Terrence Harold Little v Wajarri Yamaji Aboriginal Corporation RNTBC
[2023] NNTTA 26
•28 August 2023
NATIONAL NATIVE TITLE TRIBUNAL
Terrence Harold Little and Another v Wajarri Yamaji Aboriginal Corporation RNTBC and Another [2023] NNTTA 26 (28 August 2023)
Application No: | WF2023/0003 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)
(native title party)
- and -
Terrence Harold Little
(grantee party)
- and -
Lucas Ronald Marcinowski Menzel
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 28 August 2023 |
Catchwords: | Native title – future act – s 35 application for determination – prospecting licence application – whether grantee parties negotiated in good faith – grantee parties have not negotiated in good faith – future act determination application dismissed |
Legislation: | Mining Act 1978 (WA) Native Title Act 1993 (Cth) ss 31, 36, 38, 148 |
Cases: | CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 (‘Badimia’) FMG Pilbara Pty Ltd v Cox and Others [2009] FCAFC 49; (2009) 175 FCR 141 (‘Cox’) I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (‘Wajarri Yamatji Determination’) IS (Name withheld for cultural reasons) and Others on behalf of Wajarri Yamatji v Terrence Harold Little and Another [2016] NNTTA 24 (‘Wajarri Yamatji v Little’) Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli [2018] NNTTA 81 (‘Rusa Resources v Gnulli’) Strickland and Another v Minister for Lands for Western Australia and Others [1998] FCA 868; (1998) 85 FCR 303 (‘Strickland’) Wajarri Yamaji Aboriginal Corporation RNTBC v Terrence Harold Little and Lucas Ronald Marcinowski Menzel and Another [2022] NNTTA 34 (‘WYAC v Little and Menzel’) Weld Range Metals Ltd v Western Australia and Others [2011] NNTTA 172; (2011) 258 FLR 9 (‘Weld Range Metals’) Western Australia v Taylor and Another [1996] NNTTA 34; (1996) 134 FLR 211 (‘Njamal’) |
| Representatives of the native title party: | Raina Savage & Colin Hamlett, Ethical Engagement |
| Representatives of the grantee parties: | Terrence Little & Lucas Menzel |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Donna Vicensoni, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Mr Terrence Little and Mr Lucas Menzel (the grantee parties) have applied for the grant of prospecting licence P 20/2429 near Cue in Western Australia. Wajarri Yamaji Aboriginal Corporation RNTBC (WYAC) holds native title in relation to the whole of the licence area in trust for the Wajarri Yamatji: see Wajarri Yamatji Determination. Mr Little is himself a Wajarri person. Mr Menzel is not.
At the time it notified the grant of the licence, the State of Western Australia considered the grant was an act attracting the expedited procedure under the Native Title Act 1993 (Cth). The registered native title claimant for the Wajarri Yamatji native title determination application (being the native title party at that time) objected to the application of the expedited procedure, and so the Tribunal was required to decide whether or not it applied.
On 9 May 2022, the Tribunal determined in WYAC v Little and Menzel that the expedited procedure did not apply to the grant of the licence on the basis that it was likely to interfere with an area of particular significance to the Wajarri Yamatji. The area of particular significance was identified as the Weld Range “pink box area” (due to how it was shown on the mapping). At [21] the Tribunal relied on “the overwhelming amount of evidence in relation to the Weld Range pink box area” discussed in earlier decisions (see, for example, Wajarri Yamatji v Little and Weld Range Metals).
As a result of the Tribunal’s decision in WYAC v Little and Menzel, WYAC, the grantee parties and the State were required to negotiate in good faith with a view to obtaining WYAC’s agreement to the grant of the licence in accordance with s 31(1)(b) of the Native Title Act.
No agreement was reached and, on 27 February 2023, the Tribunal accepted an application made by Mr Little (which appears to have been lodged on behalf of both grantee parties), for a determination about whether the licence may be granted. I have been appointed to constitute the Tribunal for that purpose, but I must not make a determination if any negotiation party satisfies me that another negotiation party (other than the native title party) did not negotiate in good faith as required by s 31: s 36(2) Native Title Act.
WYAC argues that the grantee parties did not negotiate in good faith, but does not make any such assertion about the State. For the reasons outlined below, I am satisfied that the grantee parties did not negotiate in good faith. Accordingly, I must not make a determination and the future act determination application is dismissed under s 148(a) of the Native Title Act.
