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

NATIONAL NATIVE TITLE TRIBUNAL

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 (9 July 2003)

Application No: WF03/2

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

- and -

IN THE MATTER of an inquiry into a Future Act Determination Application

Townson Holdings Pty Ltd and Joseph Frank Anania ( Applicant / Grantee Party)

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Ron Harrington-Smith & Ors on behalf of the Wongatha People – WC99/1
(Wongatha Native Title Party)

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June Ashwin & Ors on behalf of the Wutha People – WC99/10
(Wutha Native Title Party)

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The State of Western Australia (Government Party)

FUTURE ACT DETERMINATION

Tribunal: Hon C J Sumner, Deputy President
Place: Perth

Date: 9 July 2003

Catchwords: Native title - future act - application for determination for the grant of mining leases – jurisdiction – whether grantee party has negotiated in good faith – jurisdictional issue raised after directions compliance date – decision made on the papers – relevance of negotiations after lodgement of s 35 application – grantee party has negotiated in good faith – s 39 criteria considered – need for evidence on effect of grant on the exercise and enjoyment of native title rights over area of the mining leases – effect on native title rights and interests minimal – no sites of particular significance – determination that act may be done.

Legislation:Native Title Act 1993 (Cth), ss 24MD(3)(b), 25-44, 29, 31(1)(b), 33, 35, 36, 38, 39, 41(3), 51(3), 52, 123, 146(b), 148(b), 151, 240
Mining Act 1978 (WA), ss 82, 84, 85
Aboriginal Heritage Act, s 18

Cases:Anaconda Nickel Ltd & Ors v Western Australia (2000) 165 FLR 116
Anaconda Nickel Ltd/State of Western Australia/Thomas & Ors, NNTT WF98/7, Hon C J Sumner, 19 March 1999
Brownley v Western Australia (1999) 95 FCR 152, [1999] FCA 1139
Evans v Western Australia 77 FCR 193 (‘Evans’)
Hunter Valley Development Pty Ltd v Cohen (1984) 58 ALR 305
Little v Western Australia [2001] FCA 1706
Mineralogy Pty Ltd v National Native Title Tribunal & Others (1997) 150 ALR 467
North Ganalanji Aboriginal Corporation v Queensland (1996) 185 CLR 595
Northern Territory of Australia/Bill Risk & Ors/Phillips Oil Company Australia, NNTT DF97/1, Professor Douglas Williamson QC, 29 September 1998
Placer (Granny Smith & Anor)/Western Australia/Harrington-Smith & Ors NNTT WF99/5, Hon CJ Sumner, 21 December 1999
Re Bessey and Australian Postal Corporation [2000] AATA 404, 60 ALD 529, 23 May 2000
Re Doxford [2003] QLRT 58
ReKoara People (1996) 132 FLR 73 (‘Koara 1’)
Risk v Williamson (1998) 87 FCR 202
South Blackwater Coal Ltd/State of Queensland/Cliff Kina & Ors, NNTT QF00/3, Hon C J Sumner, 27 March 2001
Strickland v Minister for Lands (1998) 85 FCR 303
Teelow v Page (2001) 166 FLR 266
Walley v WA (1996) 67 FCR 366, 137 ALR 561
Walley v Western Australia (1999) 87 FCR 565, [1999] FCA 3
Western Australia v Thomas (‘Waljen’) (1996) 133 FLR 124
Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Hayes, NNTT WF00/7, Hon C J Sumner, 9 March 2001
Western Australia/Arthur Dimer & Ors (Ngadju People) and Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited, NNTT WF99/10, Ms Patricia Lane, 9 August 2000
Western Australia/Marjorie May Strickland (Maduwongga) & Ors, NNTT WF97/4, Hon C J Sumner, 10 December 1997
Western Australia v Taylor (1996) 134 FLR 211 (‘Njamal’)
Western Australia/Evans(Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5, WF96/11, Hon CJ Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998 (‘Koara 2’)
WMC Resources & Anor v Evans (1999) 163 FLR 333 (‘WMC/Evans’)
Ward v Western Australia (1996) 69 FLR 208

Hearing Date: 30 May 2003

Counsel for the Wongatha

Native Title Party: Ms Kathy Burns, Goldfields Land & Sea Council

Representative of the Wutha

Native Title Party: Mr Ron Harrington-Smith

Representative of the

Grantee Party: Mr Peter Clark, Townson Holdings Pty Ltd

Counsel for the

Government Party: Mr Trevor Creewel, Crown Solicitor’s Office

Representative of the

Government Party: Ms Karen Pye, Department of Industry and Resources

REASONS FOR FUTURE ACT DECISION / DETERMINATION

On 10 April 1996 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 under the Mining Act 1978 (WA) of mining leases M29/181 and M29/182 to Townson Holdings Pty Ltd and Joseph Frank Anania (‘the grantee party’).
The proposals are future acts covered by s 26(1)(c)(i) of the Act and cannot be validly done unless the right to negotiate provisions of the Act are complied with. The relevant provisions which are applicable to this matter are in Part 2, Division 3, Subdivision P (ss 25-44) of the Act.
On 10 January 2003, 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 of the Act in relation to proposed mining leases M29/181 and M29/182.

The native title parties

At the close of the section 29 notice period on 10 June 1996 the following persons were registered native title claimants in respect of all or part of the land subject of the proposed mining leases:

Quinton Paul Tucker and others on behalf of the Ngurludharra and Waljan clans (WC95/32)
Raymond William Ashwin and others on behalf of the Wutha People (WC96/22)

Claim No. WC96/22 covered the area of both tenements M29/181 & 182 whereas Claim No. WC95/32 covered only the most northern tip of M29/181 and had no overlap with M29/182. Accordingly, the right to negotiate extended only to M29/181 for the Ngurludharra / Waljan claimants.

On 22 January 1999 the Federal Court combined existing Wutha claims (WC96/8 & WC96/22) under the amended NTA (‘the new NTA’). The combined claim was accepted for registration and the details entered on the Register of Native Title Claims on 15 June 1999 as Claim No. WC99/10. The registered claimants for the combined Wutha claim represent the same claimant group as defined in Claim No. WC96/22 and the right to negotiate in relation to the tenements therefore continues. The registered native title claimants on the combined Wutha claim are Geoffrey Alfred Ashwin, Ralph Edward Ashwin, Raymond William Ashwin and June Ashwin.
On 22 January 1999 the Federal Court under the new NTA combined 20 claims made variously on behalf of the Waljen, Ngurludharra / Waljan, Tjinintjarra, Thithee Birni Bunna Wiya, Goolburthunoo (Waljen), Bibila Lungutjarra (Waljen), Milangka – Purungu (Wongatha), Yulbarri Nomad, Mugung, United North East, Nardoo and Youndou People, including Claim No. WC95/32. On 10 February 2000 the combined claim on behalf of the Wongatha people was entered on the Register of Native Title Claims as Claim No. WC99/1. The registered claimants for the combined Wongatha claim represent the same claimant group as defined in Claim No. WC95/32 and the right to negotiate in relation to M29/181 therefore continues. The registered native title claimants on the combined claim are Aubrey Lynch, Cyril Barnes, Dimple Sullivan, Elvis Stokes, Leo Thomas, Les Tucker, Murray Stubbs, Pearlie Wells, Ron Harrington-Smith, Sadie Canning, Thelma O’Loughlin and Tomashisha Passmore.

