The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia - [2005] NNTTA 100

Reported at (2005) 196 FLR 319

NATIONAL NATIVE TITLE TRIBUNAL

The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, [2005] NNTTA 100 (23 December 2005)

Application No: WF05/10

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

- and -

IN THE MATTER of an inquiry into a future act determination application

The Griffin Coal Mining Co Pty Ltd (grantee party/Applicant)

- and -

Nyungar People (Gnaala Karla Booja) (native title party)

- and -

The State of Western Australia (Government party)

DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 23 December 2005

Catchwords: Native title – future act – application for a determination in relation to coal mining leases – jurisdiction – whether Government and grantee parties have negotiated in good faith – scope of the obligation to negotiate in good faith (s 31(2)) – no obligation on Government party to negotiate in good faith about compensation or s 31(1) payments – whether grantee party is obliged to consider compensation and s 33(1) payments – native title party decision not to make a submission (s 31(1)(a)) about the effect of the future act on registered native title rights and interests a relevant factor – failure to compromise on one issue does not mean a lack of good faith negotiations – conduct to be judged from the negotiations overall – Government and grantee parties have negotiated in good faith.

Legislation:Native Title Act 1993 (Cth) ss 24MD(4)(b), 29, 31, 33, 35, 36(2), 38, 39, 41(3), 51, 233, 240
Aboriginal Heritage Act 1972 (WA) s 18
Mining Act 1978 (WA) ss 27, 123, 125A

Cases:Anaconda Nickel Ltd v Western Australia [2000] NNTTA 36; (2000) 165 FLR 116
Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152
Gulliver Productions Pty Ltd/ Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia, NNTT WF05/1 [2005] NNTTA 88 (30 November 2005), Hon C J Sumner
Mineralogy Pty Ltd v National Native Title Tribunal & Ors [1997] FCA 1404; (1997) 150 ALR 467
Minister for Mines, State of Western Australia/Kevin Peter Walley on behalf of the Ngoonooru Wadjari People, NNTT WF97/5, [1998] NNTTA 4 (25 March 1998), Hon C J Sumner
Normandy Pajingo Pty Ltd and Battle Mountain (Australia) Inc/Queensland/Colin McLennan and Ors on behalf of the Birri People and James Reid and Ors on behalf of the Kudjala People, NNTT QF00/2, [2000] NNTTA 327 (29 September 2000), Hon C J Sumner
Placer (Granny Smith) Pty Ltd & Anor v Western Australia & Others [1999] NNTTA 361; (1999) 163 FLR 87
Risk v Williamson [1998] 640 FCA; (1998) 87 FCR 202
Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, [1999] NNTA 235 (27 August 1999), Hon E M Franklyn QC
South Blackwater Coal Ltd v Queensland [2001] NNTTA 23; (2001) 165 FLR 232
Strickland v Western Australia [1998] 868 FCA; (1998) 85 FCR 303
Walley v Western Australia [1996] FCA 490; (1996) 67 FCR 366
Walley v Western Australia [1999] FCA 3; (1999) 87 FCR 565
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
Western Australia v Taylor [1996] NNTTA 34; (1996) 134 FLR 211
Western Australia v Evans [1999] NNTTA 231; (1999) 165 FLR 354
Western Australia v Dimer & Others [2000] NNTTA 290; (2000) 163 FLR 426
Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/ Leslie Hayes, Glenys Hayes, Judy Hayes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji People, NNTT WF00/7, [2001] NNTTA 18 (9 March 2001), Hon C J Sumner
Western Australia v Daniel [2002] NNTTA 230; (2002) 172 FLR 168
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333

Hearing dates: 29 September 2005, 10 October 2005, 21 December 2005

Counsel for the
native title party: Mr Alan Hershowitz

Solicitor for the Mr Ettienne van Tonder,
native title party South West Aboriginal Land and Sea Council

Counsel for the
grantee party: Ms Christine Lovitt, Blakiston & Crabb Solicitors

Solicitor for the Ms Melanie Perry, In-house Solicitor,
grantee party: The Griffin Coal Mining Co Pty Ltd

Counsel for the
Government party: Mr Trevor Creweel, State Solicitor’s Office

Representative of the

Government party: Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

Background

On 7 August 2002, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of a future act, namely the grant of coal mining leases CML12/774, CML12/775, CML12/844 and CML128/45 (‘the proposed mining leases’) under the Mining Act 1978 (WA) to The Griffin Coal Mining Co Pty Ltd (‘the grantee party’).
The proposed mining leases are situated in the Shire of Collie, Collie River mineral field, which has seen active coal mining since the first Government mine was opened in the region in December 1898. The grantee party initially applied for CML12/774 and CML12/775 in December 1979 and CML12/844 and CML12/845 in July 1980 but for various reasons these applications did not progress toward grant until 2002. Each of the proposed mining leases is located adjacent to existing coal mining operations that supply the Collie and Muja power stations and the power generation facilities themselves. The land within the southern leases, CML12/774 and CML12/775, is designated State Forest and managed by the Department of Conservation and Land Management. This forest has been subject to active logging in the past. The northern leases, CML12/844 and CML12/845, also encompass areas of previously logged State Forest. However, approximately 25% of CML12/844 and 80% of CML12/845 encroach onto private (freehold) land that is occupied by the Collie power station and associated facilities.
The area, location and percentage to which each of the proposed licences as applied for overlap the native title claim is as follows:

CML12/774– 120.94 hectares, 15 kilometres southeast of Collie; 100% overlap;
CML12/775– 107.74 hectares, 16 kilometres southeast of Collie; 100% overlap;
CML12/844 – 124.8 hectares, 10 kilometres east of Collie; 100% overlap; and
CML12/845 – 77.84 hectares, 10 kilometres east of Collie; 100% overlap.

[NOTE: These calculations represent the percentage overlap between the external boundary of the native title determination application and the proposed mining leases and do not take into account areas excluded from the claim (i.e. its internal boundaries).]

The grantee party says that the grant will only be made over a total area of 197 hectares although the reason for this is not clear to the Tribunal.

The native title party in respect of these proceedings is as follows.

Mr Derrick Smith, Mr Franklyn Nannup, Mr Harry Narkle, Mr Joseph Northover, Mr Joseph Walley, Mr Mervyn Abraham, Mr Peter Michael, Ms Barbara Corbett-Stammner and Ms Lorraine Bellotti on behalf of the Nyungar People (Gnaala Karla Booja) (WC98/58). This claim was entered onto the Register of Native Title Claims on 17 September 1998 and has been continuously registered since.

On 1 September 2005, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application was made on the basis that the negotiation parties had not been able to reach agreement within six months of the Government party giving notice of intention to do the act.

Good faith negotiations – jurisdiction

The Tribunal must be satisfied as a pre-condition to considering the s 35 application and making a determination that the Government and grantee parties have negotiated in good faith with the native title parties as required by s 31(1)(b) of the Act (s 36(2) NTA; Walley v Western Australia [1996] FCA 490; (1996) 67 FCR 366) (‘Walley - 1996’). The native title party initially contended that neither the Government nor grantee party had fulfilled its obligation to negotiate in good faith.
The Tribunal has said that 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 a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on (Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, [1999] NNTTA 235 (27 August 1999) Hon E M Franklyn QC (at pps 4, 21); Placer (Granny Smith) Pty Ltd & Anor v Western Australia & Others [1999] NNTTA 361; (1999) 163 FLR 87 (21 December 1999) (‘Placer’) (at [21]-[28])).
The Tribunal made directions for the exchange of contentions and documentary evidence to enable the preliminary issues to be determined. Following the filing of contentions and evidence, the native title party requested an oral hearing limited to making submissions on the evidence already provided. Although opposed by the other parties, I acceded to the native title party’s request. At the outset of the hearing the native title party withdrew its contention that the Government party had not negotiated in good faith.

