Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot
[2010] NNTTA 55
•19 April 2010
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot, [2010] NNTTA 55 (19 April 2010)
Application No: WF09/32
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
The State of Western Australia (Government party/Applicant)
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Cyril Gordon & Others on behalf of the Kariyarra People (WC99/3) (native title party)
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Christopher Murray Paterson and Carey Rae Paterson trading as Pilbara Livestock Depot (grantee party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 19 April 2010
Catchwords: Native title – future act – proposed compulsory acquisition of native title rights and interest for the purpose of “Stock Holding Yards” – power to conduct and inquiry and make a determination – whether grantee party has negotiated in good faith – no requirement to make reasonable substantive offers – grantee party has negotiated in good faith.
Legislation:Native Title Act 1993 (Cth) ss 29, 31, 35, 36(2), 38
Aboriginal Heritage Act1972 (WA)
Land Administration Act 1997 (WA)
Cases:FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141
Gulliver Productions Pty Ltd and Others v Western Desert Lands Aboriginal Corporation and Others NNTT WF05/1 [2005] NNTTA 88; (2005) 196 FLR 52
Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303
Representative of the Ms Maimbo Chilala,
native title party: Yamatji Marlpa Aboriginal Corporation
Counsel for the Mr Rainer Mathews,
native title party: Yamatji Marlpa Aboriginal Corporation
Mr Colin McKeller,
Yamatji Marlpa Aboriginal Corporation
Representatives for the Mr Christopher Paterson, Pilbara Livestock Depot
grantee party: Ms Carey Paterson, Pilbara Livestock Depot
Representatives of the Ms Lorraine Rushton,
Government party: Department of Regional Development and Lands
Mr Nick Fabriziani,
Department of Regional Development and Lands
Counsel for the
Government party: Mr Trevor Creewel, State Solicitor’s Office
REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Background
On 22 November 2007, the State of Western Australia (‘the Government party’) gave notice of its intention in accordance with s 170 of the Land Administration Act 1997 (WA) (‘LAA’) to take interests in land to confer interests under written law; and in accordance with s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’), to compulsorily acquire native title rights and interests (‘the proposed compulsory acquisition’) in certain land (‘the Land’). The purpose of the proposed compulsory acquisition is to enable the issuing of a Lease for the purpose of “Stock Holding Yards” over the Land to Christopher Murray Paterson and Carey Rae Peterson trading as Pilbara Livestock Depot (‘PLD’/‘the grantee party’).
The Land is situated in the Town of Port Hedland and is described as Whole Lot 3003 on Deposited Plan 46738, being part of Lot 203 on Deposited Plan 220594, being part of Pastoral Lease 3114/618 (Boodarie Station), Volume 3128 Folio 641 (Area – 142.4106 hectares).
The native title party in respect of these proceedings is Mr Cyril Gordon, Mr Donny Wilson, Mr Kerry Robinson and Mr Teddy Roberts on behalf of the Kariyarra People (Native Title Claim No. WC99/3 – registered from 22 April 1999). One further Applicant’s name is withheld for cultural reasons. The Kariyarra People’s native title claim entirely overlaps the proposed compulsory acquisition area.
On 24 December 2009, being a date more than six months after the s 29 notice was given, the Government party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application was made on the basis that the Government party and the native title party have not reached agreement as to the doing of the act.
Proposed future act
The Land is located on the Great Northern Highway, approximately 22 kilometres south of Port Hedland. Underlying tenure of the Land is pastoral lease (Boodarie Station), held by BHP Direct Reduced Iron Pty Ltd since 1995. The Land is also completely overlapped by miscellaneous licence L45/158 held by Fortescue Metals Group Ltd.
The PLD proposes to continue to use the Land for the purpose of Stock Holding Yards, which is currently occupied through a sublease arrangement with BHP Direct Reduced Iron Pty Ltd for purposes of livestock holding and agistment. The total number of cattle held at any one time is between 3000 and 4500, and the work is said to be seasonal so does not operate throughout the year. Infrastructure on the Land includes living quarters, a weigh bridge, office, ablution block and general purpose shed. The entire area of the proposed compulsory acquisition is fenced into paddocks, used for grazing and quarantine.
The obligation to negotiate in good faith
The obligation to negotiate in good faith is contained in s 31 of the Act:
‘31 Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with the view to obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any of the parties.
Note:The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Negotiation in good faith
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3)If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.’