Good faith negotiations - jurisdiction

The Tribunal must be satisfied as a pre-condition to considering the s 35 application and making determinations that the Government party has 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 WA (1996) 67 FCR 366, 137 ALR 561). The Wongatha native title party contended that the Grantee party had not fulfilled its obligation to negotiate in good faith. No contention was made by the Wutha native title party on the issue, although a large number of documents and a chronology were provided by the Wutha native title party on the issue of good faith. The Government party remained neutral on the issue but provided a useful chronology of events in the negotiations.
Section 31 of the Act says:
‘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.’
Section 36(2) says:
‘Determination not to be made where failure to negotiate in good faith
36(2)If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make the determination on the application.
Note: It would be possible for a further application to be made under section 35.’
On 13 February 2003 I directed that any native title party that does not agree or takes issue whether the Government party and the grantee party have negotiated in good faith is to provide contentions and documents by 7 March 2003. The Government party and the grantee party were to provide contentions and documents in response by 14 March 2003 and a reply from the native title party or parties raising good faith as an issue was due by 21 March 2003. A hearing on the good faith issue if necessary was set for the week commencing 24 March 2003 and the substantive hearing provisionally for the week commencing 26 May 2003. Neither of the native title parties provided contentions and documents in relation to the issue of good faith by 7 March 2003 and the matter proceeded in preparation for the substantive inquiry.
Contentions and documents in relation to the substantive issue were provided by the Government party and the grantee party and on 9 May 2003 contentions were provided by the Wongatha native title party in which it was submitted that the grantee party had failed to negotiate in good faith and that the application should be dismissed. At the Listing Hearing on 16 May 2003, the solicitor for the Wongatha native title party, Ms Kathy Burns of the Goldfields Land and Sea Council (‘GLSC’) confirmed that her client now wished to raise good faith as an issue. The grantee party objected to any further delays in the resolution of the matter noting that the matter and subsequent negotiations had been on foot for some time. The Government party submitted that the lateness of the jurisdictional issue had implications for whether the opportunity for raising a good faith issue ever ends. However, the Government party also noted that once a jurisdictional issue had been raised the Tribunal may be at risk to ignore it.
At the Listing Hearing for this matter, I expressed my view that it was totally unsatisfactory for good faith to be raised at this late stage. The Wongatha native title party had indicated at the Preliminary Conference that it would know if good faith was in issue by the end of February and the breakdown of negotiations was known by mid March. Indeed there is correspondence dated 12 March 2003 from the GLSC to Mr Peter Clark, Chief Geologist, Townson Holdings Pty Ltd in which a challenge to good faith negotiations was foreshadowed if agreement was not reached but the matter was not raised by the Wongatha until it submitted its substantive submissions in early May. No adequate reason has been given by the Wongatha native title party for the delay in raising what should have been a preliminary issue. This disregard of the Tribunal’s directions is unsatisfactory and detrimental to the orderly conduct of its proceedings. It has also put the other parties to inconvenience in having to produce contentions and documents in relation to an issue they were entitled to expect had been dealt with by 7 March 2003. If the Wongatha native title party were not able to comply within time then the proper course would have been to explain any difficulties to the Tribunal and apply for an extension of time. Despite the unsatisfactory nature of the Wongatha native title party’s non-compliance with directions, now that the matter has been raised the Tribunal must decide whether it will consider the substance of the jurisdictional issue or whether, by non-compliance, the Wongatha native title party is now prevented from challenging the Tribunal’s jurisdiction.
As a starting point, there is nothing in the Act that suggests any statutory time limit on when a jurisdictional issue can be raised under s 36(2) of the Act. However, where Directions are imposed it is expected that parties will comply with those Directions, noting s 148(b) that allows the Tribunal to dismiss an application where an applicant fails within a reasonable time to comply with a direction by the Tribunal in relation to the application. Although not beyond doubt I am, for the purpose of the argument in this instance, prepared to accept that an application referred to in s 148(b) also includes the interlocutory submission made by the Wongatha native title party on the good faith issue.
Research conducted by the Tribunal has been unable to find any case directly on this point. In Re Bessey and Australian Postal Corporation [2000] AATA 404, 60 ALD 529, 23 May 2000, the Administrative Appeals Tribunal was faced with a late challenge to jurisdiction. Although highly critical of the respondent for not raising the issue before the hearing, the AAT proceeded to deal with the matter. In my view the principles enunciated by the Tribunal in deciding to use s 148(b) to dismiss objections to the expedited procedure (see Teelow v Page (2001) 166 FLR 266) are of limited use as are the principles enunciated by the Federal Court in determining whether to extend time to make an application under the Administrative Decisions (Judicial Review) Act 1977 (see Hunter Valley Development Pty Ltd v Cohen (1984) 58 ALR 305, paras 17-23). The nature of the challenge in this case is different being one of jurisdiction or whether the Tribunal has power to conduct an inquiry and make a determination. The principles in relation to the Tribunal’s obligations in such a case have been spelled out previously (see discussion and cases cited in Anaconda Nickel Ltd & Ors v Western Australia (2000) 165 FLR 116 at [21]-[69]). Where the Tribunal’s jurisdiction is challenged, it has a duty to make due inquiry and satisfy itself on the issue. What constitutes due inquiry may be cursory or extensive depending on the nature of the challenge and the circumstances of the case (Mineralogy Pty Ltd v National Native Title Tribunal & Others (1997) 150 ALR 467 at p 473).
In jurisdictional challenges based on a failure to negotiate in good faith the issues are not always straight forward and considerable inquiry is sometimes needed. Despite this and the inconvenience caused by late challenges to jurisdiction I am of the view that the Tribunal normally has no alternative but to consider and resolve them whenever they are made. The only possible qualification may be where an irreversible prejudice has been caused to another party by a failure to challenge jurisdiction at the outset or in accordance with the Tribunal’s directions. In this case, although there has been no satisfactory explanation for the delay and some inconvenience has been caused there is no obvious prejudice to other parties. I have dealt with the jurisdictional challenge at the same time as the substantive issues and been able to make a determination within the six months contemplated by ss 36(1) and 36(3) of the Act.

Contentions and documents

The Tribunal has taken into consideration the following contentions and documents received from the parties:

Statement of Contentions of the Government party dated 14 April 2003, together with a List of Documents, Chronology of events dated 11 June 2003 and corresponding bundle of documents relating to the substantive issue;
Contentions and supporting documents from the grantee party provided 10 April 2003 in relation to the substantive issue and Chronology dated 19 May 2003 and documents in relation to the preliminary issue of good faith;
Statement of Contentions of the Wongatha native title party provided 9 May 2003 and various documents relating to the preliminary issue of good faith; and
Statement of the Wutha native title party dated 15 May 2003 and a Chronology and various documents relating to the preliminary issue of good faith.

The Tribunal received no affidavits from any of the parties and the solicitor for the Wongatha native title party indicated at the Listing Hearing on 16 May 2003 and again at the Hearing on 30 May 2003 that she did not intend to file any affidavits or provide any oral evidence in relation to either the preliminary issue of good faith or the substantive issue. No party has requested that there be an on country hearing or that oral evidence be given. At both the Listing Hearing and the Hearing the parties indicated that they were content for a decision to be made on the papers pursuant to s 151 of the Act. The Tribunal is empowered to make a determination on the basis of written material submitted, however a hearing must be convened if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties – s 151(2). In the matter Little v Western Australia [2001] FCA 1706 at para [55], His Honour Nicholson J said that:
‘The patent intention of the power is that the Tribunal can decide to proceed on the papers if it is satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of the parties.’
At the listing hearing I expressed concern at the lack of information before the Tribunal, and subsequently further documents were provided by the grantee party and the native title parties, principally in relation to the good faith issue. I decided that a hearing (held on 30 May 2003) was necessary to clarify some outstanding issues raised by those documents.In this instance, even though the amount of information provided by the parties is not extensive, I have taken into account that no application has been made for a further hearing or for leave to provide additional documents. The Wongatha native title party is legally represented and Mr Ron Harrington-Smith (representing the Wutha native title party) while expressing displeasure at the approach of the grantee party to the negotiations did not seek to produce further evidence. Given the central role of the parties in these inquiries (see Western Australia v Thomas (‘Waljen’) (1996) 133 FLR 124 at 154-163) I have decided that I can proceed on the basis of the information currently before the Tribunal.

Legal principles

The Federal Court and Tribunal have considered the obligation to negotiate in good faith under the Act prior to the 1998 amendments in a number of matters. Although the obligation to negotiate in good faith is now imposed on all parties, the principles enunciated under the old Act are still relevant and their application was summarised in Placer (Granny Smith & Anor)/Western Australia/Harrington-Smith & Ors NNTT WF99/5, Hon CJ Sumner, 21 December 1999 (at 9):
‘On the assumption that it is normally the native title party that will assert that the other negotiation parties have not negotiated in good faith the position, in summary, is that the Tribunal must be satisfied that the Government and grantee parties have negotiated in good faith with the native title parties with a view to obtaining the agreement of the native title parties to the granting of the mining leases with or without conditions. Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’ (Western Australia v Taylor (1996) 134 FLR 211 at 219 (‘Njamal’). Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Njamal as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but it is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour. Lack of good faith in the negotiations by the native title party will be relevant to whether the other parties have fulfilled their obligation and may impose a lesser standard on them.’

This approach was endorsed by the Tribunal in Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Hayes, NNTT WF00/7, Hon C J Sumner, 9 March 2001 and in Western Australia/Arthur Dimer & Ors (Ngadju People) and Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited, NNTT WF99/10, Ms Patricia Lane, 9 August 2000. Member Lane also said:

that each party must act both honestly and reasonably with a view to reaching agreement about whether the act can proceed judged by what the parties say or do in the circumstances, but does not mean that parties are required to capitulate so as to reach agreement or otherwise act contrary to their interests (at 25); and
all parties are required to adhere to the same standard of negotiating behaviour but what they do to satisfy the obligation must be judged by reference to the interests they seek to advance in negotiations, the behaviour of the other negotiation parties and the circumstances in which the negotiations take place (at 26). The Government party is not, as a result of the amendments to the NTA, now subject to a lesser standard than previously (at 27).

Other relevant factors have been identified by the Tribunal, including the Njamal indicia which are set out below (Njamal at 224-225):

unreasonable delay in initiating communications in the first instance;
failure to make proposals in the first place;
the unexplained failure to communicate with the other parties within a reasonable time;
failure to contact one or more of the other parties;
failure to follow up a lack of response from the other parties;
failure to attempt to organise a meeting between the native title and grantee parties;
failure to take reasonable steps to facilitate and engage in discussions between the parties;
failing to respond to reasonable requests for relevant information within a reasonable time;
stalling negotiations by unexplained delays in responding to correspondence or telephone calls;
unnecessary postponement of meetings;
sending negotiators without authority to do more than argue or listen;
refusing to agree on trivial matters eg a refusal to incorporate statutory provisions into an agreement;
shifting position just as agreement seems in sight;
adopting a rigid non-negotiable position;
failure to make counter proposals;
unilateral conduct which harms the negotiating process eg issuing inappropriate press releases;
refusal to sign a written agreement in respect of the negotiation process or otherwise;
failure to do what a reasonable person would do in the circumstances.