Good faith negotiations – legal principles

The obligation to negotiate in good faith is contained 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.’
In Gulliver Productions Pty Ltd/Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia, NNTT WF05/1, [2005] NNTTA 88 (30 November 2005) (‘Gulliver’), I considered the applicable legal principles to the issue of negotiation in good faith (at [8]-[20]). I adopt those findings for the purposes of this inquiry.

Contentions and evidence

The Tribunal has had regard to the following contentions and documentary evidence submitted by the parties and oral submissions made at the hearing on 21 December 2005.
The native title party has provided the following submissions supporting its contention that the Government and grantee parties did not negotiate in good faith regarding the doing of the act:

Native title party’s statement of contentions, undated but lodged with the Tribunal on 2 December 2005 and supporting documents:
-    Affidavit of Ettienne Avenant van Tonder, sworn on 2 December 2005, dealing with the negotiations and correspondence and documents dated between 24 February 2003 and 5 August 2005 in relation to communications between the grantee party and South West Aboriginal Land and Sea Council (‘SWALSC’).
-    Letters, emails, facsimiles and copies of documents (draft and final) as above, attached to the affidavit – “EVT1” to “EVT25”.
-    Affidavit of Ted Arnold Hart, sworn on 29 November 2005, attaching correspondence dated between 1 April 2004 from the grantee party and SWALSC.
-    Affidavit of Shirley Hayward, sworn on 1 December 2005.
-    Affidavit of Trevor Eades, sworn on 2 December 2005.
The Native Title Party’s Responsive Affidavit of Ettienne Avenant van Tonder, sworn 19 December 2005 with annexure “EVT1”.

The Government party’s submissions in relation to the good faith issue comprise the following documents:

Statement of Contentions regarding Future Act Determination Application (pursuant to paragraph 2 of Directions made on 10 October 2005), dated 12 December 2005:
- Affidavit of Faye Juliette Mitchell, sworn on 13 December 2005 with Annexures “FJM1” to “FJM41”.

The grantee party’s submissions in relation to the good faith issue comprise the following documents:

Statement of Contentions on the Issue of Negotiations in Good Faith by Grantee Party, dated 12 December 2005.
- Affidavit of David Allan Moore, sworn on 8 December 2005 dealing with the negotiations until 11 July 2005 and correspondence and documents dated between 24 February 2003 and 17 November 2005 in relation to communications between the grantee party and SWALSC and the deponent’s business diary covering that period with Annexures “DM1” to “DM20”.
- Affidavit of Ian Charles Piggott, sworn on 9 December 2005 dealing with the negotiations after 11 July 2005 and correspondence and documents dated between 4 February 2005 and 17 November 2005 in relation to communications between the grantee party and SWALSC.

The native title partly applied to ‘strike out’ annexures to the affidavit of Faye Mitchell which were the notes of Tribunal mediation conferences taken by Ms Janice Goodwin the Government party’s Case Officer. The native title party said they were not evidence. The Tribunal is not bound by the rules of evidence (s 109(3) NTA) and usually adopts the practice that it will receive relevant documentary evidence and then determine the weight to be given to it. In this case I found the notes of Ms Goodwin helpful in providing details of the issues raised at the various Tribunal mediation conferences. Mr van Tonder disputes some of this record and some of the mediation outcomes prepared by Tribunal officers. I have not regarded any of these disputed matters of fact as critical to my decision. Had they been, I would have sought further evidence to clarify the position.

Summary of contentions

The native title party contended (Statement of Contentions filed 2 December 2005 – para 27) that the Government party failed to negotiate in good faith because of a failure to facilitate and actively participate in the negotiation process, in particular to facilitate discussions on matters encompassed by Section 33 of the Act. Although this contention has now been withdrawn I have for completeness sake and because some issues may be relevant to future inquiries still considered some issues relating to the Government party’s obligation.
The discussions between the native title party and grantee party proceeded in two distinct phases; settlement of a negotiation protocol from 11 February 2003 to 6 July 2004, followed by substantive negotiations regarding the grant of the proposed mining leases from 29 July 2004 to the termination of negotiations on 9 September 2005. The contentions of the native title party raise issues in relation to both phases that it alleges demonstrate the grantee party’s failure to negotiate in good faith:

The negotiation protocol
-    The grantee adopted an unreasonable position and attitude toward the negotiation protocol, including taking ‘petty and trivial’ objections to provisions within it;
-    The grantee failed to understand restrictions on the native title party’s ability to progress negotiations and arrangements, such as working group meetings, put in place to overcome them causing it to unreasonably attribute delay in settling to the negotiation protocol to the native title party, which in turn affected the negotiation as a whole;
-    In responding to funding proposals to overcome the native title party’s resource constraints embodied in the SWALSC draft negotiation protocol by stating it was not a ‘cash cow’, the grantee set a negative tone to discussions about the protocol that affected the negotiation as a whole;
-    The grantee attempted to unreasonably dictate the terms of the protocol relating to the size and composition of the native title claimant’s negotiating team, the duration of a proposed negotiation meeting and range of issues to be canvassed; and
-    The grantee ultimately reneged on funding provisions embodied in clause 7(b)(viii) of the SWALSC draft of the negotiation protocol, that the native title party believed were agreed to.
The substantive negotiations
-    From the outset the grantee party sought to downplay the importance of the proposed leases to its operations and to the native title party;
-    The grantee party sent representatives to the August 2004 negotiation meeting with the native title party having authority only to present an offer based on a pre-determined bargaining position;
- The grantee party refused to engage in discussions relating to, or seriously consider making, payments to the native title party of the sort embodied in Section 33 of the NTA;
-    The grantee party refused to consider making payments into a charitable trust or otherwise to the native title party;
-    The grantee failed to make a formal offer and did not respond with alternate proposals when its initial suggestions, amounting to less than a formal offer, were not agreed to by the native title party;
-    In any event, the offers made by the grantee party were unreasonable and not capable of acceptance by the native title party;
- Throughout the negotiation the grantee party reminded the native title party of its right to seek a determination pursuant to Section 35 of the NTA, calling into question its commitment to a negotiated outcome; and
-    The grantee party did not act honestly by stating that it was prepared to continue negotiations at a time when its representatives were not authorised to do so.

Good faith negotiations generally – Government party

The Government party’s evidence is contained in the affidavit of Faye Mitchell the Government party’s lead negotiator. The negotiations were principally conducted on behalf of the native title party by Mr Ettienne van Tonder, a Senior Legal Officer within SWALSC. However, at a two-day negotiation meeting (24-25 August 2004) various members of the Gnaala Karla Booja native title claim group, designated the negotiating team and led by Mr Ted Hart, also participated in the discussions.
The Government party effectively commenced the negotiations on 11 February 2003 some eight weeks after the s 29 closing date of 7 December 2002 by sending a letter to the other parties.
The Tribunal is aware that the Government party’s letter is consistent with its normal practice in matters of this kind and emanates from the suggestions made by the Tribunal in Western Australia v Taylor [1996] NNTTA 34; (1996) 134 FLR 211 (‘Njamal’) (at 249). The letter is in substantially the same terms as that considered in Gulliver (at [32]-[34]) but adapted to the circumstances of this case. It provided the following documentary information:

a copy of the tenement application;
a Tengraph plan of the tenement;
a topographical plan of the tenement;
a copy of the search of the Register of Aboriginal sites;

an extract of section 39(1) of the NTA;
a guide to what constitutes negotiation in good faith;
a copy of the Government party’s Negotiation Protocol; and
the contact details for each of the parties.