I adopt relevant legal principles from Gulliver Productions Pty Ltd and Ors v Western Desert Lands Aboriginal Corporation and Ors [2005] 196 FLR 52 (2005) NNTTA 88 at 55-60 for the purposes of this inquiry unless in conflict with the Full Federal Court decision in FMG Pilbara Pty Ltd v Cox [2009] 175 FRC 141 (2009) 255 ALR 229 (2009) FCAFC 49 (Cox).
The negotiation parties under the right to negotiate provisions are the Government party, grantee party and native title party (s 30A NTA). If any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b) of the Act the Tribunal must not make a determination (s 36(2) NTA). The practical effect of s 36(2) is to place an ‘evidential burden’ on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on.
The NTP contends that the grantee party did not fulfil its obligation to negotiate in good faith. No such contention is made in respect of the Government party.
On 20 January 2010 I made directions for the conduct of the inquiry including that the parties provide contentions and evidence in relation to the good faith issue. The dates for compliance with these directions were later amended on 16 February 2010. After consideration of submissions from the parties I requested further information from the grantee party regarding the nature and frequency of PLD’s activities in and around the Land. The native title party and Government party were both afforded the opportunity to respond to this additional information.
Following the filing of good faith submissions, the parties requested the matter be dealt with on the papers. I believe it appropriate to do so in the circumstances. All parties have now complied with the Directions as amended, in relation to the good faith challenge.
Contentions and evidence
The native title party has provided the following submissions and evidence supporting its contention that the grantee party did not negotiate in good faith regarding the doing of the act:
·Native title party’s submissions (‘NTP contentions’), dated 12 February 2010, and attached affidavit of Rainer Mathews (‘RM1 affidavit’) with annexures ‘RM1’ to ‘RM4’, affirmed and lodged 12 February 2010.
·Native title party’s response to the grantee party’s contentions (‘NTP1 replies), dated 5 March 2010, and attached affidavit of Rainer Mathews (‘RM2 affidavit’) affirmed and lodged 5 March 2010.
·Native title party’s reply to grantee party’s information dated 8 March 2010 (‘NTP2 replies’), lodged 11 March 2010.
·Native title party’s reply to grantee party’s information dated 18 March 2010 (‘NTP3 replies’), lodged 22 March 2010.
The grantee party’s submissions in relation to the good faith issue comprise the following documents:
·Grantee party’s response regarding negotiation in good faith, lodged 22 February 2010, comprising two documents responding to the affidavit of Rainer Mathews’ (‘GP1 contentions’) and to the native title party submissions (‘GP2 contentions).
·Grantee party’s information (‘GP1 information’), provided at the Tribunals request, lodged 8 March 2010.
·Grantee party’s information (‘GP2 information), provided at the Tribunals request, lodged 18 March 2010.
·Grantee party’s information (‘GP3 information), provided at the grantee’s request, lodged 30 March 2010.
The Government party’s submissions in relation to the good faith issue were lodged on 19 February 2010 and included a chronology of events relating to its dealings with PLD dating back to October 2004 and with the NTP following the s 29 notice.
Chronology of negotiations
On the basis of evidence submitted by both the Government and native title parties, I accept that the following key events occurred following the s 29 notification day and prior to the date on which the s 35 future act determination application was made:
| DATE | EVENT |
| 6 October 06 | Notification of “intention to take” (NOITT) issued by Government party [6 October 2006 was in fact that date the NOITT was signed, rather than the notification date] |
| 8 November 06 | NOITT given to Kariyarra native title party and BHP Billiton Direct – reduced Iron Pty Ltd including request for s 31 (1)(a) submission from Kariyarra |
| 17 April 08 | Kariyarra Working Group Meeting (‘KWGM’) held, attended by Government and grantee party representatives. |
| 10 June 08 | Letter containing offer from grantee party sent to Pilbara Native Title Services (‘PNTS’). Government representative requests opportunity to present offer to Kariyarra. (see RM2) |
| 30 June 08 | Government party emails PNTS querying date of next KWGM. |
| 30 June 08 | Email from PNTS advising they will notify parties when next meeting is scheduled. PNTS note that an earlier meeting can be arranged if funding of $15 000 - $20 000 is provided. Government party advise they won’t pay for meeting. |
| 13 August 08 | Government party emails PNTS querying date of next KWGM and request matter be put on agenda. |
| 14 August 08 | Offer from PNTS to put matter on agenda if funding provided. |
| Government party reply to PNTS declining offer due to funding requirement, however still request matter is put on agenda. | |
| Grantee party meet with Government party and advise they are also unable to provide funding for KWGM. | |
| 26 September 08 | Grantee party emailed PNTS requesting matter be included on KWGM agenda. |
| 6 March 09 | PNTS advised parties matter would be on agenda for KWGM scheduled 17 April 09. |
| 14 April 09 | PNTS advise KWGM has been rescheduled to 30 April 09. |
| 28 April 09 | PNTS advise KWGM has been cancelled and no further funding for a further KWGM at this stage. |
| 14 July 09 | PNTS provide response to grantee party’s offer of 10 June 08. |
| 24 December 09 | Government party lodges s 35 Future Act Determination Application with the Tribunal. |
Native title party’s contentions
The native title party makes the following three principal contentions in support of its position that the grantee party failed to fulfil its obligation under the Act to negotiate in good faith based on the Njamal indicia set out in Western Australia v Taylor [1996] NNTT 34; (1996) 134 FLR 211.