Further relevant factors are enunciated in Western Australia/Marjorie May Strickland (Maduwongga) & Ors, NNTT WF97/4, Hon C J Sumner, 10 December 1997 (at 13-21) and were considered (and modified in respect of whether there is an obligation on the Government and grantee parties to make reasonable substantive offers) in subsequent Federal Court decisions.
It is now accepted that, while not obliged to, the Tribunal may have regard to whether the Government and grantee parties have made reasonable substantive offers or concessions if it assists in the overall assessment of its negotiating behaviour (Walley v Western Australia (1999) 87 FCR 565, [1999] FCA 3 per Carr J at [15] and Brownley v Western Australia (1999) 95 FCR 152, [1999] FCA 1139 per Lee J at [35]-[36]).
The Government and Grantee parties’ obligation to negotiate in good faith does not extend to matters that are not related to or connected to the doing of the future act although such matters may be the subject of negotiations if the parties see fit (Walley v Western Australia (1999) 87 FCR 565, [1999] FCA 3 per Carr J at [15] and Brownley v Western Australia (1999) 95 FCR 152, [1999] FCA 1139 per Lee J at [24]). Since these decisions made under the old Act a new s 31(2) has been inserted by the 1998 amendments. The Government and grantee partes are now only obliged to negotiate about the effect of the future act on the registered native title rights and interests (and in the Tribunal’s view the other matters in s 39(1)(a)) (Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Leslie Hayes & Ors (Thalanyji People), NNTT WF00/07, Hon C J Sumner, 9 March 2001 at [18]-[19]).
The Government and grantee parties are not required to negotiate about something different to the act proposed (Risk v Williamson (1998) 87 FCR 202 at 222).
Negotiation in good faith does not mean the Government party and grantee parties must capitulate or accept the other sides position or that agreement must be reached (Njamal at 222-223; Strickland v Minister for Lands (1998) 85 FCR 303 at 312).
Section 33 of the Act says that negotiations may include the possibility of payments to a native title party based on the amount of profits made, income derived or things produced by any grantee party (often referred to as profit sharing or royalty type payments). No such payment can be made a condition of the Tribunal’s determination (s 38(2) NTA). The law in relation to this issue is summarised in Western Australia/West Australia Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Leslie Hayes & Ors, NNTT WF00/07, Hon C J Sumner, 1 June 2001 at [32]-[37] and South Blackwater Coal Ltd/State of Queensland/Cliff Kina & Ors, NNTT QF00/3, Hon C J Sumner, 27 March 2001 at [30]-[35]. The Government and grantee parties must receive and consider a proposal in a manner which has regard to the particular facts of the case and to merits of the proposal in all the circumstances without being under any obligation to reach agreement (Brownley v Western Australia (1999) 95 FCR 152 (at 168-169, [50]-[55]).

Negotiations generally

The grantee party has been represented in this matter throughout both the negotiations and the inquiry by Mr Peter Clark, who is the Chief Company Geologist for Townson Holdings Pty Ltd. The Wutha native title party was represented in the negotiations from 1996 by Mony de Kerloy Solicitors, initially by Ms Annabel Viner and then by Mr Paul Tolcon from 1997 onwards. Mr Ron Harrington-Smith has represented the Wutha native title party for the purposes of the inquiry. The Wongatha native title party has been represented from 2001 in the negotiations and in the inquiry by Ms Kathy Burns from the Goldfields Land & Sea Council.
From the documents before the Tribunal, it appears that negotiations commenced between the grantee party and the Wutha native title party in 1996 following which a draft agreement was provided by the grantee party to the Wutha native title party for consideration. That agreement, referred to as the ‘Heritage Agreement’ is the substantive agreement that passed between the parties during negotiations. The agreement included clauses relating to employment and training, economic development, environmental protection and rehabilitation, site clearance, cultural issues, payment to the native title party based on the amount of ore removed and payment of the native title party’s costs. Payments for site clearances were set at $150 for each Aboriginal adviser and the native title parties’ costs for the negotiations and preparation of the Deed was set at $1,500. The agreement also sought to be a regional one by extending agreement to all future proposals for mining, exploration or prospecting within the relevant claim areas by the grantee party.
The payments to the native title parties were to be equal to 17.5% of rental payable to the Government party for the mining leases and any other tenements prior to the commencement of mining, with those payments to be replaced by payments of $0.15 for each tonne of ore removed once mining commenced. Mr Clark indicated at the Hearing that the method of payment was devised on the basis that the loss or damage is in digging the pit and removing ore, and the best way to compensate for that loss or damage was to base payments on the tonnage of ore processed, and not based on per ounce of gold. During the negotiations (see letter from Mr Clark to the Tribunal dated 9 April 1996 which was in the possession of and was provided by the Wutha native title party) Mr Clark expressed the view that with respect to compensation and s 33 of the Act the central issue was one of land use and title and must relate to traditional Aboriginal land use and current exploration/mining land use. He argued that compensation should be based on the Government party’s rental schedule (and presumably that the tenement holder should pay rent to both the Crown and the holder or claimant for native title). He rejected payment of lump sum compensation or royalties for “philosophical” and “practical” reasons and said it would run counter to s 123 of the Mining Act. By way of explanation s 123 sets out the basis of compensation for owners or occupiers with an interest in the land and provides for it via the similar compensable interest test (ss 24MD(3)(b), 51(3), 240 NTA) for compensation for impairment of native title rights and interests as a result of a future act which does not involve extinguishment of native title. There is no provision for a Court to award compensation by reference to s 33 royalty type payments which can be voluntarily negotiated but cannot be made a condition of a determination (see above). Mr Clark’s position led him to propose compensation based on disturbance to the land not on the value of gold extracted. While this may not be a common way of providing compensation it was a negotiating position the grantee party was entitled to take. It was a genuinely held position and had an underlying rationale to it.
The documents indicate that negotiations commenced in relation to the Heritage agreement and that issues arose regarding the payment to the native title party being placed in trust pending a determination of native title; the amount of costs payable; as well as the application of the agreement to all future proposals in the claim area (the ‘regional aspect’ of the agreement). It appears from the correspondence that while there was some movement from the grantee party in relation to some of those issues, namely the amount of costs payable which was increased to $2,000, an agreement was unable to be reached and in 1997 negotiations ceased. The Tribunal does not have documents before it in relation to negotiations that may have commenced at the same time with the Ngurludharra Waljan People, but Mr Clark indicated at the Hearing that the agreements provided to the native title parties have been the same from the beginning, with the same amendments forward to both native title parties.
In 2001, the negotiations resumed and the documents indicate that comments on the Heritage Agreement were sent to the grantee party by the Wutha native title party on 17 September 2001. Those comments related to the regional aspect of the agreement, namely that the agreement should not extend to all future proposals for mining, exploration and prospecting in the claim area, payments based on tonnage should be increased from $0.15 per tonne to $0.20 per tonne and should be paid up front instead of into trust (as well as an amount of $50,000 upon signing), costs for site clearance should be increased to $400 and the native title party’s costs should also be increased from $2,000 to $5,000. A response was sent by the grantee party to the Wutha native title party on 2 October 2001 responding to those issues and advising that the grantee wished to retain the regional aspect of the Heritage Agreement, that the payments per tonne were fair and reasonable, that up front payments would not be paid and that the payment for native title party costs would not be increased.
On 9 October 2001, the grantee party first sent a copy of the Heritage Agreement to the Wongatha native title party. The correspondence before the Tribunal indicates that the Wongatha native title party had in July 2001 sent a copy of the GLSC’s standard mining lease agreement and deferred production agreement to the grantee party for consideration. Ms Burns indicated at the Hearing that the grantee party had not provided any feedback to her on the standard draft GSLC agreements (Transcript, 30 May 2003, p. 16). Following the receipt of the Heritage Agreement, the documents indicate that discussions took place between the grantee party and the Wongatha native title party following which the grantee party suggested amendments to the Heritage Agreement, including the increase in payment for site clearances from $150 to $300 per day, the increase in costs payable to the native title party from $2,000 to $3,000 and the establishment of a liaison committee. Both native title parties provided a response to the amendments suggested by the grantee party with the Wutha responding on 6 February 2002 and the Wongatha on 14 February 2002. The Wutha native title party agreed with certain amendments but raised the issue of the regional aspect of the agreement and payments into trust pending a determination of native title, as well as suggesting that the payment for site clearance should be increased to $400 but noting that payments of $300 could be considered if there were other concessions, particularly regarding compensation. The grantee party responded to the Wutha native title party on 7 February 2002 stating that the regional aspect of the agreement was a crucial issue for the grantee party and that the grantee party did not believe that the payment provisions required amendment.
The Wongatha native title party response of 14 February 2002 also raised issues regarding the regional aspect of the agreement, stating the Wongatha were willing to negotiate regarding the grant of the subject mining leases but not for mining and other proposals over the entire claim area. The Wongatha suggested that a Heritage Agreement over the entire claim area be considered instead, as well as noting that other aspects of the agreement, including compensation, required further discussion.
During the time of these negotiations, the State requested that the Tribunal conduct mediation between the parties as provided by s 31(3) of the Act. Deputy President Franklyn was appointed as the mediator to the matter and five mediation meetings were held. The meetings occurred on 25 February 2002, 11 March 2002, 3 April 2002, 7 May 2002 and 21 May 2002. The parties consented to the Tribunal having access to the outcomes from those mediation meetings, as well as the Tribunal obtaining copies of those records of outcomes from its own files.
The outcomes from the mediation meeting on 25 February 2002 indicate that preliminary issues were discussed and that the grantee party representative, Mr Clark, was to obtain instructions from the grantee party. The outcomes from the mediation meeting held on 11 March 2002 include the Wongatha native title party representative to forward a copy of its standard Regional and Exploration Deed to the grantee party, and identified three major points of discussion, namely: up front payments to the native title parties, regional vs. project agreement and compensation.
The documents indicate that a meeting took place between the grantee and the Wongatha native title party representative on 21 March 2002, following which the Wongatha native title party wrote to the grantee party on 22 March 2002. In that letter, the Wongatha native title party suggested that a regional heritage agreement be concluded for exploration and prospecting over the whole claim area, and refers to a copy of the GLSC’s standard exploration agreement. It was also suggested that costs be increased to $4,000 and that payments to the Wongatha native title party should be paid into an account for their benefit.
On 3 April 2002, a further mediation meeting was held. The outcomes from the mediation meeting show that the grantee party accepted that the regional agreement should be confined to exploration and prospecting and that the Wutha native title party representative, Mr Tolcon, would recommend this regional agreement approach to his clients. The outcomes also show that Mr Clark advised that the grantee party was not prepared to offer any up-front or royalty type payments.
On 10 April 2002, the grantee party sent a further amended Heritage Agreement to the Wongatha native title party. A copy of that agreement has not been provided, but Mr Clark confirmed at the Hearing that it was the same as the agreement provided to the Wutha native title party on 10 April 2002, a copy of which is before the Tribunal. The agreement did not include any amendments on the unresolved issues that remained between the parties, namely the regional aspect of the agreement or the payment to the native title parties to be held in trust. The amended Heritage Agreement did include the changes previously foreshadowed by the grantee party as well as changes providing for payment of native title costs also into trust pending a determination and the addition of a new clause which provided that the agreement shall be of no force or effect until all claimants sign a similar agreement.
Both the Wutha and Wongatha native title parties responded to the April 2002 draft Heritage Agreement. The Wutha native title party wrote to the Grantee on 22 April 2002 identifying a number of amendments to be made to the agreement, including changes to the definition section which would limit the regional aspect of the agreement to prospecting and exploration.
The Wongatha native title party responded to the grantee party by letter dated 18 April 2002 stating that the amendments to the Heritage Agreement did not address all the issues raised by the Wongatha native title party and also querying the calculation of the payments per tonne and requesting additional payment for native title costs.