The Government party’s letter of 11 February 2003 also:

alerted parties to the fact that section 31(1)(b) of the NTA imposes an equal obligation on the Government party, the grantee party and the native title parties to negotiate in good faith;
pointed out that if despite proper negotiations, agreement is not reached, an application under s 35 of the Act may be made by any negotiation party for a determination if six months has passed since the s 29 notification day;
encouraged the parties to actively pursue the negotiations;
advised the parties that they may contact each other directly in order to advance the negotiations (although parties were requested to copy all correspondence to each of the other parties for their information) and that meetings may take place without all the parties being present if issues to be discussed concerned only some of the parties;
offered parties the opportunity, at any stage of the negotiations, to make enquiries of the Government party, or to make suggestions as to how the Government party could assist in the negotiations; and
reminded parties that under section 31(1) of the NTA, any party may at any time request the Tribunal to mediate to assist in obtaining the agreement of the parties.

The Government party’s letter of 11 February 2003 also pointed out the Government party’s obligation under s 31(1)(a) of the Act to give all native title parties an opportunity to make submissions to it regarding the act. To enable the native title party to make these submissions the grantee party was requested to provide to the native title party (and Government party) within 14 days by registered mail an outline of the proposed work program, copies of the grantee party’s last annual report, advice as to whether Aboriginal heritage surveys within the tenement area are proposed or have been completed, any company policies or information which may be relevant to the native title party and a suitable map of the project area.
The letter then outlined the Government party’s proposal and enclosed:

a copy of the draft conditions and endorsements for the tenements 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” (Department of Industry and Resources – February 2003);
“Fees and Charges: Information on Mining Tenements” (Department of Industry and Resources); and
“Mineral Exploration and Productive Mining, Approvals and Responsibilities required by Government” (Department of Industry & Resources – August 2002).

The four additional conditions which are customarily offered by the Government party in negotiations about the grant of mining tenements and petroleum titles, deal with native title party rights of access; provision to the native title party of any notice under s 18 of the Aboriginal Heritage Act 1972 (WA) for permission to disturb a site and any proposal for exploration and production; and ensuring any assignee of the proposed leases is bound by the conditions.
The Government party’s initiating letter of 11 February 2003 then requested the native title party to make their submissions regarding the act by no later than 4 April 2003 with copies to other parties. The letter then said:
‘These submissions should include details of all native title parties’ views on the effects which the act will be likely to have on their native title rights and interests as detailed in section 39 of the NTA. The NNTT has recommended that it is these submissions, which will form the basis of the negotiations, which will follow between the parties as listed below.’
In the subsequent negotiations the Government party generally acted reasonably and in accordance with the requirements of good faith negotiations, including the Njamal indicia (cited in Gulliver at [11]-[14]). Examples of action taken by the Government party are that, not having received a submission from the native title party in response to the 11 February letter, it wrote again to SWALSC on 23 May 2003 requesting the native title party’s submission be provided as a matter of urgency; discussed progress of negotiations with the grantee party on occasions; on 24 June 2003 wrote to parties stating that, in view of the lack of confirmation from parties that negotiations had commenced, it intended to request s 31(3) mediation assistance from the Tribunal and attended all mediation conferences convened by the Tribunal after the grantee party’s 7 April 2004 request for s 31(3) mediation assistance. It is also apparent from Ms Mitchell’s affidavit and other evidence that negotiations were occurring directly between the grantee and native title parties, particularly surrounding the negotiation protocol, which the Government party was not invited to participate in. Further, negotiations about compensation were conducted between the grantee party and native title party as no request for compensation was made of the Government party
The Government party’s role in the negotiations was essentially a facilitative one. Apart from proposing the additional four conditions the Government party did not make offers or engage in the substance of the negotiations. This was left to the native title and grantee parties. However, what the Government party did was consistent with what has become common practice in Western Australia in the case of negotiations involve the grant of mining tenements. The factual circumstances in particular cases and the nature of the future act can be taken into account in assessing what the Government party is obliged to do as part of good faith negotiations. The practice in Western Australia whereby substantive negotiations occur between the native title party and grantee party sometimes without the knowledge of the Government party which leads to an Ancillary Agreement between them is also relevant. Often the Government party’s substantive involvement is limited to finalising matters by way of a State Deed which is an agreement of the kind mentioned in s 31(1)(b) of the Act between all three negotiation parties. The Tribunal’s findings in Gulliver at [36]-[37] about the Government party’s obligation to negotiate in good faith in the context of petroleum titles also apply to negotiations about mining tenements under the Mining Act. In general terms the Government party has, in accordance with the general practice in Western Australia, negotiated in good faith.
The specific allegation originally made by the native title party was that the Government party failed to facilitate and actively participate in discussions in relation to matters covered by s 33(1) of the Act.
Section 33 of the Act says:

‘33 Negotiations to include certain things

Profits, income etc.
(1)Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Existing rights, interests and use
(2)Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:
(a) existing non‑native title rights and interests in relation to the land or waters concerned;
(b) existing use of the land or waters concerned by persons other than native title parties;
(c) the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.’

As the question of the scope of the Government party’s obligation to negotiate in good faith about the matters contained in s 33(1) was initially put in issue by the native title party and payments of the kind mentioned therein (royalty type payments) could be used to compensate a native title party for the effect of a future act on native title rights and interests, it is opportune to reconsider whether the obligation to negotiate in good faith encompasses negotiations by the Government and grantee parties about compensation and s 33(1) payments.

The scope of the obligation to negotiate in good faith generally (s 31(2))

Section 31(2) of the Act was inserted by the 1998 amendments and makes it clear that a refusal to negotiate on matters other than the effect of the future act on registered native title rights and interests does not mean a failure to negotiate in good faith. It is not in dispute that the parties may voluntarily negotiate about anything they wish and, in the Tribunal’s experience, often consider matters which go beyond the impact of the act on registered native title rights and interests. What s 31(2) does is limit the scope of negotiations which must occur before the precondition of making a s 35 application, conducting an inquiry and making a determination is satisfied. Judicial and Tribunal decisions prior to the 1998 amendments had already imposed limits on the scope of what is required to negotiate in good faith. In Walley v Western Australia [1999] FCA 3: (1999) 87 FCR 565 (per Carr J at 575-579 [12]-[17]) the Federal Court agreed with the Tribunal:
‘that when assessing whether a Government party has complied with its obligations under s 31(1)(b) to negotiate in good faith, its conduct should be judged in the context of matters related to or connected with the doing of the particular act in question. That does not preclude the Government party or the native title party negotiating on other matters, if they see fit.’ (at 577 [14])
In Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152 (‘Brownley’) the Federal Court also said (per Lee J at 162 [24]) that the terms of s 39 (which sets out the criteria which the Tribunal must take into account in making an arbitral determination whether the act may or may not be done) indicate the scope of matters in respect of which negotiations in good faith may be conducted.
In Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/ Leslie Hayes, Glenys Hayes, Judy Hayes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji People, NNTT WF00/7, [2001] NNTTA 18 (9 March 2001), Hon C J Sumner (‘WAPET’) at [18]-[19], the Tribunal specifically considered the new s 31(2) and held that it means that the scope of good faith negotiations which must occur prior to a s 35 application being made is confined to the effect of the future act on the native title party’s registered native title rights and interests and other matters related to them in s 39(1)(a) of the Act.
In this initial consideration of the amendment the Tribunal decided that the new subsection should not be read too literally. Section 39(1)(a) of the act deals with the matters which the Tribunal is obliged to take into account in making an arbitral determination which includes the effect of the future act on enjoyment by the native title parties of their registered native title rights and interests, their way of life, culture and traditions, the development of their social and economic structures, their freedom of access to the land and freedom to carry out rites, ceremonies or other activities of cultural significance and the effect of the act on any area or site on the land of particular significance to them. If s 31(2) were construed narrowly it could be argued that the obligation to negotiate in good faith only relates to s 39(1)(a)(i) which specifically refers to the effect of the act on the enjoyment of registered native title rights and interests and not the other matters that may be affected by the doing of the act (ss 39(1)(a)(ii)-(v). In the Tribunal’s view such a construction would produce the curious result where the Tribunal was obliged to take into account factors in making an arbitral determination which need not be the subject of negotiations in good faith in order for the precondition of making a s 35 application to be met.
The Explanatory Memorandum to the Native Title Amendment Bill 1997 (para 20.31) says that s 31(2) will ensure ‘that the negotiations should focus on relevant matters’. Although the Explanatory Memorandum is not a great deal of assistance I am satisfied that relevant matters would include the matters referred to in s 39(1)(a) at least insofar as they emanate from or are related to the native title party’s registered native title rights and interests.