Preliminary question – have the grantee parties negotiated in good faith?
President Dowsett summarised the notion of good faith in the context of s 31 in Rusa Resources v Gnulli at [12]–[16], and I adopt that analysis for the purpose of this matter.
WYAC must satisfy me that the grantee parties did not negotiate in good faith. That issue must be viewed objectively having regard to the negotiations as a whole.
In Njamal, the Tribunal outlined a number of what it called “useful indicia” of whether a party has negotiated in good faith. Those indicia are not exhaustive and do not comprise a checklist of actions for parties to follow, but they can be helpful in considering the parties’ conduct.
Negotiation between May 2022 and February 2023
The evidence indicates that there was no substantive negotiation between the parties prior to Mr Little lodging this application.
On 9 June 2022, shortly after the decision in WYAC v Little and Menzel, the Department of Mines, Industry Regulation and Safety (DMIRS) wrote to the grantee parties (care of Mr Little) and WYAC, enclosing information relevant to the licence, explaining that all parties have an obligation to negotiate in good faith and noting that the State is required to give all native title parties an opportunity to make submissions in accordance with s 31(1)(a) of the Native Title Act. To that end, the grantee parties were requested to provide WYAC with the following information about the licence, by registered mail within 14 days, with a copy to DMIRS:
(a)an outline of the proposed work programme, if available;
(b)copies of the company’s last annual report, if available;
(c)advice as to whether Aboriginal heritage surveys are proposed or have been completed;
(d)any company policies or information which might be relevant to native title claimants; and
(e)a suitable map of the project area (if applicable).
WYAC was asked to provide submissions by 28 July 2022.
The evidence indicates that the grantee parties (or at least Mr Little) wrote to WYAC and DMIRS as requested by DMIRS. Attached to Mr Little’s application is a copy of a one page handwritten document together with registered post receipts (dated 26 July 2022) addressed to WYAC’s postal address and DMIRS. At the top of this document is a copy of Mr Little’s business card, which identifies him as a Wajarri traditional owner and Aboriginal Cultural Surveyor. This document is written by and contains references to Mr Little. It does not make mention of Mr Menzel.
The information provided includes:
(a)a brief outline of the work programme which is “to scrap small area at a time and detect for gold then dryblow the piles of dirt for gold” and “drill holes that need a follow up drill program”;
(b)that Mr Little is a traditional owner and private prospector and therefore does not have company annual reports available;
(c)that heritage surveys will be ongoing and conducted by Mr Little and that anything found will be reported and recorded; and
(d)a statement that Mr Little’s “policies are trying not to get extorted for my people’s heritage and rights”, also noting Mr Little is linked to three groups, being Wajarri, Yugunga-Nya and Badimia, all covered by the proclamation of the Murchison mineral field.
Mr Little concludes by saying that he is “the traditional owner to [the Murchison mineral field] by name and birth” and he has “a right to the minerals under the Mining “Act” as well”. The final request is for WYAC to “lift [its] objection”.
Mr Little’s handwritten document was not sent within the requested 14 days, but there seems little doubt, and it appears to have been accepted by DMIRS, that it is intended to provide the information as requested by DMIRS in its 9 June 2022 letter. Although, the request for WYAC to lift its objection (which had already been determined by the Tribunal) suggests that Mr Little misapprehended the nature of the process he was involved in. The handwritten document did not outline any proposed next step for the negotiations. When sending the handwritten document to DMIRS, Mr Little attached part of DMIRS’ 9 June 2022 letter. The material does not reveal whether Mr Little sent the same bundle of documents to WYAC, or solely the handwritten document.
There is no reason to suspect WYAC did not receive the handwritten document but, even assuming it did, there was nothing concrete asked of it in response. There is also nothing on the face of the document to indicate that it was written on behalf of both grantee parties. Rather, the document seems to relate solely to Mr Little and present his perspective on the matter.
There is no evidence to indicate that WYAC provided the s 31(1)(a) submissions requested by the State, whether by 28 July 2022, or at all. Late in the inquiry, the State provided copies of emails from DMIRS to WYAC, following up on these submissions and seeking to establish who at WYAC was dealing with the matter. These emails are dated 14 November 2022, 16 November 2022 and 12 December 2022. There is no evidence of any reply. In the course of the inquiry, WYAC was given an opportunity to respond to this new material, but did not do so. There is no evidence to indicate that anyone from the State attempted to speak to WYAC by telephone or otherwise to progress the matter. In any event, all that is required of the State under s 31(1)(a) is to give WYAC the opportunity to make submissions regarding the licence, which it did. There is also no obligation on WYAC to make submissions, but one might expect the courtesy of a response in the context of good faith negotiations.