The grantee party responded to the letter from Wongatha on 6 May 2002 stating that all issues have been dealt with, advising that no royalty would be paid and that the request for additional payments for native title party costs would not be paid. At the mediation meeting on 7 May 2002, the outcomes indicate that the same issues were raised by the Wongatha native title party and that the grantee party advised that the method of payment clause would not be amended, nor would any up front payment be made. The native title parties also requested an explanation of the payment calculation which was provided by the grantee party in a facsimile dated 7 May 2002. In that facsimile, Mr Clark set out figures for the average recovery of gold (presumably to assist the native title parties to compare payments based on productivity with Mr Clark’s proposal for payment based on disturbance to land) and also referred to the audit of the tonnage of ore.
A further draft Heritage Agreement was provided by the grantee party to the Wongatha native title party on 16 May 2002. A copy was also provided to the Wutha native title party as acknowledged in later correspondence from Mr Tolcon dated 17 May 2002 but a copy of the agreement has not been provided to the Tribunal. The amended Heritage Agreement contained a number of the amendments suggested by the Wutha native title party in the letter of 22 April 2002 such that the regional aspect of the agreement no longer applied to mining leases and instead was limited to exploration and prospecting. No changes had been made to the clauses dealing with payments to the native title parties being paid into trust pending a determination.
Upon the receipt of the May 2002 Heritage Agreement, both the Wongatha and Wutha native title parties provided quite lengthy responses to the grantee party identifying concerns, inter alia, with the lack of upfront payments and raising issues with the regional aspect of the agreement. The Tribunal has no record of any further draft of the Heritage Agreement being exchanged after that time.
The final mediation meeting was held on 21 May 2002 at which point the mediation was terminated. The outcomes show that the reason for the termination of the mediation was that there remained fundamental issues that could not be resolved.
The Government party has provided a chronology including events subsequent to the termination of the mediation that has not been challenged by either the grantee party or the native title parties. The chronology notes that subsequent to the termination of the mediation a number of meetings were held, including two phone conferences in October and November 2002 between the parties in an attempt to resolve matters and I am prepared to accept that those meetings occurred. However, it is clear that agreement was not able to be reached and the s 35 application currently before me was made in January 2003.

Summary of negotiations

From the documents before the Tribunal, it is clear that the negotiations between the parties were protracted but with a period of intense activity from March to May 2002. It otherwise appears that there were fundamental issues between the parties that were unable to be resolved, but that there were attempts to settle those issues as evidenced by the correspondence and discussions between the parties, and their attendance at various mediation meetings. The chronology provided by the Government party also indicates the background to many of those discussions, including the outstanding issues that remained between the parties.
There can be no doubt that there were discussions and correspondence between the grantee and native title parties over a considerable period of time with a view to reaching agreement and apparently consistent with the principles relating to good faith negotiations including the Njamal indicia referred to above. On the face of it these negotiations were conducted in good faith but there remained in the end the following principal areas of disagreement namely whether the grantee party would make any upfront payment on signing the agreement; whether compensation should be paid by reference to a royalty type payment based on the amount of gold produced; that compensation is to be held in trust pending a determination of native title and to be refunded if there is no determination that native title exists; that the payment is in full and final settlement of any compensation payable; and the method of giving effect to an agreement to restrict the regional aspects of the Heritage Agreement to exploration and prospecting only. The failure of the grantee party to agree with the native title parties on certain issues is not in itself sufficient basis for a finding that it did not negotiate in good faith.
In its contentions, the Wongatha native title party has included a list of actions taken by the grantee party which it contends illustrate the absence of good faith. The issues arising from those claimed actions have been summarised as follows.

Grantee party did not give due consideration to or provide any comment on the standard GLSC agreements provided by the Wongatha native title party.
The Wongatha native title party’s concerns regarding the regional aspect of the agreement and the payment of compensation were not catered for by the grantee party and the Heritage Agreement was not amended.
The Grantee party did not respond to the Wongatha native title party’s proposal for two separate agreements raised at the meeting in March 2002.
Grantee party stated in a letter of 6 May 2002 that “all issues have been dealt with” when outstanding issues remained in relation to the agreement.
Grantee party refused to execute its own draft Heritage Agreement when advised by the Wongatha native title party in March 2003 that it had accepted the proposed agreement.

I now turn to each of those contentions separately.