Good faith negotiations and compensation

The Tribunal also always assumed that proposals for compensation for the effect of the future act on native title rights and interests is also part of the obligation to negotiate in good faith as compensation is payable for the effect of the future act on native title rights and interests (see below). Even though in an arbitral determination the Tribunal cannot make a final determination of compensation but only determine a condition for the payment of monies into trust on account of a future determination of compensation by the Federal Court (s 41(3) NTA) negotiation about compensation can be directly related to the effect of the future act on registered native title rights and interests. The parties may and in the Tribunal’s experience often do wish to negotiate about compensation at the time the future act is done. When satisfactory agreement is reached on compensation it is usually agreed to be in full satisfaction of any claim for compensation or to be offset against any future amount determined by the Federal Court. It is my view that the obligation to negotiate in good faith, in the case of the grant of mining tenements, does include an obligation on the grantee party only (see below) to negotiate about compensation for the effect of the future act on native title rights and interests.
Recently the Tribunal has done an analysis in relation to the effect of compensation for petroleum titles granted under the Petroleum Act 1967 (WA) and concluded that a native title party has no legal right to claim compensation from the Government party and that there was therefore no obligation as part of good faith negotiations for the Government party to negotiate about compensation (Gulliver at paras [38]-[48]). The Tribunal has previously dealt generally with the questions of a native title party’s entitlement to compensation for the affect on native title of the grant of mining tenements under the Mining Act (Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Thomas’) at 177-205 and elsewhere - see for example Western Australia v Evans [1999] NNTTA 231; (1999) 165 FLR 364-373 [24]-[42].
A consideration of the provisions of the Mining Act, lead to the conclusion that the findings in Gulliver are also applicable to the grant of mining tenements. In summary:

the freehold test applies to the grant of mining leases (and other mining tenements) in that private (freehold) land is open for mining (s 27 Mining Act );
the similar compensable interest test (s 240 NTA) is satisfied in that compensation is payable for the grant of a mining lease to holders of ordinary (freehold) title over the land to be mined (s 123 Mining Act );
the law mentioned in s 240 (i.e. the Mining Act ) does not provide for compensation to native title holders. The Mining Act creates an entitlement to compensation for owner and occupiers but there is no specific reference to compensation for native title holders. Native title holders are not encompassed by the definition of owners and occupiers (see Thomas a 180-182);
compensation is therefore determined in accordance with Division 5 of Part 2 of the Act;
subsections 51(1) and 51(3) are the relevant provisions in Division 5. Subsection 51(1) says that subject to subsection (3) the entitlement to compensation is to be on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests. Subsection 51(3) deals with acts which are not the compulsory acquisition of native title rights and interests and says that if the similar compensable interest test is satisfied in relation to the act (as it is here) then in making a determination of compensation the court (or other body) must apply any principles or criteria for determining compensation set out in the law mentioned in s 240 (which defines the similar compensable interest test) that is in this case, the Mining Act;
under s 125A of the Mining Act (which came into effect on 11 January 1999) liability for the payment of compensation to native title holders has been transferred from the Crown to the grantee party (s 24MD(4)(b) NTA); and
because a native title party has no legal right to claim compensation from the Government party for the grant of a mining lease (or other mining tenement) under the Mining Act there is no obligation as part of good faith negotiations for the Government party to negotiate about compensation (Risk v Williamson [1998] 640 FCA; (1998) 87 FCR 202 per O’Loughlin J at 224.

Section 33(1) and the obligation to negotiate in good faith

The native title party contends that the negotiations were frustrated because it was not given an opportunity to negotiate s 33(1) payments because of the failure of the grantee party to respond to requests made to it (Statement of Contentions filed 2 December 2005 – paras 35-38).
In Brownley (at 168-170, [48]-[56]) the Federal Court expressed the scope of the obligation to negotiate about s 33(1) payments as follows:
‘In finding that the State negotiated in good faith, the Tribunal erred:
(a) in failing to find that the State's conduct relating to negotiation of "compensation" demonstrated an absence of good faith.
48 It was submitted by the applicants that "compensation" was a matter about which the State was obliged to negotiate. The Tribunal accepted that the State had "a policy against the provision of royalty payments as compensation". Counsel for the State conceded that the State was obliged to negotiate in good faith about "compensation" and that refusal to so negotiate would mean absence of negotiation in good faith. However, it was submitted that negotiating about compensation but refusing to pay it would not mean negotiation had not been conducted in good faith. As counsel said, it was a "fine distinction". It was submitted by the State that although its position in the negotiations with the applicants was, "We are not going to pay compensation", such a statement did not amount to a refusal to negotiate.
49 Section 33 of the Act provides as follows:
"33 Negotiations to include certain things
Profits, income etc.
(1) Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made, or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Existing rights, interests and use
(2) Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:
(a) existing non-native title rights and interests in relation to the land or waters concerned;
(b) existing use of the land or waters concerned by persons other than native title parties;
(c) the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned."
50 Although not stated directly, the thrust of s 33 is that a grantee party and a Government may agree that a registered native title claimant is entitled to payment from a venture to be established by the grantee party by reason of an act of Government which grants to the grantee party a right to mine, or confers on the grantee party rights or interests, after compulsory acquisition by the State of native title rights and interests. The section suggests that the negotiation of an agreement with the applicants to the doing of an act by the State may have included a requirement that the State grant the mining leases on the condition that Anaconda make payments to the applicants, calculated by reference to profits, income or production of minerals. Such payments may have a compensatory aspect but they may represent more than that. They may be a beneficial interest in an enterprise conducted on land in which native title is claimed, with the intention that holders of such title receive a means of economic advancement related to their interest in the land.
51 It is an area of negotiation in which the role of the State could be significant, including, of course, the need for the State to agree to imposing the relevant condition on the grant of the mining lease. Furthermore, the Act is predicated upon the responsibility of Governments to redress the effects upon indigenous persons of dispossession of their lands, and negotiation in respect of the matters provided in s 33 of the Act is directed to that end. The State would be obliged to receive, and consider, such a proposal and to assess what response should be made thereto. No doubt the views of Anaconda would be sought and considered.
52 In s 38(2), under the sub-heading "Profit-sharing conditions not to be determined", the Tribunal is instructed that matters for negotiation described in s 33 are not matters able to be made the subject of a condition as part of a determination made by the Tribunal under s 38(1)(c). It is, therefore, a matter to be dealt with by an accord reached between the parties in negotiation, or not at all. Such a provision elevates the requirement that the State, as the party able to impose such a condition, engage in genuine discussion on that issue.
53 A matter on which a registered native title claimant is entitled to negotiate, provided for in s 33, is not to be confused with the entitlement of a native title holder set out in s 23 of the Act to compensation for the doing of a permissible future act.
54 If the State had a policy that it would not reach an accord with a registered native title claimant to facilitate an agreement with a grantee party for the making of payments described in s 33, and that policy were applied to control the participation of the State in negotiations prescribed in s 31(1)(b), it may be said that the State would not be negotiating in good faith with the native title party.
55 If, in negotiations with native title parties for the obtaining of the agreement of those parties to the grant of a mining lease, the State maintained an inflexible position that it "would not pay compensation" and relied upon that position to decline to engage in negotiations in respect of matters provided for in s 33, it may be said that the State would not be participating in negotiations in good faith. The State is not obliged to reach agreement on such a matter but it is required to receive, and consider, a proposal from a registered native title claimant in a manner that has regard to the particular facts of the case and to the merit of the proposal in all the circumstances.
56 In the present case it appears that the State, whilst professing that it would not pay "compensation", accepted that the applicants and Anaconda may negotiate for the imposition of the condition contemplated under s 33, and that the State had not indicated that it would not include, as a condition on the grant of a mining lease, a condition that Anaconda make payments to the applicants in the terms of any accord those parties reached to that effect.
57 The Tribunal said that the State's approach to this matter was "to transfer the responsibility" to Anaconda. The material before the Tribunal may have been capable of suggesting that the State had restricted the scope of matters available for negotiation and that it had laid down that it would not negotiate on matters other than those nominated by it, but if the Tribunal accepted, as it appeared to do, that the State would not refuse to implement, by imposing it as a condition on a future act, any agreement negotiated by the applicants and Anaconda for payments to be made by Anaconda, the finding by the Tribunal that failure to negotiate in good faith was not revealed by that material, was an available finding and was not a finding grounded on a misapprehension of the relevant law.’