Failure to make proposals in the first place.
Failure to make counter-proposals.
Failure to do what a reasonable person would do in the circumstances
Failure to make proposals and failure to make counter proposals
The native title party contends that the grantee party failed to make any proposals or counter proposals that could be ‘considered an offer’. The native title party contends that at the working group meeting of 17 April 2008 an offer was made by the native title party, being that ‘it would withdraw its objection in exchange for agreement that the grantee party pay 5% of the agistment fee for all cattle passing through the stockyard’ (RM1 affidavit, para 6). Mr Paterson, on behalf of the grantee party, stated that PLD was not in a financial position to pay this fee. Mr Paterson stated that ‘he would be prepared to conduct a heritage survey of the site’ (RM1 affidavit, para 7). The native title party contends that the grantee party’s willingness to conduct a heritage survey is simply ensuring its compliance with the Aboriginal Heritage Act 1972 (WA) (‘AHA’) and as such does not constitute an offer (NTP contentions, para 9).
The AHA details the types of places it applies to, the requirement to report findings to the Registrar, what constitutes an offence under this Act and the penalties for failing to comply. It is a defence to proceedings under the AHA for the person charged to prove that he did not know and could not reasonably be expected to have known, that the place or object to which the charge relates was a place or object to which this Act applies (s 62 AHA). While the conduct of a heritage survey may serve as a defence for the grantee party in the event that an Aboriginal site is interfered with, the AHA does not specify that conduct of a survey is a legal requirement. The offer therefore cannot be dismissed as the grantee simply ensuring compliance with the requirements of the AHA. The grantee party states the offer was made to ‘identify sites of significance and ensure recording, recognition and respect if any sites were found. This offer was made in good faith and of respect and knowledge of the importance of cultural heritage’ (GP1 contentions, Item 7). I accept that this offer was made in good faith as part of these negotiations.
On 10 June 2008 the Government party emailed the native title party, attaching a letter including an offer from the grantee party. PLD’s letter outlined information on PLD’s history and involvement with the live stock trade, its finances and included a counter proposal to the native title party (RM2). The method of calculation of PLD’s offer is not entirely clear but seems to be based on the total stock tonnage storage out of Pt Hedland (of which PLD is responsible for approximately half) for the years 2006 and 2007 which is converted to a number per head of stock. The offer is then based on 2.5 percent of PLD’s share of the trade and presumable on the basis that it charges $1 to $1.50 for holding the stock. In any event, the total amount arrived at for those two years is $426.28. Following the details of this calculation, the grantee party states that they believe a payment of this amount to Kariyarra would be minimal to the point of ‘inconsequential’ and therefore proposes, alternatively, to make a one off payment of $500 to the Well Womens’ Centre in exchange for guarantee of ‘no further native title interference’.
The native title party says that the Well Womens’ Centre has no affiliation with the Kariyarra people. As such the native title party contends that this cannot be considered an offer as it ‘provides no consideration to the native title party and offers nothing to them, pecuniary or otherwise, for the complete loss of their rights and interests in the area of the lease’ (NTP contention, para 13). The grantee party considered that this offer to a non-government organisation a ‘worthy cause’ from which the wider community, including members of the native title party would benefit. (GP1 contentions, Item 11). The PLD information and offer also pointed to the financial realities of their business and their limited scope for financial negotiations.
At the working group meeting Mr Paterson also stated that he would consider employment of the Kariyarra if members of the group are available (RM1, 3). A vague reference to employment is also made in the PLD’s subsequent written proposal, ‘[t]he PLD has an equal opportunity employment charter’ and ‘we have employed local indigenous’ (RM2). While neither party pursued this idea, either in further correspondence or in direct negotiations, I take the above to be indicative of the grantee party’s willingness to consider employment for the native title party. Certainly there is no indication of outright refusal to consider the proposition.