Alleged failure to consider or provide comment on draft GLSC agreements

The Wongatha native title party contends that the grantee party did not give due consideration or provide comment on the native title party’s draft agreements and later submitted its own draft agreement for comment. The documents indicate that on 9 July 2001 the Wongatha native title party forwarded a copy of its standard draft mining lease agreement and standard draft deferred production agreement to the grantee party for consideration and provided a further copy of the draft mining lease agreement by letter dated 16 October 2001 and a copy of the draft deferred production agreement by letter dated 19 October 2001. Those agreements were described by Ms Burns at the hearing as agreements that had been “worked out for a long time” and that are sent out by the GLSC as part of standard practice (Transcript, 30 May 2003, p 17). Ms Burns also said that the agreements are structured differently to the agreement provided by the grantee party, namely the compensation and heritage survey provisions are different. Copies of those standard draft agreements have been provided to the Tribunal and the GLSC’s draft mining lease agreement contains provisions in relation to employment and training, business development, environmental protection and rehabilitation, Aboriginal heritage and surveys, establishment of a monitoring committee as well as compensation payments upon execution of the agreement and at the commencement of mining activities as well as royalties based on the amount of gold recovered by the Grantee party. The GLSC’s draft mining lease agreement provided that payments would be paid to a trust or other account nominated by the native title party, and otherwise contained a clause to the effect that each party would bear its own costs in relation to the agreement. The draft agreement also provided that the native title party would consent to any exploration or miscellaneous licences applied for by the grantee party within the native title party’s claim area provided that the grantee party complied with the heritage survey provisions within the agreement. The GLSC’s draft deferred production agreement was more limited in scope and contained provisions enabling the grantee party to undertake reconnaissance prospecting and requiring the grantee party to undertake a heritage survey before commencing high impact exploration and to enter into negotiations in the event that a Notice of Intent to mine was filed. The draft agreement also provided for the grantee party to pay the native title party’s legal costs for negotiations in relation to the agreement.
Reference was also made to a regional exploration agreement and the correspondence between the parties, as well as the outcomes of various mediation meetings, indicates that a copy of that agreement was provided to the grantee party in March 2002. A copy of that agreement has been provided to the Tribunal and I note that it contains very similar terms regarding heritage clearance as the draft standard GLSC’s mining lease agreement initially provided to the grantee party.
There are no documents before the Tribunal that evidence any written comments from the grantee party in relation to the three Wongatha native title party draft agreements. At the hearing, Mr Clark confirmed that “there may not have been feedback in terms of written feedback” (Transcript, 30 May 2003, p. 17) but that there were phone calls between himself and Ms Burns in which he stated that the grantee party would like to use its own agreement. Mr Clark also said that he had read the draft agreements provided by the Wongatha native title party and that he considered that “the agreements overlapped and were virtually identical in their broad aspect.” (p. 17) Mr Clark refuted the contention that the grantee party had not responded to the draft agreements.
I do not consider that there is any substance in the Wongatha native title party’s contentions regarding which agreement should have been utilised in the negotiations and the alleged failure of the grantee party to provide comment on the draft GLSC agreement. The grantee party’s Heritage Agreement contained similar clauses to the GLSC’s mining lease agreement and regional exploration agreement, including that it provided for heritage clearance over the entire claim area. Negotiations had already commenced with the Wutha native title party on the basis of the grantee party’s Heritage Agreement as well as earlier discussions with the Ngurludharra Waljan people and it appears reasonable for the discussions to have continued on the basis of that agreement. In any event, the real issue to be considered in negotiation is the substance of any draft agreement and not the form or authorship of that agreement. In this case irrespective of which draft was being used there remained fundamental issues that were unresolved. It cannot be said that the substance of these issues was ignored in the discussions.

Alleged failure to cater for the native title party’s concerns regarding the regional nature of the agreement and compensation

The outline of the negotiations above indicates the discussions between the parties and correspondence passing between them in relation to the terms of the Heritage Agreement, as well as the outstanding issues that remained between the parties namely issues of compensation and the regional aspect of the agreement. The documents show that the initial Heritage Agreement proposed by the grantee party sought the native title parties’ agreement to future mining, exploration and prospecting over the entire claim area. Further correspondence indicates that it was the suggestion of the Wongatha native title party at a meeting with the grantee party on 21 March 2002 to limit the regional aspect of an agreement to exploration and prospecting only. The Tribunal has before it a copy of a memo from Mr Clark to a Director of Townson Holdings Pty Ltd dated 21 March 2002 which confirms Mr Clark’s agreement to a ‘regional exploration only agreement.’ The grantee party’s concession on this point is confirmed in the outcomes of a Tribunal mediation meeting on 3 April 2002 which includes a statement that Mr Clark accepted the regional agreement approach as well as in a letter from Mr Clark to Ms Burns dated 10 April 2002. The grantee party subsequently made amendments to the Heritage Agreement in May 2002 that removed the native title parties’ authorisation to future mining over the claim area and hence limited the regional aspect of the agreement to exploration and prospecting.
It is also clear from the correspondence that the issue of up-front payments versus payments into trust pending a determination of native title remained a contentious issue between the parties. The native title parties sought payments up front, whereas the grantee party confirmed on a number of occasions (as set out in the draft agreements provided, correspondence from the grantee party to the Wutha native title party dated 2 October 2001 and 7 February 2002, and outcomes from mediation meetings on 3 April 2002 and 7 May 2002) that the grantee party was not prepared to offer any up-front payments. An earlier draft of the Heritage Agreement provided by the Wutha native title party shows that payments were to be made to the Ngurludharra / Waljen Heritage and Land Council and not into trust pending a determination of native title. Mr Clark has provided advice that that agreement was the original agreement provided by the Ngurludharra / Waljen which was subsequently re-negotiated. In the light of this, there is insufficient evidence to make a finding that the grantee party changed its position on the issue of up-front payments which might have been an indication of a lack of good faith.
The Wongatha native title party also contends that its concerns regarding the compensation being full and final were not catered for. In a letter from Ms Burns to Mr Clark dated 14 February 2002, Ms Burns states that “various aspects of the draft agreement, including compensation, require further discussion.” There is no evidence before the Tribunal as to any discussion between Ms Burns and Mr Clark as to the issue, and it is otherwise only referred to in a letter from Ms Burns to Mr Clark dated 20 May 2002. In that letter, Ms Burns refers to discussions on the matter at the last mediation meeting on 7 May 2002 and identifies compensation issues as outstanding and requiring further discussion.
The Heritage Agreement suggested by the grantee party covered in substance topics that were reasonably common in agreements of that kind and included a number of standard provisions regularly seen in such agreements (including those from the GLSC which were in evidence). There is no requirement for a grantee party to capitulate or accept the native title parties’ position and I do not consider that the Wongatha native title party’s contention on this ground can be made out. It is clear that the grantee party did compromise on the regional aspect of the Heritage Agreement by agreeing to limit it to only exploration and prospecting. The regional aspect of the agreement initially extended to mining as well. While that aspect was included in earlier negotiations, it may have been indicative of bad faith if the grantee party had not compromised on that point and insisted that the agreement apply to future mining leases as well. While negotiations can voluntarily include other matters in negotiations including the possibility of regional agreements covering the same class of tenement, I consider that there would be serious questions about whether a grantee party had negotiated in good faith if it insisted on a regional agreement when negotiating about particular future acts. The negotiations conducted pursuant to s 31(1)(b) of the Act are about the future act proposed to be done and a grantee party’s insistence that they include other unrelated future acts may well be inconsistent with good faith negotiations. Apart from anything else the effect of the future act on native title rights and interests and other matters referred to in s 39(1)(a) of the Act (which the Tribunal must take into account in making an arbitral determination – see below) may vary from place to place and may not be able to be accommodated properly in negotiations if details of what activity will take place is not known. In my view it was prudent for the grantee party to have made the concession it did on this point.
With respect to the regional agreement on prospecting and exploration, this position was agreed to in substance by the native title parties (although there was some dispute about how it should be given effect to) and this does not reflect adversely on the grantee party. I also take into account that the GLSC has a standard exploration deed which it is prepared to enter into over the whole of a claimant area, which was all this grantee party eventually proposed.
In relation to the compensation provisions of the draft Heritage Agreement, the Act provides a mechanism for payments to be made into trust pending a determination of native title (ss 41(3) and 52). The principles underlying the NTA are said by the High Court to be preservation of ‘the status quo’ pending a final determination of native title (North Ganalanji Aboriginal Corporation v Queensland (1996) 185 CLR 595 (at 616)); and also pending any consequential final determination of compensation which must be made by the Federal Court. Consistent with this position there is nothing in the NTA which mandates the payment by a Government or grantee party of upfront payment by way of compensation for the doing of a future act. Indeed the provisions for the determination by the Tribunal of a trust amount as a condition of a determination suggests the contrary. This does not mean that the parties cannot voluntarily negotiate and agree on such payments and the Tribunal is aware that this is not uncommon. However, there is no evidence before me of whether there is any standard industry practice in this respect or what it may involve in monetary terms. Even if there were a common practice it is difficult to see how it could then be imposed on particular grantee parties (where the circumstances may differ markedly) as a requirement of good faith negotiations.
It was apparent from the Hearing that Mr Harrington-Smith’s dissatisfaction with the grantee party’s stand on this issue was partly influenced by his experience with other mining companies where agreement involving upfront payments had been reached, but I do not consider it open to the Tribunal to take this into account as a factor adverse to the grantee party in these proceedings.
On the question of the calculation of compensation the grantee party considered the native title parties’ royalty proposition but rejected it in favour of his own proposition for payment passed on the tonnage of ore extracted. A grantee party is not obliged to agree on s 33 type payments. In this case an alternative was proposed which Mr Clark had a rationale for and which would have provided some ‘rental’ compensation and, possibly significant payments based on tonnage of ore if an open cut mine (which was the only type suggested as possible) eventuated.

Alleged failure to consider two separate agreements

In a letter dated 14 February 2002 to Mr Clark, Ms Burns suggests an alternative approach for the grantee party’s consideration, namely, a Heritage Agreement over the entire claim area to “govern heritage over the claim area while the mining lease agreement would only cover the titles the subject of [the grantee party’s] application.” This suggestion was also included in a letter dated 22 March 2002 to Mr Clark which refers to a Regional Heritage Agreement “for exploration and prospecting covering the whole of the claim area” and a Mining Lease Agreement in regard to the mining leases the subject of the application. While the grantee party agreed to the regional aspect of the agreement being limited to exploration and prospecting (as outlined above) it appears that there was no agreement from the grantee party to two separate agreements. This was confirmed at a Tribunal mediation meeting on 7 May 2002 which noted that the grantee party would “only use the one agreement already on the table which provides for a regional approach to exploration and prospecting”. Further, Ms Burns was to get instructions from the Wongatha native title party “in relation to the use of one agreement, incorporating a regional approach to exploration and prospecting and covering M29/181 and M29/182, as opposed to the use of two agreements – a regional (exploration and prospecting) and project.”