Brownley was decided on the Act prior to the 1998 amendments when the obligation to negotiate in good faith was only imposed on the Government party and subsections 31(2) and 33(2) did not exist. It was also decided without reference to s 125A of the Mining Act which was not in effect at the time the decision ‘appealed’ from was made by the Tribunal. Despite this the Tribunal has applied this statement of the law in several cases decided under the amended Act.
In Western Australia v Dimer & Others [2000] NNTTA 290; (2000) 163 FLR 426 (‘Dimer’) the Tribunal (Member Lane) at 451 [126] said:
‘The question of negotiation about compensation under the right to negotiate regime was considered by Lee J in Brownley paras 48-57. Although that decision considered the obligation of the government party, it is relevant to the present case. Section 33 of the Act plainly contemplates that the parties may include compensation and royalty issues in their negotiations. Paraphrasing what Lee J said in Brownley at para 55, the grantee party may not be obliged to reach agreement, but it is required to receive and consider, a proposal from the native title party in a manner that has regard to the particular facts of the case and to the merits of the proposal. Bearing in mind the fact that it is the responsibility of the government party ultimately to pay compensation, it is nevertheless open to the government to permit the native title party and grantee party to negotiate about monetary payments in consideration for the grant of the tenement.’

The Tribunal found the grantee party’s behaviour in relation to compensation negotiations was a factor in its decision that overall the grantee party had not negotiated in good faith.

Brownley has also been accepted in ‘WAPET’ and Normandy Pajingo Pty Ltd and Battle Mountain (Australia) Inc/Queensland/Colin McLennan and Ors on behalf of the Birri People and James Reid and Ors on behalf of the Kudjala People, NNTT QF00/2, [2000] NNTTA 327 (29 September 2000), Hon C J Sumner (‘Normandy’) where the Tribunal accepted that the obligation to negotiate in good faith about s 33(1) payments also extended to the Government party. In South Blackwater Coal Ltd v Queensland [2001] NNTTA 23; (2001) 165 FLR 232 (‘South Blackwater’) the Tribunal pointed out (para [35]) that whether the obligation has been satisfied will be highly fact specific which is apparent from the qualified terms of s 33(1). In each of these matters the Tribunal found that there was not a failure to negotiate in good faith about s 33(1) payments for a variety of reasons (Normandy at [30]; WAPET at [38]-[39]; and South Blackwater at [36]-[38].
In these matters no specific consideration was given to whether the insertion of s 31(2) affected the authority of Brownley. With respect to the grantee party I am satisfied that it has not. Section 33(1) payments are a mechanism whereby compensation for the effect of a future act on native title rights and interests may be paid. Compensation for the effect of a mining tenement on native title rights and interests itself is not assessed by reference to royalty-type payments but in the manner referred to above under Part 2, Division 5 of the Act. However, if a native title party wishes to request the grantee party to satisfy any obligation to pay compensation by s 33(1) payments then it can make a proposal to this effect and the grantee party would be obliged to consider it in the manner explained in Brownley. To satisfy the jurisdictional precondition of negotiation in good faith there is no obligation at large on the grantee party to negotiate in good faith about s 33(1) payments but only insofar as they are seen as a means of satisfying the obligation to pay compensation for the effect of the future act on native title. Such negotiations are not excluded by s 31(2).
In this case of the Government party the situation is now quite different with respect to compensation for the grant of mining tenements under the Mining Act in Western Australia. As stated above the Government party now has no obligation to pay compensation for the doing of the future act nor negotiate about it or s 33(1) payments for the grant of mining tenements. The Government may, however, still need to consider if a proposal is made, whether it would impose a condition requiring the grantee party to make s 33(1) payments if this is agreed between the grantee party and native title party. It also still may not be negotiating in good faith if it refused to countenance an Ancillary Agreement between the grantee party and native title party to include such payments in an agreement between them (Brownley at [54]; Njamal at 250-251). In Western Australia this is not likely to be an issue because the Government party currently gives the other parties a free hand to negotiate such payments as part of an Ancillary Agreement.
The above analysis deals with what may potentially at law be included within the scope of good faith negotiations for the purposes of deciding if a Government and grantee party have satisfied the obligation in order to move to the next stage of the right to negotiate process, i.e. arbitration. Whether negotiations about s 33(1) payments are necessary to satisfy the obligation will depend on the facts of particular cases and the conduct of the negotiation parties over the whole of the negotiations.
My findings on this issue are confined to negotiations in good faith about the grant of mining tenements to grantee parties in Western Australia. Where the Government party is involved in the compulsory acquisition of native title rights and interests the principles in Brownley may still apply (Western Australia v Daniel [2002] NNTTA 230; (2002) 172 FLR 168 at [136]-[137]).