Failure to do what a reasonable person would do in the circumstances
The native title party contends that the grantee party’s use of the words ‘guarantee of no further native title interference’ in their proposal of 10 June 2008 demonstrated a view of native title rights and interests as ‘something that was there merely to meddle with and hamper their progress’ and shows a failure to ‘acknowledge the legitimacy of the claim’ (NTP contentions, para 18). While it could be said that the PLD’s choice of words could have been better, it must be assessed in the context of the letter and the grantee party’s negotiating behaviour in general. The grantee party’s behaviour generally does not indicate disregard for the legitimacy of the native title party’s claim. There is no pattern of unreasonable behaviour or inappropriate interaction between the PLD and the native title party.
The native title party contended that the offer of payment to the Well Womens’ Centre is benefiting an organisation with which Ms Paterson is involved. PLD responded that Ms Paterson had not worked at the Well Womens’ Centre since February 2006 (GPI, Item 12).
It must be noted that in assessing whether parties have negotiated in good faith, there is no obligation on the Tribunal to decide whether the offers made by a grantee party are unreasonable although it may have regard to them if it assists in an overall assessment of the issue. (Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303). In Cox, the Full Court emphasised that it had been repeatedly recognised that the inquiry into the question of good faith is directed to the quality of the party’s conduct. It also found that there is no prescribed content and manner for negotiations for the purpose of section 31(1)(b) other than that negotiations must be conducted in good faith and with a view to obtaining agreement about the doing of the future act (Cox at [38]).
Additional considerations
In reaching a conclusion on this matter I have also had regard to the following matters. First, I have taken into account the nature and purpose of the proposed compulsory acquisition in the context of the past and present use of the Land. The underlying tenure of the Land consists of pastoral lease 3114/618 (Boodarie Station), active since 1967 (GP1 information) which will already have had some practical effect on the exercise by the native title party of their rights and interests. The native title party will not be able to obtain a determination of exclusive native title over it. Further PLD has been operating stockholding yards on the Land since 2000 including as a quarantine facility.
Second, with respect to the negotiating behaviour of the native title party I take into account that they did not make a formal submission to the Government party pursuant to s 31(1)(a) of the Act or provide during the negotiations other information about the current exercise of their rights. The meeting on 17 April 2008 concluded when the Karayarri representatives left the meeting because of what they considered to be an inadequate offer made by the PLD. The negotiations did not resume largely because of the inability of PNTS to organise a further meeting despite regular contact about it from the Government party and a willingness of PLD to attend. This delay was not attributable to PLD. PNTS said it could not hold a further meeting without funding and time could not be found on the agenda of other Karayarri Peoples meetings. The grantee party’s proposal was made on 10 June 2008 but it was not until 5 August 2009 that a response was received formally rejecting the offer. On the basis of the evidence and the financial situation with respect to PLD’s existing business I accept that PLD would have had difficulties in providing funds to the native title party for a further meeting. The Government party declined to provide funds. In any event the obligation to negotiate in good faith does not mean that a Government or grantee party is required to provide funds to a native title party for meetings or otherwise fund the negotiations (even if it is common practice for mining companies to do so for large projects).
Third, this is a case where native title has not been determined so there is no immediate entitlement to compensation for the effect of the future act on native title (i.e. until native title is determined and compensation either agreed (presumably with the Government party who has actually taken the interests) or determined. The grantee party will not obtain freehold title to the Land but will obtain a lease from the Crown for the limited purposes specified.
Concluding comments
There is no question that there were some negotiations between the grantee and native title party and they were with a view to obtaining the native title party’s agreement to the doing of the act. I accept that the native title party considers the offers made to have been minimal but in the context of this case this is not indicative of bad faith on the part of PLD. The grantee was prepared to attend a further Kariyarra working group meeting but this did not eventuate. There is no evidence to suggest a ‘breach of or absence of good faith such as deliberate delay, sharp practice, misleading negotiating or other unsatisfactory or unconscionable conduct’(Cox at [27]) on the part of the grantee party.
Decision
The grantee party has negotiated in good faith with the native title party as required by s 31(1) of the Native Title Act1993 (Cth) and the Tribunal has power to conduct an inquiry and make a determination.
Hon C J Sumner
Deputy President
19 April 2010
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