At the Hearing, Mr Clark said that the grantee party had seen “no reason to have separate agreements” and “wanted one simple agreement that would cover all contingencies.” (Transcript, 30 May 2003, p. 8) I also note that the standard draft mining lease agreement initially provided by Ms Burns to Mr Clark for consideration provided for both a regional approach to exploration within the claim area as well as agreement to the subject mining tenements and that therefore it appeared part of the standard GLSC mining agreement to cover both the proposed mining project as well as future exploration in the claim area.
I do not consider that the Wongatha native title party’s contention can be made out. As set out above, the issue is the substance of the draft agreement included in the negotiations and not the format of that agreement. The grantee party’s Heritage Agreement which had formed the basis of the discussions eventually provided for a regional approach to exploration and prospecting as anticipated by the draft GLSC regional exploration agreement, including provisions for site surveys as well as payments based on rentals payable by the grantee party. In these circumstances it is difficult to see how a case of failure to negotiate in good faith can be made out when the argument is principally about which parties’ agreement is to be used and when the grantee party has agreed to make the substantive amendment to its document.

Refusal to negotiate on ‘issues already dealt with’

In correspondence dated 10 April 2002 to Ms Burns, Mr Clark states inter alia that:
‘I remind you that we have been endeavouring to resolve this matter since 1996. We have patiently negotiated and then renegotiated, there is now no room for further negotiation. The agreement is robust, fair and reasonable all issues have been dealt with.’

In a further letter dated 6 May 2002 in response to a letter to Ms Burns dated 18 April 2002, Mr Clark states that “all issues have been dealt with.”

At the hearing, Mr Clark responded to the contention as follows (Transcript, 30 May 2003, p. 18)
‘I felt we had dealt with all the issues, whether or not they had agreed or not is a different issue and I think that’s where we’re getting bogged down here that, you know, there are points which haven’t been agreed to, but they’ve certainly been dealt with. They’ve certainly been discussed over many, many discussions by fax, by telephone, usually by telephone etcetera, etcetera.’
Given the history of negotiations and that it appeared that the same issues were being raised, it appears to me reasonable for the grantee to have indicated his belief that issues had been dealt with, albeit not agreed. There is no requirement for a grantee party to capitulate to native title party demands, although it appears that there had been some compromise by the grantee party on a number of points, including the regional aspect of the agreement and increasing the amount of native title party costs for the negotiation and preparation of the agreement and the daily rate for site clearances. Looked at overall there was a draft Heritage Agreement which covered issues found in such agreements and in relation to some issues compromises had been made by the grantee party.

Refusal to execute own agreement when native title party agreed to do so

At the first preliminary conference for this matter held on 12 February 2003, the parties indicated that there may be some prospect of agreement and a s 150 conference was directed with Member McFarlane appointed as the Member. The Wongatha native title party’s above contention therefore relates to conduct after the lodgement of the current s 35 application.
The Wongatha native title party contends that it informed the grantee party on 10 March 2003 that the terms of its draft Heritage Agreement were acceptable and requested a copy of the draft agreement to arrange for execution. The Wongatha native title party then contends that the grantee party notified that it would not be executing the agreement (without providing an explanation) and that correspondence was sent to the grantee party on 12 March 2003 asking them to reconsider their position. The Tribunal has before it a copy of the letter of 12 March 2003 from Ms Burns to Mr Clark. In that letter, Ms Burns states that the Wongatha native title party consents to the grant of M29/181 on the terms specified in the earlier proposal (payments to be made into trust, heritage protection, employment and business development opportunities, instruction on cultural tradition and environmental protection) and that discussions regarding a regional agreement should be directed outside the current process. Mr Clark has disputed that contention and says that the original proposal also had a regional aspect to it, and that the Wongatha native title party were seeking to exclude that part of the agreement.
The Tribunal has previously considered the relevance of negotiations undertaken after the lodgement of a s 35 application. In the matter of South Blackwater Coal Ltd / State of Queensland / Cliff Kina & Ors, NNTT WF00/3, Hon CJ Sumner, 27 March 2001 at para 10, and in response to a contention from the native title parties that the duty on the grantee party to negotiate in good faith is not terminated by the making of the s 35 application, I stated that:
‘In my view the scheme of the NTA is that negotiations in good faith must occur before (but not after) the s 35 application is made.’
In that matter, reference was also made to a decision of the Tribunal in the matter of Western Australia/Arthur Dimer & Ors (Ngadju People) and Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited, NNTT WF99/10, Ms PM Lane, 9 August 2000 (at 36-38):
‘Section 36(2) requires the Tribunal to cease to hear the matter if any negotiation party (in this case, the native title party) satisfies the Tribunal that there has been no negotiation in good faith. No party may lodge a s.35 application until 6 months has elapsed from the date of the s.29 notice, but there is no period prescribed within which negotiations must occur. It is open to the parties to continue negotiating after a s.35 application has been lodged: (s.35(3)). I do not think that the provisions in s.36 impose an obligation on the Tribunal to draw a veil across the parties’ negotiations at the moment the s.35 application is lodged. As I put to Ms Gaunt at the hearing, to do so would require the conclusion that the intention of Parliament was that even if the grantee party had not negotiated in good faith at the time of lodging the s.35 application, subsequent conduct involving good faith negotiation could not be used to support a contention by the grantee party that the Tribunal’s jurisdiction was properly attracted. This would mean, that even if negotiation in good faith had occurred, the Tribunal could not have regard to it and would be obliged to dismiss the application for lack of jurisdiction. Although the note to s.36(2) might seem to consistent with this construction, as it reminds the reader that the parties may lodge a fresh s.35 application, it does not seem to me that the existence of the note ought to compel a conclusion that the tribunal must ignore facts relevant to the existence of its jurisdiction occurring after the s.35 application is lodged. [My emphasis]
The effect of s.36(2) is to impose an evidentiary obligation on a party seeking to assert that a grantee party or Government party has not negotiated in good faith. (see Placer (Granny Smith)/Western Australia/Harrington-Smith NNTT Wf99/5 Hon CJ Sumner, 21 December 1999). It is up to the native title party to satisfy the Tribunal that other parties have failed to negotiate in good faith, and they may put forward evidence of matters occurring after the s.35 application is lodged. However, the practical utility of this may be limited. The fact that negotiations cease at or shortly before the lodgement of the s.35 application cannot of itself be adverse to a grantee party who seeks to invoke the tribunal’s jurisdiction. If the grantee party wishes to give evidence of post-application conduct to respond to contentions of a native title party, the Tribunal ought not to be precluded from having regard to that evidence, particularly where the result of doing so may be to save the parties the expense of further proceedings on the same issue. If, however, the grantee chooses not to respond, this cannot be used against them.
If the grantee party does not continue negotiations after lodging the s.35 application, or put any evidence in reply about negotiations after lodgement, it must be taken to be content to rest its case for the tribunal’s jurisdiction on whatever happened prior to the application being made. If that is inadequate, the result will inevitably be that the parties must either engage in fresh negotiations, or lodge a further application under s.35. I do not think that any adverse inference can be drawn from the grantee parties continued refusal to reply to the compensation letter of 13 December 1999 after lodgement of the s.35 application. Their failure to respond to it in a substantial way prior to the termination of negotiations may however, be relevant to the question of good faith negotiation.’

In relation to that passage, I said in Blackwater Coal at para 11 that:

‘In my view, Member Lane was saying nothing more than that a party’s conduct after a s 35 application is made may be relevant to whether a party has negotiated in good faith before it was made.’

Conduct subsequent to an s 35 application may be relevant in corroborating either good faith conduct or the absence of good faith prior to it being made. In this case the Wongatha native title party contends that it is indicative of a lack of good faith that the grantee party refused to sign the draft Heritage Agreement which Mr Clark had proposed before the s 35 application was made. This contention could conceivably only be sustained if the grantee party had specifically left open the option for the native title party to sign despite the arbitration proceedings. The Tribunal notes that in the context of considering a s 150 conference Mr Clark said at the Preliminary Conference that this draft Heritage Agreement offer was still open. It is not necessary to decide whether, if he had then withdrawn this offer without reasons and further reference to the native title party, this could have been indicative of bad faith even though the actions occurred after the s 35 application had been made. Such a finding could only conceivably be considered in the overall context of the negotiations and where it added credence to a pattern of behaviour of this kind during the negotiations. However, nothing of this kind occurred as the Wongatha native title party was not seeking to enter into the entire Heritage Agreement that had previously been on the table. The letter of 12 March 2003 referred only to some of the provisions of the Heritage Agreement and not to the ‘regional aspect’ of the agreement which had been agreed by the parties to be limited to exploration and prospecting only. The Wongatha native title party’s attempts to resolve the matter in March 2003 effectively amounted to opening a new round of negotiations on a different basis and are not relevant to the conduct of the parties in the negotiations prior to the lodgement of this application.