There was no request for mediation under s 31(3) by any party.
In the application in this matter, Mr Little also says that he contacted Ms Raina Savage, one of WYAC’s heritage representatives, by phone and contacted Mr Colin Hamlett (a Wajarri elder) in person regarding “lifting of the objection” and “both said no”. He says he also endeavoured to speak with the Wajarri Group CEO (which I take to mean the WYAC chief executive officer). Mr Little does not identify with whom he spoke but says they refused to discuss anything with him. Mr Little does not say when these calls occurred but, again, if it was after the Tribunal’s decision in WYAC v Little and Menzel, he appears to misapprehend the nature of the negotiations.
There is no other evidence in relation to any communication between the parties prior to Mr Little lodging the application in this matter accepted by the Tribunal in February 2023.
Negotiation after acceptance of this application in February 2023
Following the preliminary conference for this matter on 13 March 2023, the State requested mediation in accordance with s 31(3) of the Native Title Act. The Tribunal’s records reflect that two mediation conferences were held between the parties.
In accordance with s 31(4) of the Native Title Act, I am able to have regard to information disclosed in those conferences for the purposes of establishing whether a negotiation party has negotiated in good faith. The parties were informed of my intention to have regard to the records of the mediation conferences and were invited to indicate whether they had any issue with that approach or wished to provide any additional comments. Only the State responded to indicate that it had no objection and did not wish to make any further comment.
Communications between the grantee parties and WYAC prior to the mediation conferences
WYAC’s material includes an email from Ms Sharon Zappelli, a WYAC Heritage and Future Acts Manager, to Mr Graham O’Dell, chief executive officer of WYAC, outlining the following communications from or on behalf of the grantee parties:
(a)13 March 2023 – initial contact from Mr Little and the subsequent provision to him of WYAC’s preferred heritage agreement;
(b)15 March 2023 – discussion between Ms Zappelli and Mr Bob Sheppard (an archaeologist who appears to have been acting on behalf of Mr Little) regarding Mr Little’s desire to conduct his own survey, with Mr Sheppard;
(c)20 March 2023 – receipt of Mr Sheppard’s written proposal for the conduct of such a survey (not provided with WYAC’s materials); and
(d)29 March 2023 – Mr Little’s telephone advice that he was not agreeable to the terms of the WYAC agreement and that he wished to pursue the proposal to conduct his own survey.
First mediation conference on 19 April 2023
Both grantee parties, a representative of the State and two representatives for WYAC, being, Mr O’Dell, and Ms Savage attended this conference.
The Tribunal’s notes reflect that cultural heritage emerged as a key issue. WYAC explained that its rule book requires a heritage survey to be carried out before it can agree to the grant of the licence and that Mr Hamlett is the person authorised to undertake such surveys. However, WYAC indicated it was open to negotiating the terms of the survey. WYAC said that because Mr Little is a Wajarri traditional owner and a member of WYAC, its fees would be waived but there would still be fees payable to the heritage service provider.
Mr Little explained his connection to the licence area, having been involved in gold mining his entire life. Mr Little said that he did not understand the need for a heritage survey as required by WYAC.
The outcomes from the conference were that the grantee parties would provide WYAC with an outline of their proposed activities and a map showing their areas of interest. WYAC would then provide a preliminary survey quote.
Second mediation conference on 31 May 2023
At the second mediation conference, Mr Little said that he did not accept the quote received from WYAC. He said he sees this matter as an issue of his native title and mineral rights which he believes are being improperly claimed by WYAC. The Tribunal’s notes reflect that Mr Little considers this to be extortion, which echoes his comments in the handwritten document sent to WYAC, also sent to DMIRS.
The grantee parties’ position, as stated by Mr Little, was that, while WYAC was welcome to conduct a survey at its own expense, he considers “this to be a fight for his rights to land”.
WYAC’s position was that it had compromised as much as possible, noting that the group requires a survey to protect its heritage.
In the end, all parties said they were content for me to proceed to make a decision and the mediation was subsequently terminated.
WYAC’s good faith contentions
WYAC relies on a number of the Njamal indicia in outlining why it says the grantee parties have not negotiated in good faith. Some of the issues raised are related and I have considered them together.