The native title party’s decision not to make a submission (s 31(1)(a) NTA)

The Government party in its initiating letter fulfilled its obligation under s 31(1)(a) by giving the native title party an opportunity to make submissions to it in writing or orally regarding the act. Despite a request from the Government and grantee parties to make such a submission the native title party declined to do so. In correspondence sent to the Government party on 16 June 2003 it said it was under no obligation to do so and did not intend to. It is now well established that the behaviour of the native title party may be taken into account as to whether the other parties have negotiated in good faith (Walley - 1996 at 576). If the native title party acts unreasonably a lesser standard is imposed on the other parties (Njamal at 250). Further, since the 1998 amendments to the Act the obligation to negotiate in good faith are now imposed on all negotiating parties including the native title party.
The Tribunal has said that provisions of ss 31(1)(a) and (b) should be read together as laying down a procedural framework for the negotiations which involved the native title party in making submission to the Government party regarding the act so that basis upon which the negotiations could proceed. The Tribunal suggested that in response to the Government party’s initiating letter the native title party should consider the future act being proposed and then make a submission which would detail the native title party’s views on the likely effect of the act on native title and the other factors in s 39 of the Act (Minister for Mines, State of Western Australia/Kevin Peter Walley on behalf of the Ngoonooru Wadjari People, NNTT WF97/5, [1998] NNTTA 4 (25 March 1998), Hon C J Sumner at 47, 65-66). In Brownley the Federal Court also drew attention to the importance of such a submission (per Lee J at 161 [18]):
‘… The Act draws the attention of a Government to the rights and interests of indigenous persons recognized and protected by the Act and obliges a Government to respect the inchoate rights and interests of such persons. A Government is instructed to receive, and deal with, submissions from a registered native title claimant that set out how that party perceives a Government act will affect such rights and interests, and is to negotiate in good faith on those issues to obtain an agreement to the doing of the Government act that will address the requirements of Government and of the native title claimant.
The decision of a native title party not to make such a submission is a factor that can be taken into account in determining whether the other negotiating parties had negotiated in good faith. In Normandy the Tribunal said at [13]:
‘… A native title party may choose to put forward its proposals without making a submission about the impact of the grant on the matters in s 39(1)(a). It may achieve agreement about them. However, the failure to make a submission about the effect of the future act on their interests is relevant to whether the Government party has negotiated in good faith. A detailed submission from a native title party outlining the affects of the future act on their native title rights and interests, way of life, freedom of access and sites of particular significance and proposals to deal with them is likely to require a more detailed response from a Government or grantee party than if there is no submission or only one of a general nature. The importance of such a submission is also highlighted by s 33(2) of the NTA which specifically acknowledges that the existing rights and use of the land by non-native title parties is a legitimate factor to be taken into account. In the arbitral phase, s 39(2) requires the Tribunal to take into account these factors in assessing the effect of the future act on the native title party’s interests specified in s 39(1)(a). A submission which attempts to identify these issues during the negotiations may assist in making the negotiations productive. In this case not only was there no submissions about the effects of the grant but, as will become apparent from the discussion below, the proposals made by the native title parties were not very specific and in some cases not related to the grant.’
In WAPET at [38] the Tribunal said that the failure of the native title party to make submissions on the effect of the future act on its native title rights and interests and advance proposal for settlement which related to the future act involved meant the grantee party had no reasonable basis upon which to consider making s 33(1) payments.
It is self evident that the right to negotiate provisions are concerned with future acts which by definition are acts which affect native title (s 233). If a particular act does not have an affect on native title the Tribunal has no jurisdiction to deal with it under the right to negotiate provisions (Mineralogy Pty Ltd v National Native Title Tribunal & Ors [1997] FCA 1404; (1997) 150 ALR 467 (‘Mineralogy’); Anaconda Nickel Ltd v Western Australia [2000] NNTTA 36; (2000) 165 FLR 116 at 145, [55]). Further, when considering the affect of a future act on native title for the purposes of a future act determination the Tribunal does not act on a worst case scenario based on the claimed or determined registered native title rights and interests but considers the particular effect based on the manner in which native title is exercised or enjoyed in the locality of the proposed development and the nature of the future act proposed (WMC Resources v Evans [1999] NNTTA 372; 163 FLR 333 at 339-341, [24]-[33]). There is likely to be a considerable difference between a greenfields mining site in a remote area where traditional practices are strong and a proposal to expand an existing mine in a well settled area. Given the fundamental purpose of the right to negotiate provisions the Tribunal considers it desirable for a native title party to respond to the invitation to make a submission or at least articulate its concerns about the future act during the negotiations.
A submission detailing the affects of the future act on native title would help to provide a basis upon which the negotiations can productively occur. It was common ground that a native title party is not legally obliged to make such a submission. It may be that a native title party takes a strategic decision not to make such a submission because it feels that the submission will not advance its cause or strengthen its position. This would be the case if a native title party felt or could not demonstrate that the future act could have any or only minimal effect on its native title rights and interests and preferred because of this to negotiate at large with the grantee party. However, if it takes this course of action it cannot then complain if the Government and grantee party find themselves in a position of not being able properly to address any issues of concern relating to the effect of the future act on registered native title rights and interests and the other matters referred to in s 39. The Tribunal’s approach to the desirability of the native title party making a submission to enhance productive negotiations has been well known for a considerable time.
The native title party also argued that it would be prohibitively costly to make submissions in all cases as SWALSC deals with large numbers of future act matters. I do not accept this as a legitimate reason for not responding to the invitation to make a submission. In the case of the great bulk of future act proposals which involve prospecting or mining the submissions could be relatively simple. However, where there is a proposal for productive mining, it should not be beyond the capacity of a native title party to consider the impact of the proposal on its registered native title rights and interests and other matters in s 39(1)(a) as part of the normal process of obtaining instructions from a claimant group on their attitude to the proposed future act.
In the present matter the native title party complained that the grantee party was attempting to trivialise the importance of the grant of the proposed mining leases and said this attitude was indicative of a lack of good faith. I do not accept this complaint. The grantee party was entitled to take a view about the nature of this future act being the grant of mining leases associated with and in close vicinity to existing mining operations as part of its negotiating position. A submission from the native title party setting out its specific concerns about the effect of the grant would have assisted the grantee party to better understand the native title party’s negotiating position.

Good faith negotiations generally – grantee party

The negotiations were conducted on behalf of the grantee party by Mr David Moore a Principal Project Engineer until 11 July 2005 when Mr Moore ceased employment with the grantee and Mr Ian Piggott, Manager – Business Performance, took over the negotiations.
The negotiations began on 24 February 2003 when the grantee party provided information to the native title party in response to the request made by the Government party in its initiating letter of 11 February 2003.
On 1 May 2003 Mr Moore and another representative of the grantee met with Mr van Tonder and another native title party representative. This meeting led to an invitation being extended to the grantee by SWALSC to make a presentation to the native title party in Collie. The grantee took up this offer, and the presentation was delivered by Mr Moore and another of the grantee’s employees on 7 August 2003. As a result of this meeting the grantee undertook to provide a draft negotiation protocol (‘the Griffin protocol’) to the native title party for consideration.

Good faith negotiations – the negotiation protocol

The Griffin protocol was forwarded to SWALSC on 15 August 2003 with a further copy being provided on 19 August 2003 to one of the named persons who collectively comprise the applicant for the Gnaala Karla Booja native title claim. When no response was received by the grantee to these documents and subsequent correspondence, Mr Moore wrote to SWALSC on 2 September 2003 seeking comments on the Griffin protocol. On 22 September SWALSC advised that the native title party’s working group would be meeting the next day and that SWALSC would be referring the issue to this group.
On 6 October 2003, the grantee party having received no indication of the outcome of the 23 September 2003 meeting, Mr Moore contacted SWALSC and was advised that the Griffin protocol was being reviewed and would be referred to the Working Party that week. Mr van Tonder responded by letter on 21 October 2003 with the outcome of the Working Party’s consideration of the Griffin protocol. Mr van Tonder advised amongst other things that the Working Party had instructed that SWALSC was to be a party to the negotiations and that SWALSC was to propose an alternate negotiation protocol (‘the SWALSC protocol’). Although the grantee party expressed some concern that the Griffin protocol had been substituted by the SWALSC protocol, it proceeded to negotiate on the basis of this latter document. The parties then exchanged various drafts of the SWALSC protocol, correspondence relating to a number of issues raised and entered into discussions in relation to these issues. On 3 February 2004 negotiations regarding the SWALSC protocol appear the have reached an impasse and, after the exchange of a further draft, the grantee party sought Tribunal mediation assistance pursuant to Section 31(3) of the NTA on 7 April 2004. The issues proving contentious were:

the number and identity of the persons from the Gnaala Karla Booja Working Party who would negotiate with SWALSC on behalf of the native title party;
the duration of a proposed negotiation meeting; and
costs to be paid to the native title party and SWALSC to facilitate their participation in the negotiation process.