Decision on good faith

My decision is that the grantee party has fulfilled its obligation under s 31(1)(b) of the Act to negotiate in good faith with the native title parties with a view to obtaining their agreement to the grant of the mining leases. The Tribunal has jurisdiction to conduct the inquiry and make a determination.

SUBSTANTIVE INQUIRY MATTERS

The proposed act

The Government party proposes to grant mining leases M29/181 and M29/182 under the Mining Act 1978 (WA) to the grantee party. The mining leases comprise a total area of 1536.07 hectares and are located 80km WSW of Leonora in the Shire of Menzies. The term of the leases would be for 21 years with a right of renewal for another 21 years.

The Mining Act entitles the grantee party to exercise the rights set out in s 85 subject to the covenants and conditions referred to in s 82 and such further conditions and endorsements that the Minister may at any time impose under s 84.

The grants are to be subject to the following endorsements and conditions:

‘ENDORSEMENT
1. The lessee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972.
CONDITIONS
1.   Survey.
2.   All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.
3.   All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the District Mining Engineer. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the District Mining Engineer.
4.   All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of the exploration program.
5.   Unless the written approval of the District Mining Engineer is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
6.   The lessee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
(i)       the grant of the lease; or
(ii)       registration of a transfer introducing a new lease;
advise, by certified mail, the holder of any underlying pastoral lease details of the grant or transfer.
7.   The lessee submitting a plan of proposed operations and measures to safeguard the environment to the State Mining Engineer for his assessment and written approval prior to commencing any developmental or productive mining or construction activity.
8.   Mining on any road, road verge or road reserve being confined to below a depth of 15 metres from the natural surface.’

In addition, the grant of M29/181 is to be subject to the following condition:

9. The prior written consent of the Minister for Mines being obtained before commencing mining on Water Reserve 7033.

Condition 7 requires the approval of the State Mining Engineer before any developmental or productive mining or construction activity can occur. This is obtained by the grantee party submitting a plan of the proposed operation (called a Notice of Intent) (‘NOI’). Depending on the nature, scale and location of the proposal, the NOI may trigger environmental assessment procedures under the Environmental Protection Act 1986 which may involve the imposition of further conditions.

The Government party has advised that the following conditions will be placed on the mining leases by the Department of Industry and Resources if there is a determination by the Tribunal that the act may be done:
·‘Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
·If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
·Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
·Upon assignment of the mining lease the assignee shall be bound by these conditions.’

The mining operations

The grantee party has no current proposal for productive mining and its present intentions are to use the mining lease for further exploration.
At a Listing Hearing on 16 May 2003, Mr Clark outlined the grantee party’s proposals in relation to the mining leases. He indicated that the mining leases had been sought because the grantee party’s exploration licence had run out, and that the grantee party was hoping to find a few million tonnes with 3 to 4g of gold per tonne. Mr Clark indicated that if productive mining became justified by further exploration the grantee party was looking at open pit mining, with dumps to be rehabilitated and the area ripped and re-seeded afterwards. The total area was estimated at a couple of square kilometres at most with an estimated operation time of 4 or 5 years over the whole of the two leases.
The grantee party’s contentions indicate that the grantee party has held an exploration licence (E29/130) over the area since 1991 and that the area was previously held by Geopecko Ltd.
Documents provided by the Government party indicate that the land the subject of the proposed mining lease M29/181 is comprised of:

Pastoral lease H91303 (Riverina);
Reserve 7033 (water);
Exploration licences E29/130, E29/363 and E29/446; and
Unallocated crown land

The land the subject of the proposed mining lease M29/182 is comprised of:

Pastoral lease H91303 (Riverina);
Exploration licences E29/130, E29/363 and E29/506; and
Unallocated crown land.

The documents also indicate that the Mt Ida Road intersects the proposed mining leases.

Legal Principles

In making this determination, I have considered and applied those principles relating to future act determinations that have been extensively discussed in the following Federal Court and Tribunal decisions:

ReKoara People (1996) 132 FLR 73 (‘Koara 1’);
Evans v Western Australia 77 FCR 193 (‘Evans’). ( Federal Court, RD Nicholson J - an appeal from the Tribunal determination in Koara 1;
Western Australia/Evans(Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5, WF96/11, Hon CJ Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998 (‘Koara 2’) - Tribunal determination following the successful appeal in Evans;
Western Australia v Thomas (1996) 133 FLR 124 (‘Waljen’);
WMC Resources & Anor v Evans (1999) 163 FLR 333 (‘WMC/Evans’);
Western Australia/Strickland (Maduwongga) & Ors, NNTT WF97/4, Hon C J Sumner, 20 February 1998 (‘Mungari’); and
Northern Territory of Australia/Bill Risk & Ors/Phillips Oil Company Australia, NNTT DF97/1, Professor Douglas Williamson QC, 29 September 1998.

The centrally relevant statutory provisions are ss 38 and 39 of the NTA.

‘38 Kinds of arbitral body determinations

(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a)    a determination that the act must not be done;
(b)    a determination that the act may be done;
(c)     a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
(1A)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:
(a)    is not reasonably capable of being determined when the determination is made; and
(b)    is not directly relevant to the doing of the act;
is to be the subject of further negotiations or to be determined in a specified manner.

Example:The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.

Matters to be determined by arbitration
(1B)If:
(a)    the manner specified is arbitration (other than by the arbitral body); and
(b)    the negotiation parties do not agree about the manner in which the arbitration is to take place;
the arbitral body must determine the matter at an appropriate time.
Profit‑sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) 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.

39 Criteria for making arbitral body determinations

(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)     any public interest in the doing of the act;
(f)     any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and
(b)    existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect

(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’

The making of a determination involves the exercise of discretionary power by reference to the criteria in s 39. The Tribunal’s task is to weigh the various criteria by giving proper consideration to them on the basis of evidence. They deal with native title and other issues of concern to native title parties as well as the broader community interest. The Tribunal may be called on to decide on the conflicting interests involved. The discretion is quite broad (s 39(1)(f). Greater weight is not given to one criteria over the other (Western Australia v Thomas (1996) 133 FLR 124 at 165- 166).
For the purpose of the right to negotiate provisions of the Act, determined and claimed and registered native title rights and interests are treated as being on the same footing. Claimed and registered native title rights and interests are assumed to exist as if they had been determined. However, there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) of the NTA (WMC/Evans at 339-341). While there is no onus of proof as such it is ordinarily the responsibility of a native title party to produce evidence on these matters as for the most part they are peculiarly within their knowledge (Waljen at 154-163; Ward v Western Australia (1996) 69 FLR 208 at 215-217). This approach has recently been endorsed by the Land and Resources Tribunal, Queensland (Re Doxford [2003] QLRT 58 at [7]-[12]).

Section 39(1)(a)(i) – enjoyment of registered native title rights and interests

The native title parties did not call oral evidence in relation to the substantive issues and relied on matters raised in their contentions. The Wongatha native title party’s contentions refer to “elaborate evidence concerning the laws and customs of the native title party [that] has been given during the past 18 months in the determination proceedings involving the Wongatha claim” but it did not seek to provide any of that evidence for the purposes of this inquiry. Instead, the Wongatha native title party’s contentions include the following statement in relation to enjoyment of registered native title rights and interests:
‘…the mining activity allowable under this mining lease, and the lessee’s right of exclusive possession for mining purposes prevents the Native Title Party from exercising their rights when they wish to; the rights to access the said land and water concerned, to look after their sites, to carry out ceremonies and other activities of cultural significance and to develop any structures they wish to put in place.’
The Wutha native title party has not provided any substantive submissions on the s 39 criteria, but in a one page document dated 15 May 2003 notes that the:
‘The Wutha Native Title Claimant Group ancestors travel through the vast track of land while on ceremonies and lore business, the tribes hunt, gathered and foraged for food to enable them to survive in a harsh environment.’
Given the lack of particularity in the evidence from the native title parties in this matter, the submissions are of little use. They would need to have been combined with evidence of the practical impact of existing mining tenements on Wongatha and Wutha native title rights and interests and the effect of the further grant of the proposed mining leases. The Tribunal is unable to make a finding about the effect of the future act on the enjoyment of the native title parties’ registered native title rights and interests over the particular locality. I also note that the historical and current mining and pastoral activities over the area will have to some extent affected the manner in which any rights are enjoyed.

Section 39(1)(a)(ii) - way of life, culture and traditions

Apart from that described above under s 39(1)(a)(i) there was no evidence of the effect of the grants on this factor.

Section 39(1)(a)(iii) – development of social, cultural and economic structures

Apart from that described above under s 39(1)(a)(i) there was no evidence of the effect of the act on these matters. I accept that mining can have an adverse impact on Aboriginal communities.

Section 39(1)(a)(iv) - freedom of access - freedom to carry out rites/ceremonies

There is no evidence that the areas of the proposed mining leases are used in any way to carry out rites, ceremonies or other activities of cultural significance in accordance with the traditions of the native title party. Further, I note the statement in the grantee party’s contentions as follows:
‘The grantee will not impede access by the Native Title parties and will promote a cordial mutual land use system.’

