply were unable to reach an agreement.
Obligation to seek from other parties appropriate commitments to the process of negotiation or subject matter of negotiation, and a reciprocal obligation to make either appropriate commitments to process, or appropriate concessions
The native title party submits in its contentions that the grantee party’s representations and conduct were misleading in terms of the scope of the agreement. As noted above, there appears to have been some confusion between parties in this matter, which also extended to whether negotiations were about a single lease, or a number of leases which formed, or were related to, a project. Minutes clearly stated, on a number of occasions, reference to a number of leases, and to the Elimatta project. If the minutes were not accurate reflections of the meetings, it would be expected that the native title party representative, or members of the native title party, would have drawn that to the grantee party's attention. Either that, or the native title representative a) did not receive the minutes (which he does not allege), or b) he did not distribute the minutes to the members of the native title party who attended the meeting. These scenarios are unlikely given that emails to the native title party representative have been included which show he and one of the native title party member attendees was copied in to the email and asked for 'any comments on the minutes...'.In addition, I note there is nothing objectionable about a grantee party negotiating with a view to obtaining the agreement of a native title party about a project area (see Cox at [37]).
The native title party raises concerns that agreement relating to this lease was reliant on another mine project and a railway getting up and that the native title party was not made aware of this. Yet the native title party itself states that the railway was mentioned in the grantee party PowerPoint. In relation to the lease being reliant on another mine, there simply is no evidence on which I can base such a conclusion.
The grantee party points out, in its PowerPoint slides, that it is working within an environment of commercial imperative. It also acknowledges the different needs and interests of the grantee party and native title party. I do not find the grantee party exhibited behaviour which demonstrated a lack of good faith in relation to this obligation.
Obligation to avoid unilateral conduct which harms the negotiation process and to act honestly and reasonably in the circumstances, with a view to reaching agreement
I did not see any information in the native title party submissions which indicated the grantee party acted unilaterally, with a lack of honesty, or in a way which was not focussed on reaching an agreement with the native title party. I note it appears the grantee party did try to understand the interests of the native title party and the terms on which the native title party may consider reaching agreement. Not funding expert assistance is not evidence of a lack of good faith. The native title party says it did make a counter offer to a grantee party royalty rate payment offer after June 2012, and no response to that counter offer was received from the grantee party. However, once again, the materials provided to the Tribunal offer little support for that concern - it appears there were a number of outstanding issues and offers that also required a response from the native title party which were not forthcoming from the native title party, making it difficult for parties to reach agreement on one of the issues (when others were still outstanding).
The native title party representative implies that lodging the s 35 application was a unilateral act of bad faith on the part of the grantee party. As has been held on a number of occasions in Tribunal decisions, making a s 35 application in itself is not an indicator of lack of good faith. The parties had been negotiating since 2010, had met several times, had exchanged information, and the grantee party indicated to the native title party it would be lodging the future act determination application. The application was then lodged some four months later. It does not appear that the grantee party was in a hurry to lodge the application, or that it did so without first attempting, for some years, to negotiate an agreement with the native title party.
The grantee party attended meetings with members of the native title party, prepared offers and counter offers, and engaged generally in the negotiating process. I see nothing in the documents provided that would indicate the grantee party was engaged in ‘surface bargaining’.
Conclusion
The native title party consistently alleges that the minutes of meetings produced in this matter are not accurate or reliable. However, if they are excluded from consideration entirely, there is very little at all in the way of documentary material upon which I can base my conclusions. As such, I accept they are a record of the meetings held, as recorded by the grantee party, and that they do provide some assistance in drawing conclusions in relation to this matter. The native title party has not provided any contrary or alternative set of minutes for me to consider.
I find that the arguments advanced by the native title party in support of its allegation that the grantee party has failed to negotiate in good faith have not been made out.
Decision
The grantee party has fulfilled their obligation to negotiate in good faith with the native title party in relation to the proposed lease ML50254, as required by s 31(1) of the Native Title Act 1993 (Cth), and the Tribunal has power to conduct an inquiry and make a determination in relation to the future act determination application brought by the grantee party on 11 April 2013.
Helen Shurven
Member
9 July 2013
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