Two mediation meetings facilitated by the Tribunal occurred on 14 and 28 May 2004, at which the negotiation protocol was discussed. Agreement was reached through this process on or about 28 May 2004 and on 6 July 2004 a negotiation protocol fully executed on behalf of both the grantee and native title parties was forwarded to SWALSC by the grantee party (‘the final negotiation protocol’). Although the final negotiation protocol was based on the SWALSC protocol, it differed from it in a number of respects:

the grantee party undertook to pay only those costs included in the protocol for a single three day meeting (comprising two days for negotiation and the third for necessary travel) and a further agreement signing meeting (clause 7.1(b)(i));
the parties agreed to each bear the costs of further meetings or activities in pursuance of an agreement, unless otherwise agreed (clause 7.2);
the grantee party undertook to pay fees for attendance at the negotiation and signing meeting of a SWALSC officer and lawyer, where their ‘attendance is deemed necessary and agreed’ (SWALSC had sought payment of these fees without qualification) (clause 7.1(b)(ii) and (iii));
the grantee party undertook to pay reasonable catering, venue hire and other costs associated with arranging the negotiation and signing meetings (clause 7.1(b)(iv)) (SWALSC had sought these fees with an additional 15% levy for administrative costs); and
the grantee party undertook to pay amounts due under the protocol on provision of an invoice and in accordance with its normal terms of trade (SWALSC had sought upfront payment of some costs and payment of others within 14 days of invoice).

In reviewing the negotiations at this point it is difficult to discern any substance in the native title party’s complaints. There is no doubt there were differences of opinion about the content of the negotiation protocol but the grantee party’s concerns can not all be regarded as petty and trivial. A major concern was the size and cost of the native title party’s negotiating party where the native title party wanted the involvement of 13 persons and the grantee party initially only four. Disagreeing about funding this number of negotiators is not indicative of a lack of good faith. As to the other points of disagreement there were considerable negotiations including Tribunal mediation and in the end agreement was reached about the negotiation protocol. In relation to some of the points of disagreement (the size of the native title party’s negotiating team and duration of the proposed negotiating meeting) the native title party’s terms prevailed and were incorporated in the final protocol unamended. I note that the grantee party was prepared to provide resources to the native title party despite negotiations about funding not being part of the obligatory negotiations in good faith which must occur prior to making a s 35 application (Gulliver at [90]-[97]).

One of the most serious allegations was that the grantee party ‘reneged’ on an agreement. Clearly this would, if established, raise concerns about the grantee party’s negotiating behaviour. However, the evidence is not clear on when the alleged reneging occurred. A clause in the SWALSC protocol (7(b)(viii)) provided that the grantee party would also pay for the time SWALSC’s lawyers were to negotiate with the grantee party’s lawyers and for the finalisation of the terms of the agreement at certain specified rates. During the negotiations on the negotiation protocol this clause was deleted by the grantee party and a note made that ‘These costs will form part of the terms of agreement/final compensation package negotiated for any Agreement’. Clause 7(b)(viii) did not appear in the final negotiation protocol and nor did this notation although I observe that payments to SWALSC’s lawyers for attendance at meetings if deemed necessary and agreed between parties, was provided for. Clause 7.2 of the agreed negotiation protocol specifically provided that any costs, apart from those specified were to be borne by the parties. It is not clear whether it is said that the grantee party reneged on an agreement during negotiations about the negotiation protocol or later. If it was during the negotiations about the negotiation protocol, the documents do not establish that the grantee party had agreed to SWALSC’s original Clause 7(b)(viii). Indeed, the contrary is the case as the grantee party removed it and agreement was eventually concluded without it. If the allegation is that it was agreed that such payments would be included in the final agreement it is true that they were initially deleted by the grantee party from the SWALC agreement but later the grantee party agreed to make a contribution to the costs of drafting and finalising the agreement (see below). I am not satisfied that the behaviour of the grantee party negotiations in this respect demonstrated a lack of good faith.
The native title party also objected during this phase of the negotiations to the phrase used by the grantee party in correspondence that it was not a ‘cash cow’. Although I accept that the native title party negotiators found this offensive, as an isolated incident it does not indicate a lack of good faith. There was no continued pattern of behaviour which was offensive and which might have called into question the grantee party’s sincerity in the negotiations. The remark was made in the context of what the grantee party regarded as unreasonable requirements for the payment of the native title party’s negotiating costs. Negotiations, even in native title matters, are often robust and involve statements which might give offence. Isolated incidents of such behaviour are not indicative of a lack of good faith.
The native title party also said that the grantee party unreasonably attributed delays to it because it did not understand the decision making requirements of the native title party. While there were delays attributed to both sides in the negotiations, I have not regarded them as such as to bring into question a lack of good faith in the negotiations by any of the negotiation parties.

Good faith negotiation – the substantive negotiations

Following settlement of the negotiation protocol, on 3 August 2004 the native title party provided a list of issues to be considered at the now confirmed two-day negotiation meeting. This list, prepared as a result of research undertaken by SWALSC into coal mining precedents from other jurisdictions (para 51 affidavit of Ettienne Avenant van Tonder sworn 2 December 2005), included:

establishment of a trust fund, to which the grantee would make annual contributions, to provide for scholarships, cadetships and assist with the development of Noongar businesses;
provision of employment opportunities within The Griffin Group;
supply and service provision contracts for Noongar enterprises;
a cash component based on:
-    royalties for resources extracted;
-    an annual retainer for the life of the proposed mining leases;
-    cash payment on grant of the proposed mining leases;
-    cash payment on actual date that mining commenced;
-    ex-gratia payment to each member of the negotiating team;
establishment/construction of a Cultural Centre;
provision of equity in a future power station and a commitment to negotiate further on water resource requirements for this project;
environmental protection and eventual rehabilitation;
establishment of an Aboriginal heritage protection protocol; and
land access generally.

I observe at the outset that the grantee party was not obliged as part of negotiations in good faith under s 31(1)(b) to negotiate about some of these issues, in particular the establishment/construction of a Cultural Centre as such a proposal was not related to the doing of the future act or to the effect of the future act on the native title party’s registered native title rights and interests The native title party alleged that the grantee party did not consider the list of issues however I am satisfied that a number of the issues were dealt with.
The negotiation meeting took place on 24-25 August 2004 and was presided over by the Tribunal Member appointed to conduct the s 31(3) mediation. During this meeting the grantee party again outlined its plans for the proposed mining leases, advising that CML12/844 and CML12/845 (‘the northern proposed mining leases’) would primarily be used for stockpiling waste from existing operations and infrastructure, with limited mining planned for the southern portion of these leases. It also confirmed that approximately 25% of CML12/844 and 80% of CML12/845 encroach on private (freehold) land. In respect of CML12/774 and CML12/775 (‘the southern proposed mining leases’) it is proposed that both will be used for waste stockpiling, some soil/near surface rock excavation and infrastructure. All of the proposed mining leases would eventually be rehabilitated. The grantee party also indicated it was not prepared to consider a royalty-based payment and preferred to enter into a benefits package that did not solely comprise a cash settlement.
At the conclusion of the negotiation meeting, outcomes issued by the Tribunal record that the grantee party made an offer to the native title party in the following general terms:

financial assistance - $75 000; and
non-financial assistance (including traineeships) – value to be explored further.