Section 39(1)(a)(v) - sites of particular significance

Without restating them in full, pursuant to s 146(b) of the Act, I adopt the findings of the Tribunal in Waljen at 209-211 under the heading ‘(ii) Section 39(1)(a)(v)’ up to the heading ‘Evidence’ which sets out the legislative requirements for the protection of Aboriginal sites. In short, under the Aboriginal Heritage Act 1972 it is an offence to interfere with a site without authorisation, whether or not it is listed on a Register kept by the Aboriginal Affairs Department. The Department of Minerals and Energy send to all grantees of mining leases a document entitled ‘Guidelines for Aboriginal Consultation by Mineral & Petroleum Explorers’ which outlines the relevant legislation and contains detailed guidelines about consultation with Aboriginal people about sites.
Evidence from the Department of Indigenous Affairs is that there are no registered sites on either of the proposed mining leases. The Wongatha native title party states that as far as it is aware, no heritage survey has been conducted over the area of the proposed mining leases and says that despite the fact that there are no registered sites in the area, it does not necessarily mean that there are not any sites there to be identified and protected. The grantee party has provided documents showing the result of a search undertaken by the Aboriginal Affairs Department in 1996 of the area of the tenements and the surrounding area. The search identified one listed site in the vicinity of the tenements, but not located on the tenement area. The site, identified as Kurrajong, appears to be located approximately 10 km east of 51 mile well which is located at the northern tip of M29/181. The extract from the Register indicates that the site is located on the interim register, has open access and is an archaeological site (artefacts). Neither of the native title parties have referred to this site, or any other site on or in the vicinity of the proposed mining leases, nor have they provided any evidence that the Kurrajong site is a site of significance to them in accordance with their traditions.
From the conduct of the negotiations I can accept that the grantee party was aware of its obligation under the Aboriginal Heritage Act as provision was made in the draft Heritage Agreement for the carrying out of site surveys. I have no reason to believe that the grantee party will not comply with its obligations under the Aboriginal Heritage Act and take whatever action is necessary to avoid interference with sites of particular significance to the native title party in accordance with their traditions.

Section 39(1)(b) - interests, proposals, opinions or wishes of the native title parties

The only direct submission on this topic was via the Wongatha native title party’s contentions that the Wongatha native title party agreed in principle to the grant of the mining lease subject to the execution of the grantee party’s draft agreement which agreement “would allow for the Native Title Party to have their heritage protected and allow benefits to flow to them from the Grantee Party.” As outlined earlier, I do not accept that the Wongatha native title party agreed to the entirety of the grantee party’s draft Heritage Agreement. There is now no evidentiary basis for making a determination based on that agreement, although the Government party will impose conditions on the grant which will deal with some issues covered in the draft Heritage Agreement.

Section 39(1)(c) - economic or other significance

There is no specific evidence of the economic significance of the grant of the proposed mining leases. The grantee party has not provided any evidence of the extent of the economic significance of the proposed mining leases noting that it is difficult to predict because of the uncertainty about whether a viable ore body will be discovered. Nevertheless, I can at least accept that continuing exploration will have some positive economic effect in the locality and there is potential for this to be increased if mining occurs.

Section 39(1)(e) - public interest

Pursuant to s 146(b) of the Act I adopt the findings of the Tribunal in Waljen (at 215-216) from the heading ‘(vi) Section 39(1)(e)’ up to the heading ‘(vii) Section 39(1)(f)’ on matters relating to the public interest.

There is no need to repeat the findings in full. The Tribunal accepts that the mining industry is of considerable economic significance to Western Australia and Australia and that continuing exploration for new resources is essential to it. The Tribunal notes the submissions and documents provided by the Government party on this point, including the submission that Western Australia’s resources sector accounts for close to 70% of the State’s export income and around 32% of the Gross State Product.

I conclude that the public interest is served by the grant of the proposed mining leases.

Section 39(1)(f) - any other relevant matter - Environmental protection

Pursuant to s 146(b) of the Act I adopt the findings in:

Waljen (at 212-214) from the heading ‘(iii) Section 39(1)(a)(vi)’ up to the heading ‘Evidence’; and
Koara 2 (at 24-27) commencing with the word ‘Under the Environmental Protection Act 1986 (WA)’ and concluding with ‘other than the Murrin Murrin project’.

Again, there is no need to repeat the findings in full. They relate to environmental protection legislation and procedures in Western Australia. The effect on the natural environment is no longer a specific factor to be taken into account under s 39(1) of the Act but I think the Tribunal is entitled to consider the effect on the natural environment as a relevant factor where that effect is related to other factors in s 39(1)(a) (WMC/Evans at 339-341). In this case there is no evidence which falls into this category.
However, the Tribunal is entitled to take into account that the Government party has an environmental assessment process in place which will be activated in the case of a proposal for productive mining and that this process may address some of the issues under s 39(1)(a). Because the nature of any future mining is unknown at present it is not possible to say what level of environmental assessment the project will attract. Nevertheless, it is appropriate to give some weight to this factor as providing some mechanism for future concerns of the kind specified in s 39(1)(a) to be dealt with if further evidence relating to them emerges in the light of a decision for productive mining. The Government party will make it a condition of the grant that the grantee party notifies the native title parties of any proposal for productive mining. This will at least enable them to take up any future concerns, in the knowledge of what is actually proposed.

A condition relating to ‘compensation’

The Wongatha native title party contends that the Tribunal should impose a condition for an amount to be paid into trust on account of a future determination of compensation, however no submissions are provided to support that contention. The Government party refers to some of the Tribunal’s reasons for not imposing a condition for the payment of a trust amount in Anaconda Nickel Ltd/State of Western Australia/Thomas & Ors, NNTT WF98/7, Hon C J Sumner, 19 March 1999 viz – the uncertainty of the law on compensation and lack of judicial guidance on the issue; the right to claim compensation is unaffected; there can be no immediate benefit from a payment into trust and there is no evidence that a trust amount is necessary as a bond or security. The Government party also notes that native title will not be extinguished by the grant of the proposed mining leases but that if the Tribunal does impose a condition for payment of a trust amount the payment should be made by the grantee party. The lack of evidence of the effect of the future act on native title means that even apart from considerations in Anaconda there is no basis for imposing a trust condition.

The Government party’s conditions

The Government party has advised the Tribunal that it intends to impose the conditions referred to above dealing with native title party access, information in the case of productive mining and notice of any proposal to disturb an Aboriginal site under s 18 of the Aboriginal Heritage Act and assignment. These conditions are consistent with those imposed by the Tribunal in WMC/Evans where the evidence of the affect of the grant of a mining lease or native title was also limited.

Despite the lack of evidence from the native title parties, I can have regard to the fact that the grant of the mining leases is only at this stage for further exploration without a specific proposal to mine and where any future impact from mining is unknown. The Tribunal and Federal Court have considered this dilemma in right to negotiate inquiries previously (see Koara 1, Evans, Waljen). Although the Government party’s proposed conditions are limited they are justified in the circumstances where the Government party intends to grant mining leases when there is no present intention to mine and only speculative details of what mining activities may be undertaken. As the Government party intends to impose these conditions as a condition of the grant of the mining leases there is no need for the Tribunal to make its determination subject to them.

Conclusion

There was very little evidence from either native title party which is directly relevant to the areas of the proposed mining leases or the vicinity of them.
I accept for the purpose of this determination that the proposed mining leases are on Wongatha and Wutha country and that native title is assumed to exist over them. However, there is no evidence of how the native title rights and interests are exercised or enjoyed in this locality. I cannot assume that they will be affected or decide how they will be affected without some evidence relating to native title or the other factors of specific Aboriginal interests in s 39(1)(a). The native title parties could have directed their attention to the area of the proposed mining leases and provided evidence about the adverse effect of exploration or mining by reference to the s 39(1)(a) criteria. Indeed at the Hearing, I asked Ms Burns if the Wongatha native title party wished to call any evidence in relation to the matters in s 39, noting that it would be very difficult to make a determination that the acts may not be done or to consider the imposition of conditions without such evidence. Ms Burns confirmed her understanding of that difficulty but confirmed that the Wongatha native title party chose not to provide any such evidence. Given the native title parties’ decision in this regard and using the approach to evidence specified above I am unable to make findings about the particular effect of the proposed mining leases on the enjoyment of native title or other matters in s 39(1)(a).
I am left with evidence of the assumed existence of native title but little evidence specific to this area about it or the other factors in s 39(1)(a). I can accept (and so find) that the native title parties have responsibility for this country and (in common with Aboriginal people generally) are likely to have concerns about mining on it. The right to negotiate processes of the Native Title Act were meant to provide the forum for the concerns to be ventilated and for ameliorative conditions to be imposed if the Tribunal determined to approve the grant of the mining leases. In deciding only to produce very limited evidence relating to these mining leases, the native title parties effectively made the choice not to fully use the processes available to it. At least the additional conditions to be imposed by the Government party will enable access to be maintained as far as practicable and for them to be informed of future significant actions carried out by the grantee party.

Determination

The determination of the Tribunal is that the future acts, namely the grants of mining leases M29/181 and M29/182, may be done.

Hon C. J. Sumner
Deputy President

9 July 2003