No information about the exercise of rights under the licence
No effort to contact or communicate with WYAC to initiate negotiations
WYAC says the grantee parties have not provided it with any information about their proposed exercise of rights under the licence, in order for it to understand the impact on its native title rights and interests. It also argues that the grantee parties have not made any efforts to communicate either through WYAC or the heritage service provider prior to lodging this application.
Neither of these statements appear to be entirely accurate because, however brief, Mr Little’s handwritten document does provide some explanation of what he proposes, although it says nothing about Mr Menzel. Mr Little also says he did endeavour to make contact with WYAC by phone although there is no evidence to support these claims, just the statements included in the application.
The Tribunal’s records also reflect that, in accordance with the outcomes of the first mediation conference, Mr Little provided a map of his area of interest in order for WYAC to provide a preliminary quote.
However, overall, it would be fair to characterise the grantee parties’ efforts to progress the negotiations as minimal at best. The repeated requests for WYAC to lift its objection are also confusing and would not have assisted.
Failure to enter negotiations regarding WYAC’s proposed heritage agreement
Making an unreasonable proposal to conduct own heritage survey
Not offering any reasonable proposals for a heritage agreement or heritage management
The native title rights held by WYAC in trust for the Wajarri Yamatji include maintaining, caring for and protecting places of cultural or spiritual importance and carrying out activities to preserve their physical or spiritual integrity.
In his affidavit for WYAC v Little and Menzel, also submitted in this matter, Mr Hamlett explains the high cultural significance of and his responsibility for the Weld Range “pink box area”. He says within the Wajarri Yamatji it is acknowledged that he and his family speak for and have cultural responsibility for the Weld Range area. His authority has been formally recognised by the Wajarri Yamatji at various community meetings and a special agreement has been developed for the Weld Range area in order to protect the culturally rich country.
Mr Hamlett says that Mr Little’s area is Minangu and that Mr Little does not have the right to speak for or look after heritage in the Weld Range area. None of that information is expressly disputed by Mr Little, other than indirectly through his proposals to conduct heritage surveys himself.
WYAC contends that the grantee parties failed to enter into negotiations about its proposed heritage agreement, and have not offered any reasonable alternatives. It also argues that Mr Little’s proposal that he will conduct his own heritage survey with a consultant, but to the exclusion of the Wajarri Yamatji who speak for the licence area, is unreasonable and represents a significant conflict of interest. There is merit in those contentions, which I will discuss further below.
Grantee parties’ good faith contentions
The grantee parties’ contentions are very brief and while they are ostensibly filed on behalf of both grantee parties, they are written by Mr Little in the first person and appear to address the issues solely from his perspective.
In relation to the question of good faith, the grantee parties simply state that WYAC has not negotiated in good faith. They contend that, while WYAC holds native title in trust, it does not hold exclusive heritage rights on trust under the Native Title Act. It is difficult to understand what point is being made here. As I have noted at [38] above, the native title rights held in trust by WYAC include rights in relation to the protection of cultural and spiritual places.
If Mr Little is saying there is a separate and distinct right to protect heritage not held by WYAC, whether under a statute or otherwise, he does not identify it. The native title rights and interests of the Wajarri Yamatji in relation to the licence area are those set out in the Wajarri Yamatji Determination and held in trust by WYAC.
Mr Little also says that he, “the grantee also complied with the [Native Title Act] registration test which show my people’s first contact to white folk. This is my question of a lack of good faith to [WYAC] who are you” (as per original).
Again, I am unclear as to what Mr Little refers here, but to the extent it is the Wajarri Yamatji native title determination application (WAD6033/1998/WAD28/2019), it has been superseded in relation to the licence area by the Wajarri Yamatji Determination and native title is now held in trust by WYAC. WYAC is the native title party in this matter.
Did the grantee parties negotiate in good faith?
All parties have an obligation to negotiate in good faith in accordance with s 31(1)(b) of the Native Title Act. I think it is fair to say that none of the parties to this matter has covered themselves in glory in that respect, at least prior to the mediation conferences.
The State did little to progress the negotiations, other than its initial correspondence and follow up correspondence to WYAC. WYAC does not appear to have responded in any way to the State’s requests for submissions, nor to the grantee parties’ initial document, although that document did erroneously refer to the withdrawal of WYAC’s objection.