The grantee party also undertook to facilitate an on-site meeting with the Gnaala Karla Booja claimants to further discuss its plans for the northern proposed mining leases in particular whether there was a potential for impact to a known and registered Aboriginal site (Site ID 15331- Shotts Graves) located in the area whose mapped boundaries intersect CML12/845. It would also assist with an approach to the Department of Conservation and Land Management by the native title party regarding access to resources (timber etc) within the proposed mining leases, implement a cultural awareness programme for its employees and facilitate access to the proposed mining leases by the native title party, subject to reasonable safety requirements.

As the grantee party’s financial offer did not match the proposal put by the native title party, it was also agreed that further Tribunal-facilitated discussions between the parties’ representatives would occur. One further mediation meeting occurred on 8 November 2004 at which the grantee party undertook to confirm the details of its offer. It also indicated that, in view of the length of time over which negotiations had now occurred, that an application for a Tribunal determination under s 35 of the NTA was being prepared.
The on-site meeting took place as planned on 2 September 2004, although the outcomes of this meeting are not recorded in the evidence before the Tribunal.
On 15 November 2004 the grantee party confirmed in writing the content of its offer and reiterated its preference for resolving the matter by agreement. A further mediation meeting occurred on 20 December 2004 at which SWALSC sought assurances that the grantee party’s offer remained open and that it would accept a counter offer. This was confirmed and SWALSC responded with the counter offer on 20 January 2005, seeking a $150 000 ‘cash’ component. The grantee party responded on 4 February 2005 to the counter offer by increasing the ‘cash’ component of its offer by $5,000 (i.e. to $80,000) and providing some further detail of the non-monetary commitments it was prepared to make.
On 7 February 2005, at a mediation meeting convened by the Tribunal, SWALSC undertook to put the revised offer to the native title party, seek further instructions as to its suitability and specific proposals relating to the non-financial component. Further discussions occurred on aspects of the grantee party’s proposal at mediation meetings in March and August 2005, and it appeared parties were in a position to commence preparation of an Ancillary Agreement embodying an agreement reached that could be presented to the Gnaala Karla Booja Working Group for consideration.
At a mediation meeting convened on 19 August 2005 convened to discuss further the draft Ancillary Agreement, the issue of payment of costs incurred by SWALSC for drafting and review of the document were raised by Mr van Tonder. The grantee party agreed to make a payment of ‘up to’ $3,000 toward these costs, which it confirmed via email later the same day. After further discussion between the parties, on 5 September 2005 the grantee party confirmed that it would pay a total sum of $3,000 toward SWALSC’s legal costs. On 1 September 2005 and whilst these discussions were taking place, the grantee party lodged its future act determination application.

A further mediation conference was planned for 9 September 2005. However, on that morning SWALSC advised in writing that it had been instructed by the native title party to reject all offers and withdraw from the mediation. Given this, the Tribunal terminated the mediation without agreement having been reached.
The native title party raised a number of contentions in relation to this aspect of negotiations. The first was that the grantee party did not respond to issue of payments specified in Section 33(1) of the NTA (‘compensation’). They contend that this had the effect of preventing any substantive or reasonable negotiations with the native title party on this issue and demonstrated that the grantee party had adopted a rigid pre-determined position showing no preparedness to shift position or compromise in order to achieve agreement. In particular, the native title party says that the grantee party made only one formal offer of compensation late in the negotiations (on 15 November 2004) and maintained that offer from that time, rejecting counter offers made by the native title party. It also contends that the grantee party refused to consider the native title party’s reasonable proposals for the compensation payment(s) to be dispersed to the Noongar community through a charitable trust. Thus the grantee party’s behaviour was unreasonable in applying a fixed policy regarding the amount and method of managing payments of compensation and in failing to take any reasonable steps to reach a compromise.
It is clear from the evidence that this was not a situation where no offer of compensation was made; a sum of $75,000 was offered along with various other non-financial benefits. It is also clear that the grantee party’s original offer was increased (to $80,000) and that it was agreed that this might be dispersed through some form of trust.
There is no doubt that the grantee party was not prepared to shift its position on the means by which compensation would be paid. It was not prepared to countenance royalty type payments. However, this position must be considered taking account of what activities were proposed for the mining leases. The grantee party had a negotiating position in relation to the issue of compensation which was conveyed to the native title party during the negotiation meeting on 24-25 August 2005. This position was based on the uses to which the proposed mining leases would be put by it that did not involve significant resource extraction, thereby negating the payment of a royalty-based sum. The grantee party also took into account the preponderance of private land in the northern proposed mining leases, which significantly limits the native title party’s registered native title rights and interests. I must observe that I found the native title party’s attitude to s 33(1) payments negotiations curious to say the least. It is not clear to me why it would be insisting on negotiating about royalty type payments, particularly in relation to the southern tenements when they are not to be used for productive mining.
I am satisfied that the grantee party did not adopt an intransigent uncompromising approach toward the negotiations as a whole and agreement was reached on a number of issues. On the negotiations generally I am satisfied that the grantee was aware of its obligation to negotiate in good faith having been provided with the Government party’s information about the process and that it conducted itself in a manner consistent with the principles referred to above including the Njamal indicia. In particular, the fact that the native title party did not consider the offers of compensation to be reasonable or adequate is not fatal to the grantee party’s position (Gulliver at [61]. In the end there was a genuine difference of opinion about the question of compensation but lack of agreement does not necessarily signify a failure to negotiate in good faith.
The native title party raised a number of other issues which I will briefly deal with. First, that the grantee party representatives did not have authority to negotiate. While it is true that the grantee party negotiators did not have unlimited authority to negotiate this is not an uncommon situation. Often negotiators for all parties must go back to their principals on issues which arise. The Njamal indicia (xi) which refers to a lack of authority to negotiate as one pointer to lack of good faith in negotiations, needs to be viewed in the context of the negotiations as a whole. If throughout the negotiations the negotiators were restricted in what they could discuss, making negotiations meaningless there might be some substance in what the native title party says. In the present case the grantee party negotiators were able to negotiate albeit that they needed (not unusually) to get endorsement from Griffin Coal on the position taken.
The second complaint is that the grantee party constantly referred to the possibility of a s 35 application. The making of a s 35 application cannot be indicative of bad faith (Strickland v Western Australia [1998] 868 FCA; (1998) 85 FCR 303 at 322). I do not find the grantee party’s reference to the possibility of arbitration as oppressive or indicative of a lack of genuine desire to reach agreement. Although first raised in November 2004 during Tribunal facilitated mediation, it was not until September 2005 that the s 35 application was made. In any event the negotiations lasted over 30 months.

Decision

The Government and grantee parties have negotiated in good faith with the native title party as required by s 31(1) of the Native Title Act 1993 (Cth) and the Tribunal has jurisdiction to conduct an inquiry and make a determination.

Hon C J Sumner
Deputy President
23 December 2005

Actions

Download as PDF Download as Word Document

Citations

The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia [2005] NNTTA 100

Most Recent Citation

The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia [2006] NNTTA 19

Cases Citing This Decision

4

Western Desert Lands Aboriginal Corporation v Western Australia and Another [2009] NNTTA 49

FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia [2009] NNTTA 38

Western Desert Lands Aboriginal Corporation v State of Western Australia and Others [2008] NNTTA 22

Cases Cited

16

Statutory Material Cited

0

Walley v WA [1996] FCA 490

Walley v Western Australia [1996] FCA 409

Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia [2003] NNTTA 82