As I have noted above, the efforts by the grantee parties to progress the negotiations prior to the lodgement of this application were minimal at best.
None of the parties sought mediation until it was raised by me at the preliminary conference. During the Tribunal’s mediation conferences, there were signs that both the grantee parties and WYAC were willing to take steps to reach agreement, but these efforts quickly dissolved and there does not appear to have been any meaningful effort to discuss the terms of the proposed agreement or the issues between the parties.
It is not necessary for the negotiations to have reached a particular stage (Cox at [23]), nor is it necessary for the grantee parties to capitulate to all requests made of them (Njamal at 222–223 and Strickland at 312). However, in this case, the negotiations, such that they are, have been conducted only in the shadow of this application.
More significantly though, the central stumbling block seems to have been the approach of the grantee parties, which has been shaped by some fundamental misconceptions about the role of the grantee party and Mr Little’s rights.
These views were also reflected in the application in this matter. Mr Little provided copies of correspondence dating back to 2016 regarding disputes with the Shire of Cue and Shire of Mount Magnet in relation to unpaid rates on mining leases. There is also correspondence dating from 2022 regarding Mr Little’s non-compliance with the terms and conditions of mining leases. The relevance of this correspondence to the licence is not clear, but they echo Mr Little’s sentiments as expressed in this matter, i.e. that, as an Aboriginal person and traditional owner, he has a right to the minerals and is, in effect, not required to comply with any requirements contrary to that positon, for example, to pay rates. In WYAC v Little and Menzel, Member Shurven at [28] noted similar views expressed by Mr Little.
While Mr Little is an Aboriginal person, a Wajarri traditional owner and, as I understand, a member of WYAC, he is not the native title party in this matter. He is but one of the grantee parties and remains subject to all of the usual requirements for obtaining and holding a prospecting licence. Further, despite Mr Little’s assertions, he does not hold rights to the minerals in the licence area and requires a licence from the State in order to explore for gold. The Wajarri Yamatji Determination makes it clear that the recognised native title rights do not confer any rights in relation to minerals as defined in the Mining Act 1978 (WA), reflecting the position confirmed by the Courts on many occasions (see discussion in Badimia at [774]–[778]).
While I appreciate that may be a difficult position for Mr Little to accept, he is, as an applicant for a prospecting licence, in the same position as any other applicant under the Mining Act. His participation in the right to negotiate process is as a grantee party not a native title party.
Additionally, to the extent that Mr Little was negotiating on behalf of Mr Menzel, his arguments fail to take account of Mr Menzel’s position as a grantee party. There is no evidence that Mr Menzel took any steps to negotiate himself, although he did attend the mediation conferences.
As discussed in Rusa Resources v Gnulli at [14], negotiating in good faith has been described as acting “with an open mind, willingness to listen, willingness to compromise, [and] an active and open participation of the other parties”. The evidence indicates that the grantee parties rejected the agreement proposed by WYAC, but there does not appear to have been any meaningful reason given, other than Mr Little thinking that he should be able to conduct his own survey. None of the issues appear to have been explored in any detail. Underpinning this approach is Mr Little’s lack of acknowledgement or acceptance of WYAC’s role as native title party, evidenced by his contention asking WYAC “who are you” and the frequent references to extortion. This is all indicative of a closed mind.
In my view, the grantee parties’ position in this respect is unreasonable, as contended by WYAC. Mr Little may be a Wajarri person but he is participating in this matter in his capacity, together with Mr Menzel, as the grantee parties. No doubt the fact that Mr Little is a Wajarri person is something that can be taken into account in the negotiations, as WYAC has said it can do, but it does not excuse Mr Little from his obligation to negotiate in good faith with WYAC “with a view to” obtaining WYAC’s agreement to the grant of the licence. The misconceptions and attitudes held by Mr Little have thwarted any likelihood of that occurring to date.
In the circumstances outlined, I do not consider that the grantee parties negotiated in good faith. I encourage the grantee parties, and all parties, to engage in a meaningful way in pursuit of the objective of the negotiations which is to obtain WYAC’s agreement to the grant. To the extent it assists the parties, I would recommend continued mediation by the Tribunal, perhaps with the additional involvement of a Member.
Determination
I am satisfied that the grantee parties did not negotiate in good faith as required by s 31(1)(b) of the Native Title Act and, therefore, I must not proceed to make a determination under s 38. I dismiss the application under s 148(a).
Ms Nerida Cooley
Member
28 August 2023
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